THOMAS M. CANNON v. VILLAGE OF BALD HEAD ISLAND, NORTH CAROLINA
US Court of Appeals for the Fourth Circuit, Wynn, May 30, 2018,
Due Process – A town manager was not entitled to qualified immunity when he sent an e-mail to all town employees falsely stating that officers were fired for sexual harassment.

Facts:
In 2014, officers in Bald Head, North Carolina, were fired based on the content of a private text-message chain after the text messages were shown to the town’s commissioner.
Bald Head combines police, firefighting, and paramedic departments into a single multi-disciplinary group of emergency personnel headed by a Director of Public Safety. All officers are supposed to be trained in firefighting, emergency medicine, water rescue, and law enforcement.
From July 25 to August 15, 2014, the officers engaged in a group text-message chain with several other members of the Department that discussed a wide variety of topics.
Among those topics was a local news article where the Director of Public Safety said that all but two officers were certified to perform all of the Department’s four (fire, medicine, water rescue, law-enforcement) services. The officers on the text chain identified more than two employees lacking one or more certifications.
Additionally, officers on the text chain expressed concern that the officers “who claim to be ems can’t take a blood pressure” and officers who were supposed to be firefighters “have no real fire experience” and had not attended “a controlled training burn.”
Other text messages directly questioned the Department’s leadership. Still others veered off into discussing “non-safety-related topics, including workout tips, sexual gibes, and former coworkers.”
One of the officers included in the text-message chain showed it to the Director.
Once the Director found out, she went to the town manager and recommended termination of the officers.
The town manager agreed, stating that the messages displayed “a clear tone of hostility and insubordination” towards command. The town manager testified that the officers “were terminated because they were jerks… they were disrespectful… of the chain of command.”
Each officer was provided with a letter of termination explaining the reasons for their termination. Each was terminated for “discourteous treatment of other employees” and “inappropriate electronic communications” as well as “detrimental personal conduct.” Two were terminated for “sexual harassment” as well.
These letters were then given to local media.
The town manager then sent an e-mail to all town employees saying that all five were fired for sexual harassment and “detrimental personal conduct,” among other reasons. Included in the e-mail was a definition of “detrimental personal conduct,” which under the town’s policy meant ““behavior of such a serious detrimental nature that the functioning of [Bald Head] may be or has been impaired; the safety of persons or property may be or have been threatened; or the laws of any government may be or have been violated.”
The Director then sent notice of termination to the North Carolina Criminal Justice Education and Training Standards Commission. In these notices, the Director gave a different reason for termination: creation of a hostile work environment.
The officers sued the town, its town manager, and its director of public safety for violating their First Amendment rights, the Fourteenth Amendment for violating due process, and North Carolina defamation law.
The town manager and director tried to have the suit dismissed, arguing that they had qualified immunity.
Additionally, the town manager offered to give the Officers a belated name-clearing hearing.
The trial court denied their motion, refusing to dismiss the case.
The town manager and director then appealed, arguing that they were entitled to immunity because no clearly established law said that the officers had a greater interest in expression than the Department had in maintaining order and discipline.

Held: The Fourth Circuit held that the town manager was not entitled to qualified immunity for violating due process, but was entitled to qualified immunity for the First Amendment violation since it wasn’t “beyond debate” that he wasn’t allowed to fire the officers for a personal text-message chain criticizing leadership

1st Amendment – Public employees do not “relinquish First Amendment rights to comment on matters of public interest by virtue of government employment.”

1st Amendment – Limitations – The First Amendment does not protect public employees when their speech interests are outweighed by the government’s interest in providing efficient and effective services to the public.

1st Amendment – Limitations – This is particularly true in “paramilitary” organizations such as police and fire departments.

1st Amendment Test- To determine whether a government employee’s First Amendment rights were violated, a court will consider:
– Was the employee’s speech a substantial factor in causing the disciplinary action? If not, there is no violation
– Was the speech as a citizen or an employee? The First Amendment does not protect speech made pursuant to a government employee’s official duties
– Was the speech about a matter of public concern? Or personal “complaints over internal office affairs”? The greater the public interest, the more protection
– If the speech was made as a citizen and addressed a matter of public concern, the court balances the interest of the employee in speaking freely with the interest of the government in providing efficient services.

1st Amendment – Weighing Government interest in limiting employee speech includes considering whether the speech:
– impaired the maintenance of discipline by supervisors
– impaired harmony among coworkers
– damaged close personal relationships
– impeded the performance of the public employee’s duties
– interfered with the operation of the institution
– undermined the mission of the institution
– was communicated to the public or to coworkers in private
– conflicted with the responsibilities of the employee within the institution
– abused the authority and public accountability that the employee’s role entailed
– the value of the employee’s speech to the public

Qualified Immunity – A government official is entitled to qualified immunity as long as they do not “violate clearly established statutory or constitutional rights”

Qualified Immunity – A right is “clearly established” if a court decision has placed the issue “beyond debate.” Put differently, a right is “clearly established” when a court decision has made the issue “sufficiently clear that a reasonable official would understand that what he is doing violates that right.”

Practice Note: Once a court has decided an issue, government officials are expected to follow it immediately. Failure to do so may expose them to liability, so it is recommended that you keep reading these law updates…

First Amendment – It has been previously established that it was a First Amendment violation to fire an officer for signing on to a letter alleging that a police department displayed “a High level of insensitivity toward Black officers,” followed “certain unwritten policies in the department that were inhibiting the advancement of Black officers,” and otherwise subjected black officers to unequal treatment, thereby posing a risk to public safety. The public’s interest in having a police force free of broad-based discrimination outweighed the department’s interest in morale and discipline.

From the Case: Unlike the public letter in that case, the officers here “did not voice their concerns to Department leadership, nor did the text messages seek to effect change in the Department or otherwise rectify the safety deficiencies.” Additionally, unlike the letter seeking racial equality, “the text-message chain included messages that arguably were insubordinate or rebellious.”

From the Case: Because no prior court opinion placed the issue “beyond debate,” the government officials were entitled to qualified immunity for the allegation that they violated the First Amendment.

Due Process – False Statement on Termination – Public employees have a due process right to not have the government improperly limit their future employment prospects by making false claims about the reason for termination without giving the employee a meaningful opportunity to clear his name

Due Process – Hearing – When a governmental employer places an employee’s reputation “at stake” by publicly disclosing defamatory charges, “notice and opportunity to be heard are essential.”

Due Process – Hearing – This right to be heard must be granted before “the dissemination of false, stigmatizing charges” as “an opportunity to clear your name after it has been ruined… is not ‘meaningful.'”

From the Case: “Here, the Officers never received a name-clearing hearing. Accordingly, [the town manager] has denied the Officers due process of law.” “The Fourteenth Amendment required Defendants to afford the Officers a constitutionally adequate name-clearing hearing before publicly disclosing false information regarding the basis for the Officers’ termination that, in fact, restricted their ability to obtain new employment.”

Due Process – False Statement on Termination – An employee’s constitutional rights have been violated if he was denied the right to a meaningful hearing before charges against him by his governmental employer: “(1) placed a stigma on his reputation; (2) were made public by the employer; (3) were made in conjunction with his termination or demotion; and (4) were false.”

Stigma:
Due Process – A “stigma” sufficient to allow a due process lawsuit is one that implies “the existence of serious character defects such as dishonesty or immorality.”

From the Case: “Here, the Officers’ termination letters and the email to all Bald Head employees regarding the Officers’ termination included allegations of ‘harassment,’ ‘sexual harassment,’ and ‘detrimental personal conduct.'” These amount to “significant character defects,” and therefore “stigmatize the Officers’ reputation in a constitutionally cognizable manner.”

From the Case: Qualified Immunity is not appropriate here because the right to a hearing prior to “the dissemination of false, stigmatizing charges” was decided “years before the Department discharged the Officers and disclosed the grounds for their termination.”

Made Public:
From the Case: “Peck did not just place the termination letters in the Officers’ personnel files; Peck disclosed the allegedly false and stigmatizing letters to the media. And Peck made further disclosures of false and stigmatizing statements regarding the grounds for the Officers’ termination in his email to Bald Head employees.”

Falsity:
From the Case: “Peck’s email to the Bald Head employees stated that ‘five officers have been released from employment this morning based on violations of [Bald Head] policies pertaining to harassment, sexual harassment, discourteous conduct and inappropriate electronic communications, thereby suggesting that Defendants fired the Officers for the same reasons. Yet, the termination letters for some of the officers do not mention “harassment” or “sexual harassment,” and none of the Officers’ Forms F-5B mentions “harassment” or “sexual harassment.” Indeed, the reasons provided in the termination letters, the Forms F-5B, the email to Bald Head employees, and Peck’s testimony are inconsistent with each other.” “We conclude that under clearly established precedent, Peck made public false and stigmatizing charges regarding the grounds for the Officers’ termination.”

From the Case: “In sum, under clearly established law, Peck’s disclosure of the allegedly false and stigmatizing termination letters and email to Bald Head employees deprived the Officers of a constitutionally cognizable liberty interest. And this Court’s precedent also clearly
establishes that Peck did not afford the Officers due process of law because Peck did not afford the Officers a name-clearing hearing before disseminating the false and stigmatizing materials. Accordingly, we affirm the district court’s denial of qualified immunity regarding the Officers’ Fourteenth Amendment liberty interest claims.”