Martha Karl worked as the confidential administrative assistant to the Chief of Police of the City of Mountlake Terrace, Washington. Her job duties were primarily clerical in nature, such as processing time cards, taking minutes at meetings, and answering the phone. In 2008, Karl was subpoenaed to give deposition testimony in a First Amendment retaliation lawsuit filed against the City by former Police Department employee Sergeant Jonathan Wender.
During her deposition, Karl testified that Wender was outspoken about his views on the need for drug policy reform; that the Chief of Police Scott Smith and the Assistant Chief Charles Caw disapproved of Wender's comments; and that Caw urged Smith to terminate Wender because other local police agencies were watching to see whether Smith would take a strong stance on drug law enforcement. Karl also testified that Wender had a reputation for honesty, while Smith had a reputation for being dishonest and Caw had a reputation as a "smooth talker." After Karl's deposition, Caw was overheard commenting that Karl's testimony "really hurt" the City, that she could not be trusted anymore, and that the Police Department would have to find a way to "get rid of her."
In late 2008, Greg Wilson replaced Smith as Chief of Police. Caw told Wilson that he had concerns about Karl's work performance. Shortly thereafter, Karl was involuntarily transferred to a part-time records position where she was subject to a probationary period and was placed under Caw's direct supervision. In this position, Karl was allegedly subjected to unreasonable discipline and criticism. Caw and Wilson then discussed Karl's employment and recommended to the City Manager that Karl be terminated. On Wilson's recommendation, the City Manager terminated Karl.
Karl sued the City and Caw for First Amendment retaliation under 42 U.S.C. Section 1983. The District Court denied Defendants' motion for summary judgment and Caw's claim to qualified immunity. The Ninth Circuit Court of Appeals affirmed.
A public official is entitled to qualified immunity unless: (1) the facts alleged show that the official's conduct violated a constitutional right; and (2) the right at issue was clearly established in light of the specific context of the case at the time of the alleged misconduct. To establish a First Amendment retaliation claim, a plaintiff must show, among other things, that the plaintiff: (1) spoke on a matter of public concern, (2) spoke as a private citizen and not within the scope of her official duties as a public employee and (3) suffered an adverse employment action, for which the protected speech was a substantial or motivating factor.
The Court found that Karl's deposition testimony addressed a matter of public concern because it was offered in the course of a Section 1983 lawsuit alleging that the City and Chief of Police violated an employee's constitutional rights. The case implicated the exposure of significant government misconduct. Although Karl's testimony was not made in a public forum, it was part of a case involving a matter of public concern and had the potential to bring to light potential wrongdoing by the City and/or public officials.
The Court held that Karl's testimony was not speech made as a public employee. Although she was paid for her time, her testimony was the product of a subpoena and not commissioned or created by the City.
Finally, Caw was not entitled to qualified immunity because a reasonably competent official would have known that a public employee's subpoenaed deposition testimony addresses a matter of public concern when it is given in connection with a judicial or administrative proceeding involving allegations of significant government misconduct.
LCW Practice Pointer:
This case is a fairly simple example of First Amendment retaliation. Any First Amendment retaliation claim requires a careful analysis regarding whether the speech was made pursuant to the employee's official duties and whether the speech is a matter of public concern. However, testifying in an administrative or judicial proceeding, by itself, is not sufficient to show that the testimony is a matter of public concern. Rather, the Court will look at the nature of the underlying litigation in which the testimony is given. Here, the Court found that the nature of the underlying litigation did relate to a matter of public concern because of the potential for the lawsuit to bring potential wrongdoing to light.
Karl v. City of Mountlake Terrace (9th Cir. 2012) ____ F.3d _____.