By Mitchel Wilson
In Ellins v. City of Sierra Madre, 35 IER Cases 432 (2013), the Ninth Court of Appeals remanded a case against the City of Sierre Madre for trial because the trial court dismissed it after it incorrectly concluded that Officer John Ellins did not qualify for first amendment protections.
From 2006 until 2010, Ellins served as President of the Sierra Madre Police Association (SMPA). Ellins stopped attending scheduled meetings with Chief Marilyn Diaz and began filing lawsuits, grievances, and issued two SMPA press releases that criticized Diaz. One of the press releases announced a vote of no confidence against Diaz.
…the union initiated the vote because of Diaz’s “lack of leadership, wasting of tax dollars, hypocrisy, expensive paranoia, and damaging inability to conduct her job.” The SMPA issued two press releases that Diaz read: one about the vote, and another that criticized Diaz’s management style. [One] press release … listed examples of Diaz’s purported incompetence and lack of leadership, including allegations that she wasted taxpayers’ money, fell asleep at City Council meetings, violated the [CBA], and generally harassed her employees.
Ellins also was the subject of three internal affairs investigations and although one resulted in a suspension he was never required to serve it. Under the direction of Diaz, Ellins was the target of a criminal investigation for the alleged use and sale of steroids, assault with duty weapon, and other alleged misconduct that all proved fruitless.
Despite this, Ellins submitted an application for Advanced Peace Officer Standards and Training (“Post”) certificate on February 26, 2009, which required Diaz’s signature. While his application was pending, Ellins served a suspension resulting from the 2008 failure to cite, or arrest a theft suspect from May 3 to June 3, 2009. Normally, applications are signed within a few days or weeks, but Diaz did not sign the application immediately because “of her concern that Ellins lacked the requisite good moral character … [and] none of the other prior applicants had ever received discipline more severe than a warning.”
Ellins sued after returning from suspension because his application was still pending. When the DA told Diaz that it would not file charges against Ellins, she relented and signed his POST application which granted a pay increase of five percent retroactive to the day Ellins returned from suspension.
Diaz’s attempts to appease Ellins were unsuccessful and Elllins pursued his suit for the failure to award the five percent salary increase from when he filed the application in February 2009. Ellins asserted that his activities as SMBA are protected under the first amendment and that Diaz’s failure to promote him was retaliation for the press releases.
To bring his claim, the Ninth Circuit held that Ellin’s must show that his conduct involved “speaking” as a private citizen of a public concern and that he suffered an adverse employer action because of it. Diaz contended that the press releases were extensions of a personnel grievances and connected to Ellin’s job.But because the press release addressed Diaz’s “leadership style and other department-wide problems” the Ninth Circuit concluded that they are matters of public concern. Because Ellins’s participation as SMBA President was not required by his position as an officer, the relevant actions are protected as those of a private citizen.
Ellins’s was able to show an adverse employer action despite there being no promised approval periods on the POST application and because the pay was retroactive to when Ellins’s returned from suspension. However, there was approximately two month period between when Ellins filed the POST application and when he was suspended which could lead a reasonable jury to conclude the lost pay increase in that time is grounds for an adverse action. Even the denial of a minor financial benefit, the Ninth Circuit concluded, may form the basis of a First Amendment claim.
