Metropolitan News-Enterprise


Thursday, November 12, 2009


Page 1


C.A. Upholds Firing of Law Librarian Over Scathing E-Mail




A reference librarian whose work included assisting self-represented litigants with their appeals yesterday lost his own pro per appeal from the rejection of his wrongful termination action against the trustees of the San Diego County Public Law Library.

Div. One of the Fourth District Court of Appeal affirmed an order by retired San Luis Obispo Superior Court Judge Barry Hammer, sitting on assignment as a San Diego Superior Court judge.

The visiting jurist granting summary adjudication on Michael Kaye’s claims for violation of the state Constitution’s “liberty of speech” clause, the statute governing employment of law librarians, the California False Claims Act, and the Ralph M. Brown Act after his federal free speech claims were removed to U.S. District Court.

Kaye’s difficulties, Presiding Justice Judith McConnell explained, arose in February 2006 after he was informed by another library employee that the Administrative Office of the Courts was seeking a representative of the library to serve on a panel at a conference on self-represented litigants.

Kaye asked for approval from library Director Robert Riger, who approved his attendance. That approval was later questioned by Kaye’s supervisor, Joan Allen-Hart, who was out ill when the request came in but said that as a matter of protocol, it should have been funneled to her or to Riger, rather than to Kaye.

Response to Inquiry

Riger asked another library employee to look into the matter. Kaye, upset at the inquiry, removed himself from the panel, and later sent out an e-mail complaining that reference librarians were being treated as “fungible and disposable peons who are not genuinely valued.”

He complained that schedules were being arbitrarily changed; that he had been assigned to serve on a committee in which he had no interest; that he was the obvious choice to represent the library at the conference; that he had been subjected to a “vindictive, retaliatory, accusatory investigation”; that the conduct of Riger and Allen-Hart was “disgusting, degrading, and utterly unprofessional”; and that Riger was planning to attend the conference himself, even though he was not on a panel and was not a court officer or employee, and that he might be trying to collect expenses to which he was not entitled, in violation of the California False Claims Act.

Kaye was notified the next day that he was being placed on administrative leave, and was notified two weeks later that Allen-Hart and Riger were seeking his dismissal for “insubordination and serious misconduct.”

Former Trustee

An attorney who was a former library trustee was selected to conduct a pre-termination hearing, following which Riger terminated Kaye. When Kaye submitted a “post-termination administrative appeal,” the matter was heard by the Board of Trustees, which found that the manner in which Kaye had raised his complaints was “intentionally calculated to disrupt the office, undermine the authority of the Director, and impinge upon working relationships within the Library.”

McConnell agreed with the trial judge that Kaye’s complaints about an internal matter were not protected by the state Constitution. In doing so, she adopted the U.S. Supreme Court’s analysis in Garcetti v. Ceballos (2006) 547 U.S. 410 and rejected Kaye’s argument that the state Constitution conveys broader rights with respect to employee speech.

The Supreme Court held that government employees are not entitled to free speech coverage for things they say in the scope of their jobs, and McConnell noted that “California courts have routinely followed [U.S.] Supreme Court precedents in addressing public employee free speech matters.”

McConnell also rejected Kaye’s California False Claims Act cause of action.

“The undisguised purpose” of Kaye’s missive was to air his personal grievances about the inquiry, not to prevent Riger from collecting public money that he was not entitled to, the jurist concluded. In order to obtain whistleblower protection under the CFCA, she said, “the employee must have reasonably based suspicions of a false claim and it must be reasonably possible for the employee’s conduct to lead to a false claims action.”

Financial Motivation

Kaye’s suggestions about Riger’s possible financial motivation “were insinuations based on speculation and inaccurate assumptions about the approval and funding for Riger’s conference attendance,” and could not reasonably have led to a false claims action, the presiding justice wrote.

McConnell further swept aside Kaye’s arguments that he was fired in violation of the law library statute or the Brown Act.

Under Business and Professions Code Sec. 6345, she explained, a law library employee serves at the pleasure of the trustees. Even if Kaye was correct in asserting that Riger had no power to fire him, the trustees’ action was independent of Riger and complied with the statute, McConnell wrote.

Kaye’s Brown Act claim was based on the presence of an outside attorney at the closed meeting at which he was terminated. McConnell, however, explained that the act allows public boards to meet in closed session to discuss employee discipline, absent an objection by the employee, and that boards are allowed to have their legal counsel present during such meetings.

The case is Kaye v. Board of Trustees of the San Diego County Public Law Library, 09 S.O.S. 6453.


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