Monday, March 25, 2013
Ninth Circuit Revives Local Officer’s Suit Against Police Chief
By KENNETH OFGANG, Staff Writer
A former Sierra Madre police officer may sue the city’s now-retired police chief, but not the city itself, for having held up his pay raise in retaliation for his leading a vote of no confidence in the chief, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The panel reinstated a suit filed by John Ellins in 2009 against Marilyn Diaz and the city. At the time of the filing, Ellins was president of the local police union and Diaz was the chief of police.
Ellins left his union post, and his employment, in 2010. Diaz retired at the end of 2011.
Ellins alleged that Diaz delayed approving his advanced certificate from the Commission on Peace Officer Standards and Training—a certificate that would have entitled him to a five percent raise under the union’s agreement with the city—because of his role in the vote of no confidence. Diaz contended that the delay was a result of pending disciplinary investigations.
The former officer said he had spearheaded the no-confidence vote because of the chief’s “lack of leadership, wasting of citizens’ tax dollars, hypocrisy, expensive paranoia, and damaging inability to conduct her job.”
Diaz said that she delayed endorsing the certificate because Ellins “lacked the requisite good moral character,” based on three internal affairs investigations. He had been ordered suspended for 125 hours for associating with a convicted narcotics offender and attempting to dissuade a sergeant from issuing a parking ticket to the ex-convict; was investigated for failure to cite or arrest a theft suspect; and was reprimanded for telling a city official that residents who did not want to be evacuated during a serious wildfire near Sierra Madre were “stupid” and “deserved to die.”
Diaz had also asked prosecutors to probe whether Ellins had sold or used steroids, had committed assault with a weapon, or had engaged in sexual misconduct while on duty, based on comments made to Diaz by an unnamed fellow chief. No criminal charges were brought.
Diaz acknowledged that she felt “disappointment” and “disbelief” after her officers voted a lack of confidence in her leadership. But she denied it was a factor in her actions with respect to Ellins’ POST certificate. Ellins received the certificate, and obtained the raise, after filing suit, about three months from when he applied.
In moving for summary judgment, the defendants argued, among other things, that his speech involved a matter of private concern between the union and the chief, rather than a public matter with which the First Amendment was concerned; that if it was a matter of public concern, Ellins was acting in his public capacity and the suit was barred by Garcetti v. Ceballos, 547 U.S. 410 (2006); that mere delay in getting his raise was not adverse employment action; that the delay was not retaliatory; and that the chief was entitled to qualified immunity.
Senior U.S. District Judge Consuelo B. Marshall of the Central District of California granted the motion, but the appellate panel, in an opinion by Judge Kim M. Wardlaw, said Ellins had established a prima facie case of retaliation.
“In light of the Supreme Court’s longstanding and unequivocal precedents protecting employee speech, we conclude that a reasonable official in Diaz’s position would have known that delaying Ellins’s application to the P.O.S.T. program because of his union activity, which resulted in a lower salary than that to which he otherwise would have been entitled, violated Ellins’s First Amendment rights; that in leading a union vote Ellins acted as a private citizen addressing a matter of public concern; and that depriving Ellins of salary in retaliation for his protected speech was unconstitutional,” the judge wrote.
Wardlaw also said the action was not barred by Garcetti because Ellins’ union activities in general, and his leadership in the vote of no-confidence in particular, were not part of his duties as a police officer.
The panel did agree that the city was not liable under Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978).
Under that decision, the judge explained, a local entity is not liable for a civil rights violation by its officer or employee unless that person was carrying out a government policy or custom, or a directive from a policymaker with ultimate responsibility for the action.
In this case, Wardlaw reasoned, there was no evidence the city has a custom or policy of retaliating against union leaders, nor was Diaz the city official ultimately responsible for ruling on Ellins’ request for a POST certificate.
That official was the city manager, and there was no evidence the city manager shared or knew of Diaz’s alleged retaliatory motive, the appellate jurist said.
Judge Richard A. Paez joined in the opinion, while Judge Johnnie Rawlinson concurred separately.
“Having determined that material issues of fact remain for trial, I would go no further,” Rawlinson wrote. “Because the record is void regarding whether the activities Ellins undertook as union president were within the realm of his official duties, the determination regarding whether his activities were undertaken as a private citizen is more appropriately made by the factfinder.”
Attorneys on appeal were Michael A. Morguess and Carolina V. Diaz of Lackie, Dammeier & McGill, for the plaintiff and Elizabeth M. Kessel and Scott E.Boyer of Kessel & Associates for the defendants.
The case is Ellins v. City of Sierra Madre, 11-55213.
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