Wednesday, March 27, 2019
Panel Says General Counsel Was Entitled to Qualified Immunity in Action by Senior Assistant Who Was Discharged for Facebook Posting Denigrating Candidate for City Council
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that the general counsel for a governmental entity is entitled to qualified immunity in an action against him by the man he fired as his senior assistant counsel based on off-duty campaigning, via a website, against a candidate for the City Council.
In a memorandum opinion, a three-judge panel said that Robert Fabela, general counsel of Santa Clara Valley Transportation Authority (“SCVTA”), a regional transportation agency, is immune from liability to the fired lawyer, Joseph Ryan. The plaintiff, for one day in June 2014, maintained a Facebook webpage, “Anyone But Terrazas For City Council” which took aim at Santa Cruz attorney David Terrazas, a then-SCVTA employee running for reelection to the Santa Cruz City Council.
On June 5, 2015, a settlement agreement was executed by Terrazas and SCVTA over alleged harassment by Ryan and others, and the same day, Ryan was discharged.
‘Clearly Established’ Right
Qualified immunity is afforded public officials unless they violate the plaintiff’s “clearly established” constitutional or statutory rights. The defendants argued that because First Amendment retaliation claims are tied to a balancing of facts specific to the situation, the plaintiff’s right can rarely be found to be a clearly established one.
District Court Judge Lucy H. Koh of the Northern District of California, in denying qualified immunity to Fabela on March 30, 2017, said:
“…Plaintiff has sufficiently alleged that Fabela violated Plaintiff’s First Amendment rights by terminating Plaintiff in retaliation for Plaintiff’s protected speech. The right to be free from termination in retaliation for protected speech was ‘clearly established at the time’ that Fabela terminated Plaintiff in 2015.”
In reversing, the three-judge panel said yesterday that while a government employer ordinarily may not fire an employee based on the expression of political views, there is a “policymaker exception” under which a termination of employment may be effected by a policymaker where his or her performance would be impeded by continued employment of a person with differing views.
Yesterday’s opinion says:
“We hold that a reasonable official in Fabela’s position might have concluded that Ryan was a policymaker, and that Fabela is therefore entitled to qualified immunity….The policymaker inquiry is multi-factor and fact-intensive….Here, no case is sufficiently analogous to have put Fabela on notice that Ryan’s position as senior assistant counsel would fall outside the policymaker exception. We do not decide whether Ryan was a policymaker as a matter of law, only that his right not to be fired for political considerations was not ‘clearly established in light of the specific context of the case.’ “
The case is Ryan v. Fabela, 18-15232.
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