Wednesday, December 4, 2002
Ninth Circuit Judges Say City May Have Violated Free Speech Rights of Fired Official
By a MetNews Staff Writer
The former finance director of the City of Oxnard may be entitled to a trial on his claim that the city fired him in violation of the First Amendment because he blew the whistle on the city-owned golf course’s financial troubles, two Ninth U.S. Circuit Court of Appeal judges suggested yesterday.
“I’m sure that when you face [the] jury, they will see it your way,” Judge Alex Kozinski stingingly told the city’s lawyer, Patricia Anne Kinaga of Seyfarth Shaw’s Century City office, as she completed her argument in favor of upholding a summary judgment in favor of the city.
Phillip Molina claims he was fired by City Manager Edmund Sotelo in October 1999 because two of the “big guns” on the city council—as Molina alleges Sotelo described them—wanted him to “cook the books” to delete mention of how much the city was losing on its investment in a project called River Ridge, and were troubled when he reported his misgivings to the press.
The hotel-golf course complex drains the city’s coffers of $2 million a year, according to news reports. Molina says council members Tom Holden and Dean Maulhardt wanted him to sacrifice accuracy to make a new golf course project, targeted to open next year, look good.
Officials claim Molina was fired for not responding to requests for accurate budget information.
U.S. District Judge Christina Snyder threw out the First Amendment claim, saying Molina could not show that he was fired over a matter of “public concern.” A defamation claim, based on comments allegedly made by Sotelo to a council member and a radio station, was rejected by a jury last year after a four-day trial.
But their questions yesterday suggested that Kozinski and Judge Kim Wardlaw were leaning towards giving Molina his day in court on the constitutional issues. The third panelist, Senior Judge Robert Beezer, asked few questions and gave no indication how he might be leaning.
The Supreme Court has held that a public employee discharged for speech which bears on a matter of public concern has a valid civil rights claim if he or she shows that the First Amendment interests outweigh any damage to the employer’s interest in effective delivery of public services.
Molina’s attorney, Karen Larson of Lear & Treiman in Century City, said it was clear that her client had presented sufficient evidence that the city’s asserted justification was a pretext for violating the First Amendment. And there was no evidence at all that he disrupted city operations by taking the position he did, because the numbers were accurate and no one in the Finance Department though otherwise, she contended.
Kozinski said he was troubled by what he characterized as the district judge’s suggestion that a different standard as to what constitutes a matter of public concern would apply in a small city, a claim he sarcastically referred to as “Who cares about Oxnard anyway?”
Wardlaw suggested that the city was upset at Molina because he gave them what he believed to be the correct numbers and “they didn’t want to hear the part that made them look bad for going ahead with golf course II.”
Kinaga argued that there was a “more than sufficient” evidence that Molina’s comments did not relate to matters of public concern, but Kozinski expressed incredulity.
“He was talking about the biggest black hole in the city’s budget and that’s not a matter of public concern?” he asked Kinaga. “To me, every time you open your mouth, you undermine the district court [decision].”
Kinaga, appearing somewhat shaken after the argument, expressed confidence in the ultimate disposition of the case.
“We’re looking forward if there is a trial,” she told the MetNews. “We believe it would be the same outcome.”
Copyright 2002, Metropolitan News Company