A Possible Cause of Action When an Official Retaliates Against a Citizen

Anonymous

Fri, 08/20/2010 - 03:10

County Related

What can a citizen do when a local government official falsely impugns
her reputation and retaliates against her due to her opposition to a
matter the official supports? The City Ethics Model Code has<a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC50…; target="”_blank”">
a provision that deals with an official falsely impugning a citizen's
reputation</a>, but very few ethics codes contain such a provision. And
even our model code has nothing that deals with retaliation. 
 
In some situations, the citizen may have a cause of action against the
official and the local government under <a href="http://www.law.cornell.edu/uscode/42/1983.html" target="”_blank”">42 U.S.C.
§1983</a>,
for a deprivation of her constitutional rights, such as her right to
speak out on an issue, by a person or entity
acting under color of state law.

Last month, the federal Sixth Circuit court of appeals, in <a href="http://www.ca6.uscourts.gov/opinions.pdf/10a0220p-06.pdf" target="”_blank”">Paige
v. Coyner</a> (July 26, 2010), dealt with just such an action, and
found that, at least on the facts as stated by the citizen, she had a
case that could not be dismissed. 
 
As alleged by the citizen, the director of the Warren County (OH)
Office of Economic Development and executive director of the Warren
County Port Authority (the same individual) sought to retaliate against
a citizen who spoke at a Warren County Port Authority meeting by
calling the citizen's employer, a local commercial developer, and
misrepresenting what the citizen said. The retaliation was due to the
citizen's opposition to an interstate highway project close to the
executive director's heart. The official's misrepresentations led
directly to the citizen being fired by the developer. 
 
The executive director falsely told the citizen's employer that the
citizen had publicly introduced herself at the Port Authority hearing
as an employee of the company and had spoken negatively about the
establishment of the Port Authority. The executive director then
“sought clarification of [the developer's] commitment to development in
the region.” In other words, the executive director misrepresented the use of the company's name by the citizen,
misrepresented the citizen's testimony, and used her position to
effectively threaten retaliation against the company in Warren County. 
 
To justify firing the citizen, the developer specifically referenced
the executive director's false allegation that the citizen had used the
company's name to oppose development at the public meeting. 
 
The citizen sued the executive director, the port authority, and the
county board of commissioners under 42 U.S.C. §1983, for a
deprivation of her First Amendment right to speak at a public
assembly. The court determined that the citizen would have to prove
(i) that the injury to the citizen was due to state action; (ii) all three elements necessary to prove a 42 U.S.C. §1983
deprivation of rights; and (iii) that the injury to the citizen flowed
from the execution of the county's policy or custom. 
 
State Action 
The county alleged that there was no "state action" because the
employer fired the citizen, not the county. First, it's worth noting
that none of the defendants disputed that they were state actors with
regard to their actions, even though the executive director was
certainly acting beyond at least the ethical bounds of her job. The
question arises, who at the port authority decided not to argue that
its executive director was acting in her personal interests, and
therefore not "under color of state law"? Since the executive
director's interests and the port authority's interests are not
necessarily the same, if she played any part in the port authority's
defense, it would constitute irresponsible handling of a conflict of
interest. 
 
The court found that the executive director was clearly
a state actor because she works on behalf of local government entities, and it is contended that she violated §1983. 
 
The Three Elements of a Deprivation of Constitutional Rights 
Starting on p. 10, the opinion determines whether the three elements required to prove a 42 U.S.C. §1983 action are met in this case. The citizen was
clearly involved in constitutionally protected activity: speaking at a
public meeting. That satisfies the first element. 
 
The second element is proof that “the defendant’s adverse action caused
the plaintiff to suffer an injury that would likely chill a person of
ordinary firmness from continuing to engage in that activity.” The
adverse action was the executive director's call to the employer, and
losing one's job is certainly enough to chill anyone from speaking out
publicly. The most difficult part of this element to prove, in this case, is the
causation part: to what extent the call led to the loss of the job. 
 
The standard employed by the court is whether the firing was reasonably
foreseeable. The opinion says that the executive director allegedly knew
that the employer would not want to jeopardize its relationship with
county development officials, and if her goal was to have the citizen
fired, a jury could find the result reasonably foreseeable. 
 
I think that the firing would be reasonably foreseeable even if the executive
director merely wanted to get the employer to tell the citizen to stop
speaking out against the interstate highway. The implicit threat
involved in questioning the developer's commitment to development in
the county took the misrepresentations to a new level, adding to the
mix intimidation and threatened retaliation against the developer. But
since the developer was not a party to the case, this was not discussed
in the opinion. 
 
The third element is proof that the adverse action was motivated, at
least in part, by the victim's exercise of constitutional rights, which
was certainly the case here. The fact that the call to the employer was
made only a week after the citizen spoke out at the public meeting is
evidence of temporal proximity, which creates an inference of
retaliatory motive. 
 
Local Government Policy or Custom 
The last piece of the puzzle is showing that the injury to the citizen
flowed from the execution of the county’s policy or custom. The court
says that this policy or custom need not be written down. It can be
created “by those whose edicts or acts may fairly be said to represent
official policy" (a quote from Monell v. Dep’t of Soc. Servs., 436 U.S.
658 (1978)). 
 
It is important that the executive director allegedly had final
policy-making authority for the port authority and the board of
commissioners. 
 
The Sixth Circuit determined that all the elements could be proven, and
the motion to dismiss was reversed. What this does is provide at least
the possibility of an action against an official who retaliates against
a citizen, especially when it involves the citizen speaking out on an
issue, as would normally be the case. 
 
The problem here is that the official's retaliation has to be
successful for the action to be available, and a suit like this is
extremely expensive, especially since the official is not spending a
penny of her money, nor are the county officials who decide to take
such a matter to court rather than settle it. 
 
Ethics code provisions that prohibit an official from falsely impugning
a citizen's reputation or retaliating against a citizen do not require
the official to be successful, nor do they cost a citizen a lot of
money. On the other hand, they do not provide recompense for successful
retaliation. But forcing an official to publicly defend her retaliation
is, in the long run, the most important thing for the community. And
retaliation such as this, although in the short run most damaging to
the targeted individual, is harmful to everyone who worries about the
consequences of speaking their mind on public issues. 
 
Citizens should not have to seek the protection of the First Amendment
or of the federal court system when an official puts her personal
interests ahead of the public's interest in full, open discussion of
local government issues. A local government's leaders, individually and
through its ethics program, should quickly make an example of the
official, and should not jeopardize the community by getting involved
in an expensive federal suit. 
 
Thanks to Patricia Salkin's <a href="http://lawoftheland.wordpress.com/2010/08/19/sixth-circuit-holds-that-c…; target="”_blank”">Law of the Land Blog</a> for bringing this opinion to my attention. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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