You are here
A Possible Cause of Action When an Official Retaliates Against a Citizen
Friday, August 20th, 2010
Robert Wechsler
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 provision that deals with an official falsely impugning a citizen's
reputation, 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 42 U.S.C. §1983, 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 Paige v. Coyner (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 Law of the Land Blog for bringing this opinion to my attention.
Robert Wechsler
Director of Research-Retired, City Ethics
---
In some situations, the citizen may have a cause of action against the official and the local government under 42 U.S.C. §1983, 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 Paige v. Coyner (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 Law of the Land Blog for bringing this opinion to my attention.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Story Topics:
- Robert Wechsler's blog
- Log in or register to post comments