The Plaintiff was the President of the Sierra Madre Police Association (?Union?).??? Acting in his capacity of President, the union issued two press releases critical of the Chief?s performance and announcing? a ?membership ?vote ?of ??no confidence.???? The Union alleged a ?lack of leadership, wasting of citizens? taxdollars, hypocrisy, expensive paranoia, and damaging inability to conduct her job.?? ?Ellins, 710 F.3d at 1054. At the time of the press release, Plaintiff was the subject of three internal investigations, including a criminal investigation concerning ?alleged sales and use of anabolic steroids, assault with his duty weapons, and other matters relating to sexual misconduct while on duty.???? ?Id. at 1055.
After having been disciplined for at least some of the alleged misconduct, Plaintiff submitted an application for a training certificate, which would have entitled Plaintiff to a 5% raise in salary. The Chief refused to sign the certificate allegedly because ?it? required ?her ?to? attest? to? Plaintiff?s good moral character. ?Plaintiff filed suit alleging a violation of First Amendment rights. While the litigation was pending, the prosecutor decided not to file criminal charges against the Plaintiff. ?The Chief then signed the certificate of training and expressed the hope that if Plaintiff would dismiss the litigation the raise would be retroactive. ?The district court held that Plaintiff failed to establish that (1) he spoke as a private citizen in leading the no-confidence vote; (2) he suffered an adverse employment action; and (3) his protected act was a substantial or motivating factor in the alleged adverse employment action.
The? Ninth ?Circuit ?reversed ?on ?the? retaliation claim? ?against? ?the?? Chief? ?but? ?affirmed? ?the dismissal of the claim against City because the Chief was not the final decision maker or policy maker? ?which? ?could? ?give?? rise? ?to? ?municipal liability under Section 1983. ?See Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978).
The ?Ninth ?Circuit ?quickly? concluded ?that ?the press release involved more than a personnel dispute or grievance, and that the speech addressed? issues of public concern. The Court also ruled that Plaintiff?s speech was made as a private citizen and not as part of his employment responsibilities. ??[A] public employee speaks as a private citizen ?if the speaker had no official duty to make the questioned statements, or if the speech? was? not? the product? of performing the tasks the employee was paid to perform.? ?While the question of the scope and content of a plaintiff?s ?job ?responsibilities ?is ?a? question ?of fact,? the ?ultimate constitutional? significance of the facts as found is a question of law.? ?Ellins, 710 F.3d at 1058-59.?? The Court ruled that Plaintiff?s duties as President of the Union were unrelated to his? duties? as? a Police Officer.??? Id.??? ?Given? the inherent institutional conflict of interest between an? ?employer?? and? ?its? ?employees??? union,? ?we conclude that a police officer does not act in furtherance of his public duties when speaking as a representative of the police union.? Id.
The Court also ruled that the delay in salary increase was an adverse employment action. The Court concluded that action would deter protected activity. The?? Ninth? ?Circuit? ?also? ?ruled? ?that? ?there?? was sufficient ?temporal ?proximity? between ?the protected speech and the adverse action to infer causation.???? ?Whether Diaz would have withheld her signature in the absence of the no-confidence vote and the press releases, and whether she had an adequate justification for doing so, are entirely questions of fact.?
The Ninth Circuit ruled that, contrary to the district court, the Chief was not entitled to qualified immunity.?? The Court defined that constitutional right at issue broadly: ?[W]e conclude that a reasonable official . . . would have known that delaying Ellins?s application . . . because of his union activity, . . . 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.
Ellins v. City of Sierra Madre, 710 F. 3d 1049 (9th Cir. 3/22/2013) (Wardlaw, Paez, Rawlinson).