Maricopa County Officials Violated Rights of Lawyer Who Spoke to Newspaper, Says Judge
Maricopa County officials violated the rights of a former deputy county attorney by firing her after she spoke to a local newspaper, a federal judge confirms.
In an eight-page ruling last week that upholds February's $638,148 jury verdict in the case, U.S District Judge Frederick Martone wrote that "more than sufficient evidence" proved lawyer Maria Brandon's allegations that the county retaliated against her for talking to an Arizona Republic reporter in 2010.
Oddly, the Republic didn't cover the trial or jury verdict that it helped cause.
But the case and new ruling cover important ground when it comes to the rights of government employees who state their personal opinions in a public forum.
"The lesson is that public employers can't terminate people because they make truthful comments to the media in their role as private citizens," says Dan Barr, a First Amendment lawyer for the Perkins Coie law firm. "You don't give up your rights under the First Amendment when you go to work for the government."
Listen up, government employees: exercise your rights. Talk to the news media when you see something that's screwed up. As the Brandon case shows, if your employers retaliate against you, a jury will make them pay.
Exceptions exist for government workers' free speech, of course. Judge Martone describes a somewhat paradoxical situation in which a government worker who speaks to the news media without authorization is acting as a private citizen and is protected by the First Amendment, while legal limits can be placed on the free speech of workers whose duties include talking to the media on behalf of their agency.
The case stemmed from a brief, innocuous-sounding quote that Brandon gave to the Arizona Republic for a 2010 article by veteran scribes Craig Harris and Yvonne Wingett Sanchez. The article was about a lawsuit settlement with seven anti-Sheriff Joe Arpaio demonstrators who were arrested unfairly by the sheriff's office in two 2008 incidents.
Brandon, acting as lawyer for the Sheriff's Office, didn't want to pay the protesters more than $7,500 each in a settlement deal. Unexpectedly, lawyers for the Board of Supervisors and Assistant Risk Manager Rocky Armfield had the payout bumped up to a total of nearly half a million bucks.
"I don't know why they did what they did, and I'm sure they have their reasons," Brandon told the Republic for the July 9, 2010, article.
Whether she realized it, or not, Brandon had stepped on a hornet's nest. At the time, county administration officials were engaged in a serious feud with the Sheriff's Office, which was acting unethically in a no-holds-barred attack on the Supervisors and county management that stemmed from a budget dispute. The feud culminated with the 2012 disbarment of former County Attorney Andy Thomas, Sheriff Joe Arpaio's "unholy" ally.
The day after the article appeared in print, Arpaio's former chief deputy, David Hendershott, sent a serious-sounding letter to Peter Crowley, then the county's risk manager. Hendershott (who later was fired by Arpaio after an investigation revealed he'd committed misconduct) threatened that county officials might be committing criminal acts if they didn't stop considering high-dollar settlements for various people -- including former county officials like then-Supervisor Don Stapley and Mary Rose Wilcox, as well as the anti-Arpaio protesters -- who had sued the Sheriff's Office over alleged wrongdoing.
Hendershott referred to the alleged intimidation of "my lawyer," Brandon, during negotiations of the potential lawsuit settlements. That part could well be true, meaning county officials already were looking askance at Brandon's representation of their enemy, Arpaio, when the 2010 Republic article was published.
The evidence at Brandon's trial showed that officials were angry with Brandon for the Republic quote, in which she seemingly sides with Hendershott's arguments and implies that county officials shouldn't pay the protesters so richly.
Dave Hendershott (at left)
Armfield and Deputy County Manager Sandi Wilson (who sued the county in June 2010, later receiving a $122,000 settlement) complained about Brandon to her employer. County Attorney's Office supervisors then took the suggestion to strip Brandon of all of her risk-management cases. The move "all but eliminated her workload and undermined her reputation and standing" in the county attorney's office, which ultimately led to her firing, Judge Martone wrote.
Evidence in the case revealed that Wilson and Armfield, in pressuring the County Attorney's Office to do something about Brandon, overstepped their authority.
Assuming Martone's correct about the evidence against the county being overwhelming, then the County Attorney's Office office did something that could be perceived as unethical, too: Supervisors allegedly cooked up an alternate reason to boot out Brandon, when they knew the real reason was retaliation.
As we covered earlier this year, the County Attorney's Office blamed Brandon for causing an altercation with paralegal Jackie Garcia -- even though Garcia had made threats in front of other office employees to "kick [Brandon's] ass." Garcia was given a five-day unpaid suspension, while Brandon, a 31-year employee of the county, was fired.
Larry Cohen, Brandon's lawyer, told the jury that discipline for the altercation with Garcia was the invented "pretext" for firing Brandon. Judge Martone seems to back up that contention in his new ruling -- thus making Brandon's supervisors at the CA's Office look underhanded.
In their February decision, jury members agreed that the county had violated Brandon's First Amendment rights and awarded nominal damages of $1. They also decided that Wilson and Armfield had interfered with Brandon's employment contract with the CA's Office and awarded her $638,147.94.
Following the jury verdicts and award, the county filed a motion with Martone for reconsideration of the judgment as a matter of law, or in the alternative, a new trial. Martone denied the motion in his September 2 ruling, saying the verdicts were fully supported by the evidence and the law.
Having framed the case as one primarily of First Amendment rights, Martone goes on to cite past cases that uphold the rights of public employees to make statements as private citizens. When government employees make public statements as part of their official duties, "the Constitution does not insulate their communications from employer discipline," he wrote, quoting a 1960 court case.
On the other hand, as a 2008 case showed, "a public employee speaks as a private citizen with protected speech '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.'"
The county, in its motion, had argued that Brandon acted in her official capacity -- because she was commenting on county time, in her county office, about a county case she'd been working on.
Yet at the trial, County Attorney Bill Montgomery testified that Brandon was not speaking on behalf of his office when she talked to the Republic.
The county does have a legitimate interest in controlling statements its employees make to the press, the judge wrote. But in this case, the county didn't prove that "maintaining proper discipline outweighed Brandon's right to speak," Martone ruled. Brandon didn't violate any specific county policy, and the county never argued that what she said was "false, harmful confidential or privileged," he added.
In an accompanying ruling last week, Martone also ordered the county to pay an additional $10,817 to Brandon for various court costs.
Maria Brandon, 62, who recently was working part-time as a Superior Court Commissioner, couldn't be reached for comment today. County officials could not immediately say whether the case will be appealed to the U.S. Ninth Circuit Court but may comment on Wednesday, according to Gerchick.
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