Minnesota Cities Magazine
More from Sep-Oct 2016 issue

From the Bench: Court: City Violated Police Officer’s Freedom of Speech

First Amendment
Jeffrey Heffernan was working as a police officer for the Paterson Police Department in New Jersey. The City of Paterson’s mayor was running a contested re-election campaign. Members of the police department saw Heffernan pick up a campaign sign from the headquarters of the mayor’s opponent and concluded that he was supporting the opponent, even though he was actually picking up the sign for his mother. Heffernan was demoted on that basis.

Heffernan sued the city and several of its officials, claiming that the demotion violated his constitutional rights under the First Amendment. The lower courts disagreed and concluded that, because Heffernan was not campaigning for the mayor’s opponent, he was not actually exercising his rights of free speech and association. The U.S. Supreme Court reversed and held that government employees who are demoted because their employer believes they are engaging in constitutionally protected political activity may challenge their employer’s action under the First Amendment even if the employer was factually mistaken about the employee’s conduct. Heffernan v. City of Paterson, 136 S.Ct. 1412 (2016).

Administrative search warrants
The City of Golden Valley’s licensing ordinance requires the periodic inspection of rental housing to ensure it complies with minimum housing and building standards in city code and state law. The city’s practice has been to require Illustration: rental house and keyan inspection once every three years. After the landlords and two tenants of rental housing withheld consent for an inspection, the city petitioned for, and was denied, an administrative search warrant based on the district court’s conclusion that criminal-type probable cause, based on an “objective, articulable suspicion of a code violation,” was required.

The city appealed, claiming that under the U.S. Supreme Court’s precedent in Camara v. Municipal Court of San Francisco, there is sufficient probable cause for the issuance of an administrative search warrant for the inspection of rental housing if “reasonable legislative or administrative standards are satisfied with respect to a particular dwelling,” and that such standards can relate to “the passage of time.” The Minnesota Court of Appeals ruled in the city’s favor, holding that individualized suspicion of a code violation is not required because there is no principled basis for interpreting article I, section 10 of the Minnesota Constitution to provide greater protection than the Fourth Amendment to the United States Constitution in the context of rental housing inspections. City of Golden Valley v. Wiebesick, N.W.2d (Minn. Ct. App. 2016). Note: The League of Minnesota Cities filed an amicus curiae (friend-of-the- court) brief in support of the city.

Qualified immunity
Brook Mallak sued various counties and municipalities and their employees under the Driver’s Privacy Protection Act (DPPA), alleging that the employees had improperly accessed her personal data on a number of occasions. Mallak is an attorney. In 2013, she requested from the Department of Public Safety an audit report of the number of times her driver’s license information was accessed. The report revealed that Minnesota municipal and state personnel had accessed Mallak’s information approximately 190 times between 2003 and 2012.

The municipal defendants moved for summary judgment on the basis of qualified immunity. Regarding the times Mallak’s information was accessed during the four-year statute of limitations, the federal district court granted the motion with respect to those employees who offered a definitive, uncontested, and permissible explanation for why they accessed Mallak’s data, but it denied qualified immunity to those defendants for whom a genuine issue of fact remained regarding the purpose for which they accessed Mallak’s data. The defendants that were denied qualified immunity appealed. The 8th U.S. Circuit Court of Appeals dismissed the appeal for lack of jurisdiction, reasoning that the record does not foreclose the possibility that the employees accessed Mallak’s data for a purpose not permitted by the DPPA. As a result, there were factual questions that could not be resolved by an immediate appeal. Mallak v. City of Baxter, F.3d (8th Cir. 2016). Note: The League of Minnesota Cities Insurance Trust represented the municipal defendants.

First Amendment
Cynthia Wilson worked for the Minneapolis Parks and Recreation Board. She made two public comments, which she claimed were protected speech under the First Amendment: (1) she gave quotes for an article about racial discrimination, and (2) she made comments at a budget meeting. Months after she made these comments, Wilson received a negative performance evaluation. Wilson was later suspended for insubordination and placed on a performance improvement plan. After these actions took place, Wilson was denied three promotions for which she applied.

She sued the board and its superintendent under 42 U.S.C. section 1983, claiming she was retaliated against in violation of the First Amendment for exercising her constitutional free speech rights. The federal district court ruled against Wilson. The 8th U.S. Circuit Court of Appeals affirmed, holding that a negative performance evaluation is not an adverse employment action unless the negative review actually leads to the denial of a promotion. The 8th Circuit reasoned that Wilson’s allegation that the fact that the negative reviews were available to managers who ultimately did not promote her was not sufficient to show this causal connection. The 8th Circuit also noted that Wilson failed to present any evidence that she would have been promoted absent the negative performance reviews. Wilson v. Miller, F.3d (8th Cir. 2016).

Minnesota Human Rights Act
The Minneapolis Police Department transferred 54-year-old police officer Scott Peterson from the department’s violent offender task force to its licensing unit. After the transfer, Peterson made a complaint to the city’s Human Resources Department under the city’s anti-discrimination workplace policy.

The city investigated the complaint, but concluded that the transfer did not violate the policy. Peterson subsequently sued the city under the Minnesota Human Rights Act (MHRA) for age discrimination. The suit was filed approximately 29 months after the transfer. The district court granted summary judgment in the city’s favor, holding that the claim was time-barred under the MHRA’s one-year statute of limitations. The Minnesota Court of Appeals reversed and held (in a case where this new legal issue was addressed for the first time) that the city’s anti-discrimination workplace policy constitutes a voluntary “dispute resolution process” within the meaning of Minnesota Statutes, section 363A.28, subdivision 3, sufficient to temporarily stop the running of the MHRA’s one-year statute of limitations while the city investigated the complaint. Peterson v. City of Minneapolis, 878 N.W.2d 521 (Minn. Ct. App. May 2, 2016). Note: The city has filed a petition asking the Minnesota Supreme Court to grant review of the Minnesota Court of Appeals’ decision.

Official immunity
Delmer Fladwood was injured by a log that hit him during a city tree removal project. The City of St. Paul’s forestry crew removed the top portion of a tree and planned to cut down the remaining trunk into the street. The crew leader decided to use logs from the top of the tree to establish a crash pad for the trunk. A crash pad is a pile of logs placed to cushion a tree’s fall in order to prevent damage to streets and sidewalks.

Tree removal standards from the American National Standards Institute, which the city had adopted, require bystanders to remain outside of a safe work zone when a tree is being removed. The safe work zone extends to a circular radius of twice the height of the tree that is being removed. The crew leader knew Fladwood was standing behind him and was outside of the safe work zone. The crew leader did not ask Fladwood to move farther away because he believed Fladwood was in a safe place. The tree trunk fell onto the crash pad as expected, but a large log unexpectedly shot out from the crash pad, striking and injuring Fladwood.

Fladwood sued the city for negligence. The district court granted summary judgment in the city’s favor on the basis of vicarious official immunity, concluding that the crew leader’s decisions to construct a crash pad and to not move Fladwood farther away outside the safe work zone involved judgment and discretion. The Minnesota Court of Appeals reversed and remanded, reasoning that the challenged governmental conduct is the overall task of removing a tree and that this task is a ministerial duty that is not entitled to official immunity. Fladwood v. City of St. Paul, No. A15-1791 (Minn. Ct. App. May 9, 2016) (unpublished opinion). Note: The city has filed a petition asking the Minnesota Supreme Court to grant review of the Minnesota Court of Appeals’ decision.

Written by Susan Naughton, research attorney with the League of Minnesota Cities. Contact: snaughto@lmc.org or (651) 281-1232.

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