Miller, James E. v. Jones, Arthur L. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1932
JAMES E. MILLER, JR.,
Plaintiff-Appellee,
v.
ARTHUR L. JONES, Police Chief,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03 C 987—Thomas J. Curran, Judge.
____________
ARGUED DECEMBER 8, 2005—DECIDED APRIL 17, 2006
____________
Before BAUER, POSNER, and KANNE, Circuit Judges.
BAUER, Circuit Judge. Former Milwaukee Police Depart-
ment officer James E. Miller, Jr., claims that he was
transferred to a less desirable position because of his speech
in opposition to actions taken by then Chief of Police Arthur
L. Jones. Miller brought this civil rights action against
Jones and the City, pursuant to 42 U.S.C. § 1983, seeking
relief in the form of a declaratory judgment and compensa-
tory and punitive damages. At the close of discovery,
defendants moved for summary judgment on the ground
that no material facts were in dispute and that they were
entitled to judgment as a matter of law. The district court
denied this motion, but dismissed any claim made against
Jones in his official capacity only. Jones appeals the district
2 No. 05-1932
court’s refusal to grant him qualified immunity arguing
that Miller’s speech was not protected because it did not
address a matter of public concern. For the following
reasons, we affirm.
I. BACKGROUND
The facts of this case are not in dispute, and due to the
limited nature of the appeal we focus on the events sur-
rounding the plaintiff’s speech. James Miller is a former
officer with the Milwaukee Police Department (MPD) who
was transferred from the Community Services Division
(CSD) to patrol duty on May 27, 2003. Miller was assigned
to the Community Services Division in 1992 and spent
eleven years working with the Police Athletic League (PAL).
PAL provides educational and recreational activities for
young people between the ages of five and eighteen. These
activities are staffed by Milwaukee police officers, such as
Miller, who provide their services free of charge. Other than
this in-kind labor, PAL receives no funding from the Police
Department and is organized as a non-profit corporation
under Wisconsin state law. The MPD benefits from the
opportunity to interact with community youths in an
indirect law enforcement capacity. PAL’s Board of Directors
is staffed by both private citizens and members of the MPD,
including the Chief of Police.
While working with PAL, Miller served in a number of
different roles. Following a formal selection process in 1992,
he was chosen by the Board to serve as the Executive
Director. The Executive Director is the chief operating
officer of the organization and, subject to the control of the
Board, is responsible for supervising, controlling, and
directing the programming, workforce, and finances. By
1997, Miller also assumed the duties of Treasurer. In both
positions, he was responsible for reporting to the Board
on areas under his control.
No. 05-1932 3
Due to scheduling difficulties with MPD facilities, PAL
decided to construct their own athletic center sometime
in 1997. Between 1997 and 2002, PAL raised funds, estab-
lished a building committee, and developed plans with
architects and builders. Miller oversaw each step of develop-
ment and was, effectively, the project manager.
In early March 2002, the future use of the facility came
into question. Through his chain of command, Miller
received instructions from Chief Jones to give a tour of the
PAL facility to the executive board of the Milwaukee
area Boys and Girls Club. While giving the tour, Miller
learned that Chief Jones had been discussing a possible
facilities merger between PAL and the Boys and Girls Club.
When Miller responded that this was the first he had heard
of the issue, he was told that “. . . if the Chief wants it, he
gets it.” Tr. Rec. R.50, Dep. Ex. 24, p.3. Within days of the
tour, Miller learned that a local Boys and Girls Club was
closing, and that it was considering the PAL facility as its
new home. On March 21, Jeff Snell of the Boys and Girls
Club of Greater Milwaukee wrote to Chief Jones outlining
the next steps to be taken in the merger.
On March 22, 2002, PAL Chairman Harris informed the
Board of the proposed merger. He also informed them that
the Boys and Girls Club was willing to pay for the costs of
the facility’s staffing and operation, but had not addressed
the outstanding expense of the building itself. At that
meeting, Captain Haynes, Miller’s commanding officer in
the CSD, and Miller provided Chairman Harris with a copy
of the letter from Snell.
Miller worked with Chairman Harris and other mem-
bers of the Board to review and respond to the proposed
merger. After reviewing PAL’s national bylaws, Miller and
Captain Haynes concluded that the proposal was contrary
to the organization’s mission. Miller openly opposed the
merger, reasoning that if the Boys and Girls Club operated
4 No. 05-1932
the facility there would be no role for MPD officer interac-
tion with the community, thus defeating the purpose of PAL
and the MPD’s policing benefit. Furthermore, he
was concerned that the Club offered no money to help cover
the facility’s construction debt and that any violation of
PAL’s national bylaws excluded the chapter from receiving
funding from the parent organization.
Chairman Harris wrote to Chief Jones, informing him
that no single member of the Board could unilaterally
bind the organization, and that the proposed merger
likely violated PAL national bylaws. Chief Jones was not
pleased with Harris’s letter. Shortly after they traded
correspondence, Chairman Harris and Director Zigman met
with Chief Jones in person and told him that they
and Miller opposed the merger.
On March 25 and 26, 2002, Chief Jones confronted his
staff regarding the PAL Board opposition to the merger. He
yelled at Captain Haynes for passing Snell’s letter on to
Chairman Harris and told both of them that he put them on
the PAL Board and could transfer them off just as easily.
Chief Jones then called a meeting with every officer on the
PAL Board to discuss the matter. During the meeting he
publicly reprimanded Haynes and Miller. Two days later,
Haynes was transferred to a position in the Criminal
Investigation Bureau; she had no prior experience with the
group.
Chief Jones attended the next three straight PAL Board
meetings, a first in his tenure with the organization. At the
April 9, meeting, Jones was described as being angry with
Chairman Harris’s letter and publicly doubted that PAL
had the capacity to manage the new facility. On April 19,
Jones informed the Board that he would not allocate MPD
officers to staff the new facility and instructed them to write
the Boys and Girls Club to request a plan for merger. He
also told the Board that Miller would be demoted from
No. 05-1932 5
Executive Director. He explained that having an MPD
employee in charge of PAL’s finances and employment
decisions was an unwanted liability for the City. Members
of the Board testified that this reversal came as a surprise
given that Miller had been in charge of PAL’s management
and finances for nearly eleven years and he had overseen
the new facility’s construction. At the third meeting, on May
3, PAL acquiesced to Jones’s demands and created a
committee to explore the merger.
By May 24, it was clear that the Boys and Girls Club
merger would not satisfy the entire PAL Board. Financially,
the Club’s proposal did not contribute to the costs of the
building debt. Furthermore, other members of the Board
greatly valued Miller’s opinion, given his involvement with
the project, and agreed that the merger would effectively
end PAL. That day, Miller and Director Zigman voted
against any continued dialogue with the Club. During
subsequent meetings in the summer of 2002, the Board
turned to Miller for advice, and he continued to oppose the
merger.
On July 8, Chief Jones implicitly threatened Miller. At
Jones’s direction, Deputy Chief Schunk reminded Miller
that the Chief was responsible for setting MPD policy
and how MPD officers interacted with PAL. Jones also
reassigned numerous MPD officers that worked with PAL
to the Police Training Academy, effectively cutting them off
from serving or communicating with the program. On
August 30, Miller was notified by the MPD Internal Affairs
Division that he was being investigated for “[f]ailing to treat
as confidential the business of the department[; s]peaking
on behalf of the department without authorization from the
Chief . . . [i]n reference to a conversation you allegedly had
with Bob Harris concerning the PAL program.” Tr. Rec. 50,
Dep. Ex. 7.
On September 27, 2002, Chief Jones informed the Board
that Miller was to be removed as Executive Director, and
6 No. 05-1932
demoted to Program Director. At the October 25 meeting,
Jones reemphasized his demand and told the Board that no
MPD officers would work with PAL until Miller’s job was
redefined. This withholding of services effectively brought
PAL’s operations to a halt. Some of the Board members
testified that they believed the demotion was in retaliation
for Miller’s opposition to the merger.
On November 4, the Board and Chief Jones were able
to agree on a job description for Miller’s new position.
Following this agreement, Jones wrote to Chairman
Harris on November 15 and informed him that while Miller
would fulfill his new duties, he would be unable to do
anything beyond these requirements. This secondary
limitation meant that Miller could no longer serve as a
voting member of the Board.
On January 6, 2003, Miller filed a citizen complaint
against Chief Jones with the City of Milwaukee Fire and
Police Commission, a civilian oversight body. In the com-
plaint, Miller alleged that Chief Jones, inter alia, coerced
the PAL Board, engaged in retaliatory acts, and unlawfully
interfered with the private business of another. Miller’s
complaint included the relevant Milwaukee Police Depart-
ment Rule and Regulation for each alleged violation. Tr.
Rec. 50, Dep. Ex. 24. Shortly thereafter, Miller also raised
questions about certain financial transactions implicating
PAL’s attorney, their construction contractor, and State
Senator George. Miller brought these matters to the
attention of Chairman Harris, who then raised them with
the Board.
In May 2003, Miller received conflicting instructions
regarding his CSD reporting duties from his supervisor,
Captain Debra Davidoski. (Davidoski had replaced Haynes
in April 2002, when Haynes was transferred to Criminal
Investigations.) On May 16, Davidoski complained to
Deputy Chief Schunk about Miller’s performance, and
No. 05-1932 7
within two weeks Miller was transferred to patrol duty. At
the time, Chief Jones explained the transfer to Miller’s new
commanding officer, stating he had overstepped his duties
with PAL. In the months following the transfer, however,
internal performance evaluations were submitted that
brought this comment, and thus the motivation for his
transfer, into serious doubt.
After Miller’s transfer, Sergeant Banks assumed the
Program Director’s role and did everything Miller had
previously done as Executive Director. This included hir-
ing and firing civilian employees, directing officers, han-
dling PAL finances, and attending and voting at Board
meetings. The curtailment of Miller’s involvement in PAL
also affected community interaction with the organization.
As Miller’s role was reduced, community and officer involve-
ment dropped off, and when he was transferred, key
financial backers stopped donating.
At the close of discovery, Chief Jones moved for summary
judgment. He argued there were no material facts
in dispute and that he was entitled to qualified immunity
as a matter of law. Judge Curran denied summary judg-
ment on the question of law and Jones now appeals pursu-
ant to 28 U.S.C. § 1291.
II. DISCUSSION
Summary judgment is appropriate only where the moving
party demonstrates “there is no genuine issue as to any
material fact and that [they are] entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(c). When determining
whether a genuine issue of material fact exists, this Court
considers evidence in the light most favorable to the non-
moving party. See Matsushita Elec. Ind. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Bell v. Environmental
Protection Agency, 232 F.3d 546, 549 (7th Cir. 2000).
Because there is no dispute as to the material facts, we
8 No. 05-1932
focus below on the matters of law regarding the defendant’s
claim of qualified immunity.
Government officials enjoy qualified immunity, and are
thus shielded from civil liability, “ ‘as long as their ac-
tions could reasonably have been thought consistent
with the rights they are alleged to have violated.’ ” Schad v.
Jones, 415 F.3d 671, 673 (7th Cir. 2005) (citing Andersen v.
Creighton, 483 U.S. 635, 638 (1987)). To determine whether
an official is entitled to qualified immunity we look to two
issues. First, taken in a light most favorable to the party
asserting the injury, the facts must show the official
violated a constitutional right. Finsel v. Cruppenink, 326
F.3d 903, 906 (7th Cir. 2003) (citing Saucier v. Katz, 533
U.S. 194, 201-02 (2001)). Second, we look to see if the right
was “clearly established at the time of the alleged viola-
tion.” Id. (citing Doyle v. Camelot Care Centers, Inc., 305
F.3d 603 (7th Cir. 2002)). To be “clearly established,” the
right in question must be
sufficiently clear that a reasonable official would
understand that what he is doing violates that right.
This is not to say that an official action is protected by
qualified immunity unless the very action in question
has previously been held unlawful; but it is to say that
in the light of pre-existing law the unlawfulness must
be apparent.
Anderson, 483 U.S. at 640 (citation omitted). For a right
to be clearly established, however, we need not have a prior
case that is founded on materially similar facts; officials
may still be on notice in “novel factual circumstances.”
Finsel at 906 (citing Hope v. Pelzer, 536 U.S. 730, 741
(2002)).
The district court’s denial of defendant’s motion for
summary judgment on qualified immunity is immediately
appealable under 28 U.S.C. § 1291. See Delgado v. Jones,
No. 05-1932 9
282 F.3d 511, 514 (7th Cir. 2002). Our review of summary
judgment motions in this context is de novo. See Saffell v.
Crews, 183 F.3d 655, 657 (7th Cir. 1999).
A. Protected Speech.
Regarding the first prong of our qualified immunity
analysis, Miller claims that Jones transferred him from the
Community Services Division to patrol duty in retaliation
for speech that was protected by the First Amend-
ment pursuant to 42 U.S.C. § 1983. Government em-
ployees do not lose the right to comment as citizens on
matters of public concern as an incidence of their em-
ployment. City of San Diego v. Roe, 125 S.Ct. 521, 523
(2004). To establish a claim for retaliatory transfer, the
plaintiff must demonstrate that the statement at issue
was constitutionally protected, and was a substantial, or
motivating, factor in the transfer. Schad, 415 F.3d at 674
(citing Brooks v. Univ. of Wis. Bd. of Regents, 406 F.3d 476,
479 (7th Cir. 2005)). If these two elements are established,
the burden shifts to the government to prove that their
interest in efficient management outweighed the plain-
tiff’s interest in freedom of expression, or that they
would have taken the action regardless of the statement.
See Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002).
Jones argues that Miller’s claim fails because he did
not speak on a matter of public concern.
To be protected, employee speech must relate to a mat-
ter of “political, social, or other concern to the community. . .
.” Connick v. Myers, 461 U.S. 138, 146 (1983). Connick held
that when an “employee speaks not as a citizen upon
matters of public concern, but instead as an employee upon
matters only of personal interest . . . a federal court is not
the appropriate forum in which to review the wisdom of the
personnel decision taken by a public agency. . . .” Id. at 147.
To determine whether the employee’s speech was that of a
10 No. 05-1932
citizen on matters of public concern, we look to the content,
form, and context of the statement.1 Connick, 461 U.S. at
147-48; Schad, 415 F.3d at 674. Of these three, content is
the most important. Gustafson, 290 F.3d at 907. In evaluat-
ing these factors, we look to whether the government
employee sought to “bring to light actual or potential
wrongdoing or breach of public trust.” Connick, 461 U.S. at
148. Further, not all matters that transpire in a govern-
ment office are of public concern. Id. at 149. Instead, public
concern is the “subject of legitimate news interest; that is, a
subject of general interest and of value and concern to the
public . . . .” San Diego, 125 S.Ct. at 525-26. Whether the
statement rises to the level of public concern is a question
of law. Connick, 461 U.S. at 148, n.7.
Taking the facts in a light most favorable to the plaintiffs,
as we must, the content of the speech at issue covers more
1
Defendant directs our attention to Judge O’Scannlain’s concur-
rence in Ceballos v. Garcetti, 361 F.3d 1168, 1185 (9th Cir. 2004),
cert. granted, 125 S.Ct. 1395, 126 S.Ct. 1294 (Feb. 17, 2006). In
Ceballos, the Ninth Circuit majority held that speech made by a
public employee was protected when it touched on a matter of
public concern. See id. In contrast, Judge O’Scannlain reasoned
that Connick’s primary focus was not on whether the employee’s
speech touched on a matter of public concern, but whether the
employee spoke as a citizen on a matter of public concern. Id. at
1187-88. We note that the most recent Supreme Court opinion to
consider the matter, City of San Diego v. Roe, focused on whether
the matter was one of “public concern,” not whether the em-
ployee’s speech was made as a citizen. 125 S.Ct. 521, 523-26
(2004). Our opinions, however, consider the question in full,
seeking to determine whether the employee spoke “as a citizen on
a matter of public concern” while in the employee context. See
Gonzalez v. City of Chicago, 239 F.3d 939, 941-42 (7th Cir. 2001);
Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2001); Schad, 415 F.3d
at 674. It is the examination of the content, form, and context of
the speech that determines this fact.
No. 05-1932 11
than a dispute over internal office affairs, and would be of
legitimate news interest. Matters of police protection and
public safety are generally topics of public concern. Schad,
415 F.3d at 675 (internal quotation omitted). Yet, we must
go beyond this blanket observation and review the precise
content of Miller’s speech. Id. Our cases have consistently
held that speech alleging government malfeasance ad-
dresses matters of public concern in its substance. Spiegla
v. Hull, 371 F.3d 928, 937 (7th Cir. 2004) (collecting cases).
But the communication and content must connect in a way
that creates a “communicative element” putting the listener
on notice that a matter of public concern is being raised.
Schad, 415 F.3d at 675. This connection was found lacking
in Schad, where the plaintiff police officer merely relayed a
suspect’s whereabouts without going through proper police
channels. See id. at 675-78. The connection, however, was
present in Spiegla, where the plaintiff correctional officer
questioned the suspicious conduct of her superiors who
appeared to be using a new search policy to facilitate
unlawful behavior. Id. at 675-77.
In this case, Miller opposed the proposed merger be-
cause it left the MPD officers without a facility to host PAL
activities, thus reducing the quality of community interac-
tion and opportunity to interact with city youth in an
indirect law enforcement capacity. Further, the Boys and
Girls Club offered only enough funding to cover their own
operating costs, but nothing to offset the debt incurred in
construction. This outcome likely violated PAL’s national
bylaws, cutting them off from receiving national funding,
and implicated the integrity of the fund-raising and con-
struction process that Miller had overseen in PAL’s name.
Chief Jones argues that there was nothing wrong in his
proposal of this merger. While this may be true, the pro-
posal is not the sole issue under discussion. There is also
the matter of the pressure Chief Jones brought to bear on
the PAL Board to ensure that the proposal was accepted.
12 No. 05-1932
Despite open concerns, Chief Jones pushed the merger
forward, leveraging his control over MPD personnel through
the threat and implementation of job transfers. By January
2003, Miller’s speech had expanded to include concerns
about Jones’s coercive behavior, and the effect it had on
PAL.
Miller also raised questions about the quality of work
being done on the new facility and certain financial transac-
tions that implicated PAL’s attorney and Wisconsin State
Senator George. These statements touch on the propriety of
fiscal management by government officials of a financially
independent community organization, and were not limited,
like Schad, to ordinary matters of purely internal operation.
These were no mere hypothetical concerns; Senator George
was later indicted on numerous counts, including charges
on this matter, and pleaded guilty to receiving kickbacks
(18 U.S.C. § 371, conspiracy to defraud the United States)
in another scheme involving PAL’s attorney. See United
States v. George, 403 F.3d 470 (7th Cir. 2005).2
We find it hard to imagine that the Milwaukee public
would not be concerned with the Chief of Police using his
official position to coerce a financially independent organi-
zation into a potentially ruinous merger. This concern
seems particularly acute when the Chief served on the
Board of Directors of both organizations. Or that the pub-
lic would not take an interest in their elected representa-
tives’ misappropriation of monies intended for their benefit.
Indeed, the Milwaukee Journal Sentinel eventually covered
portions of the scheme. Tr. Rec. 50, Ex. E.
The form of Miller’s speech also indicates that the matter
was one of public concern. After raising his concerns with
the PAL Board and MPD, he filed a citizen’s complaint with
2
The conviction is a matter of public record. See United States v.
George, No. 03-CR-259 (E.D. Wis. Aug. 11, 2004) (judgment).
No. 05-1932 13
the Fire and Police Commission. Short of racing to the
nearest television or radio station, we are hard-pressed to
find a more public form of speech than his reporting to this
civilian staffed body. This form of communication stands in
marked contrast to the internal memos circulated in
Connick or Gonzalez, or the procedural officer-to-officer call
placed in Schad. Miller’s actions explicitly and formally
sought to alert a greater audience of the possible harm at
issue. Regarding his statements on the financial irregulari-
ties and construction problems, this matter again mirrors
Spiegla. While Miller may not have been as public with
these concerns, he raised the issues on his own volition in
multiple venues, first with Chairman Harris and then again
with Deputy Chief Schunk. These attempts, when matched
with the inherent value of the content, are sufficient to
raise the underlying speech to the level of a public concern.
See Spiegla, 371 F.3d at 937-38.
Finally, we consider the context of the speech at issue,
evaluating Miller’s motive and circumstances. See Schad,
415 F.3d at 676 (citation omitted). While a statement
born of pure personal interest does not constitute a pub-
lic concern, a mere personal aspect of the speaker’s motiva-
tion will not defeat the entire speech. See Kokkinis v.
Ivkovich, 185 F.3d 840, 844 (7th Cir. 1999). Jones argues
that the plaintiff was motivated purely by personal concern
in that he was only interested in preserving his autonomy
and job at PAL. While the scope of Miller’s authority at PAL
had been curtailed at Jones’s demand during the months
leading up to his complaint, Miller continued to work with
the organization as the Program Director and maintained
his job with the MPD Community Services Division. Jones
has failed to offer any evidence indicating that Miller’s
status with the former was directly linked to his assignment
with the latter. Moreover, Miller’s repeated statements to
the Board addressed the negative impact of the merger on
the opportunity for MPD officers to interact with the
community and that the Boys and Girls Club offered no
14 No. 05-1932
financial support for the outstanding debt on the newly
constructed facility. Being financially independent, PAL
would retain the liability for this debt, but have no facility
to show for it or to aid in subsequent fund-raising. Simi-
larly, his complaint with the Commission alleged Chief
Jones violated MPD Rules and Regulations in his attempts
to govern the decision of the PAL Board. This stands in
opposition to a situation like that in Kokkinis, where the
plaintiff officer used an ancillary matter of public concern
as an opportunity to voice his purely personal grievances
with his employer. 185 F.3d at 844.
Regarding the circumstances of his speech, Jones
claims that Miller’s statements were not protected be-
cause they were within the scope of his regular job duties.
As initially noted in Gonzalez, and clarified in Delgado,
statements made in the course of the “routine discharge
of assigned functions, where there is no suggestion of public
motivation” do not indicate that the employee set out to
speak as a citizen on matters of public concern. See Spiegla,
371 F.3d at 939 (emphasis added); Gonzalez, 239 F.3d at
941; Delgado, 282 F.3d at 519. Where, as is the case here,
the statement at issue arose from a discretionary act
involving independent judgment and action, the speech is
more likely to suggest the employee spoke as a citizen on a
matter of public concern. See Delgado, 282 F.3d at 519.
Miller’s opposition to the proposed merger may hardly be
said to be a routine discharge of his duties as an officer with
the MPD Community Services Division. His judgment on
the matter followed noted consideration of PAL’s national
bylaws and was informed by his understanding and experi-
ence of the organization’s structure, operation, and financial
obligations. While he may have been required to undertake
this review, he was not required to recommend a particular
outcome. This stands in marked contrast to our finding in
Gonzalez where the plaintiff could have been punished for
not making the statements at issue there. 239 F.3d at 941-
No. 05-1932 15
42. Nothing before us indicates that Miller may have been
punished for not opposing the merger. In fact, Miller was
investigated by the MPD Internal Affairs Division for
discussing the matter with Chairman Harris and the PAL
board, an action which was part of his duties as the MPD
liaison to the organization.
Additionally, Miller’s January 2003 statements on the
financial irregularities and contractor performance put both
the MPD and the PAL Board on notice regarding missing
funds and possible breach of contract. While monitoring
these issues was part of his prior duties as Executive
Director and Treasurer, he had been demoted to Program
Director and restricted from holding “any other positions”
per Chief Jones’s November 15, 2002, letter to the Board.
Tr. Rec. 50, Dep. Ex. 17. Managing construction and
auditing PAL’s finances are not listed in the Program
Director’s job description. Id. At most, Miller was responsi-
ble for preparing and monitoring the budget with the
Managing Director and reporting to the Board Finance
Committee. Given this precise and newly limited job
description, we cannot find that Miller’s subsequent and
consistent reporting on these issues was wholly within the
scope of his duties. The present scenario is similar to that
of Spiegla, where the plaintiff was responsible for imple-
menting prison security policies, but took it upon herself to
question her superiors’ policy change that may have
decreased security. See Spiegla, 371 F.3d at 939. We held
this questioning was not part of her core functions and was
akin to a citizen raising a matter of public concern. Id.Similarly, where Miller was instructed to act through the
Managing Director and “[m]aintain confidentiality of all
information” he chose instead to bring his concerns to his
supervisors in both PAL and the MPD. Tr. Rec. 50, Dep. Ex.
17, p.2. To claim this speech was entirely within the scope
of his job duties and not a matter of public concern “sweeps
much too broadly.” Spiegla, 371 F.3d at 939.
16 No. 05-1932
Lastly, Jones argues that Miller’s speech did not touch on
matters of public concern because PAL was not part of the
core duties of the Milwaukee Police Department. In support
of this argument he cites Gardetto v. Mason, 100 F.3d 803(10th Cir. 1996), where our sister court held that speech
protesting the reorganization of an adult reeducation
center, one that was wholly funded by the state college
employer-defendant, was not a matter of public concern
because the decision did not affect the “primary mission of
the college.” Id. at 815. First, we note that this focus on a
government employer’s primary mission plays no dispositive
role in our public concern jurisprudence. Second, Gardetto
involved the reorganization of an entity wholly funded by
the defendant-employer. Here, Chief Jones used his control
over governmental employees to affect the management of
an independently financed organization in favor of another
organization with which he also served, in possible contra-
vention of Milwaukee Police Department Rules and Regula-
tions. When a government official acts, he has a responsibil-
ity to obey the rules that bind him. The potential breach of
these regulations is itself a matter of public concern.
Additionally, PAL’s purpose was to create a parallel
connection between the MPD and the community to aid and
support the Department’s everyday safety and outreach
operations. Sound connections to the community allow for
effective policing, which is the goal, and concern, of the
MPD. We affirm the decision of the district court on this
issue.
B. Prior Decisions on Matters of Public Concern.
While we find that Miller’s speech rises to the level of
public concern, Chief Jones’s actions would still be protected
were this constitutional violation not “clearly established”
at the time of the alleged conduct. Finsel, 326 F.3d at 906(citation omitted). It is well established by the Supreme
No. 05-1932 17
Court and this circuit that a public employer may not
retaliate against an employee who exercises his First
Amendment speech rights. See Connick, 461 U.S. 138. This
prohibition extends to retaliatory transfers to a less desired
position. see Delgado, 282 F.3d 511; McGill v. Bd. of Educ.
of Pekin Elem. Sch. Dist. 108, 602 F.2d 774 (7th Cir. 1979).
Defendant argues that rights in this area are not clearly
established, and that the Supreme Court’s decision in City
of San Diego v. Roe proclaims as much. In San Diego, the
Supreme Court wrote that “[a]lthough the boundaries of the
public concern test are not well-defined, Connick provides
some guidance . . . [i]t directs courts to examine the ‘con-
tent, form, and context of a given statement, as revealed by
the whole record. . . .’ ” 125 S.Ct. at 525. It is this three-part
examination that our cases have applied since Connick was
handed down. See, e.g., Yoggerst v. Hedges, 739 F.2d 293(7th Cir. 1984). To leap from the simple observation that
the boundaries of what constitutes public concern require
some searching, to the argument that after San Diego “no
reasonable law enforcement official” may be expected to
determine what is appropriate behavior in this realm, is a
step too far. Nothing in San Diego reformed the core of our
jurisprudence on the matter.
Nor did San Diego strike down Delgado, where we held
that employee speech on a matter of public concern was
protected under the First Amendment, and therefore
protected against retaliatory transfers, when it grew out of
some discretionary act. See 282 F.3d at 516-21. For exam-
ples of similar factual scenarios, Chief Jones may have
turned to our holding in Campbell v. Touse, where we held
that a police officer’s speech criticizing the management of
a community-oriented policing program was a matter of
public concern. See 99 F.3d 820 (7th Cir. 1996). Addition-
ally, Jones may have turned to Knapp v. Whitaker, wherein
we held a public school teacher had spoken on a matter of
public concern when protesting an inequitable reimburse-
18 No. 05-1932
ment scheme for expenses incurred in coaching students.
See 757 F.2d 827 (7th Cir. 1985). The core of the public
concern in Knapp was the misuse of funds intended for the
school’s athletic program; a secondary mission of the school
system, to be sure. Id. at 840-41. Finally, should former
Chief of Police Jones have needed personal notice that the
retaliatory transfer of public employees for speech protected
by the First Amendment is subject to suit under § 1983, he
need only look to our holding in Octavio Delgado v. Police
Chief Arthur Jones and Deputy Chief Monica Ray, 282 F.3d
511, Mar. 8, 2002, decided against the appellant himself in
the same month during which the merger was first pro-
posed.
III. CONCLUSION
For the foregoing reasons we AFFIRM the judgment of
the district court.
No. 05-1932 19
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-17-06