Canary v. Osborn

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0156P (6th Cir.)
File Name: 00a0156p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

GABE CANARY,

Plaintiff-Appellee,


No. 98-4218
v.

>
H. GARRY OSBORN, BOARD 


OF EDUCATION, PORTSMOUTH
Defendants, 
CITY SCHOOL DISTRICT,


OTTO F. APEL, III, PHYLLIS 

STEVE STURGILL, WALTER R. 
FULLER, ROBERT STEVENS,

Defendants-Appellants. 
HICKMAN, JR.,

1
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
Nos. 95-00944; 96-00253—Susan J. Dlott,
District Judge.
Argued: March 8, 2000
Decided and Filed: May 3, 2000
Before: WELLFORD, SILER, and GILMAN, Circuit
Judges.
1
2 Canary v. Osborn, et al. No. 98-4218 No. 98-4218 Canary v. Osborn, et al. 15
_________________ that job’s duties to a new employee to perform.” In re Appeal
of Woods, 455 N.E.2d 13, 15 (Ohio Ct. App. 1982).
COUNSEL
III. CONCLUSION
ARGUED: Bernard W. Wharton, McCASLIN, IMBUS &
McCASLIN, Cincinnati, Ohio, for Appellants. David G. For all of the reasons set forth above, the Board members
Torchia, TOBIAS, KRAUS & TORCHIA, Cincinnati, Ohio, failed to carry their burden of establishing that they were
for Appellee. ON BRIEF: Bernard W. Wharton, R. Gary entitled to summary judgment on their claim of legislative
Winters, McCASLIN, IMBUS & McCASLIN, Cincinnati, immunity. We therefore AFFIRM the judgment of the
Ohio, for Appellants. David G. Torchia, TOBIAS, KRAUS district court and REMAND the case for further proceedings
& TORCHIA, Cincinnati, Ohio, for Appellee. not inconsistent with this opinion.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. The sole issue in
this interlocutory appeal is whether the individual members of
the Portsmouth (Ohio) City School District Board of
Education are entitled to absolute legislative immunity under
Bogan v. Scott-Harris, 523 U.S. 44 (1998), for their role in
voting against the renewal of Gabe Canary’s contract as an
assistant principal. Among other grounds, Canary brought
suit under 42 U.S.C. § 1983 on the basis that the defendants
violated his constitutional rights when they demoted him in
alleged retaliation for his “blowing the whistle” on a
suspected cheating scheme involving student achievement
tests. The defendants appeal the district court’s denial of their
motion for summary judgment, which was based on an
assertion of absolute legislative immunity. For the reasons set
forth below, we AFFIRM the judgment of the district court
and REMAND the case for further proceedings not
inconsistent with this opinion.
I. BACKGROUND
A. Factual background
Canary was hired by the Board in 1985 to serve as an
assistant principal. He worked at the McKinley Middle
14 Canary v. Osborn, et al. No. 98-4218 No. 98-4218 Canary v. Osborn, et al. 3
Second, the resolution did not “involve the termination of School and at the Portsmouth East High School during the
a position.” There is no indication in the minutes of the 1992-1993 and 1993-1994 school years, respectively. In
meeting that Canary’s contract was not renewed because the addition to McKinley and Portsmouth East, the School
Board no longer needed or wanted an assistant principal at District includes the Harding and Wilson elementary schools.
Portsmouth East. The defendants argue in their appeal that At all times relevant to this case, the Board consisted of Otto
their action was legislative because they “eliminat[ed] all F. Apel, III, Phyllis Fuller, Walter R. Hickman, Jr., Robert
assistant principal positions within the . . . School District Stevens, and Steve Sturgill. H. Garry Osborn served as the
. . . .” This argument, however, is questionable in light of the Superintendent of the School District.
record of the meeting itself. In the
“appointment[s]/reappointment[s]” section, the minutes In November of 1992, while working as the Assistant
reflect that two individuals, Michael Flaig and John Principal of McKinley, Canary attended a district-wide
Hendricks, were either appointed or reappointed to serve as meeting of various Portsmouth administrators. Among those
“assistant principals” in the School District for the coming in attendance were Wanda Kinker, the Principal of Harding,
school year. and Mike Welton, who at the time was the Principal of
McKinley and Canary’s immediate superior. During this
Finally, unlike in Bogan, the record reflects that the alleged meeting, the administrators discussed ideas for increasing the
action in this case did not have “prospective implications that students’ achievement test scores. In an affidavit filed with
reach[ed] well beyond the particular occupant of the office.” the district court, Canary asserts that the following exchange
Shortly after Canary’s contract expired, the Board created a took place:
new “student facilitator” position at Portsmouth East and
hired someone other than Canary to fill it. Cf. Rateree, 852 Kinker stated that she would be coming to the schools in
F.2d at 950 (noting, in support of a finding that certain budget the district and [would be] exhibiting actual tests and
cuts were indeed legislative in nature, that “the plaintiffs’ answers to the principals for review. She said principals
positions were eliminated altogether and no one was hired to would be allowed to copy the questions by hand, and
replace them”). Although the defendants contend that such a then could go over them with teachers in their
position did not require administrator-level certification, the [respective] schools. I immediately objected to this
duties of these “facilitators,” which Osborn described during because it was cheating and I was aware of a case in
his deposition, are quite similar to those of an assistant North Carolina where teachers had their certificates taken
principal. away for doing the same thing. Kinker said she had been
doing this for years and that if anyone objected, she had
Thus, the decision at issue did not necessarily have gotten rid of them.
“prospective [budgetary] implications” beyond Canary
himself. See Campana v. City of Greenfield, 38 F. Supp. 2d . . . Welton was asked if he would allow this to be done
1043, 1049 (E.D. Wis. 1999) (holding that the council at McKinley . . . . He stated that I was in charge of
members’ vote authorizing the city mayor to suspend the city testing and that we would not allow cheating at
treasurer was not legislative in nature because the action “had McKinley.
no implications for the position of city treasurer in general”
and was “focused on the discipline of a particular city Despite Canary’s and Welton’s stated objections at the
employee”). Furthermore, “[a] job is not abolished under November 1992 meeting, Canary came to believe that “actual
circumstances where the appointing authority simply transfers tests had been shown to and hand-copied by teachers at
Wilson . . . .” As a result, Canary wrote to E. Roger Trent,
4 Canary v. Osborn, et al. No. 98-4218 No. 98-4218 Canary v. Osborn, et al. 13
then Director of the Division of Educational Services at the reflected a discretionary, policymaking decision
Ohio Department of Education. In his letter, Canary implicating the budgetary priorities of the city and the
recounted part of the November 1992 meeting and requested services the city provides to its constituents. Moreover,
an investigation into the matter. Specifically, he wrote as it involved the termination of a position, which, unlike
follows: the hiring or firing of a particular employee, may have
prospective implications that reach well beyond the
It is common knowledge here that the cheating was particular occupant of the office.
directed from the superintendent aids [sic], and they
indicated that they had been told to do so. Id. at 55-56 (emphasis added).
... Based on the above considerations, it becomes evident that
the members of the Board in the present case are not entitled
I feel certain that an investigation will reveal a to summary judgment on their claim of legislative immunity.
conspiracy to cheat that includes “top personnel” and Even “stripped of all considerations of intent and motive,” the
possibly board members. action in substance was not essentially and clearly legislative.
Unlike the ordinance in Bogan, the resolution proposed by
I feel certain that a cover-up is now taking place. Osborn and adopted by the Board to not renew Canary’s
contract did not “b[ear] all the hallmarks of traditional
I feel certain that plans are being made to retaliate against legislation.”
myself and Mr. Welton based on statements . . . made to
me and others. First, despite the fact that the minutes of the Board meeting
contain an entry indicating that the challenged action was
As a result of Canary’s letter, Trent notified Osborn that his taken due to “the adverse financial status being faced by the
office had received allegations of possible test security district,” the record does not otherwise reflect that the
violations. He requested that Osborn conduct an investigation decision was one “implicating the budgetary priorities of the
and issue a written report of any action taken in response. city and the services the city provides to its constituents.” On
Osborn complied with Trent’s initial request by engaging the contrary, the minutes indicate that the Board went into
Richard Ross, the School District’s attorney, to conduct an executive session for the specific purpose of “discuss[ing] the
investigation into the matter. Ross interviewed various employment of public employees.” Moreover, the
administrators, including Canary, in connection with his circumstances of the one-hour executive session—which
probe. During Canary’s interview, Ross allegedly accused included short visits by some of the individuals under
Canary of “being insubordinate for not going along with the review—suggest that the Board was making personalized
testing procedure . . . .” assessments of individual employees, not engaging in an
impersonal budgetary analysis of various positions. In fact,
Sometime between April and July of 1993, Ross submitted the minutes explicitly indicate that the recommended
a written report to Trent. After reviewing Ross’s assessment, resignations, changes in status, and
Trent communicated his conclusions to the School District, appointments/reappointments constituted “personnel actions.”
via Ross, in a letter dated July 23, 1993. He found that “the See Rateree v. Rockett, 852 F.2d 946, 950 (7th Cir. 1988)
district was NOT in compliance with one of the fundamental (“[E]mployment decisions generally are administrative . . . .”).
provisions of Rule 3301-12-06 [of the Administrative Code]:
the requirement that each district establish written procedures
12 Canary v. Osborn, et al. No. 98-4218 No. 98-4218 Canary v. Osborn, et al. 5
Bogan’s and Roderick’s motion to dismiss, which was based protecting the security of test materials while they are in
on an assertion of legislative immunity. On appeal, the First school.” (Emphasis in original.) Specifically with respect to
Circuit affirmed, holding that the challenged conduct was the practice objected to by Canary and Welton, Trent wrote as
administrative, not legislative. See Scott-Harris v. City of follows:
Fall River, 134 F.3d 427 (1st 1997).
Although [Rule 3301-12-06] contains no specific
The Supreme Court reversed, holding that “local legislators provision limiting the preview of test materials by
are . . . absolutely immune from suit under § 1983 for their teachers, both Section 3319.151 of the Revised Code and
legislative activities.” Bogan, 523 U.S. at 49. The Court this rule clearly prohibit the use of materials for the
made clear that the determination of whether an activity is purpose of improving a student’s score. Encouraging
“legislative” must be made without regard to the legislators’ teachers to review the actual tests for the purpose of
subjective intent. See id. at 54 (“[T]he [First Circuit] “improving test-taking techniques[]” . . . is an activity
erroneously relied on [the officials’] subjective intent in that, in certain high stakes situations, might result in
resolving the logically prior question of whether their acts someone’s using the information to improve students’
were legislative.”); see also Tenney, 341 U.S. at 377 (“The scores.
claim of an unworthy purpose does not destroy the
privilege.”). In other words, “[w]hether an act is legislative We expect Portsmouth City Schools to discontinue
turns on the nature of the act, rather than on the motive or immediately the practice of encouraging or allowing
intent of the official performing it.” Bogan, 523 U.S. at 54. teachers to preview the tests currently being administered
The proper inquiry, therefore, was “whether, stripped of all by the district (or commercially-prepared alternative
considerations of intent and motive, [the] actions were forms of such tests) for the purpose of “improving test-
legislative.” Id. at 55. taking techniques.”
Applying those standards to the facts before it, the Supreme Trent ultimately concluded, however, that “there is no
Court ruled that Bogan and Roderick were indeed entitled to concrete evidence that any one [sic] used the test materials to
legislative immunity: “Roderick’s acts of voting for an reveal any specific test question to a student or to help any
ordinance were, in form, quintessentially legislative. . . . student cheat . . . .”
Bogan’s introduction of a budget and signing into law an
ordinance also were formally legislative, even though he was In a separate but related dispute, another employee of the
an executive official. . . . Bogan’s actions were legislative School District, Michael Osborne, sued the Board in 1993
because they were integral steps in the legislative process.” “relat[ing] to a forced vacation following an allegation that
Id. (citations omitted). The Court then looked beyond [he] had disseminated actual achievement test questions to the
Roderick’s and Bogan’s “formal actions” to consider whether faculty at Wilson . . . .” (Michael Osborne, a teacher at the
the ordinance at issue was legislative “in substance”: Wilson Elementary School, is not to be confused with H.
Garry Osborn, the Superintendent of the School District.)
We need not determine whether the formally legislative William K. Shaw, Jr. served as Michael Osborne’s attorney.
character of [Roderick’s and Bogan’s] actions is alone During the course of Shaw’s representation, he requested and
sufficient to entitle [them] to legislative immunity, received from the Ohio Department of Education an
because here the ordinance, in substance, bore all the unredacted copy of Canary’s letter to Trent. Armed with
hallmarks of traditional legislation. The ordinance Canary’s letter, Shaw met with Osborn and Ross in June of
1993. During that meeting, Shaw complained that his client,
6 Canary v. Osborn, et al. No. 98-4218 No. 98-4218 Canary v. Osborn, et al. 11
Michael Osborne, was “being blamed and disciplined for in a legislative manner when they voted to not renew
allegedly creating a teaching controversy” while Canary, who Canary’s contract. In response, Canary contends that the
Shaw characterized as “the driving force behind the State’s defendants’ action “was simply an administrative employment
investigation,” had not been “punished in any form.” decision.” Because we agree with Canary’s position as to the
According to Shaw, Ross responded to the complaint by factual nature of the inquiry and whether the contested action
stating that he and Osborn “would take care of Canary.” was legislative in nature in this case, we need not address the
Shaw also contends that “Osborn nodded as if in agreement question of whether a school board can ever be shielded by
. . . .” legislative immunity.
Shortly after Shaw’s meeting with Osborn and Ross, The disposition of the present case requires a close
Osborn asked Canary about the substance of his letter to examination of Bogan. Janet Scott-Harris, the plaintiff in that
Trent. According to Canary, Osborn “angrily confronted” case, was the Administrator of the Fall River (Massachusetts)
him and asked “[W]hat is this horse[—] letter[?]” Osborn Department of Health and Human Services (DHHS). During
testified during his deposition that, after learning from Shaw her tenure, she received a complaint that one of her temporary
that Canary had written the letter to Trent, he shared that employees had made several racial and ethnic slurs about the
information with members of the Board: “I would assume that employee’s colleagues. Scott-Harris responded by preparing
I would have had a discussion with them about it or sent them termination charges against the employee. The employee,
a copy [of the letter]. . . . You know, I can’t recall any however, was able to forestall termination by using her
specific conversation, but I’m assuming that I would have political connections with the Fall River City Council to
discussed it with them, and shared a copy with them and obtain a hearing on the matter. As a result of the hearing, the
counsel.” A copy of the letter was also distributed by Osborn employee agreed to be suspended without pay for sixty days.
to other administrators. In July of 1993, Canary was Daniel Bogan, the mayor of Fall River, eventually reduced the
transferred from McKinley to Portsmouth East. length of the suspension.
On March 10, 1994, the Board held one of its regular While the charges against the employee were pending,
meetings. Apel, Fuller, Hickman, Stevens, and Sturgill were Bogan had prepared his annual city budget proposal.
all in attendance. The minutes reflect that, after Anticipating a reduction in revenue, Bogan proposed freezing
approximately thirty-five minutes of discussing several municipal employee salaries and eliminating 135 jobs.
routine matters, the Board went into executive session “to Included in his proposal was the elimination of the DHHS, of
discuss the employment of public employees.” In addition to which Scott-Harris was the sole employee. The City Council
the Board, other individuals were allowed to attend the Ordinance Committee, chaired by Marilyn Roderick,
executive session, including Osborn and Ross. The closed approved an ordinance eliminating the DHHS. After the city
meeting lasted from 6:40 p.m. until 7:43 p.m. During that council adopted the ordinance, Bogan signed it into law.
time, various “outsiders” were permitted into the executive
session. For example, Shaw and Michael Osborne entered at Scott-Harris thereafter filed a § 1983 action against Fall
6:50 p.m. and exited at 7:13 p.m., and Welton attended from River, Bogan, Roderick, and others, alleging that “the
7:22 p.m. until 7:41 p.m. Canary was not present for any part elimination of her position was motivated by racial animus
of either the regular meeting or the executive session. and a desire to retaliate against her for exercising her First
Amendment rights in filing the complaint against [the
employee].” Bogan, 523 U.S. at 47. The district court denied
10 Canary v. Osborn, et al. No. 98-4218 No. 98-4218 Canary v. Osborn, et al. 7
Constitution, see U.S. CONST. art. I, § 6, has been The results of the Board’s closed meeting are set forth in its
summarized as follows: minutes under the title “personnel actions,” and are further
divided into “resignations,” “change[s] in status,” and
In order to enable and encourage a representative of the “appointment[s]/reappointment[s].” As for the first of these
public to discharge his public trust with firmness and categories, the minutes reflect that the Board accepted the
success, it is indispensably necessary, that he should resignations of a teacher/tutor and of a custodian. The third
enjoy the fullest liberty of speech, and that he should be category lists eight principals and assistant principals,
protected from the resentment of every one, however including Kinker, who were appointed or reappointed, along
powerful, to whom the exercise of that liberty may with their respective contract start dates.
occasion offense.
Five individuals are listed under the “change[s] in status”
Tenney, 341 U.S. at 373 (citation and internal quotation marks category. The minutes indicate that, after the Board changed
omitted). It is the defendants’ burden to establish the the title of one of its substitute teachers, it voted to not renew
existence of absolute legislative immunity. See Kamplain v. the contracts of four certified administrators—Canary,
Curry County Bd. of Comm’rs, 159 F.3d 1248, 1251 (10th Kathleen Moore, Michael Osborne, and Welton. Each name
Cir. 1998). is listed separately, followed by their title as of the date of the
meeting, a summary of the expiring contract, and the position
Recently, the Supreme Court extended this “venerable to which they were newly appointed. For Canary, Michael
tradition” to local legislators, making them “absolutely Osborne, and Welton, that new position was a demotion to
immune from suit under § 1983 for their legislative “Teacher, Continuing Contract.” The following explanation
activities.” Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998). is provided in the minutes for each of these “change[s] in
It reasoned as follows: status”:
The rationales for according absolute immunity to This action reflects the adverse financial status being
federal, state, and regional legislators apply with equal faced by the district. As a result of the financial
force to local legislators. Regardless of the level of situation, it will be necessary to carefully analyze the cost
government, the exercise of legislative discretion should efficiency of other district positions and possibly
not be inhibited by judicial interference or distorted by eliminate some positions which are important; but not
the fear of personal liability. Furthermore, the time and critical to the operation of the district. The possibility of
energy required to defend against a lawsuit are of such action being taken in the future was communicated
particular concern at the local level, where the part-time to all administrators in March of 1991.
citizen-legislator remains commonplace. And the threat
of liability may significantly deter service in local All of these decisions were made upon Osborn’s
government where prestige and pecuniary rewards may recommendation, and were unanimously approved by the
pale in comparison to the threat of civil liability. Board. During the remainder of the meeting, the Board
discussed various financial reports and other miscellaneous
Id. at 52 (citations omitted). matters. By letter dated March 11, 1994, Osborn informed
Canary of the Board’s decision, and provided the following
As previously noted, the defendants argued in support of explanation:
their summary judgment motion that the members of the
Board are entitled to such immunity because they were acting
8 Canary v. Osborn, et al. No. 98-4218 No. 98-4218 Canary v. Osborn, et al. 9
The action was taken as a reaction to the adverse order, the district court concluded that the members of the
financial status being faced by the district. Difficult Board were not entitled to absolute legislative immunity
situations often result in the need to take unpleasant because “in not renewing particular employees’ contracts
actions. We are sad for the discomfort and displeasure while renewing others, the Board was making individual
the action may cause you. The best is wished for your employment decisions.”
tenure as a district teacher.
In this appeal, the defendants do not contest the other
Although not entirely clear from the record, the Board rulings contained in the district court’s order. Rather, they
apparently created two new “student facilitator” positions for take issue with the district court’s interpretation of Bogan and
the School District sometime after March of 1994. Osborn argue that Bogan is indistinguishable from the present case.
testified during his deposition that a student facilitator, among
other things, “helps with discipline, proficiency, testing, II. ANALYSIS
guidance of young people, [and] counseling.” At least one of
the student facilitators was allocated to Portsmouth East, A. Standard of review
where Joe Knapp served as the Principal. During the summer
of 1994, Canary, at the urging of Knapp, applied for that We review de novo a district court’s decision to grant or
position. He was not appointed. At the end of the summer, deny summary judgment. See Smith v. Ameritech, 129 F.3d
Canary was informed that he would be assigned to teach at 857, 863 (6th Cir. 1997). Summary judgment is appropriate
McKinley for the 1994-1995 school year. It was then that he when there are no genuine issues of material fact in dispute
learned that Jim Smith, another employee within the School and the moving party is entitled to judgment as a matter of
District, had been chosen to be the new student facilitator at law. See FED. R. CIV. P. 56(c). In deciding a motion for
Portsmouth East. summary judgment, the court must view the evidence and
draw all reasonable inferences in favor of the non-moving
B. Procedural history party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). The judge is not “to weigh the
Canary filed suit against Apel, Fuller, Hickman, Osborn, evidence and determine the truth of the matter but to
Stevens, Sturgill, and the Board. He sued the members of the determine whether there is a genuine issue for trial.”
Board in their individual and official capacities. In his Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
complaint, Canary alleged that the defendants “infringed upon A genuine issue for trial exists when there is sufficient
[his] right to speak out about matters of public concern by “evidence on which the jury could reasonably find for the
retaliating against him and demoting him because he refused plaintiff.” Id. at 252.
to engage in the cheating scheme . . . and because he reported
the activity to the State of Ohio.” B. The district court did not err when it held that the
defendants were not entitled to absolute legislative
The defendants filed a motion for summary judgment on immunity
May 15, 1998. Among other things, they argued that Apel,
Fuller, Hickman, Stevens, and Sturgill were not liable in their “Freedom of speech and action in the legislature was taken
individual capacities because they were entitled to absolute as a matter of course by those who severed the Colonies from
legislative immunity as established by Bogan v. Scott-Harris, the Crown and founded our Nation.” Tenney v. Brandhove,
523 U.S. 44 (1998). The district court, by order dated 341 U.S. 367, 372 (1951). The rationale supporting such
September 30, 1998, denied the defendants’ motion. In its absolute legislative immunity, which was written into our