Appellant: Donna J. Tappan
Appellee: Oklahoma Employment Security Commission; the Board of Review of the Oklahoma Employment Security Commission; and Garfield CountY Sheriff's Department
Jurisdiction: Court of Appeals of Oklahoma, Division No. 1
Hearing_Date: March 24, 2006
Text_of_Rule:
( Hansen )

( Garfield County - John W. Michael ) p Not Published AFFIRMED

Jeff A. Lee, HAMONS, GOWENS & ASSOCIATES, Oklahoma City, Oklahoma, For Plaintiff/Appellant

Teresa Thomas Keller, Oklahoma City, Oklahoma, For Defendants/Appellees

OPINION

1/ Appellant Donna J. Tappan ("Tappan") appeals from a final order of the trial court which affirmed the Oklahoma Employment Security Commission ("OESC") Board of Review's denial of her unemployment benefits claim on grounds she was terminated for misconduct. Tappan argues she was terminated for constitutionally protected speech and political association and such conduct cannot be construed as misconduct sufficient to sustain a denial of benefits.

2/ Beginning in November 1995, Tappan worked as a Sheriff's Deputy for the Garfield County Sheriff's Department (the "Department") under Sheriff Winchester. Tappan signed a "loyalty oath" upon commencement of her employment. Prior to the incident leading to her termination, Tappan's employment record had minor blemishes, an oral reprimand for violating policy regarding gossip and rumors and a written reprimand for making false statements about another. According to Employer's exhibits one and two, in February of 2004, Tappan violated Department policy concerning apprehension of dangerous suspects. This violation generated concern throughout the Department as to whether working with Tappan "on the streets" was safe. She was shortly thereafter transferred, or according to Tappan, "demoted," to the Transport Division of the Sheriff's Department. Around this time, according to Sheriff Winchester's testimony in the OESC Appeal Tribunal transcript, Tappan was friends with another Deputy, Bobby Hand, and the two shared negative attitudes toward the Department and "fed off one another." Despite all this, Sheriff Winchester had not planned to discipline Tappan beyond the transfer.

3/ Shortly after her transfer, while on duty, Tappan stopped at "Super Lube" to have her Sheriff's vehicle serviced. While her vehicle was being serviced, according to Sheriff Winchester's letter terminating Tappan's employment, Tappan informed an employee of Super Lube she could hardly wait for the upcoming July 2004 election and she would be voting for and supporting any candidate running against Winchester for the position of Garfield County Sheriff; further, Tappan told this employee she had recently been demoted and Sheriff Winchester's poor decision making may indicate his cancer had returned. The manager of Super Lube perceived Tappan's statements as inappropriate and word of them reached Sheriff Winchester.

4/ Sheriff Winchester claims Tappan's statements, made while on duty, violated her signed oath of loyalty as it pertains to both him and the Department. Further, Winchester feared the statements of an on duty Deputy Sheriff would have the appearance of credibility and could spread throughout the general public in a manner harmful to the Department and its daily functions. Sheriff Winchester also acknowledged his cancer was a sensitive issue in his past campaign for Sheriff and that his upcoming campaign might be jeopardized by re-injection of the issue into public discourse. Sheriff Winchester testified he believed Tappan did not have the right, while on duty, to express to the public her opinion not to vote for him. Sheriff Winchester did, however, state an off duty officer could put up signs or otherwise campaign for another.

5/ Prior to terminating Tappan, Winchester convened a panel of Department employees to advise him how to respond to the Super Lube incident. Winchester allegedly instructed the panel they had several options, ranging from oral reprimand to termination. The panel recommended termination based upon the most recent incident, as well as Tappan's attitude and past work habits. Winchester alleges he spoke to Tappan about the reasons for her termination and she could not recall what she had said to the Super Lube employees.

6/ After termination, Tappan sought unemployment benefits from the OESC and was denied on the grounds her speech to the Super Lube employees constituted willful misconduct in disregard for her employer's best interest. Upon notice of this decision, Tappan appealed first within the OESC and next to the OESC Board of Review; in both instances the Commission's original finding was affirmed. Tappan then brought suit in state district court. The trial court affirmed the Board, holding the findings were supported by evidence, its proceedings were without error, and its conclusions were consistent with current Oklahoma law. Tappan now appeals to this Court, arguing her alleged misconduct was protected speech under Article II , Section 22 of the Oklahoma Constitution and the First Amendment of the United States Constitution.

7/ "Title 40 O.S. 2-610 (2001) provides, in any proceeding under this section the findings of the Board of Review as to the facts, if supported by evidence, shall be conclusive and the jurisdiction of said court shall be confined to questions of law. . . This Court's standard of review on appeal is the same as that of the trial court.

Further, the question of what constitutes misconduct' sufficient to deprive a terminated employee of entitlement to unemployment benefits is a question of law." Gilchrist v. Bd. of Review of Oklahoma Employment Sec. Com'n., 2004 OK 47, 94 P.3d 72, 74. "An agency's adjudicative order will be affirmed if the record contains substantial evidence in support of the facts upon which the decision is based, and if the order is otherwise free of error." In re Permit to Develop an Abstract Plant of LeFlore Title Co., Inc., 2003 OK CIV APP 76, 77 P.3d 621, 623. "However, an administrative order is subject to reversal if an appealing party's substantial rights are prejudiced because the agency's decision violates constitutional provisions, or if an order is entered based on an error of law." Id.; 75 O.S. 322(1)(a)(d) (2001). If the agency decision is found to be valid and the proceedings are free from prejudicial error, this Court shall affirm the agency's order and decision. 75 O.S. 322(3) (2001).

8/ The purpose of unemployment compensation legislation is to provide relief to those unemployed through no fault of their own. Pester v. Bd. of Review of Oklahoma Employment Sec. Com'n, 1985 OK 21, 697 P.2d 533, 537. Title 40 O.S. 2-406 (2001) provides unemployment benefits may be denied where the OESC finds the employee has been fired for misconduct in her last job. The Oklahoma Supreme Court expressed approval of this Court's interpretation of misconduct as used in the Act. Id. at 536-37, (citing Types v. Uniroyal Tire Co., 1984 OK CIV APP 20, 679 P.2d 1310).

In Types, this Court defined misconduct as conduct which:

"evinces such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such a degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed misconduct' within the Act."

Types, 1984 OK CIV APP 20, 679 P.2d at 1312.

9/ The OESC concluded Tappan's conduct at Super Lube was willful misconduct, under Types. The Board supported this conclusion by the facts she was on duty, the statements were made to the public and were demeaning of her employer, were negative towards her work and diminished her employer's effectiveness, and she had prior warning gossiping could jeopardize her job. However, regardless whether misconduct as defined in Tynes is present, this Court shall reverse an agency order upon a finding the order violates constitutional provisions. 75 O.S. 322 (1963).

10/ In her first proposition, Tappan contends the labeling of her speech as misconduct is a violation of her right to free speech guaranteed by Article II , Section 22 of the Oklahoma Constitution. That provision of the Constitution states "every person may freely speak. . his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech." Id. Tappan brings essentially the same argument in her third proposition, albeit under the First Amendment of the United States Constitution.

11/ The constitutional analysis for determining whether employee conduct is in fact protected speech is set out as a four-part test derived from Pickering v. Board of Education, 391 U.S. 563 (1968), and Connick. Myers, 461 U.S. 138 (1983). Under the "Pickering-Connick test," a court asks:

"(1) whether the speech at issue involves a matter of public concern; (2) if so, a court must weigh the employee's interest in the expression against the government employer's interest in regulating the speech of its employees so that it can carry on an efficient and effective workplace; (3) the employee must show the speech was a substantial factor driving the challenged governmental action; (4) if so, can the employer show that it would have taken the same employment action against the employee even in the absence of the protected speech."

Kent v. Martin, 252 F.3d 1141, 1143 (10th Cir. 2001). "The first two questions are ones of law for the court, while the latter two questions are ones of fact for the jury." Barker v. City of Del City, 215 F.3d 1134, 1137, 1139 (10th Cir. 2000). "The realm of protected speech for public employees is much narrower than that for the general public." Connick, 461 U.S. at 144.

12/ Speech touches on a matter of public concern where it relates to "political, social, or other concern to the community." McFall v. Bednar, 407 F.3d 1081, 1089 (10th Cir. 2005). In determining whether the public concern prong is satisfied, the court considers "the content, form and context of a given statement, as revealed by the whole record." Gardetto v. Mason, 100 F.3d 803, 812 (10th Cir.1996). "Not all, matters which transpire within a government office are matters of public concern." Craven v. Univ. of Colo. Hosp. Auth., 260 F.3d 1218, 1227 (10th Cir. 2001) (stating the First Amendment does not require a public office be run as a roundtable for employee complaints over internal office affairs).

13/ To determine whether one's speech addresses personal grievances or a broader public purpose, courts focus on the speaker's motive. Gardetto, 100 F.3d at 812. In making this determination, a court inquires as to whether the speech was "calculated to disclose wrongdoing or inefficiency or other malfeasance on the part of governmental officials in the conduct of their official duties." See Patrick v. Miller, 953 F.2d 1240, 1248 (10th Cir.1992); Workman v. Jordan, 32 F.3d 475, 483 (10th Cir. 1994). Finally, "in drawing the thin line between a public employee's speech which touches on matters of public concern, and speech from the same employee which only deals with personal employment matters, a court may look to the subjective intent of the speaker." Schalk v. Gallemore, 906 F.2d 491, 495 (10th Cir. 1990).

14/ Tappan's speech regarding the upcoming election and Sheriff Winchester's competency does relate to a public concern to the community, the upcoming election of sheriff; however, these statements lose strength when viewed in context of Tappan's statement she had been demoted. This latter statement tends to taint Tappan's former statements as a personal grievance. Tappan's statements, regarding the election and Sheriff Winchester's decision making, do not disclose any wrongdoing on the part of Sheriff Winchester in the conduct of his official duties. Also, the proximity of Tappan's disparaging conduct and her demotion suggest she made the statements out of personal grievance and not to address a broader public purpose. Moreover, Tappan's statement suggesting Sheriff Winchester's poor decision-making is attributable to cancer does little to help inform the public of some inefficiency, corruption or malfeasance in a public office. It tends, rather, to stir rumors and injure Sheriff Winchester's chances for re-election. Further, the only poor decision reflected in the record to which Tappan may be referring is Sheriff Winchester's decision to transfer Tappan, a decision justified under the facts.

15/ Assuming arguendo, Tappan's reference to voting and official decision-making was sufficient to find her speech touched on a matter of public concern, we do not find Tappan's conduct survives the second prong of the four-part Pickering-Connick test.

16/ Under prong two, the court weighs Tappan's interest in the expression against the Department's interest in regulating the speech of its employees so it can carry on an efficient and effective workplace. The First Amendment's protection of speech "has its fullest and most urgent application precisely to the conduct of campaigns for political office." Monitor Patriot v. Roy, 401 U.S. 265, 272 (1971). "The public has a vital interest in hearing comments on public issues and in the promotion of public debate regarding local elections and the public issues which directly and powerfully affect their communities." Waters v. Churchill, 511 U.S. 661 (1994) (plurality opinion). Government employees are often in the best position to know what ails the agencies for which they work, public debate may gain much from their informed opinions. Pickering, supra, 391 U.S. at 572.

17/ However, the Pickering balance requires "full consideration of the government's interest in the effective and efficient fulfillment of its responsibilities to the public." Connick, supra, 461 U.S. at 151. Prolonged retention of a disruptive employee may "adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency of an office or agency." Id. The need to maintain discipline and harmony among co-workers "is particularly acute in the context of law enforcement." Moore v. City of Wynnewood, 57 F.3d 924, 934 (10th Cir. 1995). "The fact the speech at issue occurred during an employee's official duties is but one consideration in the Connick-Pickering inquiry. Nonetheless, it is a significant factor . . . ." Koch v. City of Hutchinson, 847 F.2d 1436, 1442 (10th Cir. 1988) (en banc). "The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee's role entails." Rankin v. McPherson, 483 U.S. 378, 390 (1987). The Tenth Circuit has noted, "an employer cannot satisfy its burden by making purely speculative allegations."' Jantzen v. Hawkins, 188 F.3d 1247,1257 (10th cir. 1999).

18/ In Moore, an on-duty, uniformed officer left his shift to go make statements at a city council meeting, despite being the only officer on duty in the entire town. Moore, supra, 57 F.3d at 934. The officer's statements regarded an image problem the department faced because of the police chief. The police chief interpreted the statements as criticism of his managing skills and demoted the officer. The officer later resigned and brought a 1983 First Amendment action alleging his speech was protected. The court found the statement touched on a matter of public concern but acknowledged the statement threatened both the department's morale and chain of command. Id. at 934. The court found the officer's interests in expressing himself failed to outweigh those of the department where the statements threatened to disrupt the department, based on its small size, and threatened to injure the close working relationship of the officer with his fellow officers and commander. Id. at 935.

19/ In Waters, a nurse was allegedly terminated for statements made to a co-worker criticizing department policy. The co-worker perceived the statements as "unkind and inappropriate." Waters, supra, 511 U.S. at 665. The nurse's employer conducted a reasonable investigation before punishing the nurse for her statements. Although the Oklahoma Supreme Court expressly declined to embrace Water's reasonable investigation requirement, the Court has acknowledged cases in which it is satisfied. See for e.g. Acevedo v. City of Muskogee, 1995 OK 37, 897 P.2d 256, 261 n.8. The Court noted the Waters investigation was reasonable where "the employer interviewed the party to whom the disruptive statement was made, confronted the parties who overheard the statement, and discussed the statement with the discharged nurse." Id. The Water's Court found the nurse's speech could not satisfy the second prong of Pickering, where it was disruptive of co-worker relationships, considered "unkind and inappropriate" to the listener, and where strong evidence suggested management's authority would be undermined if the nurse was not dealt with. Id. at 680-81.

20/ In her brief, Tappan personalizes the Department's interests as being solely those of Sheriff Winchester and his desire to be re-elected. This characterization suggests the Department's interests in effective and efficient fulfillment of its responsibilities to the public were not impaired.1 Sheriff Winchester argues to the contrary, alleging Tappan's conduct undermined both him and the Department, because her statements had the appearance of credibility by the fact she was in uniform and on duty. Further, Sheriff Winchester argues Tappan's conduct impaired the Department's ability to operate effectively and instill trust and confidence in the citizens of the community.

21/ Tappan was in a position to gain an informed opinion of the Department; however, it is doubtful the public had a vital interest in hearing how she intended to vote or that cancer may be affecting her employer's decision-making. As in Waters, the strength of Tappan's interests are also diminished where the manager of Super Lube perceived Tappan's statements as inappropriate and where Tappan could not remember the substance of her own statements when informed of her termination. As in Moore, the Garfield County Sheriff's Department is small and Tappan's statements were capable of injuring morale and her close working relationship with other officers and the Sheriff. Further, similar to the reasonable investigation in Waters, before terminating Tappan, Sheriff Winchester investigated the incident, interviewed the listeners, and formed a panel of co-workers to recommend discipline. While not required, these factors indicate a filter of reasonableness and thoughtfulness was applied as a safeguard against undue regulation of employee speech. We conclude Tappan's interest in expressing herself did not outweigh the Department's interest in maintaining workplace morale, harmony, and efficiency.

22/ In her second proposition, Tappan contends her conduct was protected under the First Amendment of the United States Constitution's freedom to associate with either a candidate or party of her choice. "The First Amendment protects public employees from discrimination based upon their political beliefs, affiliation, or non-affiliation unless their work requires political allegiance." Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1451 (10th Cir. 1997) (citing Rutan v. Republican Party of Illinois, 497 U.S. 62, 68-9 (1990) and Branti v. Finkel, 445 U.S. 507, 513 (1980)).2

23/ Based on the record, there was nothing inherently political about Tappan's relationship with Sheriff Winchester. Tappan's alleged First Amendment activity is based on neither actual loyalty to a political party nor to a particular political candidate. The gist of her speech was apparently to influence Super Lube employees to vote for anyone except Sheriff Winchester in the upcoming election. The issue then, is whether this conduct is activity protected under the First Amendment freedom of association.

24/ We believe the true motive of Tappan's conduct was retaliation against Sheriff Winchester and not to express her right to associate herself politically. While at Super Lube, Tappan told employees she had been demoted, Sheriff Winchester's poor decision making may be the result of a new onset of cancer, and she planned to vote against him in the upcoming election, for which she could hardly wait. Viewed in context, the mere fact Tappan referenced the upcoming election is not sufficient to bring her conduct within the ambit of First Amendment freedom of association protection. Finally, Tappan cites no law persuading this Court to conclude her conduct was otherwise protected under this provision of the First Amendment. The decision of the district court denying Tappan unemployment benefits on misconduct grounds is affirmed.

AFFIRMED.

BELL, P.J., and JOPLIN, J., concur.

(FOOTNOTES):

1 See Horstkoetter v. Dept. of Public Safety, 159 F.3d 1265,1269 (10th Cir. 1998) (holding that troopers' 42 U.S.C.A. 1983 suit challenging department policy against Oklahoma highway patrol displaying political signs at private residences failed the second prong of the Pickering-Connick test, partly because the prohibition-on-political-signs policy "promotes efficiency and harmony among law enforcement personnel . . . and may detract from the efficiency and the quality of the services' provided by law enforcement."')

2 The Tenth Circuit has observed the Circuits are split as to whether the Pickering analysis applies to freedom of association claims. The Tenth Circuit has not expressly decided this issue. Busey v. Bd. of County Comm'rs of County of Shawnee, Kansas, 277 F. Supp.2d 1095 (D. Kan., 2003); Tomes v. Pueblo Bd. of County Comm'rs, 229 F.3d 1165 (10th Cir. 2000) (unpublished decision) (citing Balton v. City of Milwaukee, 133 F.3d 1036, 1039-40 (7th Cir. 1998)); Gregorich v. Lund, 54 F.3d 410, 414 n. 4 (7th Cir.1995); But See Busey, supra, and Beach v. City of Olathe, 185 F. Supp.2d 1229, 1236 n. 2 (D. Kan. 2002) (applying Pickering to freedom of association claim where closely related to plaintiff s freedom of speech claim). See also Flanagan v. Munger, 890 F.2d 1557, 1564 n. 7 (10th Cir. 1989)); Schalk v. Gallemore, 906 F.2d 491, 494 (10th Cir.1990) (expressing doubt regarding applicability of "public concern" analysis to freedom of association claims).