                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a0114n.06

                                          No. 10-2602
                                                                                        FILED
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                               Jan 31, 2012
                                                                             LEONARD GREEN, Clerk
    JAMES KIESSEL, et al.,                      )
                                                )
           Plaintiffs-Appellees,                )    ON APPEAL FROM THE UNITED
                                                )    STATES DISTRICT COURT FOR
    v.                                          )    THE WESTERN DISTRICT OF
                                                )    MICHIGAN
    MICHAEL OLTERSDORF,                         )
    Leelanau County Sheriff, et al.,            )    OPINION
                                                )
           Defendants-Appellants.               )
                                                )


Before: BOGGS and STRANCH, Circuit Judges; and THAPAR, District Judge.*

AMUL R. THAPAR, District Judge.

          The plaintiffs in this case allege, among other things, a First Amendment retaliation

claim under § 1983 against the Sheriff and Undersheriff of Leelanau County, Michigan. The

Sheriff and Undersheriff now appeal the district court’s summary-judgment order denying

their request for qualified immunity. We affirm.

                                                I.

          Many law enforcement organizations, including the Leelanau County Sheriff’s Office,

automatically record telephone calls. The phones in the Leelanau Sheriff’s Office, however,

had a button marked “Private Out.” This label was a misnomer. The phone company, not

the Sheriff’s Office, placed the “Private Out” label on the phones, and the button had no

function. Thus, the telephone system recorded calls made on the “Private Out” line. R. 182-

1 at 6.

*


 The Honorable Amul R. Thapar, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
No. 10-2602
Kiessel v. Leelenau County

       In January 2008, two of the plaintiffs, Sergeant James Kiessel and Sergeant Michael

Lamb, reported to the FBI and the Michigan State Police that Sheriff Mike Oltersdorf and

Undersheriff   Scott   Wooters    were    illegally   eavesdropping   on    employees’     phone

conversations. See R. 181-1 at 7. Kiessel and Lamb alleged that the Sheriff and Undersheriff

violated their privacy by listening to their phone calls made on the “Private Out” line.

       In response, the Sheriff and Undersheriff cited the office’s Information Technology

policy, which stated that employees have “no ‘Expectation of Privacy’” in the use of office

technology equipment, including the telephone. R. 182-4 ¶ 2. They further noted that the

Employee Code of Conduct exempted “[a]gency recorded telephone lines” from the Code’s

prohibition on eavesdropping. Code of Conduct, R. 182-3 § IV(A)(21). In April 2008, the

Michigan Attorney General advised the Sheriff and Undersheriff that they had not broken the

law, and Sheriff Oltersdorf informed his office’s employees of the opinion.

       A public debate ensued. First, the Traverse City Record-Eagle published an article in

June 2008 that quoted Sheriff Oltersdorf defending the recording policy. Plaintiffs Kiessel

and Bankey responded with a letter to the editor of the paper. They claimed the Sheriff had

committed “misconduct” and “unlawful actions” and that he had authorized Undersheriff

Wooters to listen in on “official business conversations having to do with union functions

that are federally protected under labor law.” Id. Six months later, Oltersdorf suspended

Kiessel and Bankey for forty hours without pay for conduct unbecoming an officer because

they had made “false public accusations of unlawful conduct by the Leelanau County

Sheriff.” R. 183-4. A year later, the Sheriff’s Office discharged Plaintiffs Kiessel, Lamb,

and Wright.


2
No. 10-2602
Kiessel v. Leelenau County

        The plaintiffs, all sheriff’s deputies who belong to a labor union, alleged nine claims

against Oltersdorf and Wooters, including retaliation in violation of their First Amendment

rights. See R. 89. In addition to the letter to the newspaper, the plaintiffs claimed that the

First Amendment protected their initial report to the Michigan State Police and the FBI, a

letter they wrote to the Leelanau County Board of Commissioners in April 2008, and their

union activities. R. 89 ¶ 100. At oral argument, the defendants stated they are only pursuing

the claim that the First Amendment does not protect the plaintiffs’ letter and their union

activities.

                                                II.

        Jurisdiction. As an initial matter, the plaintiffs argue that this court lacks jurisdiction

to hear this appeal because of its interlocutory nature. They are incorrect. Interlocutory

appeal is available when qualified immunity claims turn on issues of law rather than fact.

Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998). Here, the defendants claim that the

plaintiffs’ actions—their letter to the editor and union activities—are not matters of public

concern. Whether speech relates to a matter of public concern, and thus qualifies for First

Amendment protection, is a legal question. See Connick v. Myers, 461 U.S. 138, 148 n.7

(1983) (“The inquiry into the protected status of speech is one of law, not fact.”). This court,

therefore, has jurisdiction and will review the district court’s denial of summary judgment on

qualified-immunity grounds de novo. Hayden v. Green, 640 F.3d 150, 153 (6th Cir. 2011).



                                               III.




3
No. 10-2602
Kiessel v. Leelenau County

       Law enforcement officials would be unable to carry out their duties if litigation

threatened them at every turn. Qualified immunity provides a shield from liability, but only

insofar as government officials’ “conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.”              Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Courts apply a two-prong test to determine if a

defendant can receive qualified immunity:        first, whether the defendant violated the

plaintiff’s constitutional rights, when the allegations are considered in the light most

favorable to the plaintiff, and second, whether those rights were clearly established. Pearson

v. Callahan, 555 U.S. 223, 232, 236 (2009). Even on interlocutory appeal, the plaintiff bears

the burden of showing that the defendant is not entitled to qualified immunity. Garretson v.

City of Madison Heights, 407 F.3d 789, 798 (6th Cir. 2005).

       The First Amendment protects public employees from retaliation based on their

speech, but only under certain conditions. To establish a First Amendment retaliation claim,

a public employee must show (1) that he engaged in constitutionally protected speech; (2)

that his employer’s disciplinary action would have chilled an ordinary person from exercising

their First Amendment rights; and (3) that the protected speech was a “substantial or

motivating” factor in his employer’s disciplinary decision. Westmoreland v. Sutherland, 662

F.3d 714, 718 (6th Cir. 2011).

A. Protected Speech

       “[T]he First Amendment protects a public employee’s right, in certain circumstances,

to speak as a citizen addressing matters of public concern.” Id. (quoting Garcetti v. Ceballos,

547 U.S. 410, 417 (2006)). A “matter of public concern” is one that involves “issues about


4
No. 10-2602
Kiessel v. Leelenau County

which information is needed or appropriate to enable the members of society to make

informed decisions about the operation of their government.” Brandenburg v. Housing Auth.

of Irvine, 253 F.3d 891, 898 (6th Cir. 2001) (quoting McKinley v. City of Eloy, 705 F.2d

1110, 1114 (9th Cir. 1983)). For example, a letter reporting a local water treatment plant’s

violation of environmental regulations to a state agency addresses a matter of public concern.

See Charvat v. E. Ohio Reg’l Wastewater Auth., 246 F.3d 607, 617-18 (6th Cir. 2001). But

speech addressing “matters only of personal interest” is generally not of public concern.

Connick, 461 U.S. at 147. The motive for the speech is relevant but not dispositive of this

inquiry. Westmoreland, 662 F.3d at 719.

       The Newspaper Letter.       In their letter, the plaintiffs claimed that the defendants

violated the law. Indeed, the letter emphasized that the defendants engaged in “unlawful”

and “illegal” conduct. And, when public employees allege that government officials break

the law, their speech addresses a matter of public concern. See v. City of Elyria, 502 F.3d

484, 493 (6th Cir. 2007) (“Statements exposing possible corruption in a police department

are exactly the type of statements that demand strong First Amendment protection.”); Lucas

v. Monroe County, 203 F.3d 964, 974 n.5 (6th Cir. 2000) (“Certainly speech which questions

the credibility of the Sheriff’s Department . . . is a matter of political concern”); Marohnic v.

Walker, 800 F.2d 613, 616 (6th Cir. 1986) (“Public interest is near its zenith when ensuring

that public organizations are being operated in accordance with the law.”).

       In response, the defendants claim that the plaintiffs’ reference to illegal conduct was

“passing” or “fleeting” and “incidental to the message conveyed.” Appellants’ Reply Br.

at 7. Cf. Farhat v. Jopke, 370 F.3d 580, 592-93 (6th Cir. 2004) (holding a public employee’s


5
No. 10-2602
Kiessel v. Leelenau County

speech was not protected when the speech contained only “fleeting” references of public

corruption because the main “focus” or “point” of the speech was the employee’s personal

situation). To be sure, the plaintiffs’ letter did not elaborate on why the sheriffs’ actions were

unlawful or what laws they broke. But accusations of corruption in a police department are

“exactly the type of statements that demand strong First Amendment protections.” Elyria,

502 F.3d at 493. In Connick, for instance, only one of fourteen questions on a questionnaire

dealt with corruption, but that question alone sufficed for the questionnaire to relate to a

public concern. 461 U.S. at 149. By contrast, here the entire thrust of the plaintiffs’ letter is

the sheriffs’ “illegal” eavesdropping on “private” conversations. The Sheriff recognized it as

such, telling the plaintiffs that they did not “have the right to make false public accusations of

unlawful conduct” by the Sheriff.        R. 183-4.     There is simply nothing “fleeting” or

“incidental” about it. Moreover, the letter was expressly responding to a newspaper article

about the sheriffs’ phone recordings, further demonstrating the issue to be one of public

concern. Lucas, 203 F.3d at 974 & n.5.

       A public employer may nonetheless restrict constitutionally protected speech if the

employer’s legitimate interests in “promoting the efficiency” of public services outweigh the

employee’s First Amendments interests. Pickering v. Bd. of Educ. of Twp. High Sch. Dist.

205, 391 U.S. 563, 568 (1968).         The defendants did not make this argument, and no

extraordinary reason exists for this court to do it for them. See, e.g., Chappel v. Montgomery

Cnty. Fire Prot. Dist. No. 1, 131 F.3d 564, 579 (6th Cir. 1997) (declining to consider

government defendant’s efficiency argument for first time on appeal).




6
No. 10-2602
Kiessel v. Leelenau County

       Union Activities.    The defendants also argue that the First Amendment does not

protect the plaintiffs’ union activities. See Boals v. Gray, 775 F.2d 686, 693 (6th Cir. 1985).

But this is not an independent claim. Rather, the complaint includes one count of First

Amendment retaliation, encompassing the letter, the union activities, and the plaintiffs’

report to law enforcement, among other things. See Third Am. Compl., R. 89 at 23. Because

the newspaper letter was protected speech, we do not need to decide whether the plaintiffs’

union activities were also protected.

B. Plaintiffs’ Protected Speech as Motivating Factor for Adverse Action

       The defendants do not dispute that the plaintiffs have suffered adverse action.

Therefore, all that remains is for the plaintiffs to show that their protected speech motivated

the defendants’ adverse action against them. Again, the plaintiffs easily meet this evidentiary

threshold. When Sheriff Oltersdorf suspended Plaintiffs Bankey and Kiessel, he told them

that they did not “have the right to make false public accusations of unlawful conduct by the

Leelanau County Sheriff.”     R. 184-3.    This statement is sufficient to establish a nexus

between the plaintiffs’ protected speech and the adverse action.

C. Clearly Established Right of the Plaintiffs

       The second prong of the qualified immunity analysis requires courts to ask whether

the plaintiff’s constitutional right was clearly established. Pearson, 555 U.S. at 243-44. In

the Sixth Circuit, a public employee’s First Amendment right against retaliation for protected

speech has been clearly established for nearly two decades. See Williams v. Kentucky, 24

F.3d 1526, 1537 (6th Cir. 1994). The defendants are therefore entitled to qualified immunity

only if a reasonable official could have believed the plaintiffs knowingly or recklessly made


7
No. 10-2602
Kiessel v. Leelenau County

false statements in their protected speech. See Pickering, 391 U.S. at 574; Grossman v.

Allen, 950 F.2d 338, 342 (6th Cir. 1991).

       The defendants argue that a reasonable official could have believed that the plaintiffs

knowingly or recklessly made false statements in their newspaper letter, because the

Michigan Attorney General stated that defendants’ eavesdropping was permissible.

Appellants’ Br. at 24-25. A state attorney general’s opinion, however, is not sufficient to

make a conclusive determination of the legality of a public officer’s acts. See Danse Corp. v.

City of Madison Heights, 466 Mich. 175, 182 n.6 (2002) (“[O]pinions of the Attorney

General are not binding on courts as precedent.”). Even if it were, this information alone

could not have led a reasonable official to conclude the plaintiffs acted with reckless

indifference to the truth. The sheriffs knew the plaintiffs had reported the eavesdropping to

the FBI as well as to the Michigan State Police, suggesting the plaintiffs believed that the

Sheriff’s Office broke both federal and state laws. The Attorney General’s opinion dealt only

with the legality of the eavesdropping under state law, see R. 182-5, so a reasonable official

could not have relied on the opinion to conclude that the plaintiffs falsely accused the sheriffs

of violating federal law. The defendants therefore are not entitled to qualified immunity

under the second prong of the qualified immunity analysis.

       For the foregoing reasons, we AFFIRM the judgment of the district court.




8
