                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                                MAR 1 2004
                        UNITED STATES COURT OF APPEALS

                                     TENTH CIRCUIT                        PATRICK FISHER
                                                                                     Clerk


 ELIZABETH A. BROWN and JAMES
 W. SLICKERS, JR.,

          Plaintiffs - Appellees,

 v.                                                          No. 01-8082
                                                       (D.C. No. 00-CV-124-D)
 TOWN OF LABARGE, WYOMING, and                             (D WYOMING)
 DENNIS HACKLIN, KURT AMOS, and
 JAY EDMISON, each in their individual
 capacities,

          Defendants - Appellants.


                                ORDER AND JUDGMENT*


Before BRISCOE, HOLLOWAY and HARTZ, Circuit Judges.


      This is an interlocutory appeal from a denial of qualified immunity in a § 1983

action alleging deprivation of procedural due process and First Amendment rights.

Plaintiffs-Appellees allege that the individual Defendants-Appellants deprived them of

their constitutional rights by terminating their employment without procedural due



      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
process and in retaliation for exercise of the Plaintiffs’ right of protected speech. The

district court denied the Defendants’ motion for summary judgment asserting qualified

immunity grounds, holding that for purposes of summary judgment, the Plaintiffs had a

protected property interest in their employment, that they were not afforded the requisite

procedural due process, that they were terminated in retaliation for Plaintiffs’ speech on a

matter of public concern, and that the Defendants were not entitled to qualified immunity.

Defendants appeal. For reasons detailed below, we AFFIRM the denial of summary

judgment for the Defendants. We also DISMISS Defendants’ appeal as to the issue of

whether Brown was fired in an emergency situation and whether Slickers was afforded

pretermination procedure for lack of jurisdiction.



                                               I

                                         Background



       This case involves two conceptually separate, but related, appeals. Plaintiffs-

Appellees are James W. Slickers, Jr. (“Slickers”) and Elizabeth A. Brown (“Brown”),

both former employees of the Town of LaBarge (“Town”) in Wyoming, which has a

population of 601.1 Slickers was employed as a police officer and Town Marshal while


       1
         The 2000 census reports 601 persons residing within the postal zip code of the Town of
LaBarge, Wyoming. Highlights from the Census 2000 Demographic Profiles, ZIP Code
Tabulation Area 83123, (2000), available at
http://factfinder.census.gov/servlet/SAFFFacts?_event=Search&geo_id=01000US&_geoContext

                                             -2-
Brown was employed as the Town Clerk. Both allege that Defendant-Appellant Dennis

Hacklin (“Hacklin”), Mayor of LaBarge, violated their constitutional rights by

terminating them from their positions with the Town without the requisite procedural due

process and in retaliation for protected speech. Slickers, however, also claims that the

deprivation of his rights was caused by Jay Edmison (“Edmison”), a city councilman.

Since each alleged procedural due process violation hinges upon different facts, we will

address each Plaintiff separately with respect to that issue. As to the First Amendment

issue, the facts are congruent and we will address the Plaintiffs collectively.

       “The court should accept as true all material facts asserted and properly supported

in the summary judgment motion. But only if those facts entitle the moving party to

judgment as a matter of law should the court grant summary judgment.” Reed v. Nellcor

Puritan Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). The following facts are stated in

that summary judgment record.



                                              A

                       Brown’s due process claim against the Town

       Elizabeth Brown was first appointed Town Clerk on December 30, 1996 by then

Mayor Charles Snively. She continued to serve as Town Clerk through the

administrations of Mayors Dale Hunter and Dan Schmid. Hacklin became mayor of the



=&_street=&_county=&_cityTown=&_state=&_zip=83123&_lang=en&_sse=on

                                             -3-
Town in early 1999. Hacklin scheduled Brown’s reappointment on January 4, 1999, but

instead waited until early February, 1999 to reappoint her. II App. 382.

       While in limbo between January 4, 1999 and her February reappointment, Brown

continued to perform the functions of the Town Clerk. Id. The delay in her

reappointment caused her concern regarding the scope of her authority because her bond

had expired at the end of 1998. Id. This prompted Brown to contact Annette Thorrington

at the Wyoming Association of Municipalities, Clerks and Treasurers (“WAMCAT”) for

guidance. Thorrington told Brown that she could not sign Town checks until she had

been reappointed and her bond was renewed. II App. 382-83.

       On January 14, 1999, Hacklin directed her to sign several checks. II App. 383.

After Brown explained that she could not sign anything until she had been reappointed

and her bond was renewed, Hacklin told her to sign the checks and that he would “take

the heat.” Id. Hacklin then threatened Brown, telling her, “I’ll cut off your pretty little

head. I have two years to teach you. I am the man.” Id. He also ordered her not to call

WAMCAT or the Town Attorney again because he knew “all the laws and some [she]

had never heard of” and he had “the ultimate power.” Id. Brown signed the checks

despite her misgivings. Id.

       In February 1999, Brown found an anomalous charge for online services on the

January bill for the Emergency Medical Services (“EMS”) credit card. II App. 383.




                                             -4-
When she questioned Kurt Amos2 (“Amos”) about whether the EMS was having

computer problems, he answered affirmatively. Id. Brown paid the bill that month. Id.

When the charge reappeared on the March bill, Brown went to Monetta Dixon, the

president of the EMS, and was told that EMS did not have an online service. II App. 383-

84. Dixon also identified Amos as having online service at his home and directed Brown

to investigate the charge. Id. at 384. Brown discovered that Amos had opened the

account that was listed under the LaBarge Ambulance Service. Id.

       Brown reported the results of her investigation to Hacklin who promised to “take

care of it.” II App. 384. Thereafter, Amos tendered a check for $39.90 to the town. Id.

Brown did not accept the check because Dixon had told her the charge was fraudulent,

and instead told Amos to return with a money order. Id. Amos returned with a money

order for $19.95 and denied that the charge had been recurring or that he owed more than

the amount of the money order. Id. Subsequently, a third charge occurred; bringing the

total to almost $60.00. Id.

       Brown states that she did not question Hacklin about the credit card issue again,

nor did she raise the issue publicly. II App. 384. Nonetheless, Brown claims that the

credit card issue exacerbated the severity and frequency of Hacklin’s threats against her.

Id. Brown reported the threats to Slickers, her husband, and to her father-in-law, but did

not discuss them generally. II App. 384-85.



       Kurt Amos was one of the Town’s two police officers and also served as an EMT.
       2



                                            -5-
       Hacklin made at least five threats of violence against Brown. II App. 385. On

one occasion, Hacklin threatened to shoot Brown if she did not complete budgets. On

another, Hacklin threatened to kill Brown in Amos’ presence. Id. Brown asserts that

these threats caused her to suffer from extreme anxiety and emotional distress resulting in

vomiting and encopresis. Id. She sought and received medical treatment and

psychological counseling and was prescribed medication for depression and anxiety. Id.

When Brown asked Hacklin to stop threatening her on June 14, 1999, Hacklin responded

“Then what am I supposed to do, stab you three times in the chest to get my point

across?,” while making stabbing gestures with a serrated letter opener. Id.

       On July 21, 1999, Hacklin brought up the credit card issue during the public

portion of a Town Council meeting. II App. 386. The EMS volunteers and Amos,

Hacklin and the Town Council retired to a private executive session to discuss the matter.

During that session, Amos denied that Brown advised him of the charges or that the total

bill had been $60.00. Id. Brown, at the behest of the EMS volunteers, was invited to the

private executive session to rebut Amos’s contentions. Id. In response, Amos called

Brown a “liar” and told her to “shut up.” Id.

       When the public meeting resumed, several citizens publicly criticized Hacklin’s

handling of the issue. Id. at 387. The Town Council meeting then degenerated into an

exchange of personal insults. Brown’s participation in this meeting was limited to

criticizing Councilwoman Sakai for violating the confidentiality of citizen complaints.



                                           -6-
Brown’s father-in-law, however, publicly accused Hacklin of threatening Brown. Id. at

389. After this exchange, Hacklin turned to Brown and said “Mrs. Brown, you’re out of a

job.” Id. at 390.

       On July 30, 1999, Brown tried to submit her notice of appeal of her termination to

Hacklin by certified mail. III App. 687 (Order on Motion For Summary Judgment on

Claims By Brown). The notice was returned to her marked “Refused.” Id. On August 9,

1999, Brown retained counsel who prepared and served a Notice of Claim on Defendants.

Id. On August 12, 1999, Brown received a certified letter containing Hacklin’s purported

reasons for firing her:

       “Among other issues, Mrs. Brown had been remanded [sic] in the past for leaving
       her duties as Town Clerk in favor of being seated in the public seating area before
       the meeting was adjourned. Despite the previous reprimand, Mrs. Brown left her
       position again and seated herself with the public. In my opinion, Mrs. Brown’s
       above repeat conduct was in blatant disregard of her duties as well as my previous
       admonitions. This repeated behavior has violated her conditions of employment . .
       . and constitutes an emergency situation requiring immediate discharge.”

III App. 687 (Order on Motion For Summary Judgment).

       On September 2, 1999 Brown learned from the newspaper that her appeal had been

set for a hearing on September 6, 1999. This hearing was subsequently rescheduled for

December 6, 1999 at Brown’s behest. Id. Neither Brown nor her counsel, however,

appeared for this hearing. Id. Brown alleges that she did not attend because of the failure

to reach agreement on the propriety and untimeliness of the post-termination procedure,

resolution of deficiencies in the pre-termination procedures, and the resulting prejudice to



                                            -7-
Brown. II App. 394.

       The essence of Brown’s federal court complaint is summarized in Part II-A below.



                                             B

                      Slickers’s due process claim against the Town



       Slickers was hired as a police officer by the Town in 1995. III App. 665 (Order on

Motion for Summary Judgment on Claims by Slickers). In 1999 he was appointed Acting

Chief of Police, then Chief of Police (the title of this position was subsequently changed

to “Town Marshal”). Id. at 665-66. In early 1999, Hacklin took office as the newly

elected Mayor. I App. 61.

       The relationship between Slickers and Hacklin began to deteriorate in February

1999, when Hacklin insisted on hiring Kurt Amos as a police officer. III App. 667-68.

Slickers was uncomfortable with this decision because it disregarded established hiring

procedures and there were other, more qualified, applicants. Id. at 667. Slickers was also

concerned about incomplete and misleading information Amos had provided in an

interview and the results of Amos’ background check. Id. Hacklin, however, did not

share Slickers’s unease and insisted on Amos’s hiring. A few months later, the

aforementioned issue regarding Amos’s improper personal use of the EMS credit card

arose. Id. at 668. Slickers began an investigation into a suspected misappropriation of



                                            -8-
funds and told Hacklin, who replied that “it was a mistake” and he would “talk” to Amos.

Id.

      In April 1999, Slickers was suspended with pay pending a Division of Criminal

Investigations (DCI) investigation into allegations made by a Town resident. After an

investigation, the Lincoln County Attorney exonerated Slickers of any misconduct. II

App. 455-57 (Decision of Lincoln County Attorney). During Slickers’s absence, the

relationship between Hacklin and Brown deteriorated because of Hacklin’s allegedly

“retaliatory harassment” of Brown. Id. Slickers was concerned about Hacklin’s actions

towards Brown and Hacklin’s complicity with Amos’s misconduct. Id. Slickers referred

the matter to the DCI because Hacklin was his direct supervisor and appointing authority.

      On October 28, 1999, the newspaper published a report about the pending DCI

investigation of Hacklin, although the parties were not identified by name. II App. 462.

In November 1999, Hacklin issued Slickers’s first formal written reprimand, which

complained generally about Slickers’s relationship with Amos and the Mayor. I App.

168. On January 7, 2000, Hacklin told Slickers that he was not going to reappoint him as

Town Marshal due to his association with Brown and her family and former Mayor Dan

Schmid. III App. 669. On January 26, Slickers was demoted to the rank of police officer

and placed on a 60-day probation for reevaluation for his proposed reappointment as

Town Marshal. I App. 174 (January 26, 2000 Letter).

      Hacklin then issued two more written reprimands, one concerning Slickers’s



                                           -9-
alleged failure to distribute discharged summons letters, I App. 176 (January 28, 2000

Letter), and another regarding Slickers’s alleged locking of dogs in jail rooms. I App.

170 (February 1, 2000 Letter). On March 24, 2000, Slickers was summarily terminated

by Hacklin and Edmison without the issuing of a written notice of his termination. III

App. 669 (Order on Motion for Summary Judgment). On April 4, 2000, eleven days after

he was terminated, Slickers’s appeal of his termination was rejected as untimely. I App.

178-79 (Affidavit of Town Attorney).

       Slickers’s federal court claims are summarized below in Part II-B.



                                                II

                                   Plaintiffs’ § 1983 claims3

                                                A

                                         Brown’s claims

       Plaintiff-Appellee Brown alleged her termination as Town Clerk by Defendant-

Appellant Hacklin violated her constitutional rights. Brown says she was terminated

without requisite procedural due process and in retaliation for her exercise of protected

speech rights. Hacklin moved for summary judgment, claiming qualified immunity as to

Brown’s procedural due process claim on two grounds: (1) Brown was not entitled to a

pre-termination hearing; and (2) Brown failed to avail herself of the available post-


       3
         Although Plaintiffs’ pleadings sought to state a claim against Amos, Plaintiffs construe
their case as asserting no claim against him. Therefore, we do not address Amos’s liability.

                                              - 10 -
termination procedures. Hacklin also claimed qualified immunity as to Brown’s First

Amendment claim on the ground that Brown’s speech was not on a matter of public

concern. The district court denied these summary judgment motions and Hacklin now

appeals.

       The district court denied Hacklin’s motion for summary judgment on qualified

immunity grounds as to Brown’s procedural due process and First Amendment claims.4

In denying summary judgment for Hacklin as to Brown’s procedural due process claim,

the district court held that Brown was entitled to pre-termination procedure and that there

was a genuine issue of material fact as to whether Brown’s termination was undertaken in

an emergency situation. The court also held that the availability of post-termination

procedure was insufficient to remedy the pretermination due process violation because

Brown’s procedural deprivation was foreseeable and pre-termination procedure was

feasible.

       With respect to the First Amendment claim, the district court held that Hacklin was

not entitled to summary judgment because Brown’s speech was on a matter of public

concern. Specifically, the court held that comments relating to Amos’s misuse of the

Town’s credit card and Hacklin’s harassment was speech on a matter of public concern

because it was intended to “disclose a public official’s malfeasance or wrongdoing.” The


       4
        The district court also denied Hacklin summary judgment on Brown’s breach of
employment contract and assault claims but granted Hacklin summary judgment on Brown’s
substantive due process, equal protection, public policy/abuse of office, and intentional infliction
of emotional distress claims. These rulings are not at issue in this appeal.

                                               - 11 -
court further held that Brown’s interest in making these comments outweighed the

Town’s interest since Hacklin had not provided any evidence of an actual disruption of

Town services as a result of Brown’s speech.

       For reasons given below, we agree with the district court’s order denying summary

judgment for Hacklin as to Brown’s due process and First Amendment claims.



                                             B

                                     Slickers’s claims

       Plaintiff-Appellee Slickers alleged that his termination as a police officer by

Defendants-Appellants Hacklin and Edmison violated his constitutional rights. More

specifically, Slickers alleges he was terminated without the requisite procedural due

process and in retaliation for his expression of protected speech. Hacklin and Edmison

moved for summary judgment, claiming qualified immunity as to Slickers’s procedural

due process claim on the ground that Slickers was afforded procedural due process.

Hacklin and Edmison also moved for summary judgment, asserting qualified immunity as

to Slickers’s First Amendment claim on the ground that Slickers’s speech was not on a

matter of public concern.

       The district court denied Hacklin’s and Edmison’s motion for summary judgment

on qualified immunity grounds as to Slickers’s procedural due process and First




                                           - 12 -
Amendment claims.5 With respect to the procedural due process claim, the district court

held that summary judgment was inappropriate because there was a genuine issue of

material fact as to whether Slickers was afforded pre-termination procedure. With respect

to the First Amendment claim, the district court held that summary judgment was

inappropriate for the same reasons as it was inappropriate as to Brown’s claim.

       For reasons given below, we agree with the district court’s order denying summary

judgment for Hacklin and Edmison as to Slickers’s due process and First Amendment

claims.



                                               III

                                          Discussion

       Our jurisdiction of this appeal calls for a determination, under a de novo standard,

whether there was a violation of clearly established federal law. Behrens v. Pelletier, 516

U.S. 299, 313 (1996). This is so because, though we ordinarily have no jurisdiction to

review a denial of summary judgment, Garrett v. Stratman, 254 F.3d 946, 951 (10th Cir.

2001), a denial of summary judgment on qualified immunity grounds, to the extent the

denial rests upon an issue of law, is a narrow exception to that rule, id.

       The defendants may prevail on a qualified immunity defense unless the plaintiffs


       5
        The district court also denied Hacklin and Edmison summary judgment on Slickers’s
breach of employment contract claim and granted Hacklin and Edmison summary judgment on
Slickers’s substantive due process, equal protection, and public policy/abuse of office claims.
These rulings are not at issue in this appeal.

                                              - 13 -
can satisfy a “heavy two-part burden.” Gross v. Pirtle, 245 F.3d 1151, 1155 (10th Cir.

2001). First, the plaintiffs must show “that the defendant’s actions violated a

constitutional or statutory right.” Albright v. Rodriquez, 51 F.3d 1531, 1534 (10th Cir.

1995). Second, the plaintiff “must then demonstrate that the right at issue was clearly

established at the time of the defendant’s unlawful conduct.” Gross, 245 F.3d at 1155.

       A right at issue is “clearly established” where “the contours of the right are

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Finn, 249 F.3d at 1250 (quoting Anderson v. Creighton, 483 U.S.

635, 640 (1987)). To be “clearly established,” there must be a Supreme Court or a Tenth

Circuit decision on point, or the clearly established weight of authority from other circuits

must have found the law to be as the plaintiff maintains. Murrell v. School dist. No. 1,

Denver, 186 F.3d 1238, 1251 (10th Cir. 1999).



                                             A

                                  Procedural due process

       The Due Process Clause of the Fourteenth Amendment protects a state employee

who demonstrates a protected property interest in his or her employment and the

employee cannot be fired without procedural due process. Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 542 (1985). A cognizable claim for deprivation of procedural

due process requires the plaintiff to make two showings: (1) that he had a protected


                                            - 14 -
property interest in his employment and (2) that he was deprived of this property interest

without the requisite process.

       A plaintiff can show he had a protected property interest in his employment only if

he can show that “he has a legitimate claim of entitlement to continued employment.”

Dickenson v. Quarberg, 844 F.2d 1435, 1437 (10th Cir. 1988) (citation and internal

quotation marks omitted). “Property interests are not created by the Constitution, but

arise from independent sources such as state statutes, local ordinances, established rules,

or mutually explicit understandings.” Id. Whether an employee has a property interest in

her employment is determined under state law. Id. at 1438 n.5.

       One way a plaintiff can show he was not afforded adequate process is by

demonstrating that his firing was not “preceded by notice and opportunity for a hearing

appropriate to the nature of the case.” Loudermill, 470 U.S. at 542. “The key

requirement is that the employee is entitled to a pre-termination opportunity to respond;

more specifically, to oral or written notice of the charges against him, an explanation of

the employer’s evidence, and an opportunity to present his side of the story.” Benavidez

v. City of Albuquerque, 101 F.3d 620, 627 (10th Cir. 1996) (citations and quotation marks

omitted).




                                           - 15 -
                                              1

                                        Brown’s case

       The district court denied Mayor Hacklin’s motion for summary judgment asserted

on qualified immunity grounds, holding that Brown had established she had a protected

property interest in her employment, that her property interest was taken without

procedural due process, and that the procedural due process right violated was clearly

established so as to preclude qualified immunity. Specifically, the district court rejected

Hacklin’s argument that Brown was not entitled to procedural due process because she

was fired in an emergency situation. Hacklin now appeals, arguing: (1) Brown was not

entitled to procedural due process and (2) Brown failed to avail herself of the available

post termination procedures.

       Hacklin first argues that Brown was not denied procedural due process rights

because she was fired in an “emergency situation.” Appellant’s Amended Opening Brief

at 29. We do not have jurisdiction to hear this argument. As the Supreme Court made

clear, “a defendant, entitled to invoke a qualified immunity defense, may not appeal a

district court’s summary judgment order insofar as that order determines whether or not

the pretrial record sets forth a “genuine” issue of fact for trial.” Johnson v. Jones, 515

U.S. 304, 319-20 (1995). Here, while Hacklin argues Brown’s firing occurred in an

“emergency situation,” Brown argues there was no such situation. Appellee’s Brief at 40.

Therefore, whether Brown was fired in an “emergency situation” is a question of fact we


                                            - 16 -
do not have jurisdiction to consider on an interlocutory appeal from a denial of qualified

immunity.

       Hacklin also argues that Brown suffered no procedural due process violation

because she did not avail herself of post-deprivation remedies. Specifically, Hacklin

asserts that where a “procedurally adequate post-termination hearing results in

reinstatement together with back pay for the temporary depravation (sic) of employment,

a plaintiff cannot state a claim under § 1983.” Appellants’ Amended Opening Brief at 30.

In support, Hacklin relies upon Parratt v. Taylor, 451 U.S. 527 (1981) and Hudson v.

Palmer, 468 U.S. 517 (1984). We disagree.

       As both the Supreme Court and this court have made clear, “[T]he key requirement

[of procedural due process] is that the employee is entitled to a pre-termination

opportunity to respond; more specifically, to oral or written notice of the charges against

him, an explanation of the employer’s evidence, and an opportunity to present his side of

the story.” Benavidez, 101 F.3d at 627 (citations and quotation marks omitted) (emphasis

added). This requirement of pre-termination procedure is excusable, under either

Parratt or Hudson, only where such procedures are simply impracticable because the

state cannot know when such deprivations will occur. Hudson, 468 U.S. at 533. A state

cannot know when deprivations will occur where the deprivation is either negligent or the

result of “random and unauthorized intentional conduct.” Id. Neither is the case here.

       Hacklin’s termination of Brown was shown to be intentional. Therefore, his


                                           - 17 -
failure to provide pre-termination procedure is excusable only if “the state cannot know

when such deprivations will occur.” Id. Here, the Personnel Rules specifically delegate

to Hacklin the power and authority to terminate employees. I App. 331 (Personnel Rules,

XII 2 C). Further, the Personnel Rules anticipate the risk of an erroneous termination

decision by providing a procedure to challenge the termination before it occurs, id. at 331

(Personnel Rules, XII 2 C), and by supplying a procedure whereby an employee may be

suspended, id. Therefore, the state has anticipated the deprivation of employment rights

and provided pre-termination procedure, to which Brown is entitled.

       In sum, Brown has shown that “a reasonable official would understand” that firing

her without any pre-termination procedure and in a non-emergency situation violates her

procedural due process rights. Accordingly, we find that Brown has satisfied her burden

and affirm the district court’s denial of summary judgment for Hacklin on this claim.



                                             2

                                      Slickers’s case

       The district court denied Hacklin and Edmison’s motion for summary judgment

based on qualified immunity grounds, holding that Slickers had established that he had a

protected property interest in his employment, that his property interest was taken without

procedural due process, and that the procedural due process right violated was clearly

established so as to preclude qualified immunity. The district court held there was a


                                           - 18 -
disputed issue of material fact as to whether Slickers had any pre-termination procedure

and that the potential availability of post-deprivation procedures is inadequate to remedy a

due process violation. Defendants appeal, arguing: (1) Slickers had no protected property

interest in his employment, and (2) Slickers was afforded procedural due process.

       Defendants first argue that Slickers had no property interest in his employment.

Appellants’ Amended Opening Brief at 20-2. Defendants assert that Slickers cannot

demonstrate that he had a legitimate entitlement to reappointment to the position of Town

Marshal after the initial one-year term had expired. Id. at 22. Defendants, however, did

not raise this argument in the district court, but they do make this argument in their brief

on appeal.

       In their summary judgment motion, Defendants specifically conceded that Slickers

had a protected property interest in his employment. I App. 67 (Brief in Support of

Motion for Summary Judgment). In that motion, they state that “[f]or the purposes of this

Motion only, Defendants will assume arguendo that the LaBarge Personnel Rules and

Regulations provide Plaintiff Slickers with a property interest in his employment despite

the fact that Town Ordinance 2.05.010 specifically states that the Town Marshal is

appointed by the Mayor for a one (1) year term.”6 Therefore, the record reveals that the


       The closest Defendants came to arguing this issue to the district court was at the oral
       6

argument on Defendants’ motion for summary judgment in the following exchange:
              “The Court: So due process would apply to any effort to terminate
             him [Slickers] as a police officer?
             Mr. Fowler: Not when he was ultimately terminated . . . he was put
             on a 60-day probation and was not reappointed as of January

                                              - 19 -
Defendants did not contest Slickers’ property interest in his employment to the district

court.

         “[A] federal appellate court does not consider an issue not passed upon below." In

re Walker, 959 F.2d 894, 896 (10th Cir. 1992) (quoting Singleton v. Wulff, 428 U.S. 106,

120-121 (1976) (“It is the general rule . . . that a federal appellate court does not consider

an issue not passed upon below.”)); Hormel v. Helvering, 312 U.S. 552, 556 (1941).

Moreover, Defendants have not articulated a reason for us to depart from this rule.

Accordingly, we will not now address the issue of whether Slickers had a protected

property interest in his employment.

         Second, Defendants argue that Slickers was given pre-termination process.

Defendants claim that Slickers received notice of his performance deficiencies on

multiple occasions, including being suspended twice. Appellants’ Amended Opening

Brief at 26. Shortly after Slickers was informed by Hacklin that he would not be

reappointed Town Marshal, Slickers requested, and on January 26, 2000 received, a

public hearing regarding his reappointment. Id. As a result of this hearing, Slickers was

appointed as a Police Officer and placed on probation for 60 days pending a decision



               2000.” App. at 626 (Transcript of Motion Proceedings).
                       “So to the extent he was enjoying a temporary employment
               status in effect, I’m not so sure pretermination – any pretermination
               process was required, but if there was any, he got what he was due
               with the repeated dialogue . . .”
Aplt. App. at 632, Transcript of Motion Proceedings (Argument of Mr. Fowler, defendants’
counsel).

                                            - 20 -
regarding whether to reappoint him as Town Marshal. Id. Having given Slickers an

opportunity for a hearing, defendants contend there was no reason to believe that a further

hearing was necessary prior to terminating Slickers’s resulting probationary employment.

Id. at 27.

       Slickers contends he had no hearing. While he was suspended, with pay in April,

1999, pending investigation into allegations of misconduct made by a member of the

public, he was subsequently exonerated and there is no evidence that this suspension

carried with it any indication that Slickers’s position as a police officer or Town Marshal

was in jeopardy. App. at 457 (Lincoln County Attorney Letter).7 There also does not

appear to be any evidence to support defendants’ conclusory statement that there was a

second suspension, disciplinary or otherwise.

       We do not have jurisdiction to hear this argument. We have jurisdiction to review

interlocutory appeals from the denial of summary judgment only where the appeal

“resolve[s] a dispute concerning an abstract issue of law relating to qualified immunity,

typically, the issue whether the federal right allegedly infringed was clearly established.”

Behrens, 516 U.S. at 313. Here, the essence of Defendants’ argument is that the district

court erred when it held Slickers could prove an essential element of his case–that he was

not provided pre-termination notice and an opportunity to be heard. In other words,


       7
         “From a prosecutor’s standpoint, I feel comfortable working with Officer Slickers in the
future and there has been nothing in this matter which has caused me concern with his past
actions in the Town of LaBarge.” App. at 457 (Lincoln County Attorney Letter).

                                              - 21 -
Defendants do not argue that Slickers could have been terminated without notice and

hearing but instead argue that Slickers was provided notice and hearing. This argument

does not relate to “an abstract issue of law” and, therefore, cannot be reviewed in this

appeal.

       In sum, Defendants’ first argument, that Slickers had no property interest in his

employment, is precluded by Defendants’ failure to raise the argument in the district court

and, as explained, we lack jurisdiction to entertain Defendants’ second argument.

Accordingly, we affirm the district court’s denial of summary judgment for Hacklin and

Edmison on this claim of Slickers.



                                             B

                                        Free speech

       The First Amendment prevents a State from conditioning public employment on a

basis that infringes the employee’s constitutionally protected interest in freedom of

expression. Connick v. Myers, 461 U.S. 138, 142 (1983). Therefore, a “public employer

cannot retaliate against an employee for exercising his constitutionally protected right of

free speech.” Dill v. City of Edmond, 155 F.3d 1193, 1201-02 (10th Cir. 1998).

       Whether an employee’s speech is constitutionally protected is analyzed under a

four part test. First, we decide whether the employees’ speech involves matters of public

concern. Connick, 461 U.S. at 142. Second, if so, we balance the employee’s interest in


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commenting on matters of public concern “against the interest of the State, as an

employer, in promoting the efficiency of the public services it performs through its

employees.” Pickering v. Bd. of Ed. of Tp. High School Dist. 205, 391 U.S. at 568. If the

employee’s interest outweighs the interest of the employer then the speech is protected.

Dill, 155 F.3d at 1201 (citing Lytle v. City of Haysville, 138 F.3d 857, 863 (10th Cir.

1998)). Third, if the balance weighs in favor of the employee, the employee then must

show that the speech was a “‘substantial factor or a motivating factor in the detrimental

employment decision.’” Id. at 1202 (quoting Gardentto v. Mason, 100 F.3d 803, 811

(10th Cir. 1996)). Finally, if Plaintiff makes such a showing, the employer may

demonstrate that it would have taken the same action against the employee even in the

absence of the protected speech. Id.

       The first two steps in the above test are legal questions which the court examines

to decide whether the speech is constitutionally protected. Dill, 155 F.3d at 1202. The

second two steps concern causation and involve questions of fact, id., which this court

will not review on an interlocutory appeal of a denial of summary judgment sought on

qualified immunity grounds. Behrens, 516 U.S. at 313.

       Here, the district court denied the Defendants summary judgment on Plaintiffs’

First Amendment claims, holding that the speech at issue–Amos’ misuse of the Town’s

credit card and Hacklin’s harassment of Brown–was a matter of public concern. The

district court also held that the state’s countervailing interest in “an effective workforce”


                                            - 23 -
does not outweigh Plaintiff’s interest in free speech. Defendants now appeal, arguing that

neither Amos’s misuse of the credit card nor Hacklin’s harassment were matters of public

concern. We disagree.

       Speech on matters of public concern is speech of interest to the community,

whether for social, political or other reasons. Dill, 155 F.3d at 1202. However, matters

only of personal interest to government employees are not protected by the First

Amendment. Id. at 1202 (citing Connick, 461 U.S. at 147). While speech concerning

internal personnel disputes usually does not involve public concern, “speech which

discloses any evidence of corruption, impropriety, or other malfeasance on the part of city

officials . . . clearly concerns matters of public import.” Conaway v. Smith, 853 F.2d 789,

796 (10th Cir. 1988). In evaluating whether speech is protected, we must consider the

“content, form and context of a given statement, as revealed by the whole record.”

Connick, 461 U.S. at 147.

       In this case, we are convinced that both Amos’s misuse of the credit card and

Hacklin’s harassment are matters of public concern. Amos’s misuse of the credit card

was speech that disclosed “evidence of corruption, impropriety, or other malfeasance on

the part of [a] city official.” Conaway, 853 F.2d at 796. While Amos was not an elected

official, he was a public employee misusing public funds. Further, Amos’s misuse of the

credit card also implicates impropriety on the part of Hacklin, a city official. According

to Plaintiffs, Hacklin was responsible for hiring Amos over the serious objections of


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Slickers, the Town Marshal. Further, Hacklin told Brown that he would not “upset”

Amos because he “was from an important family in town.” III App. 684. Hacklin also

explained that he would not “mess with them” and that Amos’s father was his best friend

and that as long as he was mayor, Amos would have a job. Id. Therefore, speech that

exposes Amos’s impropriety also exposes an improper system of patronage on the part of

city officials. This is clearly a matter of public concern.

       We are also convinced that Hacklin’s harassment of Brown is a matter of public

concern. Hacklin is accused of violent, frequent, and public threats against Brown made

in an attempt to dissuade Brown from performing her duties as Town Clerk. Specifically,

Hacklin threatened Brown after she refused to sign Town checks during the period when

her bond had not been renewed and Thorrington, member of the WAMCAT, advised her

not to sign. III App. 683. Hacklin also threatened Brown after she discovered and

reported Amos’s misuse of the town credit card. Id. at 684. Therefore, Hacklin’s

harassment is evidence of both individual malfeasance by a city official, i.e., threats of

violence, and evidence of corruption, i.e., preventing other city officials from doing their

job. This is clearly a matter of public concern. Conaway, 853 F.2d at 796.

       The conclusion that Amos’s misuse of the credit card and Hacklin’s harassment

are matters of public concern is further strengthened by the fact that both issues were the

subject of both public debate and a newspaper article. See Schalk v. Gallemore, 906 F.2d

491, 496 (finding that news articles printed in a local paper supported this court’s


                                            - 25 -
assessment that the plaintiff’s concerns were a matter of public concern). The credit card

issue was discussed within the EMS, among council members in executive session, and in

public meetings of the Town Council. III App. 684-85. The harassment issue was also

discussed in the public meeting of the Town Council at which Brown was fired by

Hacklin. II App. 390. Also, the Big Piney Roundup published an article discussing both

the credit card issue and the harassment charges, although it did not mention the names of

the individuals involved. II App. 462 (“LaBarge under scrutiny, DCI investigating town

official and police department member . . . ‘We received two separate requests for

investigations . . . one for the investigation of broad allegations involving payment for

internet services . . . fraud allegations involving a member of the police department . . .

(and) the second involved a menacing threat allegation against one of the LaBarge town

officials.’” Roundup, Vol. 94, Issue 4, October 28, 1999).

       In sum, we hold that both Amos’s misuse of the credit card and Hacklin’s

harassment are matters of public concern. We further feel that these matters were so

clearly of public concern that “a reasonable official would understand” they were.

Conaway, 853 F.2d at 796; Finn, 249 F.3d at 1250. As such, given the Supreme Court’s

holding in Connick, 461 U.S. at 142, and our holding in Dill, 155 F.3d at 1201-02, “a

reasonable official would understand” that firing Plaintiffs in retaliation for speaking

about misuse of a credit card by a city employee who was hired at the behest of the Mayor

and about public threats of violence by the Mayor in an attempt to prevent another city


                                            - 26 -
official from performing her job violated Plaintiffs’ First Amendment Rights.

Accordingly, we affirm the district court's denial of summary judgment for Hacklin and

Edmison on this claim.



                                           III

                                       Conclusion

      For the reasons detailed above, we AFFIRM the district court’s denial of summary

judgment on qualified immunity grounds for defendant Hacklin as to Brown’s and

Slickers’s procedural due process and First Amendment claims. We also AFFIRM the

district court’s denial of summary judgment on qualified immunity grounds for defendant

Edmison in respect to Slickers’s procedural due process and First Amendment claims.

Finally, we DISMISS Defendants’ appeal as to the issue of whether Brown was fired in

an emergency situation and whether Slickers was afforded pretermination procedure for

lack of jurisdiction. The cause is remanded for further proceedings in accord with this

opinion.

             IT IS SO ORDERED.


                                                   ENTERED FOR THE COURT



                                                   William J. Holloway, Jr.               .
                                                   Circuit Judge


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