9th revives former LPOSD worker's free speech claim
SANDPOINT - The 9th U.S. Circuit Court of Appeals is breathing new life into a lawsuit filed by a former Lake Pend Oreille School District employee who alleges he lost his job for blowing the whistle on inadequate safety and security policies at Sandpoint High School.
Robert Posey, a former security specialist at the school, sued the district after his position was reconfigured and he was not hired for the new post. Posey asserted a range of state law claims and also maintained that the loss of his job amounted to retaliation for speaking out about the alleged deficiencies at SHS, in violation of the First and 14th Amendments to the U.S. Constitution.
The suit wound up in U.S. District Court, where the state law claims were remanded to Idaho's district court. The school district moved for summary judgment on the First Amendment retaliation claim.
The district's counsel argued Posey's speech was not protected because his statements were made in conjunction with his duties as the high school's security specialist.
U.S. District Judge Edward Lodge granted the school district's motion, finding that Posey never contacted the media or lawmakers about his concerns and his remarks stemmed from activities he was paid to do. Posey appealed the dismissal of the retaliation claim to the 9th Circuit.
In reaching its decision, the panel of judges from the 9th applied a 2006 U.S. Supreme Court decision holding that when a public employee speaks as part of his official job duties, that speech is not protected. However, the appeals court held that there was a factual dispute regarding whether Posey's job duties required him to report wrongdoing by administrators or coworkers, and whether Posey had any policy-making responsibilities regarding school security.
The appeals court remanded the First Amendment claim back to U.S. District Court for further proceedings concurrent with its 15-page opinion.
Posey, according to court documents, met with former SHS Principal Jim Soper in 2002 to express concern about ongoing weapon and drug violations.
See CLAIM, Page 3
However, Soper did not respond directly to the concerns and Posey saw his job responsibilities shrink to little more than that of a parking lot attendant.
Posey's disquiet grew and in 2003 he composed a lengthy letter to former district Administrative Officer Steve Battenschlag, correspondence which was passed along to former Superintendent Mark Berryhill and former school board members Kathy Chambers and Todd Reed, the opinion said.
The bulk of Posey's letter addressed concerns about inadequate safety and security policies and the administration's general unresponsiveness. The letter alleged that staff and faculty were insufficiently trained, safety violations were being concealed, sexual harassment policies were not being enforced and the school's evacuation plan was inadequate.
Each of the concerns cited specific examples of students bringing weapons to school, student intoxication, sexual harassment and possibly rape among school staff and a failed school evacuation.
Posey had stated that the Columbine school shootings "can happen here and almost did," the opinion said.
During the 2003-04 school year, Posey was advised his position was being recast as a "prevention specialist." Posey applied for the new post, but was not hired. Posey filed a grievance with the district and there was an initial determination that he had been retaliated against for the letter to Battenschlag. The school board, however, overrode that finding and refused to hire Posey, the opinion said.
The Idaho Education Association is hailing the appeals court's ruling.
"We believe the 9th Circuit's decision is entirely consistent with current Supreme Court law," said John Rumel, the association's legal counsel. "In particular, the Supreme Court has always allowed and will continue to allow school district employees to act as whistle-blowers concerning school safety issues when their job duties do not require them to do so without risking their livelihoods."