Posted by: Patricia Salkin | August 23, 2016

11th Circuit Court of Appeals Finds Employee Failed to Adequately Plead that He Spoke as Citizen on Matters Concerning Alleged Violations of Corruption Related to the Local Zoning Process

Defendant-appellants Luigi Boria, Sandra Ruiz, and Christine Fraga, all city officials, terminated plaintiff-appellee Joe Carollo from his position as City Manager for the City of Doral after he reported to law enforcement and other agencies appellants’ alleged misconduct and made public disclosures about the same. Among Carollo’s allegations of misconduct was that Boria engaged in various forms of corruption such as refusing to recuse himself from a City Council zoning vote on a residential development project in which the developers were his two children and “a long time business associate of Boria with whom Boria has a debtor-creditor relationship.” On Carollo’s allegation of zoning permit fraud, Boria sought to advantage this project by pressuring the City of Doral Director of Zoning and Planning to drop his support for a competing residential development project and making burdensome demands upon the developer of the competing project.

Carollo brought this civil action against appellants under 42 U.S.C. § 1983, alleging a violation of his First Amendment rights. The district court denied appellants’ motion to dismiss on the basis of qualified immunity, finding that the First Amendment protected Carollo’s speech because he made the reports to law enforcement and other agencies as well as the public disclosures in his capacity as a citizen and not in connection with his ordinary job responsibilities as City Manager. The district court also found that precedent existing at the time of his termination clearly established Carollo’s First Amendment rights.

Here, Appellants acknowledged that Carollo spoke on a matter of public concern and did not argue that they had an adequate justification for terminating him other than his speech. Instead, they disputed only whether Carollo spoke “as a citizen” when he made the reports and disclosures identified in the complaint. Specifically, they argued that Carollo’s statements concerning Florida’s campaign finance laws was that all of Carollo’s allegedly protected speech “falls squarely within” the scope of the City Manager’s duty in Section 3.03(4) of the Municipal Charter to “ensure that all laws … subject to enforcement and/or administration by him/her are faithfully executed.” Appellants, however, offered no plausible argument that Carollo’s broad administrative responsibilities included enforcing Florida’s campaign finance laws, nor could they in the absence of discovery that better reveals Carollo’s ordinary job responsibilities as City Manager. However, as Carollo’s complaint did not allege whether Carollo ordinarily involved himself in zoning or financial disclosure issues as City Manager.

The court found that reasonable public officials would have known at the time of Carollo’s termination that it violated the First Amendment to terminate a colleague for speaking about matters of public concern that are outside the scope of his ordinary job responsibilities. The district court therefore did not err in concluding that Carollo’s First Amendment right to such speech was clearly established at the time of his termination.

Carollo v Boria, 2016 WL 4375009 (11th Cir. CA 8/17/2016)

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