This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-182

Terrie Bangen,

Respondent,

vs.

County of Polk, et al.,

Defendants,

Dale Halos, individually and in his

capacity as Polk County Assessor,

Appellant.

Filed June 18, 1996

Affirmed

Willis, Judge

Polk County District Court

File No. CX941161

Susan D. Thurmer, Julius W. Gernes, Spence, Ricke & Thurmer, P.A., 600 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for Respondent)

Stephen G. Andersen, Thomas P. Carlson, Ratwik, Roszak & Maloney, P.A., 300 Peavey Building, 730 Second Avenue South, Minneapolis, MN 55402 (for Appellant)

Considered and decided by Harten Presiding Judge, Davies, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

On appeal from denial of summary judgment, appellant Dale Halos, the Polk County Assessor, argues that respondent Terrie Bangen's section 1983 claim was barred by qualified immunity and that the whistleblower claim was barred by discretionary and official immunity. Because we conclude that appellant, individually and in his capacity as county assessor, is not immune from respondent's claims, we affirm.

FACTS

Bangen began working in the East Grand Forks city assessor's office in 1985. When Polk County assumed responsibility for the city's assessing duties in 1990, Bangen became a Polk County employee, under the direct supervision of Halos.

In October 1992, Bangen overheard a conversation between Halos and another appraiser, Rob Wagner, regarding the valuation of the Ryan Potato Warehouse Co. Bangen determined that the two were discussing a mathematical error that had resulted in an $11,000 overassessment to the property. Bangen testified that she later learned from Wagner that Halos instructed him to alter the figures to support the higher assessment.

In December 1992, Bangen confronted Wagner about the Ryan Potato Warehouse matter and also expressed concern that Wagner and Halos were giving favorable tax abatements to Wagner's relatives. Shortly after this discussion, the working relationship between Bangen and Wagner rapidly deteriorated.

In mid-February 1993, Bangen spoke with Gerald Amiot, Polk County Auditor, who told her to report her concerns to the Office of the State Auditor (OSA). About a week later, Bangen reported Wagner and Halos to the OSA.

Bangen claims that within a few days of reporting Halos and Wagner to the OSA, Halos began to retaliate against her. She asserts that Halos's actions adversely affected nearly every aspect of her job. She also contends that Halos maintained a record of her activities as a basis for her future discipline and maligned her reputation with co-workers and the public.

On June 9, 1993, Halos told Bangen that he was transferring her and ordered her to report the following week to the county assessor's main office in Crookston, 20 miles away. In Crookston, Bangen's cubicle and desk were placed immediately outside of Halos's office.

The OSA report substantiated most of Bangen's allegations and recommended to the Polk County Board of Commissioners that the Department of Revenue make a further independent investigation. The Department of Revenue report did not dispute OSA's factual findings, but did not recommend disciplinary action against Halos.

Bangen sued Polk County; Halos, individually and in his capacity as Polk County Assessor; and John Schmalenberg, individually and in his capacity as Polk County Coordinator; alleging violations of 42 U.S.C. ' 1983 and the state whistleblower statute and asserting claims of negligence, negligent retention and supervision, breach of contract, defamation, negligent infliction of emotional distress, and intentional infliction of emotional distress. The district court dismissed all of Bangen's complaints against Polk County [1] and Schmalenberg, but allowed her to pursue the claims against Halos, individually and in his capacity as Polk County Assessor, to the extent that these claims arose out of her transfer from the East Grand Forks office to the Crookston office. Halos now appeals, arguing that Bangen's section 1983 claim is barred by qualified immunity and that her state whistleblower claim is barred by discretionary and official immunity.

D E C I S I O N

I. Section 1983 Claim

The United States Code prohibits any person, "under color of any statute, ordinance, regulation, custom, or usage, of any State" from depriving any "citizen of the United States or other person within the jurisdiction * * * of any rights, privileges, or immunities secured by the Constitution and laws * * * ." 42 U.S.C. ' 1983 (1994). Whether a public official's actions are immune from suit brought pursuant to section 1983 presents a question of law. Elwood v. County of Rice, 423 N.W.2d 671, 674-75 (Minn. 1988). This court, therefore, will review the district court's decision de novo.

First Amendment--Right to Free Speech: A state may not take adverse employment action against an employee on grounds "that infringe[] that employee's constitutionally protected interest in freedom of speech." Rankin v. MacPherson, 483 U.S. 378, 383, 107 S. Ct. 2891, 2896 (1987). Bangen claims that Halos's decision to transfer her to Crookston was in retaliation for her report to the OSA and therefore in violation of her right to free speech. See Hughes v. Whitmer, 714 F.2d 1407, 1420-21 (8th Cir. 1983) (holding that a transfer traceable to "speech-related activities" may be challenged on First Amendment grounds), cert. denied, 465 U.S. 1023 (1984).

Resolving this issue necessitates a two-part inquiry. First, we must decide whether Bangen's speech addressed a matter of public concern and, therefore, was constitutionally protected. See Casey v. City of Cabool, 12 F.3d 799, 802-03 (8th Cir. 1993) (holding that an employee's speech was constitutionally protected because it "was on a matter of public concern."), cert. denied, 115 S. Ct. 325 (1994). There is no dispute that Bangen's report to the OSA was constitutionally protected speech that involved a matter of public concern.

Second, we must balance Bangen's right to free speech against Halos's interest in efficient administration of the county assessor's office. See Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 1734-35 (1968) (prescribing test balancing employee's right to comment on matters of public concern and the interests of the state employer in promoting efficient public services).

Bangen's right to comment on perceived unlawful governmental conduct lies at the core of First Amendment principles. Casey, 12 F.3d at 803 (observing that a citizen's right to criticize government is fundamental to the right to free speech). Moreover, the Eighth Circuit has held that an "employee's first amendment interest is entitled to more weight where [she] is acting as a whistle-blower exposing government corruption." Hughes, 714 F.2d at 1423; see also Connick v. Myers, 461 U.S. 138, 145, 103 S. Ct. 1684, 1689 (1983) (reaffirming that "speech on public issues occupies the `highest rung of the hierarchy of First Amendment values,' and is entitled to special protection").

Halos's assertion that he transferred Bangen because of her deteriorating relationship with Wagner, while relevant, does not supersede Bangen's paramount right to free speech. In reaching this determination, we consider the effect of the speech on discipline, harmony among co-workers, working relationships requiring loyalty and confidence, the performance of the speaker's duties, and the regularity of the enterprise. Rankin, 483 U.S. at 388, 107 S. Ct. at 2899 (listing "the manner, time, and place of the employee's expression * * * as [well as] the context in which the dispute arose" as relevant judicial considerations). There is no evidence that Bangen's report threatened her ability to perform her job. Further, she apparently performed her duties as an appraiser independently; therefore her report did not jeopardize any close working relationship that was essential to fulfill her public duties.

We also view Halos's need to "redo" the East Grand Forks office as questionable in light of testimony that there were no staffing or workload problems in East Grand Forks. We conclude that Bangen's right to free speech outweighs any interest in administrative efficiency that Halos had or claimed to have had.

Qualified Immunity Defense: In certain circumstances, qualified immunity protects public officials from suits for damages under section 1983. Gomez v. Toledo, 446 U.S. 635, 639, 100 S. Ct. 1920, 1923 (1980). Qualified immunity exists to protect government officials against the burdens of discovery and trial. Harlow v. Fitzgerald, 457 U.S. 800, 816-18, 102 S. Ct. 2727, 2737-38 (1982); see also Elmwood, 423 N.W.2d at 675 ("[Q]ualified immunity questions should be resolved at the earliest possible stage to shield officers from disruptive effects of broad-ranging discovery and effects of litigation.").

Whether qualified immunity shields an official depends on "whether the official's conduct violated `clearly established statutory or constitutional rights of which a reasonable person would have known.'" Elwood, 423 N.W.2d at 674-75 (quoting Harlow, 457 U.S. at 818, 102 S. Ct. at 2738). A plaintiff may overcome an official's defense of qualified immunity by showing the apparent unlawfulness of the official's act in light of pre-existing law. Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987).

We need not decide whether Halos's action was unlawful. See Coffman v. Trickey, 884 F.2d 1057, 1063 (8th Cir. 1989) (holding that plaintiff need only show that, "in view of pre-existing law, the unlawfulness of [official's] act is apparent" and disagreeing that official's action previously must have been held unlawful), cert. denied, 494 U.S. 1056 (1990). Rather, we determine only whether Halos's action was objectively reasonable and whether Halos reasonably should have known that his decision to transfer Bangen was in violation of clearly established law, that is, her First Amendment right to free speech. See Anderson, 483 U.S. at 641, 107 S. Ct. at 3040.

While Halos provided numerous, though not always consistent, explanations for transferring Bangen, his act violated Bangen's "clearly established" right to free speech. "`Once a court determines as a matter of law that a legal standard governing the governmental action at issue was clearly established, [the inquiry ends:] there is no qualified immunity.'" Coffman, 884 F.2d at 1063 (quoting Warren v. City of Lincoln, 816 F.2d 1254, 1261 (8th Cir. 1987), rev'd on other grounds, 864 F.2d 1436 (8th Cir.)(en banc), cert. denied, 109 S. Ct. 2431 (1989)). Therefore, Bangen's section 1983 claim is not barred by qualified immunity.

II. State Law Immunity Claims

A. Discretionary Immunity: Pursuant to Minnesota law, municipalities and their employees are immune from liability for

[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.

Minn. Stat. ' 466.03, subd. 6 (1994). Discretionary immunity protects governmental conduct at the planning or policymaking level, but not at the operational level. Pletan v. Gaines, 494 N.W.2d 38, 43 (Minn. 1992). Discretionary acts generally involve "`the balancing of public policy considerations in the formulation of policy.'" Id. at 43-44 (quoting Holmquist v. State, 425 N.W.2d 230, 234 (Minn. 1988)). An operational or ministerial function is "`absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.'" Koelln v. Nexus Residential Treatment Facility, 494 N.W.2d 914, 919 (Minn. App. 1993), review denied (Minn. Mar. 22, 1993) (quoting Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W.2d 165, 167 (1937)).

Halos's decision to transfer Bangen did not require him to create or formulate policy, but rather to execute "a specific duty arising from fixed and designated facts." See id. Because this staffing decision was administrative in nature and therefore ministerial, his act is not protected by discretionary immunity.

B. Official Immunity: Official immunity is a common law doctrine, which, in the absence of proof of a willful or malicious wrong, protects a public official who is "charged by law with duties which call for the exercise of his judgment or discretion." Elwood, 423 N.W.2d at 677. Halos claims that official immunity bars Bangen's claim. We reject Halos's argument in light of our recent decision holding that official immunity is not an available defense to a whistleblower claim. See Janklow v. Minnesota Bd. of Examiners for Nursing Home Adm'rs, 536 N.W.2d 20, 24 (Minn. App. 1995) (concluding that "the specific language of section 181.931, subd. 3, strongly implies a legislative intent to waive immunity for [whistleblower] claims regardless of whether the discharge involved a discretionary decision or a willfully wrong act"), review granted (Minn. Oct. 27, 1995).

Affirmed.


Footnotes

[1]For the purposes of the summary judgment order, the district court treated Polk County as the Polk County Board of Commissioners. The court did, however, acknowledge Polk County's continuing responsibility for actions by Halos in his capacity as the county assessor.