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No showing town board ratified police chief’s retaliatory non-promotion decision

By Kathleen Kapusta, J.D.

Affirming the grant of summary judgment against a police officer’s claim that his municipal employer violated his First Amendment rights under Section 1983, the First Circuit found his assertion that the town’s board of selectmen knew of and ratified the police chief’s retaliatory motive for not recommending him for promotion was a conclusory allegation. There was simply nothing in the record, said the court, aside from the officer’s own suspicions, to suggest that the board did not simply go along with the chief’s decision or merely fail to investigate why he did not affirmatively recommend that the board promote the officer to a vacant sergeant position. And because his state-law whistleblower claim turned on a hotly disputed interpretation of state law, the appeals court, leaving the interpretation of Massachusetts law to Massachusetts courts, vacated the grant of summary judgment against it and remanded with instructions to dismiss it without prejudice (Saunders v. Town of Hull, October 27, 2017, Lynch, S.).

For most of his tenure on the town’s police force, the officer felt he was a member of the chief’s inner circle. But that all changed, he alleged, when he was elected president of the police union, where the chief had previously served as treasurer, and he became concerned that certain union funds had been mismanaged. His discovery of certain bank statements and documents let him to contact the state attorney general’s office, which began an investigation into missing funds.

No confidence vote. Around this same time, the officer led a vote of no confidence against the chief. Prior to the vote, the sergeant position opened up and only the officer and one other employee had obtained the requisite score of the civil service exam to be placed on the promotional list. The town’s board of selectmen was the ultimate appointing authority but the police chief had the responsibility to coordinate the process and make a recommendation. Shortly after the no-confidence vote, the chief purportedly told the officer “I’m the Chief and I don’t answer to you.” He also allegedly threatened to let the promotion list expire so that the officer would have to retake the exam, and stated that he would personally make sure he was never promoted. He ultimately recommended the other employee for the promotion.

Can’t fight town hall. The board voted to adopt the chief’s recommendation and did not promote the officer to a second vacant position. According to the officer, the chief told him “[Y]ou can’t fight Town Hall,” and “Town Hall has my back.”

Lower court proceedings. The officer subsequently sued, alleging among other things that both the chief and the town violated his First Amendment rights under Section 1983 and the Massachusetts Whistleblower Act. Both defendants moved for summary judgment and the district court denied the motion with respect to the officer’s claims against the chief. However, it entered judgment for the defendants on his Section 1983 and MWA claims against the town. The claims against the chief were later dismissed pursuant to a settlement agreement and the district court dismissed the officer’s Section 1983 claim against the town on the ground that he failed to establish that the alleged retaliation was “a policy or custom of the Town of Hull.” It also held that he could not avail himself of the MWA’s protections because he had failed to provide written notice of his suit as required under the statute.

Ratification. On appeal, the officer argued that although the board was the ultimate decisonmaker, a reasonable jury could have found it liable on the grounds that it was aware of the chief’s retaliatory motive and ratified his decision. Citing the Supreme Court’s decision in City of St. Louis v. Praprotnik, the First Circuit noted that ratification is “chargeable to the municipality” only if “the authorized policymakers approve a subordinate’s decision and the basis for it.” Further, the Court explained that “[s]imply going along with discretionary decisions made by one’s subordinates,” and the “mere failure to investigate . . . especially where . . . the wrongfulness of the subordinate’s decision arises from a retaliatory motive,” is insufficient to trigger Section 1983 liability.

Observing that it had yet to address the precise contours of this ratification doctrine, the appeals court looked to its dicta in Welch v. Ciampa, a factually similar case. In that case, although it held that the circumstantial evidence was enough to permit an inference of the acting police chief’s retaliatory motive against an officer who alleged he was denied reappointment to a position, it nevertheless found that the officer “failed to provide a sufficient evidentiary basis on which to impose municipal liability” based on the Board’s actions because “[the Acting Chief] is the individual responsible for the nonreappointment and there is no evidence that the Board authorized [him] to take retaliatory action against Welch or others . . . .”

Here, the officer offered even weaker circumstantial evidence to establish that the board adopted the chief’s retaliatory motive. He alleged the board knew he had implicated the chief in the embezzlement scandal and had led the no confidence vote against him. He also asserted that after the board had declined to promote him, the chief explained that the decision was because of his role in those events, and remarked, “[Y]ou can’t fight Town Hall,” and “Town Hall has my back.” However, said the court, his assertion that the board knew of, and ratified, the chief’s retaliatory motive was just a conclusory allegation. Because there was no evidence to show the board did not simply go along with the chief’s decision or merely failed to investigate why he did not recommend the officer for promotion, the appeals court affirmed the grant of summary judgment against this claim.

Whistleblower claim. Turning to the officer’s claim under MWA Section 185(b)(1), in which he alleged the town, through its board, retaliated against him because he reported the mishandling of union funds to the attorney general, the court explained that the underlying issue was whether, before filing this lawsuit, the officer had to give written notice to a supervisor and afford the employer a reasonable opportunity to correct the activity of which he complained. Noting that Section 185(c)(2)(C) exempts an employee who “makes the disclosure to a public body . . . for the purpose of providing evidence of what the employee reasonably believes to be a crime,” the court pointed out that the state’s highest court has yet to rule on whether a lawsuit for wrongful retaliation is itself a disclosure to a public body under Section 185(b)(1). Noting that the employee’s claim turned on a hotly disputed interpretation of state law, the court found it “need not, and indeed, should not, resolve it here.”