Gilbrook v. City of Westminster

Page 839

177 F.3d 839

15 IER Cases 200, 99 Cal. Daily Op. Serv. 3774

Paul GILBROOK; Michael Garrison; Don Herr; Hal Raphael;

Dana Bowler; Joe Wilson, Plaintiffs-Appellees, Davis, Reno & Courtney, Plaintiff-Intervenor-Appellee, v. CITY OF WESTMINSTER; Charles V. Smith; Craig Schweisinger;

Tony Lam; Don S. Anderson; John T. Demonaco;

Brian Mayhew, Defendants-Appellants.

Paul Gilbrook; Michael Garrison; Don Herr; Hal Raphael;

Dana Bowler; Westminster Fire Fighters Association, Local

2425; Joe Wilson; International Association of Fire

Fighters, AFL-CIO, Plaintiffs-Appellants, Davis, Reno & Courtney, Plaintiff-Intervenor-Appellee, v. City of Westminster; Charles V. Smith; Craig Schweisinger;

Tony Lam; Don S. Anderson; John T. Demonaco;

Brian Mayhew, Defendants-Appellees.

Paul Gilbrook; Michael Garrison; Don Herr; Hal Raphael;

Dana Bowler; Westminster Fire Fighters Association, Local

2425; International Association Of Fire Fighters, AFL-CIO;

Joe Wilson, Plaintiffs-Appellees, Davis, Reno & Courtney, Plaintiff-Intervenor-Appellee, v. City of Westminster; Charles V. Smith; Craig Schweisinger;

Tony Lam; Don S. Anderson; John T. Demonaco;

Brian Mayhew, Defendants-Appellants.

Nos. 96-56306, 96-56375, 97-55314.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 1, 1999.

Decided May 21, 1999.

Alison M. Turner, Greines, Martin, Stein & Richland, Beverly Hills, California, for the defendants-appellants.

Lester Ostrov and Jan G. Levine, Fogel, Feldman, Ostrov, Ringler & Klevens, Santa Monica, California, for the plaintiffs-appellees.

Duane W. Reno, Davis & Reno, San Francisco, California, for the plaintiff-intervenor-appellee.

Appeals from the United States District Court for the Central District of California Richard A. Paez, District Judge, Presiding. D.C. No. CV-94-02051-RAP.

Before: BROWNING, WIGGINS, and GRABER, Circuit Judges.

OPINION

GRABER, Circuit Judge:

This action involves claims by six individual firefighters against the City of Westminster (City) and ten individual defendants, each of whom was an officer and employee of the City. The City discharged four plaintiffs and disciplined the other two, after plaintiffs became embroiled in a bitter public controversy concerning the City's funding of fire protection services, the firefighters' use of public funds, and the political activities of the firefighters' union. Plaintiffs brought this action under 42 U.S.C. § 1983, alleging that defendants, individually and collectively, had retaliated against them for exercising their First Amendment rights of free speech and association. They also alleged that defendants had defamed them by accusing them publicly of criminal wrongdoing. After a jury trial and post-trial motions, four related matters come to us: (1) an appeal by certain defendants against whom the jury rendered special verdicts; (2) a cross-appeal by certain plaintiffs against whom the district court entered judgments as a matter of law; (3) an appeal by certain defendants regarding the attorney fees and costs awarded to two prevailing plaintiffs; and (4) an intervention by plaintiffs' trial counsel, challenging the district court's award of fees directly to their former clients.

I. FACTUAL AND PROCEDURAL HISTORY

A. Factual History

Our recitation of facts is governed by two principles. First, with respect to those parties in favor of whom the jury returned verdicts, we view the evidence in the light most favorable to each prevailing party. See Ace v. Aetna Life Ins. Co., 139 F.3d 1241, 1246 (9th Cir.) (stating that principle with respect to review of a decision to grant a motion for judgment as a matter of a law), cert. denied, --- U.S. ----, 119 S.Ct. 338, 142 L.Ed.2d 279 (1998). Second, with respect to those parties against whom the district court directed a verdict, we view the facts in the light most favorable to the nonmoving party. See Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir.1996) (stating principle).

1. The Election and the Reorganization of the City's Fire Department

This dispute began in November 1992, when the City held elections for the Mayor and the City Council. At that time, plaintiffs in this action--Paul Gilbrook, Michael Garrison, Don Herr, Hal Raphael, Dana Bowler, and Joe Wilson--were veteran employees of the Westminster Fire Department and members of the Westminster Fire Fighters Association, the firefighters' union. Gilbrook was the union's president, and Garrison was its public information officer. The union had been active in local politics for nearly 20 years.

Although in the past the union had supported the incumbent mayor, Charles Smith, the union decided to endorse Smith's opponent, Joy Neugebauer, in the 1992 election. The union's members campaigned actively for Neugebauer, undertaking such efforts as walking precincts, gathering signatures, and distributing campaign literature. Garrison ran Neugebauer's campaign office. Despite the firefighters' efforts, Smith emerged the victor.

During the campaign, Smith expressed openly his bitterness toward the union for its defection. In labor contract negotiations coinciding with the election, Smith told Gilbrook and Garrison: "If you make [the staffing of fire stations] a political issue in my upcoming election, I'll have your ass." City Councilor Craig Schweisinger later told Garrison and Gilbrook: "[The Mayor] is anti-fire now. You people supported your--you're going to support Joy Neugebauer. We have problems here with this contract."

In the spring of 1993, following Smith's re-election, the Financial Review Committee (FRC), a citizens' committee appointed by the City Council to review the City's budget, produced an Interim Report on Fire Services. The FRC's report recommended, among other things, significant cuts in fire services, the dismissal of firefighters, and the curtailment of the firefighters' political activities. The report further recommended that the City explore privatizing fire services and that the City's fire department be excluded from any future contractual bidding for fire services unless the firefighters desisted from their political activities. Also of particular concern to the FRC was the fire department's practice with respect to overtime pay, which the FRC described as "abusive" and as to which it recommended an internal audit.

The FRC's report and recommendations triggered a political firestorm. The union went on the offensive, producing a video explaining the FRC's recommendations and collecting over 14,000 signatures to protest the proposed budget cuts. The anti-firefighter contingent was equally vocal. On many occasions, Mayor Smith publicly accused the firefighters of abusing the overtime system. Councilor Schweisinger called Gilbrook a "Jimmy Hoffa" and Garrison a "David Koresh" and also declared that there was a "cancer in the Fire Department ... and we're going to cut it out."

Despite the union's protest, in July 1993 the City Council voted to reorganize the fire department by laying off six firefighters, removing a truck from service, and increasing paramedic services. Councilor Schweisinger told Herr, the then-Fire Chief, and a private citizen, Rebecca Danna, that the budget cuts were "political retribution" for the firefighters' campaign against Smith.

In response to the City Council's actions, the union joined forces with a citizens' group and mounted a recall campaign against Mayor Smith and City Council members Schweisinger, Charmayne Bohman, and Tony Lam, all of whom had voted for the reorganization of fire services. The recall election was held almost a year later, in June 1994, and the voters defeated the proposed recall by a two-to-one margin.

2. Audit of the Fire Department

(a) The First Peat Marwick Report

In July 1993, the City hired KPMG Peat Marwick to study the City's payroll and overtime practices. The City's Finance Director, Brian Mayhew, coordinated the City's efforts. In its initial report, dated September 1, 1993, Peat Marwick found that the ratio of overtime expenses to regular salaries was significantly higher in the fire department than in the City's other departments. Peat Marwick traced the inflated overtime expenditures to an informal practice of "shift trading," which allowed firefighters to receive overtime for working unscheduled shifts irrespective of whether they had worked their regularly scheduled hours. Despite that finding, the report concluded that "it does not appear that [the fire department's] personnel have engaged in activities which were not allowed under their current [labor] contracts." The report explained that the City would have to revise its current policies to reduce overtime expenses.

Following the issuance of the September 1 report, the City asked Peat Marwick to continue its study, this time focusing on the fire department and identifying the sums of overtime pay received by individual firefighters. City officials, led by City Attorney Richard Jones, newly appointed Fire Chief John Demonaco, Finance Director Mayhew, and Mayor Smith, also convinced the Orange County District Attorney's Office to investigate the fire department for possible criminal conduct in connection with the department's overtime and payroll practices.

(b) The "Personnel Transaction Form" Policy

In November 1993, Fire Chief Demonaco launched an "in-depth" investigation of the fire department's compliance with the City's policy requiring firefighters to file a Personnel Transaction Form (PTF) when taking paid leave. According to the City's policy, when a firefighter used sick leave, vacation time, or other compensated time off, the firefighter was required to submit a PTF to the personnel department to document the absence. On receipt of the PTF, the personnel department would deduct leave time from the employee's "leave bank." The hours in the "leave bank" had a monetary value, which the employee could "cash out" at certain times of the year. Unreported PTFs, therefore,...