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Appeals court revives ex-Sierra Madre officer's retaliation suit

John Ellins' case involving a delayed pay raise is sent back to trial court on grounds of violation of his free speech rights.

March 22, 2013|By Maura Dolan, Los Angeles Times

A former Sierra Madre police union official whose pay raise was delayed after he led a no-confidence vote against the police chief may sue for retaliation in violation of his free speech rights, a federal appeals court decided Friday.

A three-judge panel of the U.S. 9th Circuit Court of Appeals unanimously overturned the dismissal of a lawsuit by Officer John Ellins, who headed the Sierra Madre Police Assn. from 2006 to 2010, against former Police Chief Marilyn Diaz.

The police chief should have known that "depriving Ellins of salary in retaliation for his protected speech was unconstitutional," Judge Kim McLane Wardlaw wrote for the court.

Ellins sued Sierra Madre and Diaz for retaliation after she delayed signing an application that would have given him a 5% pay raise. He claimed she was punishing him because he had led the no-confidence vote and the police association had issued two press releases that severely criticized her performance.

Diaz countered that she delayed the paperwork only because Ellins had been under investigation by internal affairs and because she was waiting to learn whether he might be prosecuted. He wasn't.

In reviving Ellins' suit, the 9th Circuit said he was acting as a private citizen when he publicly criticized the police chief because his official duties did not include union activities. Public employers have the right to sanction workers for statements made during their work.

"Comments made by a police officer acting in his capacity as a union representative are spoken as a private citizen, rather than pursuant to the officer's official duties," the court said.

Diaz eventually signed the paperwork and gave Ellins the raise retroactive to the date he filed suit, about three months after he had applied for it. But the court said that did not undermine Ellins' suit.

"Even the denial of a minor financial benefit may form the basis of a 1st Amendment claim," the court said.

The panel agreed with the district court that the city of Sierra Madre was not liable but said Diaz was properly named as a defendant.

Judge Johnnie B. Rawlinson, in a concurring opinion, said she agreed that the suit against the police chief should be reinstated but disagreed with some of the panel's conclusions, including the finding that Ellins had established a 1st Amendment claim. Rawlinson said it was too early in the case to reach conclusions.

The panel sent the case back to the trial court to hear Ellins' suit.

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