The opinion of the court was delivered by: Howard, J.
Plaintiff brings this action alleging that defendant terminated him in violation of his constitutional rights, as well as his rights under state law. The gravamen of plaintiff's complaint is that he was terminated in retaliation for exercising his First Amendment right to free speech.
In early 2002, plaintiff was hired as a full-time patrol officer with the Saline County Sheriff's Department. During his tenure as a patrol officer, plaintiff contends that he began to discover and accumulate evidence and information regarding unlawful conduct on the part of various officers assigned to the Criminal Investigation Division ("CID") of the Saline County Sheriff's Department. Plaintiff claims that he and two other patrol officers, Ralph Lee Lobbs and Chris Runnells, obtained information that various members of the CID under Lieutenant Andrews' command promised female arrestees that no charges would be filed in exchange for sex, passed on information to various drug dealers to prevent their arrest in exchange for money, and accepted money from drug dealers in exchange for not arresting them. Plaintiff further contends that he obtained information that members of the CID were getting charges dropped against various drug dealers who had been arrested by other police officers in exchange for false statements against police officers and other defendants. Plaintiff states that he reported these allegations to defendant, Phil Mask, who was the Sheriff and other supervisors.
Plaintiff states that at some point Lt. Andrews became aware of the information that was gathered by Lobbs and plaintiff, but was unaware of Runnells' involvement. Runnells was called to a meeting at which Lt. Andrews, Sergeant Gay and Sergeant Sandy Romeo attended. Runnells wore a microphone and secretly taped the meeting. During the meeting, Lt. Andrews stated that he "would give his left nut" to take down plaintiff and that he wanted Deputy Runnells to participate in a scheme to get plaintiff fired.
After this meeting, Runnells, Lobbs and plaintiff presented Sheriff Mask with a tape of the meeting as well as the information they had obtained of wrongdoing in the CID. Captain Wes Skinner and Lieutenant Tom Barnard were also in attendance at the meeting with Mask. Mask promised to take care of the situation and to investigate the wrongdoing.
After the meeting with Mask, plaintiff was promoted to Corporal. Plaintiff avers that the promotion was an attempt by Mask to prevent plaintiff from continuing to investigate and report wrongdoing by members of the CID. He contends that because he refused to overlook the unlawful conduct, Mask began to exert pressure on plaintiff by making him the target of internal investigations for alleged wrongdoing. Plaintiff states that he was the target of several internal investigations, all of which occurred after having made Mask aware of Runnells' tape. Plaintiff was cleared of wrongdoing except for the final one which resulted in his termination.The internal investigation which resulted in the March 27, 2003 termination, arose from a search and arrest of Brian Stoker that plaintiff conducted in September, 2002. Plaintiff contends that the internal investigation also occurred soon after Mask was informed that plaintiff was going to file a lawsuit claiming violation of his First Amendment rights.
The reasons asserted by Mask for plaintiff's termination were: "1. Falsifying sheriff's department's official documents, illegal search & seizure. 2. Insubordination. 3. Failure to comply with agreed and signed 'Garrity Warning." 4. Entering a residence illegally without consent." (Exhibit A to defendant's motion for summary judgment).
Plaintiff argues that the termination was in retaliation for his protected activity. He also contends that his constitutional rights and his rights under state law were violated when he was denied the right of counsel to be present during the polygraph.
Defendant asserts that he is entitled to qualified immunity. The inquiry requires that the Court first determine whether the facts as asserted by the plaintiff show that defendant's conduct violated a constitutional right. If the answer is no, defendant is entitled to summary judgment. If the answer is yes, the Court must next determine whether the right was clearly established, that is, that a reasonable official would understand that what he is doing violates plaintiff's rights. Powell v. Johnson, 405 F.3d 652 (8th Cir.2005).
Defendant contends that plaintiff has failed to establish violation of a constitutional right. He relies on plaintiff's assertion that he was terminated because he wanted his attorney present during the polygraph examination. Defendant states that plaintiff does not have a Fifth or Sixth Amendment right to have an attorney present during a polygraph examination given during a administrative investigation.
The issue was addressed by the Eighth Circuit in Hill v. Johnson, 160 F.3d 469 (8th Cir.1998).
The [Fifth] Amendment is violated when public employees are compelled to testify by employers who require the employees to either incriminate themselves or to forfeit their jobs. See Garrity v. New Jersey, 385 U.S. 493, 497-98, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Uniformed Sanitation Men, 392 U.S. at 284, 88 S.Ct. 1917, 20 L.Ed.2d 1089. As long as a public employer does not demand that the public employee relinquish the employee's constitutional immunity from prosecution, however, the employee can be required to either testify about performance of official duties or to forfeit employment. See Uniformed Sanitation Men, 392 U.S. at 284, 88 S.Ct. 1917, 20 L.Ed.2d 1089; Gulden v. McCorkle, 680 F.2d 1070, 1073-74 (5th Cir.1982). Given "the important public interest in securing from public employees an accounting of their public trust[,][p]ublic employees may constitutionally be discharged for refusing to answer potentially incriminating questions concerning their official duties if they have not been required to surrender their constitutional immunity." Lefkowitz v. Cunningham, 431 U.S. 801, 806, 97 S.Ct. ...