Kirchmann v. Lake Elsinore Unified School District (57 Cal. App. 4th 595, 1997)

Opinion

RICHLI, J.

“Government employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions . . . .” (Waters v. Churchill (1994) 511 U.S. 661, 674 [114 S.Ct. 1878, 1887, 128 L.Ed.2d 686, 698] (plur. opn. of O’Connor, J.).) In recognition of that fact, the First Amendment prohibits dismissal of a public employee for criticizing his or her employer unless the employee’s free speech interest is outweighed by the employer’s interest in avoiding disruption. (Pickering v. Board of Education (1968) 391 U.S. 563, 574 [88 S.Ct. 1731, 1737, 20 L.Ed.2d 811, 820].)

Norma Kirchmann, an employee of the Lake Elsinore Unified School District (District), was suspended for 30 days after she anonymously communicated to bidders on a District construction management contract her view that a conflict of interest existed in the selection process. Although we find the case a close one, in view of the substantial public importance of the subject on which Kirchmann spoke we conclude her right to speak was protected.

I

Factual and Procedural Background

A. Facts

Kirchmann became a permanent employee of the District in 1985. In and after July 1994, she worked as a secretary II in the District’s facilities department. Normand Tanguay, assistant superintendent for divisions, was her supervisor.

In the spring of 1994, the District was considering retaining an outside firm to act as project manager for school construction projects. Francis & Anderson Architects was already serving as project manager for a new school the District was constructing. Mellissa Truitt, a consultant to Francis & Anderson, had principal responsibility for that project.

Tanguay directed Truitt to pursue the project manager recruitment. Truitt helped rewrite a request for proposals in June 1994. The District received about 18 responses to the request for proposals. Truitt reviewed the responses. Truitt, Tanguay and Joe Busek, the District’s controller, made recommendations as to which firms should be interviewed.

Eventually, six firms were selected to be interviewed. The interview panel consisted of Tanguay, Truitt, Harry Wise, the head of maintenance and operations for the District, and Jim DiCamillo, a representative of an outside architectural firm. Francis & Anderson was one of the firms interviewed.

As chair of the panel, Tanguay had the ultimate decision which firm to recommend to the District’s governing board (Board). After the panel discussed the applicants, Tanguay asked Truitt to draft a proposed agenda item recommending Francis & Anderson. Truitt gave the draft item to Kirchmann to be typed. As finally submitted to the superintendent of the district for consideration, the item recommended “that Francis & Anderson Architects ... be chosen as [construction/project management] on all identified future projects."

In the early morning of October 4, 1994, Kirchmann faxed from her home to about 16 of the unsuccessful bidders a document which read: “To whom it may concern: [‘¡Q The Lake Elsinore Unified School District is being given the recommendation to hire Francis & Anderson Architects as the Construction/Project Management firm to handle the proposed projects on the agenda for this district. Normand A. Tanguay is signing the agenda item although it was written by Mellissa Truitt, Project Manager, David A. Brown Middle School and a contracted employee of Francis & Anderson. [f] As you know, she was one of the persons on the interview panel. She was also the person who checked references for the district and made the major recommendation as to the best firm for the district to hire for this contract. [