Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW SAM H. BELL, District Judge. Trial of this cause was held by this court without the intervention of a jury on April 21 and April 22, 1992. It was instituted with the filing of a complaint by plaintiff Raymond J. Pesek on May 22, 1991 against defendants the City of Brunswick (hereinafter Brunswick), Robert Trimble, Gregory Crane, and Tex Combs. The complaint seeks recovery pursuant to 42 U.S.C. § 1983 and alleges primarily that defendants violated Pesek’s right of free speech under the first amendment to the United States Constitution in not allowing him to speak at a Brunswick City Council meeting. But Mr. Pesek alleges not only a violation of his first amendment rights; he also seeks a declaration that the portion of the Brunswick City Charter upon which the alleged restriction was based is both unconstitutional on its face and as applied. Plaintiff, finally, alleges that he was suspended from his public employment for attempting to exercise his first amendment rights and that the suspension resulted in a deprivation of his fourteenth amendment procedural due process, substantive due process, and privileges and immunities rights. The court has heard all of the testimony and has before it all of the evidence presented in this case. Based upon this testimony and evidence, the following represents this court’s findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52. I.FINDINGS OF FACT 1. Plaintiff Pesek is a citizen and part-time employee of Brunswick serving as a paramedic and firefighter. 2. Brunswick is a municipality chartered under the rules and regulations of the state of Ohio and is subject to the provisions of the United States Constitution. 3. Defendant Trimble is and was at all relevant times the Brunswick City Manager. 4. Defendant Crane is and was at all relevant times the Brunswick Director of Safety. As the director of safety, he is responsible for the supervision over the Chief of the Brunswick Fire Department. 5. Defendant Combs is and was at all relevant times the chief of the Brunswick Fire Department and as such is responsible for the supervision of employees of the fire department, including Pesek. 6. The Brunswick City Council held a meeting on April 15, 1991. In attendance at this meeting were Pesek and all three individual defendants (Pesek testimony). Brunswick councilperson Dale Strasser presided over this meeting (Strasser Testimony). This meeting was open to the public and 41 residents of Brunswick attended (Defendants’ Exhibit G, minutes of April 15, 1991 meeting with attached sign-in sheet). There were several items on the agenda for this meeting and, at certain times, members of the public were allowed to express their views (id.). 7. Item number seven on the agenda was labeled “Staffing Fire Stations # 1 and #2” (id.). Specifically, the Council discussed possible ways to staff the fire station 24 hours per day and to reduce fire and ambulance response time (id.). 8. Sometime during this discussion, Pe-sek raised his hand, desiring to speak to Council on the subject of improving Brunswick’s ambulance and fire services, including response time (Pesek testimony). At this point Trimble, sitting next to Strasser, pointed toward Pesek and whispered to Strasser that Pesek was not allowed to speak directly to Council about “fire-related issues” pursuant to the Brunswick City Charter (Strasser testimony). Specifically, Trimble instructed Strasser that if Pesek desired to speak about a “fire-related issue,” the Charter required that he go through a chain of command, starting with Trimble as city manager (Trimble testimony). 9. Pursuant to Trimble’s instructions, Strasser did not initially recognize Pesek; Pesek, however, yelled “hold on” in a further attempt to be recognized (Pesek testimony). Trimble himself then directly addressed Pesek: Skip — you want to speak on a fire issue? Ray — Yes sir. Skip — Council does not deal with employees. You deal through me if you’re an employee. Ray — I am a citizen and taxpayer. Skip — You’re also an employee. Ray — Would you put that in writing? Skip — I already told you, it’s in the Charter. Council deals with employees through me — that’s in the Charter. (Defendants’ Exhibit F, transcript from tape recording of conversation, see also Defendants’ Exhibit G). 10.On May 7, 1991 Pesek was issued a letter of suspension for his conduct during the April 15 city council meeting. Specifically, the letter, written by Combs, expresses as follows: After several directives you did try to communicate with Council of the Whole on April 15, 1991, which was a public meeting. Please be advised this is in direct violation of Brunswick Fire Department Rules and Regulations, Article 2, Section 5, Shall conform to and obey all rules, orders, resolutions and regulations, whether general, special or verbal. This is also in direct violation of Brunswick Charter, Article 3, Section 3.05 B Prohibitions, which states that all employees shall deal with Council solely through the City Manager. You are hereby suspended from all duties without pay, beginning May 13, 1991 at 1800 hours. Be advised that you may appeal this decision to Greg Crane, Safety-Service Director, within ten (10) days of this notice. This request for an appeal must be in writing. Plaintiff’s Exhibit 24. The Brunswick City Charter section upon which Pesek’s discipline was based, § 3.05(b), provides as follows: Except for the purpose of inquiries and investigations under Article VI, Section 6, the Council or its members shall deal with City officers and employees who are subject to the direction and supervision of the City Manager solely through the City Manager, and neither the Council nor its members shall give orders to any such officer or employee either publicly or privately. Plaintiff’s Exhibit 1. Defendants thus contend that Pesek, as a fire department employee, is prohibited by the Charter from “trying to communicate” directly to the City Council about “fire-related” issues because § 3.05(b) allows council members to “deal with” employees only through the city manager, Trimble (Trimble testimony; Crane testimony; Combs testimony). Pe-sek is the only Brunswick employee who has ever been punished in any way for speaking or attempting to speak at a City Council meeting (Crane, Trimble, Strasser, and Councilman Brad Burge testimony). 11. Pesek appealed his suspension and requested a hearing thereon in the form of a letter sent to Combs and Crane on May 9, 1991, pursuant to the Brunswick Division of Fire Rules and Regulations (Plaintiff’s Exhibit 26; Plaintiff’s Exhibit 2 at p. 6). 12. On July 1, 1991 Crane sent Pesek a letter which stated that a hearing regarding Pesek’s appeal of the suspension had been scheduled (Plaintiff’s Exhibit 34). Although rescheduling was requested by plaintiff, the hearing was never held. On September 17, 1991 Crane issued a decision upholding the suspension (Plaintiff’s Exhibit 46). Crane did agree with Pesek that the notice of the suspension was untimely under the Brunswick Division of Fire Rules and Regulations and ordered that he be reimbursed for lost wages during the one-week suspension period (id.). The suspension was upheld in all other respects (id.). 13. There was no evidence presented that Pesek held a property interest under state law which entitled him to continued employment as a part-time Brunswick firefighter. Pesek offered no evidence of any ordinance, regulation, policy, or express or implied contract which would support any claim that he possessed an entitlement to continued employment under state law. 14. Pesek challenges his suspension directly in this case on substantive and procedural due process and privileges and immunities grounds under the fourteenth amendment. Plaintiff also charges that both the actions on April 15, 1991 in preventing him from speaking and the subsequent suspension therefor violated his first amendment free speech rights. On July 15, 1991 the parties reached a temporary resolution of these disputes by executing an Agreed Judgment on Motion for Preliminary Injunction in which Pesek agreed not to orally address members of Council on employment related matters and Trimble agreed to submit Pesek’s communications to the City Council after receiving them from Combs and Crane. II. CONCLUSIONS OF LAW A. Introduction Pesek’s § 1983 claim in this case is premised upon several claimed constitutional violations. He alleges that both the restriction imposed upon his speech on April 15, 1991 and the subsequent suspension violated his first amendment rights. He also claims that the suspension violated his fourteenth amendment substantive due process, procedural due process, and privileges and immunities rights. In defending this action, defendants raise several arguments, foremost of which is the contention that Pesek was deprived of none of the claimed constitutional rights in this case. In addition, Brunswick maintains that, even were the court to find that one or more of Pesek’s constitutional rights had been violated, it cannot be held liable therefor pursuant to applicable legal standards governing municipal liability. Similarly, the individual defendants maintain that they are immune from liability under the doctrine of qualified immunity. With this background in mind, the court will analyze the parties’ respective arguments as follows: first, it will attempt to determine whether Pesek was deprived of any constitutional right. This requires, first, an analysis of plaintiff’s fourteenth amendment claims and then an examination of his first amendment averments. After this, the court will address issues regarding municipal and individual liability, including the doctrine of qualified immunity. The court will then briefly comment upon Pesek’s challenge to the constitutionality of the City Charter provision at issue, and conclude with a discussion concerning damages in this case. B. The Fourteenth Amendment 1. Substantive Due Process Pesek has premised this suit upon 42 U.S.C. § 1983, which provides as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. Section 1983 confers no substantive rights of its own, but is rather only a vehicle by which to seek redress for violations of specific constitutional or other federal rights. Braley v. City of Pontiac, 906 F.2d 220, 223 (6th Cir.1990). Inasmuch as it is premised upon § 1983, Pesek’s cause must in its entirety be considered as one seeking to invoke rights granted under the fourteenth amendment. See Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), overruled on other grounds Monell v. Department of Social Services of New York City, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Pesek primarily seeks vindication of his rights under the due process clause of the fourteenth amendment, which has been described as follows: The Due Process Clause of the Fourteenth Amendment, which imposes the same restraints on the state that the corresponding clause of the Fifth Amendment imposes on the national government, prohibits “any State [from] depriving] any person of life, liberty, or property, without due process of law ...” No right to due process arises, under this language, except where a state undertakes to deprive a person of one or more of the three interests specified: life, liberty, or property. Inmates of the Orient Correctional Institute v. Ohio State Adult Parole Authority, 929 F.2d 233, 235 (6th Cir.1991). Moreover, Pesek’s complaint can be viewed as raising both “substantive” and “procedural” due process concerns. With respect to the former, the law recognizes two separate types of fourteenth amendment substantive due process. The Sixth Circuit has differentiated between the two facets of substantive due process in the following manner: The first category encompasses claims based on a “right, privilege, or immunity secured by the Constitution or federal laws other than the Due Process Clause of the Fourteenth Amendment simplici-ter.” Wilson, 770 F.2d at 585 (quoting Parratt v. Taylor, 451 U.S. 527 at 536, 101 S.Ct. 1908 at 1913, 68 L.Ed.2d 420 (1981)) (emphasis in original). The second category of substantive due process claims identified in Wilson includes allegations of official acts which “may not take place no matter what procedural protections accompany them,” Wilson, 770 F.2d at 586 (quoting Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 3208 n. 4, 82 L.Ed.2d 393 (1984) (separate opinion of Stevens, J.)), or which “shock the conscience of the court.” Hayes v. Vessey, 777 F.2d 1149, 1152 (6th Cir.1985), quoting Wilson v. Beebe, 770 F.2d 578 (6th Cir.1985). See also G.M. Engineers and Associates, Inc. v. West Bloomfield Township, 922 F.2d 328, 332 (6th Cir.1990); Braley, 906 F.2d at 224-25; Parate v. Isibor, 868 F.2d 821, 831 (6th Cir.1989). In the case at bar, Pesek claims both that defendants have deprived him of a constitutional right other than the due process clause of the fourteenth amendment sim-pliciter, i.e., his right of free speech under the first amendment, and that the suspension he received itself violated his substantive due process rights under the fourteenth amendment. Although Pesek’s first amendment claim must thus in reality be considered a fourteenth amendment due process claim, the court has chosen to analyze it separately as a first amendment claim due to the fact that entirely different standards apply thereto. At this point, then, we concentrate only upon the claimed violation of the fourteenth amendment sim-pliciter. The Hayes opinion previously noted suggests that this court should find for Pesek as to this aspect of his claim if the evidence reveals that the conduct of defendants in suspending Pesek “shocks the conscience.” While the Sixth Circuit in subsequent years has seemingly retreated from this standard, see Braley, 906 F.2d at 226 and Cassady v. Tackett, 938 F.2d 693, 698 (6th Cir.1991), it has more recently reaffirmed and applied it, see United of Omaha Life Insurance Company v. Royal Maccabees Life Insurance Company, 960 F.2d 31, 35 (6th Cir.1992). However, regardless of the propriety of the “shocks the conscience” test, it is clear that Pesek possesses no fourteenth amendment substantive due process right in his state employment. The Sixth Circuit has recently followed the majority view among the courts in this regard by holding as it did in Sutton v. Cleveland Board of Education, 958 F.2d 1339, 1350-51 (6th Cir.1992). There the circuit court opined that the substantive due process clause of the fourteenth amendment only protects “fundamental” constitutional rights, not state-created rights to employment. Id. Because Pesek’s part-time employment with the Brunswick Fire Department only rises to the level of a state-created right as opposed to a fundamental constitutional right, we conclude that it lacks fourteenth amendment substantive due process protection. For this reason, we find for defendants as to this portion of Pesek’s claim. 2. Privileges and Immunities Pesek also alleges that his suspension and the lack of procedural protections accompanying it violated his rights under the privileges and immunities clause of the fourteenth amendment. Complaint at II29. This claim need be only briefly discussed. The privileges and immunities clause provides that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The very language of the clause itself precludes Pesek’s claim. Neither in his complaint nor in his proffer of evidence at trial did Pesek assert any challenge to a state law or the enforcement thereof which has allegedly abridged his privileges and immunities. Rather, Pesek’s claims amount to challenges only to certain conduct of government officials. As such, the claimed violation of his “privileges and immunities” rights does not contain merit, and so the court finds for defendants as to this claim. See also Bettio v. Village of Northfield, 775 F.Supp. 1545, 1570-71 (N.D.Ohio 1991). 3. Procedural Due Process Pesek’s final claim under the fourteenth amendment is that defendants did not provide him with constitutionally adequate procedures prior or subsequent to his suspension from his employment in order to safeguard his fourteenth amendment procedural due process rights. The decision rendered in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) offers us guidance here. In Loudermill, the court held that, where a public employee holds a sufficient property interest in continued employment, the constitution requires a minimal hearing prior to the employee’s termination from employment. Id., 470 U.S. at 542, 105 S.Ct. at 1493. At a minimum, the pretermination hearing requires that the employee be given notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story. Id., 470 U.S. at 545, 105 S.Ct. at 1495. Further, one who is merely suspended from employment, rather than terminated, may still be entitled to constitutional protection, so long as the suspension is not a “de minimus ” deprivation. See Boals v. Gray, 775 F.2d 686, 697 (6th Cir.1985) (suspension totalling five days is not a de minimus deprivation (Wellford, J., concurring), cited in Gillard v. Norris, 857 F.2d 1095, 1098 (6th Cir.1988)). The evidence in this case establishes that Pesek was not afforded a hearing either prior or subsequent to the May 7, 1991 suspension. Defendants contend, however, that Pesek’s procedural due process claim is barred as a matter of law because he did not appeal it to the appropriate state court of common pleas pursuant to O.R.C. § 2506.01. Defendants are arguing that to succeed with a procedural due process claim where he has chosen not to avail himself of available state corrective procedures, the § 1983 plaintiff must show that the state corrective procedures are inadequate to protect his rights. The principle of law relied upon by defendants has its genesis in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and has been described as follows: Thus we hold that in section 1983 damage suits claiming the deprivation of a property interest without procedural due process of law, the plaintiff must plead and prove that state remedies for redressing the wrong are inadequate. In a procedural due process case under section 1983, the plaintiff must attack the state’s corrective procedure as well as the substantive wrong. Vicory v. Walton, 721 F.2d 1062, 1065-66 (6th Cir.1983). See also Sutton, supra, 958 F.2d at 1349. However, this rule has a significant exception not discussed by the parties in their post-trial briefing. The Parratt rule only applies where the deprivation of property is caused by random and unauthorized conduct; where it results from “established state procedure,” the plaintiff need not exhaust his state remedies or show that those remedies are inadequate. See Macene v. MJW, Inc., 951 F.2d 700, 705-06 (6th Cir.1991). In Zinermon, n. 2, supra, the court indicated that where the deprivation of property was predictable, where predepri-vation process could have been afforded, and where the conduct in question was authorized in some manner by the state, the deprivation can be said to result from “established state procedure.” Id., 494 U.S. at 136-38, 110 S.Ct. at 989-90. Neither Pesek nor any of defendants have addressed the issue of whether the failure to afford Pesek a hearing amounted to “random and unauthorized” as opposed to “established state procedure.” The court might suggest that, in light of the evidence submitted and pursuant to the teachings of Zinermon, the conduct at issue here could possibly be labeled in the latter fashion. However, the parties’ silence on this issue is troubling and, rather than engage in conjecture, we choose to examine another aspect of Pesek’s procedural due process claim. As the holding of Loudermill makes clear, the § 1983 plaintiff must hold a sufficient property interest under state law in continued employment before he can invoke the protections of procedural due process. Matulin v. Village of Lodi, 862 F.2d 609, 615 (6th Cir.1988). The claimed property right may be shown by evidence of a statute, policy, practice, regulation, guideline, written contract, or contract implied from the “mutually explicit understanding” of the parties. Duncan v. City of Oneida, 735 F.2d 998, 100 (6th Cir.1984). See also Woolsey v. Hunt, 932 F.2d 555, 563-64 (6th Cir. 1991), cert. denied — U.S. -, 112 S.Ct. 195, 116 L.Ed.2d 155 (1991). In the case at bar, Pesek has produced no evidence that he possesses a right under state law to continued employment as a part-time firefighter. A review of the applicable statutory scheme, further, does not reveal that such a right exists under Ohio law. See O.R.C. § 737.01 et seq. Further, no policy, practice, regulation, guideline, or written contract was produced by Pesek at trial to support the claim that he possessed a right to continued employment. Finally, no testimony was elicited concerning the possibility that Pesek and Brunswick or the Fire Department may have been privy to some “mutually explicit understanding” which conferred some type of property interest in continued employment upon Pe-sek. Thus the court finds that there is a failure of proof as to this element of Pesek’s procedural due process claim. Pesek simply has no sufficient property right to continued employment which would entitle him to seek the protection of the fourteenth amendment’s due process clause. For this reason, the court grants judgment in favor of defendants as to this aspect of Pesek’s claim. C. The First Amendment Claims 1. The City Council Meeting of April 15, 1991 Pesek’s primary complaint in this case is that defendants violated his first amendment right to free speech when they did not allow him to speak to the Brunswick City Council at the Council meeting held on April 15, 1991. Defendants argue that this claim is barred as a matter of law by the Supreme Court decision Minnesota State Board For Community Colleges v. Knight, 465 U.S. 271, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984). There is reason to discuss the Knight opinion and at least one other in order to give logic to this court’s view on the issue now presented. In Knight, several state community college faculty instructors brought suit challenging certain portions of the Minnesota Public Employment Labor Relations Act (PELRA). PELRA, specifically, divides public employees into bargaining units and establishes a procedure for the designation of an exclusive bargaining agent for each unit. PELRA also requires that public employers negotiate with the exclusive representatives over the terms and conditions of employment. Finally, the statute grants professional employees such as college faculty the right to “meet and confer” with their employers on employment matters which fall outside the scope of mandatory bargaining, but only allows the employer to “meet and confer” over such matters with the employees’ exclusive bargaining representative, even though some employees may not be members of the exclusive representative and may disagree with its views. At issue before the Supreme Court in Knight was the latter provision of PELRA. Specifically, the Court was faced with the question of “whether the restriction on participation in the nonmandatory-subject exchange process violates the constitutional rights of professional employees within the bargaining unit who are not members of the exclusive representative and who may disagree with its views.” Id., 465 U.S. at 273, 104 S.Ct. at 1060. In other words, the Court was faced with deciding whether such a restriction unconstitutionally denied the plaintiff employees the opportunity to participate in their government employer’s policymaking in violation of the first amendment. In holding that the free speech and association rights of the faculty instructors were not infringed by PELRA, the Court initially noted that the case before it involved neither a claim of access to a public forum nor to a nonpublic forum. The Court therefore distinguished two cases as inapposite to its reasoning: City of Madison, Joint School District No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976), and Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). In City of Madison, a municipal board of education and a union were engaged in negotiations over the renewal of a collective bargaining agreement. While the negotiations were ongoing, the board of education held a public meeting at which it allowed a nonunion school teacher to comment upon a particular union proposal in the negotiations. The union in question filed a complaint with the Wisconsin Employment Relations Commission (the Commission), alleging that the board, by allowing the nonunion teacher to speak at the meeting, had engaged in negotiations with a member of a bargaining unit other than the exclusive representative in violation of Wisconsin law. The Commission agreed, ordering the board to cease and desist from permitting nonunion employees from speaking at board meetings on matters subject to collective bargaining between the board and the Union. The Commission’s order was upheld throughout the state appellate process. The Supreme Court reversed, holding that the Commission’s order constituted an unconstitutional prior restraint on the first amendment rights of the teachers. Id., 429 U.S. at 177, 97 S.Ct. at 427. In support of its holding, the Court reasoned, inter alia, that the school board meeting at issue had been open to the public “[as] a forum for direct citizen involvement,” id., 429 U.S. at 175, 97 S.Ct. at 426. As such, the Commission was prohibited from selectively allowing certain portions of the public to participate while at the same time preventing others from participating. Id. The Court in Knight revisited this reasoning and held it to be irrelevant in the case before it: The First Amendment was violated when the meetings were suddenly closed to one segment of the public even though they otherwise remained open for participation by the public at large. These cases, by contrast, involve no selective closure of a generally open forum, and hence any reliance on the City of Madison case would be misplaced. Knight, 465 U.S. at 281, 104 S.Ct. at 1064 (footnote omitted). Inasmuch as the “meet and confer” sessions at issue in Knight could not be considered public fora, the faculty members’ claim could not be considered one for access to such fora and hence the holding in City of Madison offered them no support. The Court in Knight went on to conclude that “the claim in these cases is not even a claim of access to a nonpublic forum, such as the school mail system at issue in Perry Education Assn.” Id., 465 U.S. at 281, 104 S.Ct. at 1064. In Perry Education Assn., a collective bargaining agreement between a union and the local board of education provided that the union would have exclusive access to the interschool mail system and teacher mailboxes in the district’s schools. A rival union brought suit under § 1983, contending that this preferential access to the interschool mail system violated the first amendment and the equal protection clause of the fourteenth amendment. The Supreme Court disagreed, noting that the type of forum implicated, the interschool mail system, was nonpublic as opposed to public in nature. Id., 460 U.S. at 46-47, 103 S.Ct. at 955-56. For this reason, the Court denied the rival union’s first amendment claim of access to the forum: “when government property is not dedicated to open communication the government may — without further justification — restrict use to those who participate in the forum’s official business.” Id., 460 U.S. at 53, 103 S.Ct. at 959. As it did with City of Madison, the Court in Knight differentiated the constitutional challenge in Perry Education Assn. from that before it. In the latter case, “[a] private organization there claimed the right of access to government property for use in speaking to potentially willing listeners among a group of private individuals and public officials not acting in an official capacity.” Id., 465 U.S. at 282, 104 S.Ct. at 1064. By contrast, the plaintiff employees in Knight did not seek access to a nonpublic forum in order to exercise their rights to communicate with private citizens, but rather claimed the right to communicate their ideas to the government directly: Appellees here make a claim quite different from those made in the nonpublic-forum cases. They do not contend that certain government property has been closed to them for use in communicating with private individuals or public officials not acting as such who might be willing to listen to them. Rather, they claim an entitlement to a government audience for their views. Id. Thus, the reasoning set forth in Perry Education Assn. is inapplicable. Id., 465 U.S. at 282-83, 104 S.Ct. at 1064-65. With the foregoing distinctions drawn, the Supreme Court in Knight held that the plaintiff faculty members possessed no constitutional right to force the government to listen to their views. They have no such right as members of the public, as government employees, or as instructors in an institution of higher education. Id., 465 U.S. at 283, 104 S.Ct. at 1065. In the case at bar, defendants invoke this holding in support of their defense to Pe-sek’s first amendment claim. According to defendants, Pesek, in attempting to speak directly to the Brunswick City Council on April 15, 1991, was doing nothing more than attempting to force the government to listen to his views as to the policymaking issues before the Council that evening. As such, defendants maintain, Pesek’s claim is expressly barred by the holding in Knight. In essence, defendants are contending that, regardless of what label we place upon the forum involved, Knight counsels that citizens such as Pesek have no constitutional right to force the government to listen to their views as members of the public or as government employees. As one can discern, defendants’ position underplays seriously the importance of several distinctions — those involving the public forum/nonpublic forum dichotomy and those involving Pesek’s status in the community. Pesek attempts to distinguish the holding in Knight from the facts herein by focusing upon these distinctions. According to Pesek, both Knight and Perry involved non public fora while this case, like City of Madison, involves a public forum. Thus, maintains Pesek, this court should follow the latter case and hold that the City Council was acting in violation of his rights when it selectively denied him the opportunity to express his views as a citizen on the night in question while at the same time granting others the same opportunity. In order to determine the efficacy of this argument, it is necessary to examine the specific nature of the forum at issue, the Brunswick City Council meeting of April 15, 1991. Discussing Perry Education Assn., the Supreme Court has recently drawn the following distinctions between types of fora for purposes of first amendment scrutiny: In Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 74 L.Ed.2d 794, 103 S.Ct. 948 (1983), the Court announced a tripartite framework for determining how First Amendment interests are to be analyzed with respect to Government property. Regulation of speech activity on governmental property that has been traditionally open to the public for expressive activity, such as public streets and parks, is examined under strict scrutiny. Id., at 45, 74 L.Ed.2d 794, 103 S.Ct. 948 [at 954]. Regulation of speech of property that the Government has expressly dedicated to speech activity is also examined under strict scrutiny. Ibid. But regulation of speech activity where the Government has not dedicated its property to First Amendment activity is examined only for reasonableness. Id., at 46, 74 L.Ed.2d 794, 103 S.Ct. 948 [at 954]. United States v. Kokinda, 497 U.S. 720, -, 110 S.Ct. 3115, 3119, 111 L.Ed.2d 571, 581 (1990). With respect to the second type of forum, the Court has declared that the government may create a “limited public forum” out of an otherwise nonpublic forum “by intentionally opening a nontraditional forum for public discourse.” Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985). We conclude that the city council meeting at issue falls under the second category discussed in Perry Education Assn, and Kokinda. It is undisputed that Brunswick held the meeting open to the public and allowed citizens generally to speak to council regarding items on the agenda that night. In Pesek’s suspension letter, in fact, Combs characterized the meeting as a “public meeting” (Plaintiff’s Exhibit 24). Thus, while the meeting might not properly be labeled a “traditional” public forum such as a public street or sidewalk, it is unquestioned in this case that Brunswick intentionally held it open for public discourse and, in so doing, created a limited public forum. With this in mind, it remains to determine whether our characterization of the meeting has any bearing on the merits of Pesek’s first amendment claim. In the mind of the court, this question is pivotal. In Perry Education Assn, and Knight, the fora involved were nonpublic in nature; in Knight, hence, the plaintiffs had no right in such a forum to express their views directly to government policymakers. In City of Madison, however, the plaintiffs did possess such a right because the government had opened its doors to discussion by members of the public in general, just as in the case before us. When the people through its government create a public forum for discussion of issues and the dissemination of public opinions, that government may not limit the forum to discussion by some and not to all of those who wish to speak. Specifically, here, the government may not prohibit government employees from speaking when the prohibition is based solely on the speaker’s status as an employee. Id., 429 U.S. at 175-176, 97 S.Ct. at 426-427. Put another way, such a prohibition fails strict scrutiny examination under the first amendment. Moreover, the court does not read Knight as overruling or conflicting in any way with City of Madison, as defendants suggest. In this regard, the public/nonpublic forum dichotomy is all-important. In a nonpublic forum, such as was involved in Knight, citizens possess no first amendment right to express their views directly to government policymakers. It bears repeating, however, that where the government has intentionally created a public forum out of an otherwise nonpublic forum by allowing certain members of the public to address it as to certain matters, it is a violation of the first amendment to selectively prohibit others from similarly addressing it as to the same matters based upon the content of their speech or their status in the community {e.g., as government employees). As long as the government intentionally creates the public forum and “retain[s] the open character of the facility, ... it is bound by the same standards as apply in a traditional public forum.” Perry Education Assn., 460 U.S. at 46, 103 S.Ct. at 955. Although the Sixth Circuit is apparently silent on these issues, there exists case authority which supports the proposition that, while no citizen possesses the general constitutional right to express his views directly to the government {Knight), the government nonetheless may not selectively prohibit a citizen from speaking at a public meeting based upon the content of the speech or upon the speaker’s status {City of Madison). In particular, a line of cases has developed out of the Fourth Circuit which expressly supports this conclusion. Especially enlightening is Local 2106, International Association of Firefighters, AFL-CIO v. City of Rock Hill, 660 F.2d 97 (4th Cir.1981), a case almost factually indistinguishable from that before us. In Rock Hill, the plaintiffs were individual members of a local union who were employed as firefighters by the defendant city, Rock Hill. Rock Hill had in existence at the relevant time a policy statement applicable to the city’s fire department which recognized a particular nonunion entity, the Rock Hill Firefighters Association, as spokesman and representative of the plaintiff employees. The policy statement also set forth general policies regarding wages and working conditions of the firefighter employees. In addition, South Carolina had in existence a statute nearly identical to § 3.05(b) of the Brunswick City Charter: Except for the purpose of inquiries and investigations, neither the council nor its members shall deal with municipal officers and employees who are subject to the direction and supervision of the manager except through the manager, and neither the council nor its members shall give orders to any such officer or employee, either publicly or privately. City of Rock Hill, 660 F.2d at 98, quoting S.C.Code § 5-13-40(c). The local union’s president appeared at a Rock Hill city council meeting on behalf of the plaintiff employees and requested to speak to council on issues pertaining to the policy statement in effect, viz., the wages and working conditions of the plaintiff employees. The city council refused to permit him to speak directly to it about such issues, relying on the state statute quoted above. However, at the same time, it opened the meeting to public participation with respect to these issues: The Rock Hill city council regularly permits residents and other interested persons to appear and speak before it during its regularly scheduled meetings with respect to all matters involving the public affairs of the city, but prohibits city employees from discussing matters concerning their employment. Id., 660 F.2d at 99. The plaintiff employees and their union filed suit alleging, inter alia, that Rock Hill had unconstitutionally applied the statute when the city council refused to allow them to express their views relating to employment matters at its public meeting. The district court disagreed and denied relief. In reversing the ruling of the district court, the Fourth Circuit held that Rock Hill could not constitutionally prevent the plaintiffs from speaking to the city council about employment-related matters at meetings during which members of the general public were permitted to express their views about such matters: The district court found justification in Rock Hill’s actions reasoning that council meetings are not a forum designed for citizens to address the public, but for citizens to address their complaints to government. This is not a valid distinction. It is conceded that council meetings were open to any citizen of Rock Hill to comment on any subject relating to city government except for the prohibition affecting city employees. Rock Hill thus provided a public forum, Madison v. Wisconsin Employment Relations Commission, 429 U.S. 167, 176, 97 S.Ct. 421, 426, 50 L.Ed.2d 376 (1976), and in singling out, to exclude from that forum, municipal employees wishing to discuss municipal employment matters, it violates the first and fourteenth amendments. Madison, supra; Hickory Firefighters Association, Local 2653 v. City of Hickory, 656 F.2d 917 (4th Cir.1981); Henrico Professional Firefighters Association, Local 1568 v. Henrico County, 649 F.2d 237 (4th Cir.1981). It is true the Firefighters have no constitutional right to require the council to bargain with them. Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979) (per curiam). It is not necessary, however, to decide whether the council meetings had to be open for discussion of collective bargaining as opposed to actual negotiation since the Firefighters had made it clear that they did not even intend to discuss collective bargaining but only the council policy relating to working conditions. The Supreme Court was explicit in Madison and Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), that government employees have a protected right to discuss conditions of their employment in a government forum open to the public. This court recently in Henrico, supra, and Hickory, supra, made it clear that this right enunciated in Madison extends to firemen. Here it is conceded that the council meetings are open and, in fact, a member of the general public was allowed to address the council on the subject of Rock Hill’s employment policy toward firefighters. The admitted policy concerning employees is a content-based limitation on free speech and is an impermissible classification under the equal protection clause of the fourteenth amendment. Id., 660 F.2d at 100. The cases cited by the court in City of Rock Hill are also illuminating. See, e.g., Hickory Firefighters Assn., 656 F.2d at 922 (municipality cannot “open a meeting to the public and then prohibit the Association’s speech simply because of what the Association is or what its representatives wish to say”); Henrico Professional Firefighters, 649 F.2d at 246 (court rejects view “that because a government may sometimes close its doors entirely to the public or limit discussion to certain subjects only, it may deny access to an association when it welcomes any individual to speak, and allows representatives of groups other than the public employees to be freely heard”). In addition, the Fourth Circuit has on at least two occasions since Knight reiterated these holdings. See Fraternal Order of Police v. Mayor and City Council of Ocean City, Maryland, 916 F.2d 919, 922 (4th Cir.1990) (“... a government body that regularly allows public comment by individuals and representatives of associations may not deny a representative of a public employee association the opportunity to be heard on employment matters absent compelling justification”); Shopco Distribution Company, Inc. v. The Commanding General of Marine Corps Base, Camp LeJeune, North Carolina, 885 F.2d 167, 171 (4th Cir.1989) (government need not create a public forum by opening it for direct citizen involvement, “[b]ut once opened, speech in these forums is subject to the same protections as speech in traditional public forums”). Other courts are generally in agreement with this reasoning. See, e.g., White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir.1990) (city council meetings become public fora once they are opened to the citizens who thereby “have an enormous first amendment interest in directing speech about public issues to those who govern their city”); Jones v. Heyman, 888 F.2d 1328, 1331 (11th Cir.1989) (although city commission need not have opened its meeting to the public, “once it did so the commission became bound by the same standards that apply in the case of a traditional public forum”); National Anti-Drug Coalition, Inc. v. Bolger, 737 F.2d 717, 721 (7th Cir.1984) (“... a state is not required to indefinitely retain the open character of a facility for expressive activity, but ‘as long as it does so it is bound by the same standards as apply in a traditional public forum/ ” quoting Perry). Pursuant to City of Madison and its progeny, we conclude that Brunswick created a limited public forum by inviting citizen participation at its city council meeting on the evening of April 15, 1992. As such, the Council was prohibited from selectively denying Pesek his right to address the Council regarding a matter which was part of the agenda that night based solely upon his status as a government employee. To do so amounts to a content-based restriction and does not pass constitutional muster because it does not offer a compelling justification for the action taken, a justification which must be shown in order to meet the standard of strict judicial scrutiny. See Perry Education Assn., 460 U.S. at 45, 103 S.Ct. at 955 (“For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end”). Thus, inasmuch as Pesek sought to express his views on an agenda item at an open City Council meeting, the court finds that he was deprived of his first amendment right of free speech when the Brunswick City Council selectively denied him the right to express these views on April 15, 1991. The court now turns to the second aspect of Pesek’s first amendment claim, that involving his suspension from employment of May 7, 1991 based upon his status as a government employee and the content of his speech as related to a “fire issue.” 2. The Subsequent Suspension Although it is not altogether clear, Pe-sek’s first amendment claim actually is comprised of two separate components. Pesek claims not only that he was deprived of his free speech rights when he was prevented from speaking on April 15, 1991, but also that Chief Combs impermissibly suspended him on May 7, 1991 in retaliation for his attempted exercise of his free speech rights. Pesek alleges in this regard as follows: “In order to punish and further restrain plaintiff in and for the exercise of expression before the city council, ... defendant TEX COMBS ... suspended plaintiff for seven (7) days without pay for his April 15,1991 attempt to speak to Council.” Complaint at if 12. To be sure, the government may not take adverse employment action against an individual in retaliation for the latter’s exercise of his or her first amendment right of free speech. Rankin v. McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987); Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). Moreover, such an adverse employment decision is impermissible even if it involves punishment short of dismissal. Rutan v. Republican Party of Illinois, 497 U.S. 62, --, 110 S.Ct. 2729, 2737, 111 L.Ed.2d 52, 67 (1990). In order to determine whether an adverse employment decision runs afoul of the first amendment in this manner, it is necessary to strike “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). See also Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 1686, 75 L.Ed.2d 708 (1983). The Sixth Circuit has recently set forth a two-part test for determining the efficacy of first amendment employment retaliation claims of this type based upon the balancing approach first enunciated in Pickering. In order to make out a prima facie claim, a plaintiff alleging retaliatory penalization against her employer based upon her exercise of first amendment rights must convince the trier of fact of three things: 1) the speech is related to a matter of public concern; 2) the plaintiffs interest in making the statement outweighs her employer’s interest in promoting efficiency in its operations; and 3) the protected speech was a “substantial” or “motivating” factor in the decision to penalize the plaintiff. See Boger v. Wayne County, 950 F.2d 316, 322 (6th Cir.1991). “If the plaintiff satisfies these requirements, she has established a prima facie case and the burden shifts to the employer to show by a preponderance of the evidence that there were other reasons for its adverse action and that it would have taken the same action even if the employee had not spoken.” Id., citing Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Langford v. Lane, 921 F.2d 677, 680 (6th Cir.1991). The first issue the court must determine is whether Pesek’s speech on the evening of April 15, 1991 was related to a matter of public concern. “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690. In the case at bar, of course, Pesek never made the statement, and so its content, form, and content apparently cannot be examined. However, we do not find this shortcoming to be an obstacle to further analysis, for Pesek’s uncontradicted testimony fully reveals the subject of his aborted attempt to speak: ways to improve the Brunswick ambulance and fire services. Inasmuch as this subject was on the agenda at that time and other members of the public were invited to express their views thereon, we have no doubt from the record that Pesek intended to speak as a citizen on a matter of great interest to the community. As such, although he was also a fire department employee, he should have been permitted to speak without fear of retaliation. See Connick, 461 U.S. at 149, 103 S.Ct. at 1691 (where speech addresses a matter of interest to the community, “it is essential that public employees be able to speak out freely without fear of retaliatory dismissal”). The fact that he did not actually speak, moreover, is no bar to this finding. In Langford v. Lane, 921 F.2d 677, supra, the court examined an employee’s asserted right to refrain from speaking and held that her silence was based upon an intention to speak on a matter of public concern. Id., 921 F.2d at 681. Similarly, inasmuch as Pesek intended to speak on a matter of public concern, his attempt at expressing himself is worthy of first amendment protection. The second element of the prima facie case set forth in Boger asks whether Pesek’s interest in making the statement outweighs the City’s, or in this case the City Council’s, interest in promoting efficiency in its operations. Among the factors which must be examined in engaging in this balancing test are the following: In order to justify a restriction on speech of public concern by a public employee, plaintiff’s speech must impair discipline by superiors, have a detrimental impact on close working relationships, .undermine a legitimate goal or mission of the employer, impede the performance of the speaker’s duties, or impair harmony among co-workers. Meyers v. City of Cincinnati, 934 F.2d 726, 731 (6th Cir.1991), citing Rankin, 483 U.S. at 388, 107 S.Ct. at 2899, and Pickering, 391 U.S. at 570-73, 88 S.Ct. at 1735-37. In assessing these factors as applied to the facts herein, we initially agree with defendants that there is some justification for the requirement that public employees discuss matters of employment with the City Council only through the city manager. However, there is little if any justification for imposing the same requirement upon public employees when they desire to speak upon matters of public concern solely as citizens at an open city council meeting. In this regard, it cannot be said that the interest implicated by § 3.05(b) of the City Charter, viz., the promotion of efficiency respecting matters of government employment, outweighs Pesek’s interest in speaking on a matter of public concern. This is but another way of holding that the interest underlying § 3.05(b) of the Charter simply is not served by prohibiting employees from speaking about matters of public concern at city council meetings merely because the asserted speech may be tangentially related to the speaker’s working environment. While this court understands the rationale for the declination of city officials to conduct city business outside the “chain of command,” then, the record does not demonstrate that Pesek’s attempted speech would have impaired discipline by superiors, impacted upon close working relationships in detrimental fashion, undermined a legitimate goal of the City, impeded the performance of Pesek’s duties, or impaired harmony among coworkers. For this reason, we conclude that the second element set forth in Boger favors Pesek in this case. The final prong of the prima facie case needs little discussion. The suspension letter issued by Combs on May 7, 1991 unequivocally establishes that the protected speech was a substantial or motivating factor underlying the decision to penalize Pesek. Pesek was suspended, simply put, due to the content of his attempted speech. Thus, the final prima facie element also favors Pesek, who has therefore successfully made out his prima facie case. The final inquiry concerning this aspect of Pesek’s first amendment claim asks whether defendants have shown by a preponderance of the evidence that they would have taken the same action even if Pesek had not attempted to speak at the City Council meeting. Again, this issue can be speedily resolved. The record unquestionably reveals that Pesek was suspended solely for his attempt to speak at the meeting; see, again, Combs’ May 7, 1991 letter. Defendants have offered nothing by way of evidence indicating there were other reasons for the suspension, and so have failed in their burden of showing that the same action would have been taken regardless of Pesek’s conduct at the City Council meeting. Thus, they have failed to overcome the prima facie case established by Pesek. For the foregoing reasons, the court concludes that Pesek’s suspension from employment was imposed in retaliation for his attempted exercise of his first amendment right of free speech. As such, the suspension amounts to a violation of this right and so the court also finds for Pesek on this aspect of his first amendment claim. D. Municipal Liability Inasmuch as Pesek proffers two separate theories underlying his first amendment claim, it is axiomatic that he is attempting to hold Brunswick liable for two events: Trimble’s denial of his right to speak at the City Council meeting on April 15, 1991 and his subsequent suspension from employment by Combs on May 7, 1991 made in retaliation for his attempted speech. Defendant Brunswick argues that it cannot be held liable for these events pursuant to applicable standards governing municipal liability under 42 U.S.C. § 1983. Before the court engages in an analysis of Brunswick’s argument, it is necessary to briefly review these standards. A municipality cannot be held liable for the conduct of its officials in a § 1983 suit under a theory of respondeat superior; rather, such liability can only attach where the action underlying the plaintiff’s claim was carried out pursuant to an official policy or custom of the municipality. Monell v. Department of Social Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978); Johnson v. Hardin County, 908 F.2d 1280, 1285 (6th Cir.1990). The decision in Monell recognizes that there are differences between municipal liability based upon a “custom” and that based upon a “policy” under § 1983. It is permissible to impose municipal liability under § 1983 not only where the challenged conduct represents formal official policy, but also where it reflects “practices of state officials so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 1613-14, 26 L.Ed.2d 142 (1970). With regard to Pesek’s suspension, Brunswick’s argument is twofold. The city contends, first, that the undisputed evidence reveals that no Brunswick employee had ever been disciplined for speaking in or attempting to speak at a City Council meeting. Thus, according to Brunswick, the suspension cannot be said to represent a practice so permanent and well settled as to represent a “custom or usage” of the city. With this the court must agree. The uncontroverted testimony of Trimble, Crane, Strasser, and Burge establishes that Pesek is the only employee of Brunswick ever penalized for engaging or attempting to engage in such conduct. Thus, the single incident of adverse employment action involved in this case cannot be said to embody a custom or usage with the force of law within the meaning of Monell. In order to hold Brunswick liable for his suspension based upon the first amendment encroachment, Pesek must therefore establish that the decision to suspend him amounted to an official “policy” within the meaning of Monell. The concept of finding a municipal policy based upon a single decision of a government official has its genesis in Pembaur v. Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) and has been more recently expounded in St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). In Pembaur, the Court was faced with the issue of whether a single decision by a municipal official could be labeled a “policy” such that the municipality might be held responsible therefor under § 1983. The Court answered this question in the affirmative, holding that “it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.” Id., 475 U.S. at 480, 106 S.Ct. at 1298. Such “appropriate circumstances” exist where the decisionmaking official is vested with final decisionmaking authority to establish the policy in question. Id., 475 U.S. at 481, 106 S.Ct. at 1299. In elucidating upon its holding, the Court was careful to emphasize the narrowness thereof: Having said this much, we hasten to emphasize that not every decision by municipal officers automatically subjects the municipality to § 1983 liability. Municipal liability attaches only where the deci-sionmaker possesses final authority to establish municipal policy with respect to the action ordered. The fact that a particular official — even a policymaking official — has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. See e.g., Oklahoma City v. Tuttle, 471 U.S. [808] at 822-824, 85 L.Ed.2d 791, 105 S.Ct. 2427 [at 2435-37]. The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable. Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law_ We hold that municipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. See Tuttle, supra, at 823, 85 L.Ed.2d 791, 105 S.Ct. 2427 [at 2436] (“ ‘policy’ generally implies a course of action consciously chosen from among various alternatives.”) Id., 475 U.S. at 481-84, 106 S.Ct. at 1299-1300 (footnotes omitted) (plurality). See also Johnson, 908 F.2d at 1286; Hull v. Cuyahoga Valley Joint Vocational School District Board of Education, 926 F.2d 505, 515-16 (6th Cir.1991), cert. denied Hull v. Shuck, — U.S. -, 111 S.Ct. 2917, 115 L.Ed.2d 1080 (1991). I