Appeals court reinstates federal case

A former North Idaho high school employee who lost his job after complaining to district officials about drug use, sexual harassment and weapons at the school will get his day in federal court.

The 9th U.S. Circuit Court of Appeals recently reversed a dismissal by U.S. District Judge Edward Lodge of federal free speech charges brought against the Lake Pend Oreille School District and former principal Jim Soper by Robert B. Posey, who lost his job as a security specialist at Sandpoint High School in June 2004.

Posey sued the district in June 2005, lodging the federal free speech violation charge as well as two charges of state law violations regarding wrongful termination and the public employee whistleblower’s act. Lodge dismissed the federal charge, sending the state charges to state court, but the 9th Circuit’s decision, issued last week, reverses that and calls for him to hold a jury trial on all counts.

“We’re happy we’re finally going to present the case,” said John Rumel, a lawyer for the Idaho Education Association who’s representing Posey.

No trial date has been set.

Posey is seeking an unspecified amount of money, alleging he was wrongfully fired and his free speech rights were violated when he lost his job in 2005.

He’d been complaining about problems at the school since 2002. He wrote a letter to district officials in 2003, citing examples of student intoxication and other concerns, including “sexual harassment and possibly rape among school staff,” according to the 9th Circuit’s ruling.

The district combined his position with three others at the end of the school year. Posey applied but didn’t get the job and filed his suit the next year.

Citing a 2006 U.S. Supreme Court ruling, Lodge said Posey’s complaints were delivered while he was a school employee and thus weren’t covered by the First Amendment.

In the 2006 case, Garcetti v. Ceballos, the high court dismissed a claim by Richard Ceballos, a deputy district attorney in Los Angeles County, that his employer retaliated against him for informing his superiors of an inaccurate affidavit used to obtain a search warrant. The ruling said that because Ceballos spoke out under his capacity as an employee, the First Amendment didn’t apply.

In the wake of that ruling, courts must consider not only whether the speech in question raises issues of public concern but also whether the speaker was acting as a public employee or a private citizen.

Noting Posey’s complaint letter had been written at home and with his own supplies, the court ruled Posey was acting as a citizen raising “matters of public concern” and ordered Lodge to review the case.

Boise lawyers Mark Sebastian and Brian Julian, representing the district, couldn’t be reached for comment Monday. Rumel said the district has said Posey lost his job because of budget cuts.

At the time the lawsuit was filed, Mark Berryhill, then the district’s superintendent, said: “It’s important to realize there’s another side to the issue that’s well-researched and well-investigated and well-documented as far as legal aspects are concerned.”

Posey came to North Idaho after he was injured during a high-speed car chase while working as a police officer in Downey, Calif., in 1990, according to newspaper archives. He still works in Sandpoint, Rumel said.