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Click here for the full text of this decision FACTS:Several officers from the Texas Department of Public Safety took the exam to move from the rank of “lieutenant” to “narcotics service captain.” A six-member panel administered part of the exams, and the 11 highest scores were sent to the department chief for review. The chief then sent the slate of 11 to the DPS director, who made the promotions. The applicants who were not promoted filed suit against the panel members and other high-ranking DPS officials, who the plaintiffs claim were members of an informal social organization called the “Houston Bar-B-Que Club” that influenced DPS promotions and policy. The applicants said personal favorites of the club members were pre-selected for promotion and groomed accordingly. The applicants also alleged that the defendants had rigged the examination results to get the promotions they wanted. Seven of the applicants said they were blackballed because of constitutionally protected statements they made. Applicant Alan Alexander objected to a DPS policy prohibiting narcotics officers from wearing identity-concealing masks while conduct raids. He said he feared retaliation from those present at the raids. Applicant James Lucas questioned the promotion process’ fairness. Applicant Jerry Schwab questioned the fairness of the promotion exam. Applicant Robert Ralls, too, complained of the fairness of the promotion process, as well as the anti-mask policy. He also complained about what he perceived as numerous policy and law violations in the department. Applicant Gary McCully complained of the anti-mask policy, and he also helped an officer get a public commendation against the wishes of a DPS supervisor. Through his work in internal affairs investigations, Applicant Kenny Foster found that a DPS lieutenant could not account for 28 firearms under his care, which amounted to a state code violation. The lieutenant resigned his position to avoid punishment, but before he did, actively avoided Foster, who had once been his friend. Applicant Bobby Harper complained to his superiors and state officials that the DPS director was advising officers to ignore a statute regarding the parking of non-mission critical personnel vehicles, yet advising the legislature that he was complying with the statute. Rep. Pete Gallego advised Harper that the statute was meant to apply to SWAT team vehicles, and Harper relayed that to his superiors, who then warned Harper to stop talking or else risk losing his job. The DPS director was eventually questioned by a House committee, which had received a letter of complaint from Harper. The director told the committee the problem had been resolved, and Harper resigned. The plaintiffs raised claims under 42 U.S.C. 1983 and the Equal Protection Clause. The district court dismissed all except the 1983 retaliation claims in one order. In another order, on motion by the DPS defendants, the district court granted summary judgment for DPS for the protected speech-retaliation claims of Alexander, Lucas, Ralls, McCully and Schwab. However, the district court denied summary judgment on the similar claims of Foster and Harper. Both sides appeal. HOLDING:Affirmed in part; reversed and remanded in part. The court reviews the summary judgment for DPS against four of the applicants: Alexander, Lucas, Ralls and Schwab. To establish their 1983 retaliation claim, the applicants would have to show: 1. they suffered an adverse employment action; 2. the speech at issue involved matters of public concern; 3. their interest in the speech outweighs the government’s interest in efficiency; and 4. the speech precipitated the adverse employment action. The court says it is the second element that is at issue with these four applicants. The court agrees with the district court that none of the statements these four applicants made was on a matter of public concern. Their complains about the promotion process were essentially private, the court finds. Their concerns were voiced only in the form of questions regarding their own attempts to get promoted; their concerns were not about general promotion policy. Additionally, the form of the questions was private, as they were not leaked to a reporter or sent to an elected state official. The court also finds the complaints raised about the anti-mask policy to be primarily private, too. No ongoing public debate “raged” on the issue, and no one outside DPS was brought into the debate. McCully’s efforts in securing the commendation for the officer was not an issue of public policy, as it did not reflect on a policy debate, nor did it disclose malfeasance. “While the facts of this case give us great pause in as much as they reflect a very troubling promotion process, reeking of cronyism, within DPS, because the 1983 actions are brought to us in the context of alleged First Amendment violations, the inquiry necessary leads us to conclude that Plaintiffs’ claims are unsupported.” The court also reviews all of the applicants’ claims that the district court dismissed on qualified immunity grounds. Here, the court says the DPS defendants would not be eligible for qualified immunity if the applicants made an allegation that, if true, was a violation of a clearly established right, and then if the court determined that the defendants’ conduct was not objectively reasonable in light of the right’s establishment at the time of the incident. As to the applicants discussed above, because they did not prove a violation of their First Amendment rights, then the defendants were entitled to qualified immunity. The court then considers the claims of Harper and Foster. The court concludes that Foster’s speech did not deal with a matter of public concern. His speech disclosed incompetence, but not wrongdoing or corruption. Further, the report he filed on the missing weapons was a DPS internal matter, and the context of his speech was private. It had nothing to do with a public debate or existing public issue. The court reaches a different result, however, as to Harper. He alleged misapplication of state law and perjury before the Texas legislature. His method, contacting elected state officials, is clearly public, as is the context in that it concerned a state law and public testimony before an elected body. The court also finds that Harper’s interest in his protected speech outweighs DPS’ interest in efficiency, as his conduct neither damaged DPS morale nor was it disobedient. His actions precipitated an adverse employment action, because he was warned he could be fired for his speech. The court finds a reasonable inference could be made that the DPS defendants would not have reached the same conclusion about Harper’s continued employment and promotion absent the protected conduct. Finally, the court finds that the defendants’ behavior as alleged was not objectively reasonable. In its final ruling, the court upholds the dismissal of the applicants’ Equal Protection claims. “While we do not approve of promoting friends over others who may have superior objective qualifications, we cannot say that such a practice is not rationally related to a legitimate governmental objective.” OPINION:Benavides, J.; Reavley, Wiener and Benavides, JJ.

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