Appeal from the United States District Court for the Southern District of Illinois. No. 06 C 4063-J. Phil Gilbert, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
ARGUED SEPTEMBER 22, 2008
Before EASTERBROOK, Chief Judge, and ROVNER and WILLIAMS, Circuit Judges.
When Richard Chaklos and Andrew Wist discovered that the State of Illinois was going to pay an out-of-state organization $750,000 to train forensic scientists without first soliciting competitive bids, they decided to take action and try to save the taxpayers some money. They submitted a letter protesting the State's decision not to solicit bids and proposing to provide the same training services for a lower price through their own company. At the time, however, the State employed Chaklos and Wist to train forensic scientists. (They had formed their training company on the side.) Their supervisors (defendants) were taken aback by this letter and suspended Chaklos and Wist, who claim the suspension violated their First Amendment rights.
Without deciding whether this amounts to a constitutional violation, we hold that defendants are entitled to qualified immunity because the law does not make clear that their action was unconstitutional. See Pearson v. Callahan, 129 S.Ct. 808 (2009). Although some statements in the letter (those regarding Chaklos and Wist's own proposal for the state contract) do not rise to the level of public concern, we conclude that, in main part, the letter addresses wasteful government spending, which is a matter of public concern. However, it is not obvious whether Chaklos and Wist's interest in making such speech outweighs their employer's interest in efficient service. Due to several unusual facts in this case, resolving the issue entails fine line-drawing, the very nature of which entitles defendants to immunity. Therefore, we affirm the grant of summary judgment in defendants' favor.
In January 2004, the State of Illinois allocated money to process a backlog of DNA evidence from rape victims that had not been tested due to a shortage of forensic scientists at the Illinois State Police Crime Lab. The Illinois State Police (ISP) received money to hire and train 14 (later 15) new forensic scientists. This case arises from ISP's plan to use some of that money.
Plaintiffs, Chaklos and Wist, were employed by ISP to train forensic scientists. Wist trained scientists in DNA analysis and Chaklos trained scientists in drug chemical analysis. Shortly after the governor of Illinois approved ISP's request to hire additional scientists, members of ISP's Forensic Sciences Command discussed how best to train the new scientists. They ultimately decided to hire the National Forensic Science Training Center (NFSTC), a not-for-profit company located in Florida. Although NFSTC had conducted training for ISP personnel at no cost to the State of Illinois in the past, this training was projected to cost the State nearly $750,000.
The State of Illinois encourages competitive bidding for state contracts and purchases. However, contracts can be awarded on a "sole source" or "no-bid" basis (rather than competitively bid) if there is only one economically feasible source able to meet the requirements of the contract. In this case, although several people at ISP thought the training contract should be competitively bid, the Director of ISP recommended the contract be sole-sourced based on the recommendation of Susan Vondrak (Director of Training of ISP's Forensic Sciences Command), Donna Metzger (Assistant Commander), and Kathleen Stevens (Deputy Director of the Forensic Services Command).
Chaklos and Wist became upset when they heard about the contract. Wist had participated in some discussions regarding NFSTC's involvement in the training but had done so under the belief that its training services would be free of cost to the State. Wist had also discussed alternative options such as training the new scientists internally rather than outsourcing the training. When he discovered that the State was paying for the services (and overpaying, he thought, at that), however, he and Chaklos decided the State could do better.
In addition to their duties with ISP, Chaklos and Wist owned and operated Midwest Forensic Services, Inc. (MFS). After the State's no-bid contract with NFSTC was published online pursuant to the State of Illinois Department of Central Management Services (CMS) procedures, Chaklos and Wist submitted a protest letter to Michael Yokley, an ISP procurement official. The letter was on MFS stationery and signed by Wist as President of MFS and Chaklos as Vice President. The first line of the letter stated that "[MFS] must protest the awarding of a no-bid contract to NFSTC for the training of Personnel in DNA analysis." The letter also stated that MFS could provide superior training at a lower cost "with substantial savings to the State of Illinois" and includes attached documentation regarding available space for the training, a letter of credit from a bank, and a proposed training outline. The letter also suggested problems with NFSTC, specifically indicating that NFSTC did not have the requisite experience to handle the training.
The letter did not have the effect its authors might have hoped. Rather than raising concerns about the no-bid contract, the letter raised concerns within ISP about Chaklos and Wist, and ISP launched an internal investigation into their work with MFS. ISP suspended plaintiffs for thirty days for writing the letter on the ground that the letter violated ISP's policy regarding secondary employment. Michael Sheppo, along with Stevens, Metzger, and Vondrak, made this decision. Despite the protest, ISP proceeded with its plan to send the scientists to NFSTC.
As it turns out, however, Chaklos and Wist were not the only ISP employees with dual interests in this matter. Michael Sheppo, who was the Commander of ISP's Forensic Sciences Command, was also President of the NFSTC's Board of Directors. His involvement was known to several employees at ISP (including Stevens), and some ISP employees had raised concerns about a potential conflict of interest when NFSTC was being considered for the training services contract. An initial investigation led nowhere (based largely on the misleading representations of Sheppo and Stevens), but after the Office of Executive Inspector General (OEIG) received a formal complaint regarding NFTSC, it opened a full investigation into Sheppo's involvement with NFSTC. It determined that Sheppo's position with NFSTC created a conflict of interest. It also concluded that Sheppo's role in plaintiffs' discipline was unethical and recommended that their suspensions be rescinded.
Maintaining that their protest letter was protected speech, Chaklos and Wist filed a First Amendment retaliation suit under 42 U.S.C. § 1983. The district court determined that although the letter was protected speech, defendants were entitled to qualified immunity. ...