## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 11 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICHARD C. LYTLE, Plaintiff-Appellant,

v. CITY OF HAYSVILLE, KANSAS, a municipal corporation, and JAMES EARL KITCHINGS, Defendants-Appellees. No. 96-3197

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. No. 93-CV-1322-KHV)

Jack Focht, Focht, Hughey & Calvert, L.L.C., Wichit a, Kansas, for PlaintiffAppellant. Alan L. Rupe, Morrison & Hecker, L.L.P., Wichita, K ansas, for DefendantsAppellees.

Before KELLY, HOLLOWAY, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Richard C. Lytle was employed as a police officer b y the City of Haysville, Kansas from 1983 until 1991, when he was dischargedafter alleging that fellow2

Haysville officers committed second-degree murder b y failing to render emergency aid to the victim of a police shooting. He brought suit against the City of Haysville and its police chief, James Earl Kitch ings, contending that the defendants had attempted to cover up police officer s’ misconduct and that he had been fired in retaliation for his allegations again st them. The district court granted summary judgment for the defendants, and Mr . Lytle appeals. We exercise jurisdiction under 28 U.S.C. § 1291. B ecause the important factual issues in this case are in reality undisput ed and because the district court’s decision involves questions of law under the approp riate balancing tests, we believe that this case is suited for summary judgme nt. For the reasons given below, we affirm.
I. BACKGROUND

Responding to a traffic disturbance on the evening of December 7, 1990, Haysville police officer Luther Donald Meeks shot aHaysville resident, Datton Wilson, Jr., in self-defense. Within seconds of th e shooting, Officer Meeks radioed the dispatcher to call emergency medical se rvices. Lieutenant Bruce Powers and Officers Lanon Thompson and Tim Stock, a ll of the Haysville Police Department, appeared at the scene shortly thereafte r. Before the Emergency Medical Technicians (EMTs) arr ived, the officers did not render emergency aid to Mr. Wilson. The of ficers had received3

instruction in cardiopulmonary resuscitation (CPR) as part of their law enforcement training and had learned that they shou ld not move or perform CPR on critically injured persons who are still breathi ng, as Mr. Wilson was. The EMTs arrived at the scene approximately six minutes after the shooting. They administered CPR and transported Mr. Wilson to the nearest hospital, where he was pronounced dead a short time later. Approximately an hour after the shooting, Mr. Lytle arrived at the scene. By that time, the EMTs had already left with Mr. Wi lson. According to his deposition testimony, Mr. Lytle asked Lieutenant Po wers if the officers had performed CPR on Mr. Wilson before emergency medica l personnel arrived. Mr. Lytle stated that Lieutenant Powers told him that t he officers had not performed CPR because Mr. Wilson was, in Lieutenant Powers’s words, “dead or dying anyway.” Aplt’s App. vol. I at 209 (Tr. of dep. of Mr. Lytle, dated Apr. 26, 1994). However, in two written reports concerning the Wilson investigation, prepared on December 8 and December 9, 1990, Mr. Ly tle did not mention the “dead or dying” comment. See id. vol. II at 598-601. Several months after the shooting, Mr. Lytle had se veral telephone conversations with Mr. Jerry Berg, an attorney for Mr. Wilson’s widow. At that time, Mr. Lytle knew that Mr. Berg was demanding a grand jury investigation of the shooting and threatening to sue the City. On April 27, 1991, Mr. Lytle gave a4

statement to Mr. Berg under oath. See Aplt’s App. vol. II at 620-93 (Tr. of April 27, 1991 statement). In his statement to Mr. Berg, Mr. Lytle explained t hat it was his wife who had first contacted Mr. Berg because the shooting h ad been troubling her husband. See id. at 624. Mr. Lytle then described his actions and observations on the evening of the shooting. He said that when he first arrived at the scene, Lieutenant Powers “just briefly told me what he wan ted me to do, which was interview Mrs. Wilson.” Id. at 628. Mr. Lytle said that he asked Lieutenant Powers “if they had performed any type of CPR or anything on the victim and he stated, no, he was going to die anyway.” Id. at 629. Mr. Lytle said that he “was a little shocked because . . . that’s the first thing that should have been done, somebody should have given [Mr. Wilson] CPR or at l east applied direct pressure to the wound.” Id. Within a week of the shooting, Mr. Lytle added, Off icer Stock gave him the same explanation as to why the officers had not per formed CPR when they first arrived at the scene: “Mr. Wilson was dying or dead anyway.” Id . at 638. Mr. Lytle agreed with Mr. Berg that the job description s for Haysville police officers required that “[i]f the victim is still alive, prop er aid should be given.” Id. at 632. According to Mr. Lytle, the officers should have fo llowed this policy by giving first aid to Mr. Wilson. When questioned by Mr. Be rg, he stated that the officers’5

failure to render aid constituted second degree mur der. Id. at 648-49. Mr. Lytle admitted to Mr. Berg that he was under or ders not to discuss the Wilson case. Id. at 633. Additionally, he stated that it would hav e been appropriate for him to have talked to Chief Kitchin gs about his fellow officers’ statements and that he should have done so. Id. at 642. On May 15, 1991, Mr. Lytle testified before a grand jury of the Eighteenth Judicial District of Kansas. An attorney from the law firm representing the City of Haysville accompanied him, and Mr. Lytle gave hi m a transcript of the statement to Mr. Berg. Around this time, Mr. Lytle also spoke with a reporter for the Wichita Eagle newspaper. The newspaper ran articles that quoted Mr. Lytle as saying that Powers, Thompson, and Stock were to blame for Mr. Wilson’s death. The Haysville Pioneer , a local newspaper, also covered the Wilson controversy. After reading about Mr. Lytle’s allegations in the newspaper and reviewing his statement to Mr. Berg, Chief Kitchings investig ated Mr. Lytle’s allegations and determined that they were unsupported. The part ies do not dispute that, after the newspaper reports of Mr. Lytle’s allegations, m orale in the Department decreased significantly. Fellow officers distruste d Mr. Lytle and refused to speak with him. Additionally, Mr. Lytle’s charges underm ined public trust in the Department, making law enforcement more difficult. See Aplt’s App. vol. I at6

90-123. On July 16, 1991, Chief Kitchings terminated Mr. Lytle’s employment. The notice of termination cited Mr. Lytle’s breach of the Department’s confidentiality rules, but did not discuss the effe ct of Mr. Lytle’s statements on the functioning of the Department. See Aplt’s App. vol III at 964-66. After his dismissal, Mr. Lytle brought this suit ag ainst the City and Chief Kitchings, alleging: (1) that his termination was in breach of an implied contract; (2) that he was discharged in retaliation for speec h protected by the First Amendment (his statements to Mr. Berg and the press and his grand jury testimony); and (3) that his dismissal violated state law against retaliation for whistle-blowing. The defendants moved for summary judgment , and, during a status conference, the district court orally grante d their motion on all of Mr. Lytle’s claims. As to the First Amendment claim, t he district court granted summary judgment for both defendants on the merits and for Chief Kitchings on the additional and alternative ground of qualified immunity.

II. DISCUSSION Mr. Lytle appeals the summary judgment granted agai nst him on his First Amendment and state-law retaliatory discharge claim s. He does not appeal the decision on his implied contract claim.7 A. Standard of Review We review a decision granting summary judgment de n ovo, under the same legal standard applicable in the district court. S ee Miles v. Denver Pub. Sch. , 944 F.2d 773, 775 (10th Cir. 1991). The de novo standa rd of review is appropriate in this case for the further reason that: “[i]n cases raising First Amendment issues . . . an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgmen t does not constitute a forbidden intrusion on the field of free expression .” Rankin v. McPherson , 483 U.S. 378, 386 n.9 (1987) (quoting Bose Corp. v. Con sumers Union of United States, Inc. , 466 U.S. 485, 499 (1984)) (internal quotation mar ks omitted). Because the standard of review is de novo, we “may affirm on grounds other than those relied on by the district court when the reco rd contains an adequate and independent basis for that result.” Cone v. Longmo nt United Hosp. Ass’n , 14 F.3d 526, 528 (10th Cir. 1994). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material f act and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986). In deciding whethera genuine issue of material fact exists, a court mustdraw all reasonable inferences8

in favor of the nonmoving party. See Anderson , 477 U.S. at 255.

B. Issues on Appeal

1. First Amendment Mr. Lytle first challenges the district court’s gra nt of summary judgment against him on his First Amendment claim. He maint ains that the court’s ruling infringes on the constitutional rights of public employees who uncover wrongdoing in governmental agencies.

a. Pickering balancing It is well-established that a government employer “ cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” Connick v. Meye rs , 461 U.S. 138, 142 (1983). We undertake a four-part inquiry in order to evaluate a public employee’s claim that his employer has infringed this interest. See Gardetto v. Mason , 100 F.3d 803, 811 (10th Cir. 1996). First, we consider whether the speech in question a ddresses a matter of public concern. Matters of public concern are thos e of interest to the community, whether for social, political, or other reasons. S ee Connick , 461 U.S. at 145-149. In contrast, matters of only personal interest to g overnment employees are not9

protected by the First Amendment. See id. Second, if the speech does address a matter of publ ic concern, the court must consider both employee’s interest in expressio n and the government employer’s interest in regulating the speech of its employees in order to maintain an efficient and effective workplace. See Gardetto , 100 F.3d at 811 (citing Pickering v. Board of Education , 391 U.S. 563, 568 (1968)); Moore v. City of Wynnewood , 57 F.3d 924, 931 (10th Cir. 1995). Speech is pro tected if the employee’s interest outweighs the interest of the g overnment employer. See
Moore , 57 F.3d at 931. This process of weighing the res pective interests is known as “the Pickering balancing test.” Third, if the speech is protected, the employee mus t show that the speech was a substantial or motivating factor for the chal lenged governmental action.
See Gardetto , 100 F.3d at 811 (citing Mt. Healthy City Sch. Dis t. Bd. of Educ. v. Doyle , 429 U.S. 274, 287 (1977)). Finally, if the emplo yee shows that the speech was a substantial or motivating factor, the employe r must be given the opportunity to show that it would have taken the same action in the absence of the protected speech. See id. The Supreme Court has explained why a public employ ee’s speech is not given unqualified protection, but rather is balance d against the employer’s interest in efficient public service:10

Government agencies are charged by law with doing p articular tasks. Agencies hire employees to help do those tasks as e ffectively and efficiently as possible. When [an employee] . . . begins to do or say things that detract from the agency’s effective ope ration, the government employer must have some power to restrai n [him]. Waters v. Churchill , 511 U.S. 661, 674-75 (1994). Thus, “the government as employer . . . has far bro ader powers [over speech] than does the government as sovereign.” Id

. at 671. Outside government workplaces, “[t]he First Amendment demands a tolerance of ‘verbal tumult, discord, and even offensive utterance,’ as ‘necessa ry side effects of . . . the process of open debate . . . .’” Id. at 672 (quoting Cohen v. California , 403 U.S. 15, 24-25 (1971)). Within government workplaces, h owever, the First Amendment demands considerably less: “The governme nt cannot restrict the speech of the public at large just in the name of e fficiency. But where the government is employing someone for the very purpos e of effectively achieving its goals, such restrictions may well be appropriat e.” Id. at 675. In balancing the employee’s interest in expression against the government’s interest in efficiency, a court must consider “the manner, time, and place of the employee’s expression,” as well as the events leadi ng up to it. Rankin , 483 U.S. at 388. It is relevant “whether the statement impa irs discipline by supervisors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confid ence are necessary, or impedes11

the performance of the speaker’s duties or interfer es with the regular operation of the enterprise.” Id. Additionally, an employee’s responsibilities in t he workplace are relevant to the Pickering balancing. See id. ; Koch v. City of Hutchison , 847 F.2d 1436, 1449-50 (10th Cir. 1988) (en banc). “Th e burden of caution employees bear with respect to the words they speakwill vary with the extent of authority and public accountability the employee’s role entails.” Rankin , 483
U.S. at 390. In the instant case, in conducting the required Fir st Amendment inquiry, the district court began by identifying the particular speech at issue. Although Mr. Lytle’s complaint refers to three categories of all egedly protected speech--his statements to Mr. Berg, his statements to the press , and his grand jury testimony-- the district court considered only the first two categories. It reasoned that the defendants contended in their summary judgment moti on that Mr. Lytle had not been terminated for his grand jury testimony and th at Mr. Lytle did not dispute this contention in his objection to the defendants’ motion. See Aplt’s App. vol. III at 1093 (Tr. of Status Conference dated April 3 0, 1996) (“The way I read [the summary judgment briefs’ discussion of the grand ju ry testimony] was that plaintiff claimed the termination was for talking t o the attorney or for talking to the media and not specifically for talking to the g rand jury.”). The district court then concluded that Mr. Lytle’s statements to Mr. B erg and the press did “touch a1 Mr. Lytle does not argue that there are any underly ing factual

disputes that affect the Pickering balancing and that should have been submitted to the jury. In this regard, we note that although the Supreme Court has concluded that “[t]he inquiry into the protected st atus of speech is one of law, not fact,” see Connick , 461 U.S. at 148 n.7, there is some debate as to w hether underlying disputes whose resolution might affect the Pickering balancing should be decided by the court or by the jury. See Waters , 511 U. S. at 693 (Scalia, J., concurring) (noting that the plurality opinion does not clarify what issues in the Pickering balancing are for the court and what issues are fo r the jury).

This circuit appears not to have reached that quest ion, and other circuits are divided. Compare Joyner v. Lancaster , 815 F.2d 20, 23 (4th Cir. 1987) (concluding that matters underlying the Picke ring inquiry “‘were not factual issues for the jury,’” but “‘involved quest ions of constitutional law for the court’” quoting Jones v. Dodson , 727 F.2d 1329, 1337 n.11 (4th Cir. 1984)) with Casey v. City of Cabool, Mo. , 12 F.3d 799, 803 (8th Cir. 1993) (“[A]ny 12 matter of public concern.” Id. at 1106. Next, the district court conducted the Pickering balancing. It found that Mr. Lytle’s interest in expression was outweighed b y the City’s interest in efficient public service and that his speech was th erefore not constitutionally protected. See Aplt’s App. vol. III, at 1106-07, 1113-19. As a result, the district court did not consider the third and fourth parts o f the First Amendment inquiry (whether Mr. Lytle’s speech was a substantial or mo tivating factor for Mr. Lytle’s discharge and whether the discharge would have occu rred in the speech’s absence). In this appeal, Mr. Lytle challenges the district c ourt’s application of the Pickering test, arguing that the district court erred in co ncluding that the City’s interest in efficient public service outweighed his interests in free expression. 1underlying factual disputes concerning whether the speech at issue was protected

should have been submitted to the jury.”). In the instant case, because Mr. Lytle does not con tend that the district court improperly resolved factual issues underlying the Pickering balancing, we need not resolve this issue.

2 This circuit has concluded that a witness’s sworn testimony in a court proceeding is entitled to heightened protection under the First Amendment. In Melton v. City of Oklahoma City , 879 F.2d 706, 714 (10th Cir. 1989), vacated on other grounds , 928 F.2d 920 (10th Cir. 1990) (en banc), we stated that a witness’s interest in testifying at trial was “so strong in this case that any disruption or impairment of the enterprise would have to be extreme in order to justify preventing trial testimony.” We found no evidence that the witness’s trial testimony affected the operation of a police department and further noted that the witness “had a clear public duty to testify.” Id. at 715. “In many instances, that duty might be enhanced by judicial compulsion. Certainly we would not expect a public employee to suffer contempt in order to preserve the efficiency and effectiveness of a public employer, even the police department.” Id. Accordingly, we concluded that the plaintiff police officer’s interest in testifying clearly outweighed what little disruption might have occurred. Other circuits have adopted a similar view. See, e.g. , Green v. Philadelphia Housing Authority , 105 F.3d 882, 888 (3d Cir.) (noting the strong interests favoring subpoenaed testimony because it implicates “not only the integrity of the truth seeking process and the effective administration of justice, but also the public’s interest in protecting court-ordered conduct”), cert. denied , 118 S. Ct. 64 (1997); Pro v. Donatucci , 81 F.3d 1283, 1291 (3d Cir. 1996) (concluding that the government had “no legitimate interest” in regulating an employee’s trial testimony and resolving Pickeringbalance in favor of the testifying employee); Wright v. Illinois Dept. of Children & Family Servs , 40 F.3d 1492, 1505 (7th Cir. 1994) (“[S]urely an employee summoned to give sworn 13 He focuses on his status as a whistle blower, conte nding that because he “was a sincere whistle blower who felt the police departme nt had failed to investigate his complaint,” see Aplt’s Opening Br. at 17, his statements were prot ected under the First Amendment. Significantly, Mr. Lytle does notchallenge the district court’s finding that the grand jury testimony is not at iss ue in his First Amendment claim. 2testimony in a judicial proceeding has a compelling interest in testifying truthfullyand the

government employer can have an offsetting interest in preventing her from doing so only in the rarest of cases.”); Smith v. Hightower, 693 F.2d 359, 368 (5th Cir. 1982) (“[T]he first amendment protects the right to testify truthfully at trial.”). In the instant case, because Mr. Lytle has not challenged the district court’s conclusion that his grand jury testimony was not at issue in his First Amendment claim, seeAplt’s App. vol. III at 1093-94, we need not decide what weight to afford this testimony in the Pickeringbalancing. However, we do note that Chief Kitchings stated to a reporter that Mr. Lytle “ha[d] a duty and obligation to testify to the grand jury” and that he did not terminate Mr. Lytle because of his grand jury testimony. SeeAplt’s App. vol. III at 1017 (transcript of July 17, 1991 telephone conversation between Chief Kitchings and Phil LeBeau.).

14 Upon considering the factors relevant to the Picker ing balancing we conclude for the reasons set forth below that the d istrict court properly found that the City’s interests outweigh Mr. Lytle’s interest in speaking to Mr. Berg and the press about a confidential police investigation and that as a result, these statements are not protected by the First Amendment . Our application of the Pickering balancing renders it unnecessary for us to conside r the third and fourth stages of the general First Amendment inquiry.

b. Pickering Applied to this Case As the district court found and the parties acknowl edge, Mr. Lytle’s statements to Mr. Berg and to the press involve matters of public concern. See Conaway v. Smith , 853 F.2d 789, 796 (10th Cir. 1988) (“Speech whichdiscloses any evidence of corruption, impropriety, or other m alfeasance on the part of city15

officials, in terms of content, clearly concerns matters of public import.”). We therefore proceed to balance Mr. Lytle’s interest i n expression against the City’s interest as an employer in regulating the speech in question. We begin with Mr. Lytle’s interests, noting the sig nificance of the fact that he has accused government officials of serious wron gdoing. “When balancing the rights of the employee against those of the employe r, an employee’s First Amendment interest is entitled to greater weight wh ere he is acting as a whistle blower in exposing government corruption.” Id. at 797. Nevertheless, there are also several important aspe cts of Mr. Lytle’s speech that diminish his interests under the Pickering inquiry. In considering the time, place, and manner of the disputed speech, this circ uit has considered whether the employee used “less disruptive internal channels, r ather than going outside the city administration.” Id. at 798; see also Johnsen v. Independent Sch. Dist. No. 3 891 F.2d 1485, 1494 (10th Cir. 1989) (noting that t he court should consider whether the employee “used internal complaint proce dures” and finding that the “[p]laintiff’s decision to contact outside agencies prior to using the complaint mechanism of the school was unnecessarily disruptiv e because there was no indication that the internal mechanism would not be sufficient.”). Here, according to Mr. Lytle’s own account, Lieuten ant Coleman was the only person within the Haysville Police Department whom he had informed of the16

“dead or dying” comments before he spoke to Mr. Ber g about the Wilson case. Although he had submitted two written reports regar ding his investigation of the Wilson shooting, these reports had a significant om ission: Mr. Lytle failed to included any statements about the “dead or dying” c omments. Further, Mr. Lytle made no other written record of them before he spok e to Mr. Berg. Additionally, before he spoke to Mr. Berg, Mr. Lytle had not disc ussed these alleged comments with Chief Kitchings, and he has offered no justifi cation for his failure to do so. Even as to Lieutenant Coleman, there is no indicati on that, before he spoke to Mr. Berg, Mr. Lytle followed up his initial conversati on about the “dead or dying” comments in any way. As the Supreme Court has not ed, “[t]he burden of caution [an employee] bear[s] with respect to the words [he ] speak[s]” varies with his job responsibilities. Rankin , 483 U.S. at 390. Mr. Lytle’s responsibilities as a police officer who had worked on the Wilson investigation clearly called for a degree of caution that he failed to exercise. We therefore c onclude, just as in Johnsen , that Mr. Lytle’s failure to pursue his allegations inter nally indicates that his speech was “unnecessarily disruptive.” Johnsen , 891 F.2d at 1494. That conclusion diminishes the weight we afford his interest in the Pickering balancing. Moreover, a government employee’s interest in whi stleblowing is entitled to little weight if a reasonable person in his shoe s would not have believed that there was government corruption or wrongdoing. Cf. Moore , 57 F.3d at 93317

(assuming, without deciding, that recklessly false allegations of wrongdoing “are either unprotected by the First Amendment or, at le ast, that such intentional falsity would weigh heavily against protection”); J ohnsen , 891 F.2d at 1493 (affording less weight to an employee’s interests b ecause her erroneous statement was “at least careless and could be characterized a s reckless in light of the predictable impact that such a statement would have upon the public”). Thus, under the Pickering inquiry, we must consider whether there was a reas onable basis for Mr. Lytle’s two principal allegations of wrongdoing: (1) that his fellow officers committed second degree murder by failing to render aid to Mr. Wilson and (2) that the Department sought to coverup the o fficers’ misconduct. As to the failure to render aid to Mr. Wilson, we d o not believe that it was reasonable for Mr. Lytle to conclude that there was government misconduct. The evidence indicated that the officers’ decision not to perform CPR was based on the training that they had received. Moreover, Mr. Lytle himself had been trained not to move or give first aid to critically injured persons who are still breathing, because doing so risks further injury and might do more harm than good. See Aplt’s App. vol. I at 305 (Tr. of dep. of Mr. Lytle , dated Feb. 24, 1993). Although Mr. Lytle’s suggestion that direct pressur e should have been applied to Mr. Wilson’s wound may merit evaluation by the Depa rtment, there is no evidence in the record indicating that the officers ’ failure to render first aid was3 Under Kansas law, second degree murder (the offense that Mr. Lytle

accused the officers of committing) is defined as “the killing of a human being committed: (a) [i]ntentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” SeeKan. Stat. Ann. § 21- 3402 (1995). 18 motivated by an intent to harm Mr. Wilson or reflec ted reckless indifference to his welfare. 3 We reach a similar conclusion as to Mr. Lytle’s all egation of a Department coverup. We note that, as evidence of such a cover up, Mr. Lytle points only to the following: after the shooting, Mr. Lytle reported Lieutenant Powers’s “dead or dying” comment to Lieutenant Coleman, and Lieute nant Coleman did not order Mr. Lytle to make a report. See id. vol. III at 825-27. We do not believe that this evidence indicates that the Department was engaged in a cover-up. The record merely indicates that Lieutenant Coleman failed to order Mr. Lytle to submit a report. It does not suggest that Lieutenant Colema n, or anyone else, forbade, discouraged, or otherwise sought to prevent Mr. Lyt le from filing reports that discussed the “dead or dying” comments either with Lieutenant Coleman or Chief Kitchings
. Having concluded that Mr. Lytle’s interests are sig nificantly diminished by his failure to pursue his concerns within the Department and by the lack of a reasonable factual basis for his allegations, we no w consider the interests of Mr. Lytle’s employer. As explained below, we conclude that those interests are19

entitled to substantial weight. We first note that there is undisputed evidence that, by speaking with Mr. Berg and the press, Mr. Lytle breached general Depa rtment confidentiality rules and specific orders not to discuss the Wilson matte r with persons outside the Department. See, e.g. , id. vol. III at 1083-85 (recording no objections to th e district court’s statement that Mr. Lytle “admitted to Mr. Berg that he was under orders not to discuss the Wilson investigation”). Moreover, the City and Chief Kitchings presented affidavits from several officer s and employees demonstrating the effect of Mr. Lytle’s breach of confidentiality rule. According to these affidavits, after they learned of his statements to Mr. Berg and the press, Mr. Lytle’s coemployees no longer trusted him with conf idential information regarding the Wilson investigation, or any other se nsitive police matter. See id. vol. I, at 90-123. For example, they stated that, “[a]fter the allegations it seemed that no one really wanted to work with [Mr.] Lytle due to no trust,” id. at 90 (aff. of Mylain E. Anthis); that “[i]t was very hard to c onduct telephone conversations with [Mr. Lytle] in the same room, in fear that I c ould be speaking about a case,” id. at 92 (aff. of John Coleman); and that “I no longe r trusted [Mr.] Lytle--nor did his fellow officers and employees,” id. at 111 (aff. of Debbie Mann). According to these officers, this lack of trust significantly damaged department morale and made it more difficult to do their jobs. See, e.g. , id. at 110 (“Morale in the20

Department decreased significantly after [Mr.] Lytl e’s statements.”), 116 (aff. of Michael McElroy) (“No one wanted to work with [Mr.] Lytle. I had to tell the officers that they had to at least be polite to him . In [l]aw [e]nforcement, officers have to work together and share information.”). This circuit has recognized the importance of confi dentiality to the performance of police officers’ responsibilities. “Any breach of confidentiality . . . reflects negatively on an officer’s ability an d competence to perform his job, and each officer’s competence affects the overall e ffectiveness of the department.” Melton , 879 F.2d at 715. Moreover, personal loyalty and confidence are especially important among police of ficers, who are charged with ensuring public safety and who often must work toge ther in life-and-death situations. See Moore , 57 F.3d at 934 (The “need [for workplace harmony] is particularly acute in the context of law enforcemen t, where there is a ‘heightened interest . . . in maintaining discipline and harmony among employees.’” quoting Wulf v. City of Wichita , 883 F.2d 842, 861 (10th Cir. 1989)); Koch , 847 F.2d at 1452 n.22 (“A number of cases have emphasized the h eightened governmental interest in maintaining harmony among employees in the law enforcement context.”). These concerns are even greater in a r elatively small department, where a minor disturbance in morale might loom larg e. See Aplt’s App. vol. I, at 105 ¶¶ 4, 5 (Tr. of dep. of Chief Kitchings, dated Nov. 20, 1995) (citing a21

Haysville police force of 15 officers and a Haysvil le population of approximately 8,000); see also Moore , 57 F.3d at 934 (finding that “the small size of t he department increased the likelihood and severity of disruption”). Although Mr. Lytle has not contested the defendants ’ evidence regarding the damaging effects of his breach of confidentiali ty on the Department, he does argue that these effects were not considered at the time of his dismissal. Mr. Lytle notes that Chief Kitchings did not mention th e effect of the statements to Mr. Berg and the press in the letter of termination or in interviews with the news media after the discharge. See Aplt’s App. vol. III, at 1019-22 (Tr. of interview with Judy Conklin, Haysville Pioneer , dated July 17, 1991); see also id. at 964-66 (Notice of termination, dated July 16, 1991). He fu rther notes that Chief Kitchings later testified during his deposition that it was not until afterthe termination that he became aware of workplace disha rmony. See id. vol. I at 144 (Tr. of dep. of Chief Kitchings dated September 12, 1994), vol. III at 944-46 (Tr. of dep. of Chief Kitchings, dated Oct. 12, 1995). According to Mr. Lytle, Chief Kitchings’s failure to mention the effects of his b reach of confidentiality until well after his termination precludes us from consid ering these effects in the Pickering balancing. We are not persuaded by this argument. In weighing the government employer’s interests, the primary consideration is the impact of the disputed22

speech “on the effective functioning of the public employer’s enterprise.” Rankin , 483 U.S. at 388. Thus, rather than examining th e explanation offered at a particular time by an individual decisionmaker su ch as Chief Kitchings, we must evaluate the effect of Mr. Lytle’s statements on th e Department as a whole. We acknowledge that, in certain instances, a decisonma ker’s failure to mention certain adverse effects of the challenged speech may constitute some evidence those effects did not really occur or did not signi ficantly impair the functioning of the government entity. See, e.g. , Rankin , 483 U.S. at 388-89 (citing the decisionmaker’s testimony that the disruption of of fice functions was not a consideration when the employee was terminated in s upport of the conclusion that “there is no evidence that [the speech] interfered with the efficient functioning of the office”). However, the fact that an official d oes not mention a particular adverse effect of the challenged speech in a termin ation letter or in various other statements concerning the challenged employment act ion does not necessarily preclude the government employer from invoking such an effect in articulating its interests under the Pickering inquiry. In the instant case, Chief Kitchings’s failure to s pecifically mention the effects of Mr. Lytle’s breach of confidentiality ru les on Department morale and efficiency does not diminish the weight we afford t hese effects in the Pickering inquiry. As we have noted, our decisions recognize that there is often a close4 Because we conclude that there was no First Amendme nt violation, we

need not consider whether Chief is entitled to qual ified immunity. See Martinez v. California , 444 U.S. 277, 28 Kitchings 4 (1980) (“[I]t is notnecessary for us to decide any question concerning . . . immunity . . . because . . . [t]he first inquiry in [immunity analysis] . . . is whether the plaintiff has been deprived of a right secured by the Constitution and laws of the United States. The answer to that inquiry disposes of this case.” (internal citations and quotations omitted). 23 connection between a police department’s confidenti ality rules and the morale and effective functioning of the police force. See, e. g. , Melton , 879 F.2d at 714. 1989). When he terminated Mr. Lytle, Chief Kitchi ngs did mention the confidentiality rules, and the effects on morale an d efficiency documented by the Department were foreseeable results of Mr. Lytle’s violation of those rules. For all of the foregoing reasons, we believe that t he Pickering balancing tips in the defendants’ favor. The only factor wei ghing on Mr. Lytle’s side of the scales is Mr. Lytle’s whistle blower status, and th e significance of even that factor is substantially diminished by Mr. Lytle’s f ailure to pursue his allegations within the Department and by the unreasonableness o f his beliefs about government wrongdoing. Mr. Lytle’s limited interes ts are far outweighed by the Department’s interest in maintaining confidentiality and avoiding workplace disruption. Accordingly, the district court proper ly granted summary judgment to the defendants on Mr. Lytle’s First Amendment claim

. 424 2. State-Law Retaliatory Discharge We also disagree with Mr. Lytle that the district c ourt erred in granting the defendants summary judgment on the state-law retali atory discharge claim. When exercising jurisdiction over pendent state claims, we must apply the substantive law of the forum state and reach the same decision we believe that state’s highest court would, just as we would if our jurisdiction r ested on diversity of citizenship.
See United Mine Workers v. Gibbs , 383 U.S. 715, 726 (1966) (citing Erie R.R. Co. v. Tompkins , 304 U.S. 64 (1938)). In Palmer v. Brown , 752 P.2d 685 (Kan. 1988), the Kansas Supreme Court stated that a whistle blower retaliatory discharge claim requires, inter alia , proof “by clear and convincing evidence, . . . [that] a r easonably prudent person would have concluded the employee’s co-worker or employerwas engaged in activities in violation of rules, regulations, or the law pert aining to public health, safety, and the general welfare. . . .” Id. at 690. In this case, the district court ruled th at Mr. Lytle had not proven, by clear and convincing e vidence, that a reasonable person would have concluded that the officers at th e scene had committed seconddegree murder. See Aplt’s App. vol. III at 1134-35. Mr. Lytle argues that the district court erred in applying a clear and convincing standard of proof. He suggests that the appropriate standard is preponderance of the evidence, citing Ortega v. IBP , Inc. , 874 P.2d 1188 (Kan.25

1994). Ortegaheld that a retaliatory discharge claim must be pr oven “by a preponderance of the evidence . . . [that is] clearand convincing in nature.” Id. at 1198. Ortegaadded that “clear and convincing” is a quality, rather than a quantum, of proof. See id. According to Ortega , evidence “is clear if it is certain, unambiguous, and plain to the understandin g. It is convincing if it is reasonable and persuasive enough to cause the trierof facts to believe it.” Id. Although Ortegainvolved retaliation for filing a workers compensation claim, rather than for whistle blowing, see id. at 1190, we believe that the Ortega standard governs this action. As the Ortegacourt stated, “[w]e find no justification for applying different standards of p roof in whistle-blowing and workers compensation retaliatory discharge cases.” Id. at 1194. In discussing Mr. Lytle’s First Amendment claim, we concluded that Mr. Lytle did not have reasonable grounds for believing there was wrongdoing, either by the officers at the scene or in the Department’s internal investigation. We reached this conclusion based on the preponderance of the evidence standard that governs Mr. Lytle’s First Amendment claim. See Grogan v. Garner , 498 U.S. 279, 286 (1991) (noting that civil actions are norm ally subject to the preponderance of the evidence standard). This stan dard does not incorporate the additional requirement that the quality of the evid ence be “clear and convincing.”
See Santosky v. Kramer , 455 U.S. 745, 756 (1982) (describing “clear and26

convincing” as an “intermediate standard of proof” — i.e. , in between “preponderance of the evidence” and “beyond a reaso nable doubt”). Because we do not think it was even “more probable than not,” Black’s Law Dictionary1182 (6th ed. 1990), that a reasonable person could have believed there was government wrongdoing, we definitely do not think t he evidence of government wrongdoing was “certain, unambiguous, and plain to the understanding.” Ortega , 874 P.2d at 1198. Thus, we do not believe a reason able jury could find in Mr. Lytle’s favor on the state-law retaliatory discharg e claim. See Anderson , 477 U.S. at 248. We agree with the district court thatthe defendants are entitled to summary judgment.

III. CONCLUSION For the foregoing reasons, we conclude that the def endants are entitled to summary judgment on Mr. Lytle’s First Amendment andstate-law retaliatory discharge claims. Accordingly, we AFFIRM the judgm ent of the district court.