## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-2481

___________ Dennis Tedder, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Bobby Norman, Individually, and * Director, Arkansas Law Enforcement * Training Academy, * * Appellees. *

___________ Submitted: January 14, 1999 Filed: February 16, 1999

___________ Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge. Dennis Tedder was employed by the Arkansas Law Enforcement Trainin g Academ y (ALETA) for approximately twelve years, most of which he spent as it s deput y director. During his tenure as deputy director, Mr. Tedder gave voluntar y dep osition testimony that a Benton County sheriff's deputy had used excessive forc e in executing an arrest warrant. Sheriff Andy Lee, the deputy's supervisor, complained to the governor's office about Mr. T edder, and that complaint was passed on to BobbyThe Honorable Harry F. Barnes, United States District Judge for the Western 1 District of Arkansas. -2- Norman, ALETA's d

irector. After meeting with Mr. Tedder and reviewing the police reports and documents pertaining to the case, Mr . Norman told Mr. Tedder that he had lost faith in Mr. Tedder’s ability to serve as deputy director, an d therefore demoted him to the position of traininginstructor. Mr. Tedder remained at ALETA as an instructor for six months, after which he resigned.

Mr. Tedder filed suit against Mr. Norman, both individually and in his official capacity (Mr. Norman is no longer the director, so he and the director are now separate def endants), pursuant to 42 U.S.C. § 1983, alleging that his demotion resulted in a viola tionof his constitutionally protected right to free speech, and seeking monetary dama ges and injunctive relief in the form of reinstatement as deputy director. Th e district court granted Mr. Norm an's motion for summary judgment on the grounds that Mr

. Tedder's demotion did not violate his First Amendment rights, and that, in an y event, Mr. Norman and the director were entitled to qualified immunity. Mr. Tedder appe als the First Amendment ruling and the ruling that Mr. Norman is entitled t o qualified immunity, and we affirm the judgment of the district court. 1

I. Th e district court held that Mr. Tedder's demotion did not violate the Firs t Amendment. In r

eviewing this determination de novo , we must balance Mr. Tedder's right to free speech agai nst the state's legitimate interest in regulating the speech of its employees. Pickering v. Board of Education , 391 U.S . 563, 568 (1968). To do so, we mustfirst determine whether the relevant speech pertained to a matter of publi c concern. Rank in v. McPherson , 483 U.S. 378, 384 (1987). If it did, we must the n weigh th e employee's right to express his or her views on such an issue against th e state's interest in regulating that speech in order tomaintain efficiency in its operations. Id. at 388.-3-

Mr. Norm an concedes that Mr. Tedder's deposition testimony pertained to a matter of public concern. We turn, therefore, to the balancing of the interests o f ALETA a nd Mr. Tedder. "The effects on discipline, harmony among co-workers , working relationships requiring loyalty and confidence, the performance of th e speaker's duties, or the regularity of the operation of the enterprise are all relevan t considerations" in balancing these interests. Casey v. City of Cabo ol , 12 F.3d 799, 803 (8th Cir. 1993), cert. d enied , 513 U.S. 932 (1994). "[T]he manner, time, and place of the employee's expression are [also] relevant." Rankin v. M cPherson , 483 U.S. at 388. A showin g of actual disruption of the workplace or of working relationships is no t always neces sary to find that the state's interest outweighs that of the employee. Tindle v. Caudell , 56 F.3d 966, 972-73 (8th Cir. 1995).

We believe that Mr. Tedder's testimony caused actual disruption and potential furt her disruption to the operation of ALETA by upsetting crucial busines s relationships within ALETA, and between ALETA and the law enforcement agencies that it is charged with training. First of all, that testimony substantially undermined the rela tionship between Mr. Norman and Mr. Tedder. The relationship between th e director of a t raining facility and his or her deputy is one that we believe requires a high level of loyalty and confidence. Not only did the substance of Mr. Tedder' s tes timony undermine Mr. Norman's faith in Mr. Tedder's ability to supervise lesso n plans at ALETA properly, it also undercut Mr. Norman's ability to maintain discipline and to m anage his employees, because it was in violation of what he reasonabl y believed to be an ALETA policy barring testimony with respect to whether an officer acted appropriately.

Mr

. Tedder's testimony also posed a significant threat of disruption to th e relation ships between ALETA and the law enforcement agencies that it trains. Th e purpose of A LETA is to teach, and this purpose would be threatened if the student s lacked faith in those supervising their teachers. If students lost faith in the deputy director, wh o had the authority to approve or veto lesson plans, this breakdown i n-4-

confide nce could well spread to every class taught at ALETA. One law enforcement agency, th e Benton County sheriff's office, had already lost so much confidence i n ALETA that the sheriff felt moved to complain to the governor. The scope of suc h damag e to vital relationships had the potential to spread significantly, moreover , because the substance of Mr. Tedder's testimony was shared with other la w enforcement agencies.

We b elieve that the interest of ALETA in preventing disruption outweigh s Mr. T edder's interest in testifying at the deposition. Testimony concerning possibl e misconduct of public officials is speech on a matter of public concern that warrant s cons titutional protection, Brockell v. Norton , 732 F.2d 664, 668 (8th Cir. 1984), but, as the district court stated, "it is not the place for an employee of ALETA, let alone its Deputy Director to volunteer to give such testimony without subpoena."

II. For the reasons stated, we affirm the judgment of the district court. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.