FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THELMA BARONE, an individual,

Plaintiff-Appellant,

v.

CITY OF SPRINGFIELD, Oregon, a 

municipal corporation; TIM DONEY, 

individually, and as Chief of Police 

of the Springfield Police 

Department; TOM RAPPE, 

individually, and as a Lieutenant of 

the Springfield Police Department; 

GINO GRIMALDI, individually, and as 

City Manager of the City of 

Springfield; GRETA UTECHT, 

individually, as Director of Human 

Resources for the City of 

Springfield,

Defendants-Appellees.

No. 17-35355

D.C. No.

6:15-cv-01552-

AA

OPINION

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Argued and Submitted June 5, 2018

Portland, Oregon

Filed September 5, 2018
2 BARONE V. CITY OF SPRINGFIELD

Before: MILAN D. SMITH, JR. and MARY H. 

MURGUIA, Circuit Judges, and ALVIN K. 

HELLERSTEIN,* District Judge.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY**

Civil Rights

The panel affirmed in part and reversed in part the 

district court’s summary judgment and remanded in an 

action brought pursuant to 42 U.S.C. § 1983 alleging that 

plaintiff was retaliated against in her employment as a 

Community Service Officer for the Springfield Police 

Department, in violation of her First Amendment rights.

Plaintiff asserted that appellees retaliated against her 

after she responded at a public event to a citizen inquiry 

about racial profiling by the Police Department. The panel 

held that plaintiff’s retaliation claim failed because she 

spoke as a public employee, so her speech was not protected 

by the First Amendment. The panel noted that plaintiff’s 

speech at the event clearly fell within her job duties. 

Plaintiff was aware that she was speaking as a representative 

of the Department and discussing her work with the 

Department. Moreover, the panel noted that the speech at 

 * The Honorable Alvin K. Hellerstein, United States District Judge 

for the Southern District of New York, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
BARONE V. CITY OF SPRINGFIELD 3

issue was a response to an inquiry about racial profiling 

complaints, a type of complaint plaintiff regularly received 

in her capacity as a Community Service Officer.

The panel next held that an amended Last Chance 

Agreement which plaintiff was required to sign before 

returning to work was an unconstitutional prior restraint. 

Paragraph 5(g) of the amended Agreement barred plaintiff

from saying or writing anything negative about the 

Department, the City or its employees. The panel held that 

Paragraph 5(g) restrained plaintiff’s speech as a private 

citizen on matters of public concern, and appellees had not 

presented justifications sufficient to warrant Paragraph 

5(g)’s overbroad restrictions. The panel thus held that 

Paragraph 5(g)’s prospective restriction violated the First 

Amendment.

Addressing plaintiff’s claim of municipal liability under 

Monell v. Department of Social Services, 436 U.S. 658 

(1978), the panel held that there was a genuine issue of 

material fact about whether the City Manager delegated final 

policymaking authority over employee discipline to the 

Police Chief. If such authority was delegated, the City 

would be liable under Monell. The panel therefore reversed

and remanded for consideration of whether the City could be 

held liable for the Police Chief’s conduct in requiring 

plaintiff to sign the amended Agreement.
4 BARONE V. CITY OF SPRINGFIELD

COUNSEL

Andrew Lewinter (argued), Eugene, Oregon, for PlaintiffAppellant.

Mark C. Sherman (argued) and Janet M. Schroer, Hart 

Wagner LLP, Portland, Oregon, for Defendants-Appellees.

OPINION

M. SMITH, Circuit Judge:

Thelma Barone brought this 42 U.S.C. § 1983 action 

against the City of Springfield and several of its employees 

(collectively, Appellees). Barone now appeals from the 

district court’s order granting summary judgment in favor of 

Appellees on all of her claims. We affirm the district court 

respecting her First Amendment retaliation claim, reverse 

the district court concerning her prior restraint claim, and 

reverse and remand on the issue of Monell liability.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2003, Barone began working for the 

Springfield Police Department (Department) as a 

Community Service Officer II (CSO II). She focused on 

victim advocacy, and served as a Department liaison to the 

City’s minority communities. Throughout her tenure, 

members of the Latino community complained to Barone 

about racial profiling by the Department. She relayed these 

complaints to Department leadership.

These complaints became more frequent beginning in 

spring 2013. Around that same time, the Department was in 

the midst of a leadership transition, which led to, among 
BARONE V. CITY OF SPRINGFIELD 5

other things, Tim Doney’s appointment as Chief of Police. 

As directed, Barone drafted her job description and sent it to 

Chief Doney.

In 2014, the Department began investigating Barone in 

connection with two Department-related incidents. The first 

incident involved a school tour Barone led through the 

Department. During the tour, some students took photos of 

restricted areas, where no photo taking was permitted. 

Department employees disputed whether Barone had asked 

for, and received, approval for the students to photograph 

each unit. In the second incident, a Latina notified Barone 

of a potential crime. Barone was unable to reach a sergeant 

about this crime, but she left a message with the dispatchers 

and asked the sergeant to return her call. The sergeant never 

returned her call because he said he did not know the phone 

call pertained to a possible crime. The parties disputed 

whether Barone informed the dispatchers that she wanted to 

speak to the sergeant about an alleged crime.

On February 5, 2015, Barone spoke at a City Club of 

Springfield event headlined “Come Meet Thelma Barone 

from the Springfield Police Department.” The Department 

paid her to attend the event; she wore her uniform; and her 

supervisor attended. She understood that she attended and 

participated in the event as a representative of the 

Department. A member of the audience at the event asked 

her whether she was aware of increasing community racial 

profiling complaints. She said that she “had heard such 

complaints.”

A week later, Chief Doney placed Barone on 

administrative leave due to her alleged untruthfulness in 

connection with investigations into the two pre-2015 

occurrences. Almost a month later, the Department found 

that Barone had violated several sections of the 
6 BARONE V. CITY OF SPRINGFIELD

Department’s code of conduct, and she remained on 

administrative leave.

The Department’s investigation of the two incidents 

continued into the summer. In July 2015, the Department 

suspended Barone for four weeks without pay, and informed 

her that she would be required to sign a Last Chance 

Agreement (the Agreement) when she returned to work. 

Barone, her union representative, and Chief Doney met to 

discuss the Agreement on the day that Barone returned to 

work. At the meeting, Chief Doney provided Barone with a 

copy of the Agreement, told her to review it, and told her that 

the Department would terminate her if she did not sign it. A 

week later, Barone refused to sign the original Agreement 

because it prohibited her from reporting on racial profiling 

and discrimination.

At a subsequent meeting, Chief Doney provided Barone 

with an amended Agreement that addressed her stated 

concerns with the original Agreement. Paragraph 5(g) of the 

amended Agreement barred Barone from saying or writing 

anything negative about the Department, the City, or their 

employees. However, she could report complaints involving 

discrimination or profiling by the Department. The amended 

Agreement also provided that Barone would remain subject 

to a generally applicable order that barred her from publicly 

criticizing or ridiculing the Department and barred her from 

releasing confidential information.

At the second meeting, Barone did not express concern 

about any particular provision of the amended Agreement. 

Nevertheless, after speaking with her representative, Barone 

refused to sign the Agreement as amended. Because Barone 

refused to sign the amended Agreement, Chief Doney 

terminated her employment with the Department.
BARONE V. CITY OF SPRINGFIELD 7

Citing 42 U.S.C. § 1983, Barone sued the City, Chief 

Doney, Department Lieutenant Tom Rappe, City Manager 

Gino Grimaldi, and Human Resources Director Greta Utecht 

for First Amendment retaliation, and imposing an unlawful 

prior restraint. In May 2016, the district court denied 

Barone’s motion for partial summary judgment on her prior 

restraint claim. In April 2017, the district court granted 

summary judgment in favor of Appellees on Barone’s 

claims. Barone timely appealed.1

STANDARD OF REVIEW

We have jurisdiction over this appeal pursuant to 

28 U.S.C. § 1291. We review de novo a district court’s grant 

of summary judgment. Beaver v. Tarsadia Hotels, 816 F.3d 

1170, 1177 (9th Cir. 2016). We may affirm on any ground 

supported by the record. Facebook, Inc. v. Power Ventures, 

Inc., 844 F.3d 1058, 1064 (9th Cir. 2016).

ANALYSIS

I. First Amendment Retaliation

We turn first to Barone’s First Amendment retaliation 

claim, in which she asserts that Appellees retaliated against 

her after she spoke at the February 2015 City Club event. 

We affirm the district court, and conclude that Barone’s First 

Amendment retaliation claim fails because she spoke as a 

public employee, so her speech was not protected by the 

First Amendment.

 1 The district court concluded that the individual defendants were 

protected by qualified immunity. Barone did not appeal that portion of 

the district court’s judgment.
8 BARONE V. CITY OF SPRINGFIELD

First Amendment retaliation claims are analyzed under 

the five-factor inquiry described in Eng v. Cooley, 552 F.3d 

1062 (9th Cir. 2009). Barone must show that (1) she spoke 

on a matter of public concern; (2) she spoke as a private 

citizen rather than a public employee; and (3) the relevant 

speech was a substantial or motivating factor in the adverse 

employment action. Coomes v. Edmonds Sch. Dist. No. 15, 

816 F.3d 1255, 1259 (9th Cir. 2016) (citing Eng, 552 F.3d at 

1070–71). If Barone establishes such a prima facie case, the 

burden shifts to the government to demonstrate that (4) it had 

an adequate justification for treating Barone differently than 

other members of the general public; or (5) it would have 

taken the adverse employment action even absent the 

protected speech. Id. (citing Eng, 552 F.3d at 1070–72). 

“[F]ailure to meet any [factor] is fatal to the plaintiff’s case.” 

Dahlia v. Rodriguez, 735 F.3d 1060, 1067 n.4 (9th Cir. 2013) 

(en banc).

The answer to the first Eng prong is clear. Barone’s 

speech—responding to a citizen inquiry about racial 

profiling by the Department—is a matter of public concern. 

See Connick v. Myers, 461 U.S. 138, 148 (1983) (noting 

speech warrants protection when it “seek[s] to bring to light 

actual or potential wrongdoing or breach of public trust”). 

The second prong of Eng is key to the outcome of the First 

Amendment retaliation claim in this case. Specifically, did 

Barone speak as a private citizen or as a public employee at 

the City Club event?

In the Supreme Court’s foundational case in this area of 

the law, the Court held that a school district violated a 

teacher’s right to free speech when it fired him for writing a 

letter to a local newspaper that criticized a school board 

decision concerning a local tax issue. Pickering v. Bd. of 

Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 564–65 
BARONE V. CITY OF SPRINGFIELD 9

(1968). In concluding that the teacher spoke as a private 

citizen, the Court noted that the teacher’s statements were 

not “directed towards any person with whom [the teacher] 

would normally be in contact in the course of his daily work” 

and the publication of the letter did not “interfere[] with the 

regular operation of the schools generally.” Id. at 569–70, 

572–73.

The Court provided further guidance on public employee 

speech in Garcetti v. Ceballos, holding that “when public 

employees make statements pursuant to their official duties, 

the employees are not speaking as citizens for First 

Amendment purposes, and the Constitution does not insulate 

their communications from employer discipline.” 547 U.S. 

410, 421 (2006) (emphasis added). The Court held that an 

internal memorandum prepared by a prosecutor in the course 

of his ordinary job responsibilities was unprotected 

employee speech because he was “fulfilling a responsibility 

to advise his supervisor about how best to proceed with a 

pending case.” Id. In other words, his “expressions were 

made pursuant to his duties as a calendar deputy” and 

“[r]estricting speech that owes its existence to a public 

employee’s professional responsibilities does not infringe 

any liberties the employee might have enjoyed as a private 

citizen.” Id. at 421–22.

Garcetti instructed that

The proper inquiry is a practical one. Formal 

job descriptions often bear little resemblance 

to the duties an employee actually is expected 

to perform, and the listing of a given task in 

an employee’s written job description is 

neither necessary nor sufficient to 

demonstrate that conducting the task is 

within the scope of the employee’s 
10 BARONE V. CITY OF SPRINGFIELD

professional duties for First Amendment 

purposes.

Id. at 424–25. Thus, we engage in a “practical” inquiry into 

an employee’s “daily professional activities” to discern 

whether the speech at issue occurred in the normal course of 

those ordinary duties. Id. at 422, 424. In doing so, we do 

not focus on “[f]ormal job descriptions,” id. at 424, because 

“[t]he critical question . . . is whether the speech at issue is 

itself ordinarily within the scope of an employee’s duties, not 

whether it merely concerns those duties,” Lane v. Franks, 

134 S. Ct. 2369, 2379 (2014).

Whether an individual speaks as a public employee is a 

mixed question of fact and law. Kennedy v. Bremerton Sch. 

Dist., 869 F.3d 813, 823 (9th Cir. 2017), petition for cert. 

filed (U.S. June 25, 2018) (No. 18-12). “First, a factual 

determination must be made as to the ‘scope and content of 

a plaintiff’s job responsibilities.’” Johnson v. Poway Unified 

Sch. Dist., 658 F.3d 954, 966 (9th Cir. 2011) (quoting Eng, 

552 F.3d at 1071). “Second, the ‘ultimate constitutional 

significance’ of those facts must be determined as a matter 

of law.” Id. (quoting Eng, 552 F.3d at 1071). Applying these 

principles, Barone clearly spoke as a public employee at the 

City Club event.

Barone argues that she was speaking as a private citizen 

because the City Club event did not fall within her CSO II 

job description. The Department’s general job description 

for CSO II officers lists eight “essential duties,” which 

primarily concern supporting the Latino and Hispanic 

community regarding domestic violence issues.2 However, 

 2 The eight “essential duties” are: (1) to serve as Department 

Outreach and Education Advocate for the Hispanic community to, in 
BARONE V. CITY OF SPRINGFIELD 11

“[f]ormal job descriptions often bear little resemblance to the 

duties an employee actually is expected to perform”; 

therefore, “an employee’s written job description is neither 

necessary nor sufficient” to determine the scope of the 

employee’s job. Garcetti, 547 U.S. at 424–25. In Dahlia, 

we overruled one of our prior cases for “improperly rel[ying] 

on a generic job description and fail[ing] to conduct the 

‘practical,’ fact-specific inquiry required by Garcetti.” 

735 F.3d at 1071 (overruling Huppert v. City of Pittsburg, 

574 F.3d 696 (9th Cir. 2009)).

Applying Garcetti’s practical, fact-specific inquiry, 

Barone’s job entailed more than communicating with the 

Hispanic community about domestic violence issues. 

Throughout her employment, Barone “occasionally received 

complaints from citizens who believed that the Police 

Department had racially profiled them.” Beginning in spring 

2013, Barone noted there was a “marked increase in the 

number of complaints of racial profiling,” and she “regularly 

received” complaints of racial profiling “from the members 

of the Latino community.” Part of her job included 

“work[ing] with the various minority communities” in 

responding “to complaints they may have about police 

matters.”

Her job also included attending various community 

outreach events to “obtain information relevant to [the] 

 

part, “locate victims of domestic violence”; (2) to “[p]rovide[] follow-up 

services to victims of domestic violence”; (3) to implement an advocacy 

program that makes law enforcement services and community safety 

programs more accessible; (4) to provide leadership for “problem 

solving efforts unique to the City’s Hispanic community”; (5) to serve 

as a primary source of information for the media; (6) to participate in 

training volunteers; (7) to operate Department vehicles and equipment; 

and (8) to prepare and submit monthly work reports.
12 BARONE V. CITY OF SPRINGFIELD

community . . . that are important” to the Department’s law 

enforcement activities. One of her self-defined regular 

duties was “develop[ing] and provid[ing] presentations and 

trainings . . . to the general public describing our services 

and how we have implemented cultural considerations when 

assisting victims of crime.”

With this background in mind, Barone’s speech at the 

City Club event clearly fell within her job duties. She was 

speaking at a “community event” with “the general public” 

where she was describing the Department’s services and 

discussing issues relevant to the Hispanic community. 

Barone characterized this meeting to her superiors as part of 

the Department’s “outreach to multicultural communities.” 

She was also aware that she was speaking as a representative 

of the Department and discussing her work with the 

Department. Moreover, the speech at issue was a response 

to an inquiry about racial profiling complaints, a type of 

complaint she regularly received in her capacity as a CSO II.

It is true that this communication was “outside of [her] 

chain of command,” which can be relevant “particularly in a 

highly hierarchical employment setting such as law 

enforcement.” Dahlia, 735 F.3d at 1074. However, this lone 

factor is not enough to transform employee speech into 

private citizen speech. Barone’s job as a CSO II is apart 

from the typical hierarchical employment ladder in a police 

department. Her job required her to interact and 

communicate with the public. Therefore, this case is distinct 

from other cases involving more typical law enforcement 

employees, such as a prison official who writes letters to a 

state senator about sexual misconduct at the prison, see 

Freitag v. Ayers, 468 F.3d 528, 545–46 (9th Cir. 2006), or a 

police officer who issues press releases while serving as the 
BARONE V. CITY OF SPRINGFIELD 13

president of the police officer union, see Ellins v. City of 

Sierra Madre, 710 F.3d 1049, 1059–60 (9th Cir. 2013).

Similarly, it is not dispositive that another individual was 

the Department’s official spokesperson. The Department 

spokesperson’s duties focus on interactions with the media, 

such as fostering dialogue with the media, preparing press 

releases, and serving as a contact person for media inquiries. 

In contrast, Barone was interacting with the public, not the 

media, at the City Club event. An employee does not speak 

as a citizen merely because the employee directs speech 

towards the public, or speaks in the presence of the public, 

particularly when an employee’s job duties include 

interacting with the public. See Brandon v. Maricopa 

County, 849 F.3d 837, 845 (9th Cir. 2017) (holding a county 

attorney’s comments to a newspaper about a civil action 

against the sheriff’s department constituted public employee 

speech in part because “her public statements touched on the 

very matter on which she represented the county”); cf. 

Kennedy, 869 F.3d at 827 (“When acting in an official 

capacity in the presence of students and spectators, [the 

football coach] was also responsible for communicating [his 

employer’s] perspective on appropriate behavior through the 

example set by his own conduct.”).

Other facts support our conclusion that Barone spoke as 

a public employee. While members of the public spoke and 

asked her questions at the event, she had special access to 

the event because of her position, highlighted by the event’s 

title: “Come Meet Thelma Barone from the Springfield 

Police Department.” Not only did Barone’s speech fall 

within the “tasks [she] was paid to perform,” Ellins, 710 F.3d 

at 1058 (quoting Eng, 552 F.3d at 1071), but she spoke while 

clothed in official attire, while on the clock, and in a location 

she had access to by virtue of her position. See Kennedy, 
14 BARONE V. CITY OF SPRINGFIELD

869 F.3d at 827 (holding that a high school coach was a 

public employee when he engaged in expressive conduct at 

a school event, wearing school attire, while on duty, and 

while in a location that he had access to by virtue of his 

position).

Barone alternatively argues that her job required her to 

work with communities of color to handle complaints, but 

the speech here was answering a citizen’s question. This 

argument also fails. Barone’s job involved handling 

complaints and, at a general level, working with the Hispanic 

community to build trust between the Springfield Hispanic 

community and law enforcement. Barone’s speech was in 

response to a question about racial profiling complaints. Her 

answer, at an event that falls within her job duties, is 

“inextricably intertwined” with her duties as a CSO II. See 

Hagen v. City of Eugene, 736 F.3d 1251, 1259 (9th Cir. 

2013) (concluding plaintiff spoke as a public employee 

where he raised “concerns about SWAT safety,” which was 

“inextricably intertwined with his duties as a K-9 officer” 

despite no “formal written duty to do so”). Moreover, even 

if answering the question had fallen hypothetically outside 

of Barone’s job duties, she did not cease speaking as a public 

employee when the conversation moved briefly beyond the 

narrow range of topics included within her job duties when 

she attended an event in her official capacity. See Johnson, 

658 F.3d at 967–68 (holding a teacher does not cease acting 

as a teacher when “the conversation moves beyond the 

narrow topic of curricular instruction”); see also Kennedy, 

869 F.3d at 828 (adopting Johnson’s reasoning for coaches). 

Adopting Barone’s argument here would require employers 

to parse individual lines of speech, and would result in an 

impractical standard for public employers going forward.
BARONE V. CITY OF SPRINGFIELD 15

That Barone did not “speak[] in direct contravention to 

[her] supervisor’s orders” further supports our conclusion 

that she spoke as a public employee. Dahlia, 735 F.3d at 

1075. Barone was the listed speaker in the City Club event’s 

advertisement, her supervisors were aware of the event, and 

one of her supervisors attended the event. There is no 

evidence that her supervisors instructed her not to speak at 

this event or instructed that she limit her speech to a certain 

topic, such as domestic violence.

In sum, Barone was fulfilling her professional duty as a 

CSO II for the Department when she spoke at the City Club 

event. Because she spoke as a public employee, and not as 

a private citizen, her speech was unprotected, and her First 

Amendment retaliation claim fails.

II. Prior Restraint

We next address Barone’s claim that the amended 

Agreement was an unconstitutional prior restraint. Chief 

Doney required Barone to sign the amended Agreement in 

order to keep her job, and he fired Barone when she refused 

to sign it. Because the amended Agreement fails to pass 

muster under the Pickering test, we reverse the district 

court’s grant of summary judgment in favor of Appellees on 

Barone’s prior restraint claim.

“[C]itizens do not surrender their First Amendment 

rights by accepting public employment.” Lane, 134 S. Ct. at 

2374. Indeed, the public has an interest “in receiving the 

well-informed views of government employees engaging in 

civic discussion,” Garcetti, 547 U.S. at 419, because 

government employees are “in the best position to know 

what ails the agencies for which they work,” Lane, 134 S. 

Ct. at 2377 (quoting Waters v. Churchill, 511 U.S. 661, 674 

(1994) (plurality opinion)). Nevertheless, the government 
16 BARONE V. CITY OF SPRINGFIELD

“has interests as an employer in regulating the speech of its 

employees that differ significantly from those it possesses in 

connection with regulation of the speech of the citizenry in 

general.” See Pickering, 391 U.S. at 568. Government 

employers, similar to private employers, “need a significant 

degree of control over their employees’ words and actions.” 

Lane, 134 S. Ct. at 2377 (quoting Garcetti, 547 U.S. at 418). 

Thus, the government, in some instances, “may impose 

restraints on the job-related speech of public employees that 

would be plainly unconstitutional if applied to the public at 

large.” United States v. Nat’l Treasury Emps. Union 

(NTEU), 513 U.S. 454, 465 (1995).

The Court in Pickering prescribed a two-step approach 

for evaluating these competing interests. We first ask 

whether the restriction affects a government employee’s 

speech “as a citizen on a matter of public concern.” See 

Garcetti, 547 U.S. at 418. If it does, we inquire “whether 

the relevant government entity had an adequate justification 

for treating the employee differently from any other member 

of the general public.” Id. While the Pickering test is most 

often applied in the retaliation context, we also use it to 

evaluate prospective restrictions on government employee 

speech. See NTEU, 513 U.S. at 465–68; Gibson v. Office of 

Attorney Gen., 561 F.3d 920, 926–27 (9th Cir. 2009).

Paragraph 5(g) of the amended Agreement states: 

“Consistent with SPD General Order 26.1.1.XIX, Employee 

will not speak or write anything of a disparaging or negative 

manner related to the Department/Organization/City of 

Springfield or its Employees. Employee is not prohibited 

from bringing forward complaints she reasonably believes 

involves discrimination or profiling by the Department.” In 
BARONE V. CITY OF SPRINGFIELD 17

turn, General Order 26.1.1.XIX,3 which applies to all 

Department employees, provides, in part: “Members shall 

not publicly criticize or ridicule the Department, its policies, 

or other members. . . . Members shall conscientiously avoid 

the release of any confidential information or information 

which compromises any investigation.”

A. The Amended Agreement Restricts Private 

Citizen Speech on Matters of Public Concern.

The first step of the Pickering test involves two separate 

inquiries—first, whether the restriction reaches speech on a 

matter of public concern, and second, whether the restriction 

reaches speech only within the scope of a public employee’s 

official duties. See Garcetti, 547 U.S. at 418. “In assessing 

a prior restraint, we focus on the text of the policy to 

determine the extent to which it implicates public 

employees’ speech as citizens speaking on matters of public 

concern.” Moonin v. Tice, 868 F.3d 853, 861 (9th Cir. 2017).

It is clear that Paragraph 5(g) extends to matters of public 

concern. “Speech involves matters of public concern ‘when 

it can “be fairly considered as relating to any matter of 

political, social, or other concern to the community . . . .”’” 

Lane, 134 S. Ct. at 2380 (quoting Snyder v. Phelps, 562 U.S. 

443, 453 (2011)). This is a broad standard, and Paragraph 

5(g)’s bar is not limited to speech on internal issues such as 

logistics or individual personnel disputes. See Gibson, 

561 F.3d at 925. Instead, Paragraph 5(g) forbids any 

negative speech about City or Department misconduct 

except for reporting police “discrimination or profiling.” 

City or Department misconduct, or any other City-related 

 3 General Order 26.1.1.XIX is not the subject of this appeal, so we 

need not decide whether it also imposes an unlawful prior restraint.
18 BARONE V. CITY OF SPRINGFIELD

issues, are topics that would be of interest to the community. 

See, e.g., Connick, 461 U.S. at 148 (noting that a 

prosecutor’s failure to adequately investigate and prosecute 

criminal cases and a prosecutor’s breach of public trust are 

matters of public concern).

Second, Paragraph 5(g) of the amended Agreement 

affects citizen speech. While some speech restricted by the 

amended Agreement falls within Barone’s official duties, 

“much of the potentially affected speech does not.” Moonin, 

868 F.3d at 862.

Moonin guides our decision on this claim. In Moonin, a 

highway patrol supervisor announced a new policy 

prohibiting certain highway patrol officers from directly 

contacting “ANY non-departmental and non-law 

enforcement entity or persons” about the department’s K-9 

program and drug interdiction program. Id. at 858–59. We 

reasoned that while the policy regulated some speech that 

fell within the officers’ official duties, such as reporting 

departmental misconduct, much of the affected speech did 

not fall within their official duties. Id. at 862. We refused 

to assume that the officers spoke as employees “on every 

occasion in which they discuss information learned or 

opinions developed while on the job.” Id. at 862. For 

example, the broad policy forbade speech about the best K9 training protocols, and officers were prohibited from 

conveying their personal opinions about any aspect of the K9 or interdiction programs to legislators and community 

groups, neither of which fell within the officers’ official 

duties. Id. at 863. Therefore, the policy reached speech 

made by the officers in their capacities as citizens on matters 

of public concern, and the policy was subject to the 

Pickering balancing test. Id. at 862, 864.
BARONE V. CITY OF SPRINGFIELD 19

Paragraph 5(g) restricts even more speech than the policy 

at issue in Moonin. First, Paragraph 5(g)’s restriction is not 

limited to a particular subject matter, unlike the restriction in 

Moonin: Paragraph 5(g) flatly bars Barone from speaking 

negatively about the Department, the City, or their 

employees. Second, while a bar on only disparaging or 

negative speech is narrower than a prohibition on all speech, 

the prohibition on negative speech “suggests that, to the 

extent [Paragraph 5(g)] is targeted at all, it is targeted at 

speech not made pursuant to [Barone’s] official duties.” Id.

at 863.

As was the case in Moonin, there is a lack of 

“qualification regarding what types of information or 

opinions” are subject to Paragraph 5(g). See id. at 862–63. 

Therefore, Paragraph 5(g) does not forbid speech only in 

Barone’s capacity as an employee. The only limiting 

language in Paragraph 5(g) is that Barone may report 

complaints of discrimination or profiling by the Department. 

This one clarification does not remedy an otherwise broad 

and open-ended prohibition on “anything” related to the 

Department or the City. Indeed, this language would sweep 

in any disagreement about the City’s services, employees, or 

elected officials, including speech on topics or individuals 

that do not overlap with Barone. For example, Paragraph 

5(g)’s plain language would bar Barone from criticizing the 

City’s cleanliness, water quality, or tax and revenue policies. 

Commenting on these topics is well beyond Barone’s duties 

as a CSO II.4

 4 Appellees argue that Barone, a non-lawyer, never raised prior 

restraint concerns during negotiations with Chief Doney. To the extent 

that Appellees argue that Barone waived her prior restraint claim, their 

argument fails. We are unaware of any binding authority requiring 
20 BARONE V. CITY OF SPRINGFIELD

Appellees’ argument that Paragraph 5(g) was not 

intended to reach private citizen speech fails. In the prior

restraint context, we focus on the chilling effect of the 

employer’s policy on the employee’s speech, rather than the 

employer’s subjective intent. See NTEU, 513 U.S. at 468. 

We evaluate the chilling effect of the amended Agreement 

by examining the language of the amended Agreement itself. 

Moonin, 868 F.3d at 861 n.5 (citing Milwaukee Police Ass’n 

v. Jones, 192 F.3d 742, 748 (7th Cir. 1999)). Therefore, we 

are concerned with “what an employee reading the policy 

would think the policy requires,” not the subjective intent of 

Appellees. Id. An employee reading this Agreement would 

think the amended Agreement bars exactly what it says it 

bars—“anything of a disparaging or negative manner” about 

the Department, the City, or their employees. 5

Citing a Seventh Circuit opinion, Appellees contend that 

the amended Agreement does not restrain private citizen 

speech because it does not contain any provisions 

referencing citizen speech. See Milwaukee Deputy Sheriff’s 

Ass’n v. Clarke, 574 F.3d 370, 383 (7th Cir. 2009). This 

argument has no traction. First, we are not bound by Clarke. 

Second, in Moonin, we concluded that the challenged policy 

 Barone to raise her specific concerns during her meetings with Chief 

Doney. Her challenge to the amended Agreement was raised in the 

initial complaint, was litigated below, and is properly before us now.

5 Appellees suggest that Paragraph 5(g)’s reference to General Order 

26.1.1XIX shows that it was never intended to reach citizen speech. 

Paragraph 5(g)’s introductory clause—“[c]onsistent with SPD General 

Order 26.1.1.XIX”—does not limit the effect of the remainder of 

Paragraph 5(g). See District of Columbia v. Heller, 554 U.S. 570, 578 

(2008) (“[A] prefatory clause does not limit or expand the scope of the 

operative clause.”).
BARONE V. CITY OF SPRINGFIELD 21

affected the speech made by the officers in their capacities 

as citizens, even though the policy contained no specific 

reference to citizen speech. 868 F.3d at 859, 862. The same 

reasoning applies here: The amended Agreement need not 

reference citizen speech in order to be understood to forbid 

citizen speech.6

B. The Amended Agreement Fails the Pickering

Balancing Test.

Paragraph 5(g)’s broad language forbids speech made by 

Barone in her capacity as a citizen on a matter of public 

concern. Under Pickering, we next consider whether 

Appellees “had an adequate justification” for implementing 

the amended Agreement. See Garcetti, 547 U.S. at 418. To 

determine whether a justification is adequate, we weigh “the 

interests of the [public employee], as a citizen, in 

commenting upon matters of public concern” against “the 

interest of the State, as an employer, in promoting the 

efficiency of the public services it performs through its 

employees.” Lane, 134 S. Ct. at 2377 (alteration in original) 

(quoting Pickering, 391 U.S. at 568). In balancing these 

interests, we also consider whether there is a “close and 

rational relationship between the policy and legitimate 

government interests.” Gibson, 561 F.3d at 928. We also 

consider “the public’s interest in receiving the well-informed 

 6 Even if a restriction’s lack of a “reference to speech as a citizen” 

were a factor in our analysis, Clarke, 574 F.3d at 383, the amended 

Agreement would still be subject to scrutiny because this case is 

distinguishable from Clarke. In Clarke, the Seventh Circuit upheld a 

restriction that prohibited speech “related to” police officers’ “official 

agency business.” Id. Here, the amended Agreement’s language is 

sweeping and, on its face, is not limited to official agency business. 

Therefore, the amended Agreement contains no cabining language akin 

to that found in Clarke.
22 BARONE V. CITY OF SPRINGFIELD

views of government employees engaging in civic 

discussion.” Garcetti, 547 U.S. at 419.

The burden of justifying Paragraph 5(g) rests with the 

government. NTEU, 513 U.S. at 466. Because this “ban 

chills potential speech before it happens,” as opposed to “an 

adverse action taken in response to actual speech,” the 

government’s burden is greater. Id. at 468. Appellees fail 

to meet their burden here.

Appellees assert several justifications. Most are 

restatements of general principles about the interest of 

government employers in regulating the speech of their 

employees. However, these general principles, detached 

from any evidence in the record, do not justify the 

restrictions in Paragraph 5(g). See id. at 475 (“[W]hen the 

Government defends a regulation on speech as a means to 

. . . prevent anticipated harms, it must do more than simply 

‘posit the existence of the disease sought to be cured.’” 

(quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 

(1994))); see also Gibson, 561 F.3d at 928 (requiring “a 

close and rational relationship between the policy and 

legitimate governmental interests”).

Appellees also justify the restraints in Paragraph 5(g) by 

claiming that they help maintain the effective and efficient 

operation of the Department, and protect against potentially 

disruptive speech by Barone. These justifications also are 

inadequate, separately or jointly.

First, Appellees argue that the City has an “interest . . .

in maintaining the effective and efficient operation of the 

police department,” Dible v. City of Chandler, 515 F.3d 918, 

928 (9th Cir. 2008), which requires that police officers 

safeguard the public’s opinion of them. In Dible, we held 

that a city’s interest in effective and efficient operation of the 
BARONE V. CITY OF SPRINGFIELD 23

police department outweighed an officer’s interest in 

maintaining a sexually explicit website featuring videos and 

photos of the officer and his wife. See id. at 927–29. This 

is because society “expects officers to behave with a high 

level of propriety” and “[t]he law and [officers’] own safety 

demands that they be given a degree of respect.” Id. at 928. 

Once the officer’s website became public, the officer’s 

“indecent public activities” undermined that respect, the 

public began denigrating other officers, potential recruits 

questioned other officers about the website, and the 

department feared that the website would reduce its ability 

to recruit female officers. Id. With this specific conduct in 

mind, we held that the government adequately justified its 

disciplinary action.

However, in Moonin, we rejected the government’s 

justification that it sought to “ensur[e] effective operation of 

the agency without disruption” by preventing officers from 

speaking to non-law enforcement entities about certain 

police programs. 868 F.3d at 865. While we recognized that 

“police departments would operate more efficiently absent 

inquiry into their practices by the public,” we reasoned that 

“efficiency grounded in the avoidance of accountability is 

not, in a democracy, a supervening value.” Id. at 866.

The prior restraint in this case more closely resembles 

the restriction in Moonin than the post hoc disciplinary 

action in Dible. As in Moonin, the Department may be more 

efficient if the public holds a positive view of the 

Department and the City, and preventing any negative or 

disparaging speech about both the City and the Department 

would help maintain that positive view. However, 

maintaining efficiency through “avoidance of 

accountability” and limiting “inquiry into [its] practices by 

the public,” id., is not an acceptable justification in a 
24 BARONE V. CITY OF SPRINGFIELD

democratic society. Indeed, avoiding accountability is a 

greater concern here than in Moonin because Paragraph 5(g) 

bars only disparaging or negative speech, and contains no 

limiting language cabining the bar to certain subject matters. 

Thus, this justification fails.

Second, citing Barone’s previous comments, Appellees 

express concern about potential disruptive speech by her in 

the future. In the past, Barone expressed her disagreement 

with the Department, including statements to the City 

Manager that other officers lied during her internal affairs 

investigations. According to Appellees, these previous 

accusations and Barone’s recent investigation may cause her

to discuss publicly her displeasure with the Department. 

Appellees argue Moonin is distinguishable because there 

was no similar evidence of past disruption in Moonin.

This justification also fails. The government has an 

interest in preventing speech that it reasonably believes will 

disrupt the workplace, see Connick, 461 U.S. at 154, and the 

government may justify this policy through evidence of past 

disruption or evidence that the anticipated harm is “real, not 

merely conjectural,” Moonin, 868 F.3d at 867–68 (quoting 

NTEU, 513 U.S. at 475). However, even assuming 

Appellees provided sufficient evidence of past workplace 

disruption by Barone, there is not a sufficiently “close and 

rational relationship” between its interest and Paragraph 

5(g)’s broad prohibition on speech. Gibson, 561 F.3d at 928. 

Paragraph 5(g)’s restriction is not limited to employmentrelated speech, let alone speech that reasonably could cause 

a disruption at the Department. For instance, Appellees fail 

to explain how Paragraph 5(g)’s restriction of speech about 

unrelated matters “related to the . . . City of Springfield” will 

“alleviate” the Department’s concern about workplace 

disruption “in a direct and material way.” Moonin, 868 at 
BARONE V. CITY OF SPRINGFIELD 25

867–68 (quoting NTEU, 513 U.S. at 475). This failure is 

fatal to this justification. Concerns about potentially 

disruptive speech may justify a narrower restriction on 

speech, but Paragraph 5(g)’s sweeping restriction goes well 

beyond a permissible restraint under Pickering.

Moreover, Appellees’ justifications are inadequate 

collectively because Paragraph 5(g) is not tailored to speech 

that implicates the Department’s justifications. See Moonin, 

868 F.3d at 866–67 (concluding the government’s three 

justifications, two of which were valid, did not justify the 

police department’s “sweeping” and “expansive” policy). 

Paragraph 5(g) makes no distinction between speech that 

reasonably could be expected to disrupt the Department’s 

operations and speech that will not cause a disruption. Nor

is it targeted to communication conveyed only in Barone’s 

official capacity or communication that would otherwise 

negatively impact the Department’s effectiveness and 

efficiency. For example, neither justification explains 

Paragraph 5(g)’s prohibition on speech concerning 

“anything . . . related to the . . . City” or employees wholly 

unrelated to the Department. In addition, Paragraph 5(g)’s 

targeted focus on only “disparaging or negative” speech 

renders the amended Agreement a posterchild of overt 

viewpoint discrimination. See, e.g., City of Lakewood v. 

Plain Dealer Publ’g Co., 486 U.S. 750, 763–64 (1988).

The amended Agreement restrained Barone’s speech as 

a private citizen on matters of public concern, and Appellees 

have not presented justifications sufficient to warrant 

Paragraph 5(g)’s overbroad restrictions. We thus hold that 

Paragraph 5(g)’s prospective restriction violated the First 

Amendment.
26 BARONE V. CITY OF SPRINGFIELD

III. Monell Liability

It is well established that a city or other local government 

entity may be liable in a § 1983 action under Monell v. 

Department of Social Services, 436 U.S. 658 (1978), when 

the plaintiff proves that the municipality caused the 

plaintiff’s injury. Connick v. Thompson, 563 U.S. 51, 60–61 

(2011). A § 1983 plaintiff can establish municipal liability 

in three ways: (1) the municipal employee committed the 

constitutional violation pursuant to an official policy; (2) the 

employee acted pursuant to a longstanding practice or 

custom; and (3) the employee functioned as a final 

policymaker. Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 

2004).

Here, the issue is whether Chief Doney acted as a final 

policymaker in the area of employee discipline for the 

Department.7 We look to state law to answer this question. 

Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). 

“Authority to make municipal policy may be granted directly 

by a legislative enactment” or “delegated by an official who 

possesses such authority . . . .” Pembaur v. City of 

Cincinnati, 475 U.S. 469, 483 (1986). We conclude that the 

City Manager possessed final policymaking authority, and 

that there is a triable issue of material fact whether the City 

Manager delegated his final policymaking authority over 

employee discipline in the Department to Chief Doney.

 7 The parties discuss only the third category, and do not discuss 

whether there is “a longstanding practice or custom” of the City Manager 

delegating his authority over employee discipline to Chief Doney. See 

Lytle, 382 F.3d at 982. Because this issue was not raised on appeal, we 

decline to address this theory of Monell liability. On remand, however, 

the district court may consider whether Monell liability can be 

established through the existence of a longstanding practice or custom.
BARONE V. CITY OF SPRINGFIELD 27

A municipal policy may arise where a government 

“chooses a course of action tailored to a particular situation” 

that is “not intended to control decisions in later situations.” 

Id. at 481. The course of action must be “made from among 

various alternatives by the official . . . responsible for 

establishing final policy” on the subject matter in question. 

Id. at 483; see City of Okla. City v. Tuttle, 471 U.S. 808, 823 

(1985) (“‘[P]olicy’ generally implies a course of action 

consciously chosen from among various alternatives . . . .”). 

Therefore, we look to whether the individual had final 

policymaking authority “in a particular area, or on a 

particular issue.” McMillian v. Monroe County, 520 U.S.

781, 785 (1997).

Oregon law provides that “[t]he powers of the city shall 

be vested in the [city] council.” Or. Rev. Stat. § 221.120(6). 

In turn, the City of Springfield Charter, governing the city 

council, delegates to the City Manager the authority to

“prescribe rules governing the non-discriminatory 

recruitment, selection, promotion, compensation, transfer, 

demotion, suspension, layoff and dismissal of City 

employees.” The City Charter does not delegate any 

authority to the Chief of Police.

Barone argues that the City Manager was not the final 

policymaker by reading the City Charter in an unduly narrow 

fashion. She contends that the City Charter did not grant the 

City Manager the sole authority over personnel decisions, 

but rather the authority only to more broadly “prescribe 

rules” about personnel decisions. This argument is 
28 BARONE V. CITY OF SPRINGFIELD

unconvincing. First, she points to no authority that supports 

this distinction.8

Second, and more importantly, the City Charter 

delegated the pertinent final policymaking authority to the 

City Manager.9 The final policymaker is the individual who 

had authority in the particular area where the constitutional 

violation occurred. See, e.g., Jett, 491 U.S. at 738 

(examining whether a supervisor “possessed final 

policymaking authority in the area of employee transfers” 

when a plaintiff alleged he was transferred because of his 

race). In this case, the relevant area of policymaking is 

employee discipline because the constitutional violation was 

requiring Barone to sign the amended Agreement in order to 

 8 Barone contends that the city charter in Gillette v. Delmore, 

979 F.2d 1342 (9th Cir. 1992), granted the city manager “sole authority 

over personnel decisions,” and therefore we held that the city manager 

was the final policymaker, unlike the case at bar. We do not have at our 

disposal the language of the city charter in Gillette, however, and 

therefore we cannot say whether the city charter in Gillette and the 

Springfield City Charter are different.

9 Barone’s argument also undercuts her position that Chief Doney 

possessed final policymaking authority. If the City Charter did not 

delegate final policymaking authority over employee discipline to the 

City Manager, that authority remained “vested in the [city] council,” Or. 

Rev. Stat. § 221.120(6), not with Chief Doney. Absent another provision 

in the City Charter delegating this authority to Chief Doney, we cannot 

“assum[e] that municipal policymaking authority lies somewhere other 

than where the applicable law purports to put it.” City of St. Louis v. 

Praprotnik, 485 U.S. 112, 126 (1988) (plurality opinion). In order for 

Chief Doney to possess final policymaking authority, the individual 

originally granted this authority—here, the City Manager—must have 

delegated it to Chief Doney. Therefore, Barone’s reading of the City 

Charter would preclude her own argument that Chief Barone possessed 

final policymaking authority because there is evidence that “whatever 

decision [Chief Doney] made, the city manager would support.”
BARONE V. CITY OF SPRINGFIELD 29

keep her position at the Department. This decision was 

within the purview of the City Manager under the City 

Charter—requiring Barone to sign the amended Agreement 

was a “rule[] governing” her “suspension, layoff and 

dismissal.” The City Charter therefore delegated final 

policymaking authority to the City Manager.

Because the City Charter delegated final policymaking 

authority to the City Manager, we now consider whether he 

delegated final policymaking authority over employee 

discipline in the Department to Chief Doney. Appellees 

liken this case to Gillette v. Delmore, wherein we concluded 

that a fire chief’s decision to discipline a fire fighter did not 

trigger Monell liability because the city charter “grant[ed] 

authority to make City employment policy only to the City 

Manager and the City Council.” 979 F.2d at 1350. The fire 

chief possessed “the discretionary authority to hire and fire 

employees,” but this authority was “not sufficient to 

establish a basis for municipal liability.” Id. at 1350. 

Appellees argue that, similar to the fire chief in Gillette, 

Chief Doney possessed only discretionary authority.

We disagree. The plaintiff in Gillette failed to provide 

evidence that the City Manager delegated final 

policymaking authority to the fire chief. See id. (“Gillette 

points to neither law nor evidence that suggests the district 

court erred in relying on or interpreting the applicable 

municipal law to determine who made final employment 

policy for the City.”). In contrast, the record before us 

contains evidence that the City Manager delegated his final 

policymaking authority over employee discipline in the 

Department to Chief Doney. For example, Chief Doney 

conceded that “the buck stops” with him “[w]ithin the 

department”; Director Utecht admitted that “whatever 

decision [Chief Doney] made, the city manager would 
30 BARONE V. CITY OF SPRINGFIELD

support in this case”; and the City Manager testified that he 

had “no role” in the decision to fire or discipline Barone. 

These statements create a triable issue of material fact about 

who possessed final policymaking authority on employee 

discipline for the Department.

Because there is a genuine issue of material fact about 

whether the City Manager delegated final policymaking 

authority to Chief Doney, the district court erred in granting 

summary judgment in favor of the City. If the City Manager 

delegated the relevant authority to Chief Doney, the City 

would be liable under Monell for Chief Doney’s decision to 

require Barone to sign the amended Agreement. We 

therefore reverse and remand for consideration of whether 

the City can be held liable for Chief Doney’s conduct for the 

reasons herein noted. See Ulrich v. City & County of San 

Francisco, 308 F.3d 968, 985–86 (9th Cir. 2002).

CONCLUSION

For the foregoing reasons, we affirm the district court’s 

grant of summary judgment on the First Amendment 

retaliation claim, reverse on the prior restraint claim, and 

reverse and remand on the issue of Monell liability.

Each party shall bear its own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART, 

REMANDED.