In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1932

JAMES E. MILLER, JR.,

Plaintiff-Appellee,

v.

ARTHUR L. JONES, Police Chief,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 03 C 987—Thomas J. Curran, Judge.

____________

ARGUED DECEMBER 8, 2005—DECIDED APRIL 17, 2006

____________

Before BAUER, POSNER, and KANNE, Circuit Judges.

BAUER, Circuit Judge. Former Milwaukee Police Department officer James E. Miller, Jr., claims that he was

transferred to a less desirable position because of his speech

in opposition to actions taken by then Chief of Police Arthur

L. Jones. Miller brought this civil rights action against

Jones and the City, pursuant to 42 U.S.C. § 1983, seeking

relief in the form of a declaratory judgment and compensatory and punitive damages. At the close of discovery,

defendants moved for summary judgment on the ground

that no material facts were in dispute and that they were

entitled to judgment as a matter of law. The district court

denied this motion, but dismissed any claim made against

Jones in his official capacity only. Jones appeals the district
2 No. 05-1932

court’s refusal to grant him qualified immunity arguing

that Miller’s speech was not protected because it did not

address a matter of public concern. For the following

reasons, we affirm.

I. BACKGROUND

The facts of this case are not in dispute, and due to the

limited nature of the appeal we focus on the events surrounding the plaintiff’s speech. James Miller is a former

officer with the Milwaukee Police Department (MPD) who

was transferred from the Community Services Division

(CSD) to patrol duty on May 27, 2003. Miller was assigned

to the Community Services Division in 1992 and spent

eleven years working with the Police Athletic League (PAL).

PAL provides educational and recreational activities for

young people between the ages of five and eighteen. These

activities are staffed by Milwaukee police officers, such as

Miller, who provide their services free of charge. Other than

this in-kind labor, PAL receives no funding from the Police

Department and is organized as a non-profit corporation

under Wisconsin state law. The MPD benefits from the

opportunity to interact with community youths in an

indirect law enforcement capacity. PAL’s Board of Directors

is staffed by both private citizens and members of the MPD,

including the Chief of Police.

While working with PAL, Miller served in a number of

different roles. Following a formal selection process in 1992,

he was chosen by the Board to serve as the Executive

Director. The Executive Director is the chief operating

officer of the organization and, subject to the control of the

Board, is responsible for supervising, controlling, and

directing the programming, workforce, and finances. By

1997, Miller also assumed the duties of Treasurer. In both

positions, he was responsible for reporting to the Board

on areas under his control.
No. 05-1932 3

Due to scheduling difficulties with MPD facilities, PAL

decided to construct their own athletic center sometime

in 1997. Between 1997 and 2002, PAL raised funds, established a building committee, and developed plans with

architects and builders. Miller oversaw each step of development and was, effectively, the project manager.

In early March 2002, the future use of the facility came

into question. Through his chain of command, Miller

received instructions from Chief Jones to give a tour of the

PAL facility to the executive board of the Milwaukee

area Boys and Girls Club. While giving the tour, Miller

learned that Chief Jones had been discussing a possible

facilities merger between PAL and the Boys and Girls Club.

When Miller responded that this was the first he had heard

of the issue, he was told that “. . . if the Chief wants it, he

gets it.” Tr. Rec. R.50, Dep. Ex. 24, p.3. Within days of the

tour, Miller learned that a local Boys and Girls Club was

closing, and that it was considering the PAL facility as its

new home. On March 21, Jeff Snell of the Boys and Girls

Club of Greater Milwaukee wrote to Chief Jones outlining

the next steps to be taken in the merger.

On March 22, 2002, PAL Chairman Harris informed the

Board of the proposed merger. He also informed them that

the Boys and Girls Club was willing to pay for the costs of

the facility’s staffing and operation, but had not addressed

the outstanding expense of the building itself. At that

meeting, Captain Haynes, Miller’s commanding officer in

the CSD, and Miller provided Chairman Harris with a copy

of the letter from Snell.

Miller worked with Chairman Harris and other members of the Board to review and respond to the proposed

merger. After reviewing PAL’s national bylaws, Miller and

Captain Haynes concluded that the proposal was contrary

to the organization’s mission. Miller openly opposed the

merger, reasoning that if the Boys and Girls Club operated
4 No. 05-1932

the facility there would be no role for MPD officer interaction with the community, thus defeating the purpose of PAL

and the MPD’s policing benefit. Furthermore, he

was concerned that the Club offered no money to help cover

the facility’s construction debt and that any violation of

PAL’s national bylaws excluded the chapter from receiving

funding from the parent organization.

Chairman Harris wrote to Chief Jones, informing him

that no single member of the Board could unilaterally

bind the organization, and that the proposed merger

likely violated PAL national bylaws. Chief Jones was not

pleased with Harris’s letter. Shortly after they traded

correspondence, Chairman Harris and Director Zigman met

with Chief Jones in person and told him that they

and Miller opposed the merger.

On March 25 and 26, 2002, Chief Jones confronted his

staff regarding the PAL Board opposition to the merger. He

yelled at Captain Haynes for passing Snell’s letter on to

Chairman Harris and told both of them that he put them on

the PAL Board and could transfer them off just as easily.

Chief Jones then called a meeting with every officer on the

PAL Board to discuss the matter. During the meeting he

publicly reprimanded Haynes and Miller. Two days later,

Haynes was transferred to a position in the Criminal

Investigation Bureau; she had no prior experience with the

group.

Chief Jones attended the next three straight PAL Board

meetings, a first in his tenure with the organization. At the

April 9, meeting, Jones was described as being angry with

Chairman Harris’s letter and publicly doubted that PAL

had the capacity to manage the new facility. On April 19,

Jones informed the Board that he would not allocate MPD

officers to staff the new facility and instructed them to write

the Boys and Girls Club to request a plan for merger. He

also told the Board that Miller would be demoted from
No. 05-1932 5

Executive Director. He explained that having an MPD

employee in charge of PAL’s finances and employment

decisions was an unwanted liability for the City. Members

of the Board testified that this reversal came as a surprise

given that Miller had been in charge of PAL’s management

and finances for nearly eleven years and he had overseen

the new facility’s construction. At the third meeting, on May

3, PAL acquiesced to Jones’s demands and created a

committee to explore the merger.

By May 24, it was clear that the Boys and Girls Club

merger would not satisfy the entire PAL Board. Financially,

the Club’s proposal did not contribute to the costs of the

building debt. Furthermore, other members of the Board

greatly valued Miller’s opinion, given his involvement with

the project, and agreed that the merger would effectively

end PAL. That day, Miller and Director Zigman voted

against any continued dialogue with the Club. During

subsequent meetings in the summer of 2002, the Board

turned to Miller for advice, and he continued to oppose the

merger.

On July 8, Chief Jones implicitly threatened Miller. At

Jones’s direction, Deputy Chief Schunk reminded Miller

that the Chief was responsible for setting MPD policy

and how MPD officers interacted with PAL. Jones also

reassigned numerous MPD officers that worked with PAL

to the Police Training Academy, effectively cutting them off

from serving or communicating with the program. On

August 30, Miller was notified by the MPD Internal Affairs

Division that he was being investigated for “[f]ailing to treat

as confidential the business of the department[; s]peaking

on behalf of the department without authorization from the

Chief . . . [i]n reference to a conversation you allegedly had

with Bob Harris concerning the PAL program.” Tr. Rec. 50,

Dep. Ex. 7.

On September 27, 2002, Chief Jones informed the Board

that Miller was to be removed as Executive Director, and
6 No. 05-1932

demoted to Program Director. At the October 25 meeting,

Jones reemphasized his demand and told the Board that no

MPD officers would work with PAL until Miller’s job was

redefined. This withholding of services effectively brought

PAL’s operations to a halt. Some of the Board members

testified that they believed the demotion was in retaliation

for Miller’s opposition to the merger.

On November 4, the Board and Chief Jones were able

to agree on a job description for Miller’s new position.

Following this agreement, Jones wrote to Chairman

Harris on November 15 and informed him that while Miller

would fulfill his new duties, he would be unable to do

anything beyond these requirements. This secondary

limitation meant that Miller could no longer serve as a

voting member of the Board.

On January 6, 2003, Miller filed a citizen complaint

against Chief Jones with the City of Milwaukee Fire and

Police Commission, a civilian oversight body. In the complaint, Miller alleged that Chief Jones, inter alia, coerced

the PAL Board, engaged in retaliatory acts, and unlawfully

interfered with the private business of another. Miller’s

complaint included the relevant Milwaukee Police Department Rule and Regulation for each alleged violation. Tr.

Rec. 50, Dep. Ex. 24. Shortly thereafter, Miller also raised

questions about certain financial transactions implicating

PAL’s attorney, their construction contractor, and State

Senator George. Miller brought these matters to the

attention of Chairman Harris, who then raised them with

the Board.

In May 2003, Miller received conflicting instructions

regarding his CSD reporting duties from his supervisor,

Captain Debra Davidoski. (Davidoski had replaced Haynes

in April 2002, when Haynes was transferred to Criminal

Investigations.) On May 16, Davidoski complained to

Deputy Chief Schunk about Miller’s performance, and
No. 05-1932 7

within two weeks Miller was transferred to patrol duty. At

the time, Chief Jones explained the transfer to Miller’s new

commanding officer, stating he had overstepped his duties

with PAL. In the months following the transfer, however,

internal performance evaluations were submitted that

brought this comment, and thus the motivation for his

transfer, into serious doubt.

After Miller’s transfer, Sergeant Banks assumed the

Program Director’s role and did everything Miller had

previously done as Executive Director. This included hiring and firing civilian employees, directing officers, handling PAL finances, and attending and voting at Board

meetings. The curtailment of Miller’s involvement in PAL

also affected community interaction with the organization.

As Miller’s role was reduced, community and officer involvement dropped off, and when he was transferred, key

financial backers stopped donating.

At the close of discovery, Chief Jones moved for summary

judgment. He argued there were no material facts

in dispute and that he was entitled to qualified immunity

as a matter of law. Judge Curran denied summary judgment on the question of law and Jones now appeals pursuant to 28 U.S.C. § 1291.

II. DISCUSSION

Summary judgment is appropriate only where the moving

party demonstrates “there is no genuine issue as to any

material fact and that [they are] entitled to a judgment as

a matter of law.” Fed. R. Civ. P. 56(c). When determining

whether a genuine issue of material fact exists, this Court

considers evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Ind. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986); Bell v. Environmental

Protection Agency, 232 F.3d 546, 549 (7th Cir. 2000).

Because there is no dispute as to the material facts, we
8 No. 05-1932

focus below on the matters of law regarding the defendant’s

claim of qualified immunity.

Government officials enjoy qualified immunity, and are

thus shielded from civil liability, “ ‘as long as their actions could reasonably have been thought consistent

with the rights they are alleged to have violated.’ ” Schad v.

Jones, 415 F.3d 671, 673 (7th Cir. 2005) (citing Andersen v.

Creighton, 483 U.S. 635, 638 (1987)). To determine whether

an official is entitled to qualified immunity we look to two

issues. First, taken in a light most favorable to the party

asserting the injury, the facts must show the official

violated a constitutional right. Finsel v. Cruppenink, 326

F.3d 903, 906 (7th Cir. 2003) (citing Saucier v. Katz, 533

U.S. 194, 201-02 (2001)). Second, we look to see if the right

was “clearly established at the time of the alleged violation.” Id. (citing Doyle v. Camelot Care Centers, Inc., 305

F.3d 603 (7th Cir. 2002)). To be “clearly established,” the

right in question must be

sufficiently clear that a reasonable official would

understand that what he is doing violates that right.

This is not to say that an official action is protected by

qualified immunity unless the very action in question

has previously been held unlawful; but it is to say that

in the light of pre-existing law the unlawfulness must

be apparent.

Anderson, 483 U.S. at 640 (citation omitted). For a right

to be clearly established, however, we need not have a prior

case that is founded on materially similar facts; officials

may still be on notice in “novel factual circumstances.”

Finsel at 906 (citing Hope v. Pelzer, 536 U.S. 730, 741

(2002)).

The district court’s denial of defendant’s motion for

summary judgment on qualified immunity is immediately

appealable under 28 U.S.C. § 1291. See Delgado v. Jones,
No. 05-1932 9

282 F.3d 511, 514 (7th Cir. 2002). Our review of summary

judgment motions in this context is de novo. See Saffell v.

Crews, 183 F.3d 655, 657 (7th Cir. 1999).

A. Protected Speech.

Regarding the first prong of our qualified immunity

analysis, Miller claims that Jones transferred him from the

Community Services Division to patrol duty in retaliation

for speech that was protected by the First Amendment pursuant to 42 U.S.C. § 1983. Government employees do not lose the right to comment as citizens on

matters of public concern as an incidence of their employment. City of San Diego v. Roe, 125 S.Ct. 521, 523

(2004). To establish a claim for retaliatory transfer, the

plaintiff must demonstrate that the statement at issue

was constitutionally protected, and was a substantial, or

motivating, factor in the transfer. Schad, 415 F.3d at 674

(citing Brooks v. Univ. of Wis. Bd. of Regents, 406 F.3d 476,

479 (7th Cir. 2005)). If these two elements are established,

the burden shifts to the government to prove that their

interest in efficient management outweighed the plaintiff’s interest in freedom of expression, or that they

would have taken the action regardless of the statement.

See Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002).

Jones argues that Miller’s claim fails because he did

not speak on a matter of public concern.

To be protected, employee speech must relate to a matter of “political, social, or other concern to the community. . .

.” Connick v. Myers, 461 U.S. 138, 146 (1983). Connick held

that when an “employee speaks not as a citizen upon

matters of public concern, but instead as an employee upon

matters only of personal interest . . . a federal court is not

the appropriate forum in which to review the wisdom of the

personnel decision taken by a public agency. . . .” Id. at 147.

To determine whether the employee’s speech was that of a
10 No. 05-1932

1 Defendant directs our attention to Judge O’Scannlain’s concurrence in Ceballos v. Garcetti, 361 F.3d 1168, 1185 (9th Cir. 2004),

cert. granted, 125 S.Ct. 1395, 126 S.Ct. 1294 (Feb. 17, 2006). In

Ceballos, the Ninth Circuit majority held that speech made by a

public employee was protected when it touched on a matter of

public concern. See id. In contrast, Judge O’Scannlain reasoned

that Connick’s primary focus was not on whether the employee’s

speech touched on a matter of public concern, but whether the

employee spoke as a citizen on a matter of public concern. Id. at

1187-88. We note that the most recent Supreme Court opinion to

consider the matter, City of San Diego v. Roe, focused on whether

the matter was one of “public concern,” not whether the employee’s speech was made as a citizen. 125 S.Ct. 521, 523-26

(2004). Our opinions, however, consider the question in full,

seeking to determine whether the employee spoke “as a citizen on

a matter of public concern” while in the employee context. See

Gonzalez v. City of Chicago, 239 F.3d 939, 941-42 (7th Cir. 2001);

Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2001); Schad, 415 F.3d

at 674. It is the examination of the content, form, and context of

the speech that determines this fact.

citizen on matters of public concern, we look to the content,

form, and context of the statement.1 Connick, 461 U.S. at

147-48; Schad, 415 F.3d at 674. Of these three, content is

the most important. Gustafson, 290 F.3d at 907. In evaluating these factors, we look to whether the government

employee sought to “bring to light actual or potential

wrongdoing or breach of public trust.” Connick, 461 U.S. at

148. Further, not all matters that transpire in a government office are of public concern. Id. at 149. Instead, public

concern is the “subject of legitimate news interest; that is, a

subject of general interest and of value and concern to the

public . . . .” San Diego, 125 S.Ct. at 525-26. Whether the

statement rises to the level of public concern is a question

of law. Connick, 461 U.S. at 148, n.7.

Taking the facts in a light most favorable to the plaintiffs,

as we must, the content of the speech at issue covers more
No. 05-1932 11

than a dispute over internal office affairs, and would be of

legitimate news interest. Matters of police protection and

public safety are generally topics of public concern. Schad,

415 F.3d at 675 (internal quotation omitted). Yet, we must

go beyond this blanket observation and review the precise

content of Miller’s speech. Id. Our cases have consistently

held that speech alleging government malfeasance addresses matters of public concern in its substance. Spiegla

v. Hull, 371 F.3d 928, 937 (7th Cir. 2004) (collecting cases).

But the communication and content must connect in a way

that creates a “communicative element” putting the listener

on notice that a matter of public concern is being raised.

Schad, 415 F.3d at 675. This connection was found lacking

in Schad, where the plaintiff police officer merely relayed a

suspect’s whereabouts without going through proper police

channels. See id. at 675-78. The connection, however, was

present in Spiegla, where the plaintiff correctional officer

questioned the suspicious conduct of her superiors who

appeared to be using a new search policy to facilitate

unlawful behavior. Id. at 675-77.

In this case, Miller opposed the proposed merger because it left the MPD officers without a facility to host PAL

activities, thus reducing the quality of community interaction and opportunity to interact with city youth in an

indirect law enforcement capacity. Further, the Boys and

Girls Club offered only enough funding to cover their own

operating costs, but nothing to offset the debt incurred in

construction. This outcome likely violated PAL’s national

bylaws, cutting them off from receiving national funding,

and implicated the integrity of the fund-raising and construction process that Miller had overseen in PAL’s name.

Chief Jones argues that there was nothing wrong in his

proposal of this merger. While this may be true, the proposal is not the sole issue under discussion. There is also

the matter of the pressure Chief Jones brought to bear on

the PAL Board to ensure that the proposal was accepted.
12 No. 05-1932

2 The conviction is a matter of public record. See United States v.

George, No. 03-CR-259 (E.D. Wis. Aug. 11, 2004) (judgment).

Despite open concerns, Chief Jones pushed the merger

forward, leveraging his control over MPD personnel through

the threat and implementation of job transfers. By January

2003, Miller’s speech had expanded to include concerns

about Jones’s coercive behavior, and the effect it had on

PAL.

Miller also raised questions about the quality of work

being done on the new facility and certain financial transactions that implicated PAL’s attorney and Wisconsin State

Senator George. These statements touch on the propriety of

fiscal management by government officials of a financially

independent community organization, and were not limited,

like Schad, to ordinary matters of purely internal operation.

These were no mere hypothetical concerns; Senator George

was later indicted on numerous counts, including charges

on this matter, and pleaded guilty to receiving kickbacks

(18 U.S.C. § 371, conspiracy to defraud the United States)

in another scheme involving PAL’s attorney. See United

States v. George, 403 F.3d 470 (7th Cir. 2005).2

We find it hard to imagine that the Milwaukee public

would not be concerned with the Chief of Police using his

official position to coerce a financially independent organization into a potentially ruinous merger. This concern

seems particularly acute when the Chief served on the

Board of Directors of both organizations. Or that the public would not take an interest in their elected representatives’ misappropriation of monies intended for their benefit.

Indeed, the Milwaukee Journal Sentinel eventually covered

portions of the scheme. Tr. Rec. 50, Ex. E.

The form of Miller’s speech also indicates that the matter

was one of public concern. After raising his concerns with

the PAL Board and MPD, he filed a citizen’s complaint with
No. 05-1932 13

the Fire and Police Commission. Short of racing to the

nearest television or radio station, we are hard-pressed to

find a more public form of speech than his reporting to this

civilian staffed body. This form of communication stands in

marked contrast to the internal memos circulated in

Connick or Gonzalez, or the procedural officer-to-officer call

placed in Schad. Miller’s actions explicitly and formally

sought to alert a greater audience of the possible harm at

issue. Regarding his statements on the financial irregularities and construction problems, this matter again mirrors

Spiegla. While Miller may not have been as public with

these concerns, he raised the issues on his own volition in

multiple venues, first with Chairman Harris and then again

with Deputy Chief Schunk. These attempts, when matched

with the inherent value of the content, are sufficient to

raise the underlying speech to the level of a public concern.

See Spiegla, 371 F.3d at 937-38.

Finally, we consider the context of the speech at issue,

evaluating Miller’s motive and circumstances. See Schad,

415 F.3d at 676 (citation omitted). While a statement

born of pure personal interest does not constitute a public concern, a mere personal aspect of the speaker’s motivation will not defeat the entire speech. See Kokkinis v.

Ivkovich, 185 F.3d 840, 844 (7th Cir. 1999). Jones argues

that the plaintiff was motivated purely by personal concern

in that he was only interested in preserving his autonomy

and job at PAL. While the scope of Miller’s authority at PAL

had been curtailed at Jones’s demand during the months

leading up to his complaint, Miller continued to work with

the organization as the Program Director and maintained

his job with the MPD Community Services Division. Jones

has failed to offer any evidence indicating that Miller’s

status with the former was directly linked to his assignment

with the latter. Moreover, Miller’s repeated statements to

the Board addressed the negative impact of the merger on

the opportunity for MPD officers to interact with the

community and that the Boys and Girls Club offered no
14 No. 05-1932

financial support for the outstanding debt on the newly

constructed facility. Being financially independent, PAL

would retain the liability for this debt, but have no facility

to show for it or to aid in subsequent fund-raising. Similarly, his complaint with the Commission alleged Chief

Jones violated MPD Rules and Regulations in his attempts

to govern the decision of the PAL Board. This stands in

opposition to a situation like that in Kokkinis, where the

plaintiff officer used an ancillary matter of public concern

as an opportunity to voice his purely personal grievances

with his employer. 185 F.3d at 844.

Regarding the circumstances of his speech, Jones

claims that Miller’s statements were not protected because they were within the scope of his regular job duties.

As initially noted in Gonzalez, and clarified in Delgado,

statements made in the course of the “routine discharge

of assigned functions, where there is no suggestion of public

motivation” do not indicate that the employee set out to

speak as a citizen on matters of public concern. See Spiegla,

371 F.3d at 939 (emphasis added); Gonzalez, 239 F.3d at

941; Delgado, 282 F.3d at 519. Where, as is the case here,

the statement at issue arose from a discretionary act

involving independent judgment and action, the speech is

more likely to suggest the employee spoke as a citizen on a

matter of public concern. See Delgado, 282 F.3d at 519.

Miller’s opposition to the proposed merger may hardly be

said to be a routine discharge of his duties as an officer with

the MPD Community Services Division. His judgment on

the matter followed noted consideration of PAL’s national

bylaws and was informed by his understanding and experience of the organization’s structure, operation, and financial

obligations. While he may have been required to undertake

this review, he was not required to recommend a particular

outcome. This stands in marked contrast to our finding in

Gonzalez where the plaintiff could have been punished for

not making the statements at issue there. 239 F.3d at 941-
No. 05-1932 15

42. Nothing before us indicates that Miller may have been

punished for not opposing the merger. In fact, Miller was

investigated by the MPD Internal Affairs Division for

discussing the matter with Chairman Harris and the PAL

board, an action which was part of his duties as the MPD

liaison to the organization.

Additionally, Miller’s January 2003 statements on the

financial irregularities and contractor performance put both

the MPD and the PAL Board on notice regarding missing

funds and possible breach of contract. While monitoring

these issues was part of his prior duties as Executive

Director and Treasurer, he had been demoted to Program

Director and restricted from holding “any other positions”

per Chief Jones’s November 15, 2002, letter to the Board.

Tr. Rec. 50, Dep. Ex. 17. Managing construction and

auditing PAL’s finances are not listed in the Program

Director’s job description. Id. At most, Miller was responsible for preparing and monitoring the budget with the

Managing Director and reporting to the Board Finance

Committee. Given this precise and newly limited job

description, we cannot find that Miller’s subsequent and

consistent reporting on these issues was wholly within the

scope of his duties. The present scenario is similar to that

of Spiegla, where the plaintiff was responsible for implementing prison security policies, but took it upon herself to

question her superiors’ policy change that may have

decreased security. See Spiegla, 371 F.3d at 939. We held

this questioning was not part of her core functions and was

akin to a citizen raising a matter of public concern. Id.

Similarly, where Miller was instructed to act through the

Managing Director and “[m]aintain confidentiality of all

information” he chose instead to bring his concerns to his

supervisors in both PAL and the MPD. Tr. Rec. 50, Dep. Ex.

17, p.2. To claim this speech was entirely within the scope

of his job duties and not a matter of public concern “sweeps

much too broadly.” Spiegla, 371 F.3d at 939.
16 No. 05-1932

Lastly, Jones argues that Miller’s speech did not touch on

matters of public concern because PAL was not part of the

core duties of the Milwaukee Police Department. In support

of this argument he cites Gardetto v. Mason, 100 F.3d 803

(10th Cir. 1996), where our sister court held that speech

protesting the reorganization of an adult reeducation

center, one that was wholly funded by the state college

employer-defendant, was not a matter of public concern

because the decision did not affect the “primary mission of

the college.” Id. at 815. First, we note that this focus on a

government employer’s primary mission plays no dispositive

role in our public concern jurisprudence. Second, Gardetto

involved the reorganization of an entity wholly funded by

the defendant-employer. Here, Chief Jones used his control

over governmental employees to affect the management of

an independently financed organization in favor of another

organization with which he also served, in possible contravention of Milwaukee Police Department Rules and Regulations. When a government official acts, he has a responsibility to obey the rules that bind him. The potential breach of

these regulations is itself a matter of public concern.

Additionally, PAL’s purpose was to create a parallel

connection between the MPD and the community to aid and

support the Department’s everyday safety and outreach

operations. Sound connections to the community allow for

effective policing, which is the goal, and concern, of the

MPD. We affirm the decision of the district court on this

issue.

B. Prior Decisions on Matters of Public Concern.

While we find that Miller’s speech rises to the level of

public concern, Chief Jones’s actions would still be protected

were this constitutional violation not “clearly established”

at the time of the alleged conduct. Finsel, 326 F.3d at 906

(citation omitted). It is well established by the Supreme
No. 05-1932 17

Court and this circuit that a public employer may not

retaliate against an employee who exercises his First

Amendment speech rights. See Connick, 461 U.S. 138. This

prohibition extends to retaliatory transfers to a less desired

position. see Delgado, 282 F.3d 511; McGill v. Bd. of Educ.

of Pekin Elem. Sch. Dist. 108, 602 F.2d 774 (7th Cir. 1979).

Defendant argues that rights in this area are not clearly

established, and that the Supreme Court’s decision in City

of San Diego v. Roe proclaims as much. In San Diego, the

Supreme Court wrote that “[a]lthough the boundaries of the

public concern test are not well-defined, Connick provides

some guidance . . . [i]t directs courts to examine the ‘content, form, and context of a given statement, as revealed by

the whole record. . . .’ ” 125 S.Ct. at 525. It is this three-part

examination that our cases have applied since Connick was

handed down. See, e.g., Yoggerst v. Hedges, 739 F.2d 293

(7th Cir. 1984). To leap from the simple observation that

the boundaries of what constitutes public concern require

some searching, to the argument that after San Diego “no

reasonable law enforcement official” may be expected to

determine what is appropriate behavior in this realm, is a

step too far. Nothing in San Diego reformed the core of our

jurisprudence on the matter.

Nor did San Diego strike down Delgado, where we held

that employee speech on a matter of public concern was

protected under the First Amendment, and therefore

protected against retaliatory transfers, when it grew out of

some discretionary act. See 282 F.3d at 516-21. For examples of similar factual scenarios, Chief Jones may have

turned to our holding in Campbell v. Touse, where we held

that a police officer’s speech criticizing the management of

a community-oriented policing program was a matter of

public concern. See 99 F.3d 820 (7th Cir. 1996). Additionally, Jones may have turned to Knapp v. Whitaker, wherein

we held a public school teacher had spoken on a matter of

public concern when protesting an inequitable reimburse-
18 No. 05-1932

ment scheme for expenses incurred in coaching students.

See 757 F.2d 827 (7th Cir. 1985). The core of the public

concern in Knapp was the misuse of funds intended for the

school’s athletic program; a secondary mission of the school

system, to be sure. Id. at 840-41. Finally, should former

Chief of Police Jones have needed personal notice that the

retaliatory transfer of public employees for speech protected

by the First Amendment is subject to suit under § 1983, he

need only look to our holding in Octavio Delgado v. Police

Chief Arthur Jones and Deputy Chief Monica Ray, 282 F.3d

511, Mar. 8, 2002, decided against the appellant himself in

the same month during which the merger was first proposed.

III. CONCLUSION

For the foregoing reasons we AFFIRM the judgment of

the district court.
No. 05-1932 19

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-17-06