Firing by City Council No First Amendment Violation

It takes an entire city council to fire a psychologist.

Unless the psychologist can show that his membership in a conservative organization was a motivating factor behind the city’s decision to terminate his contract, there is no violation of his First Amendment right of freedom of association, the Seventh Circuit has found.

The City of Springfield, Illinois, had a contract with the firm of Campion, Barrow & Associates led by Dr. Michael Campion to provide psychological testing for the police and fire departments. In August 2004, the Illinois Times published a column noting that Dr. Campion failed to disclose on his resume that he had been on the board of the Illinois Family Institute (IFI), an organization with conservative views on such topics as marriage, abortion, homosexuality, and stem cell research.

In December 2004, Springfield renewed Dr. Campion’s contract but in January 2005 hired another psychologist to perform the work. In May 2005, Springfield formally terminated Dr. Campion. He sued, arguing that he was fired because of his membership in IFI and that such membership was protected under the First Amendment. The District Court dismissed the case and the Seventh Circuit affirmed the dismissal.

The City agreed that Dr. Campion’s membership on the board of IFI was protected speech by the First Amendment. The only issue on appeal was whether his protected speech was a motivating factor behind the City’s decision to terminate his contract.

Dr. Campion argued that Springfield’s mayor was the driving force behind his termination. The court found, however, that there was no evidence in the record that the mayor had read the article about Dr. Campion’s membership in IFI. Only one alderman Frank McNeil testified that he had read the article and told the mayor, “Hey, this guy’s got to go. He’s out of touch with the mainstream. He has an absolute right to his conservative views, and we have an absolute right to change reviewers.”

The Appellate Court rejected Dr. Campion’s theory. “Notably, Mayor Davlin did not act unilaterally when he set about changing the contract from Campion to Detrick. Instead, he sought the City Council’s consent, implying that he did not have the ability to act himself.”

In addition, the Appellate Court found Dr. Campion failed to provide sufficient evidence to support his argument that his protected activity was a motivating factor for the City Council’s decision.

“First, there is no evidence in the record indicating that all of the aldermen and Mayor Davlin actually knew about the Rhodes article at the time they acted to pass the Detrick ordinance. To the contrary, the evidence suggests that all but a few were unaware of it. Davlin testified that he did not recall either the article or Alderman McNeil’s statement to him about it; other aldermen testified that they had not read the article and that they did not know about Campion’s association with IFI when they voted to change psychologists,” the court wrote.

“The fact remains that Campion failed to introduce anything affirmatively indicating that the authorized decision maker—the City Council—was retaliating against him either because of his speech, or because of his association with IFI. The record showed instead that Campion was charging $375 per psychological evaluation, while Detrick was willing to perform the same work for $175 per applicant for pre-employment evaluations and $350 for fitness-for-duty evaluations,” the opinion states.

Campion, Barrow & Associates, Inc. v. City of Springfield, Illinois, Seventh Cir. No. 08-1947, issued March 24, 2009.