Thomas Nagel v. City of Jamestown ( 2020 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-2842
___________________________
Thomas Nagel
lllllllllllllllllllllPlaintiff - Appellant
v.
City of Jamestown, North Dakota, et al.
lllllllllllllllllllllDefendants - Appellees
____________
Appeal from United States District Court
for the District of North Dakota - Fargo
____________
Submitted: October 16, 2019
Filed: March 9, 2020
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Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
____________
LOKEN, Circuit Judge.
The City of Jamestown, North Dakota (the “City”), fired police officer Thomas
Nagel following a lengthy internal investigation into an anonymous tip to local
television station KVLY alleging misuse of government property by the Stutsman
County Sheriff’s Department. The internal investigation concluded that Nagel had
violated multiple rules and policies and “eroded public trust in local law enforcement
to a severe degree.” Nagel filed this 42 U.S.C. § 1983 action against the City and
Chief of Police Scott Edinger (collectively “Defendants”) alleging unlawful
retaliation for exercising his First Amendment right to participate in a media
interview, deprivation of his right to pretermination process, and violation of his
rights under the North Dakota Constitution. The district court1 granted Defendants
summary judgment dismissing Nagel’s federal claims and declined to reach the merits
of his North Dakota Constitution claims, dismissing those without prejudice.2 Nagel
appeals. Reviewing federal law issues de novo and dismissal of the supplemental
state law claims for abuse of discretion, we affirm.
I. Background
In late October 2015, station KVLY’s “Whistleblower Hotline” received a
packet of documents accusing a member of the Sheriff’s Department of using a
County-owned jet ski for personal use. The packet included a printed screenshot of
Deputy Sheriff Matt Thom riding a jet ski with Sheriff Chad Kaiser’s son. KVLY
identified the screenshot as Thom’s Facebook profile picture. The Facebook account
that printed Thom’s photo was connected by KVLY reporter Christine Stanwood to
a Facebook profile named “Dominic.”
On November 4, Stanwood took the whistleblower packet to the Stutsman
County courthouse to investigate. She learned that morning that Stutsman County did
not own a jet ski and that Dominic Brimm was a Facebook alias for Nagel. Stanwood
then met with Nagel in the building lobby and showed him portions of the packet.
Nagel confirmed he was Dominic Brimm on Facebook, an account he used for police
investigating. He identified the screenshot as a picture of Thom on a jet ski but
1
The Honorable William G. Young, United States District Judge for the District
of Massachusetts, sitting by designation.
2
The district court dismissed with prejudice a claim under the North Dakota
Administrative Code. Nagel does not appeal this ruling.
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denied sending the packet to the Whistleblower Hotline. He consented to be
interviewed by Stanwood outside the building to “clear his name” but said: “I can’t
talk to you as a police officer. I said, I will only talk to you either as Thomas Nagel
or as [president of] the North Dakota Fraternal Order of Police.” During the
interview, Nagel wore civilian clothes and removed his badge.
After the interview, Nagel discussed it with Chief Edinger in his office and
then left the courthouse to meet with his attorney, Joseph Larson. In one or both of
those meetings, Nagel learned that Stutsman County did not own a jet ski. KVLY
aired the story on “Valley News Live” that evening. Entitled “Fraud and Feud at
Stutsman County Sheriff’s Office,” the newsclip began by recounting that KVLY
received a tip from “someone named Dominic” alleging the Sheriff’s Department was
using government property for personal use. After explaining the allegation was
false, the newsclip noted a “political dogfight between two of the top cops in
Stutsman County.” “I am very upset,” Sheriff Kaiser said in the newsclip.
Stanwood’s narration then explained that the Facebook profile attached to the
packet, Dominic Brimm, was an alias for JPD detective Tom Nagel, “who also
happens to be the President of the Fraternal Order of Police” (hereafter, “FOP”). The
newsclip included images of JPD vehicles and excerpts of Nagel’s interview with
Stanwood in which he confirmed that Dominic Brimm was his alias but denied
sending KVLY the packet: “I was aware of the photograph and what was in it, but
I didn’t mail it.” The transcript of the newsclip continues:
Then asked: If it wasn’t you, then who? [County Auditor Casey]
Bradley tells me that the relationship has been strained in the past
between Nagel and Kaiser.
“I can say it’s somebody that would be in fear of losing their job,” says
Nagel.
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There was immediate, strong reaction to the KVLY newsclip at the Stutsman
County courthouse, which houses both the JPD and the Sheriff’s Department. On the
following day, Sheriff Kaiser asked Edinger to keep Nagel out of the Sheriff’s
Department -- which is separated from the JPD by a hallway -- so he could manage
the “chaos” in his department. County Auditor Bradley told Edinger that one or more
County Commissioners called for Nagel’s resignation. The County banned Nagel
from its offices and revoked FOP contracts to operate ATMs and vending machines
in the County portion of the courthouse. Morale in both law enforcement agencies
suffered. JPD officers lamented the loss of trust between the departments; one
apologized to a member of the Sheriff’s Department on behalf of the JPD. Members
of both departments “shunned” Nagel. Edinger reported that some 150 citizens
approached him in public to complain that a police officer would “irresponsibly
accuse someone of a crime so easily investigated and debunked.”
On November 10, Chief Edinger, Sheriff Kaiser, and the County Attorney
asked the North Dakota Bureau of Criminal Investigations (“BCI”) “to conduct an
investigation of the jet ski incident for potential crimes and policy violations.” BCI
assigned Special Agent Maixner to investigate. His November 12 Report stated that
County Auditor Bradley persuaded reporter Stanwood and her supervisor (by speaker
phone) that Stutsman County did not own a jet ski by providing a listing of Stutsman
County assets and insurance coverages.3 The Report identified Nagel as the
“Subject” of the “Stutsman County Defamation” investigation.
3
Bradley told Maixner that Stanwood showed him a one-page whistleblower
letter that accompanied the jet ski screenshot. When Maixner asked if KVLY would
disclose the letter, KVLY’s attorney replied that it was privileged under federal and
North Dakota law. So the precise nature of the misuse-of-government-property
accusation was never clarified. It is undisputed that the letter identified Thom’s jet
ski passenger as Sheriff Kaiser’s son, and that the whistleblower packet included a
Fish and Game Department registration page which, if accessed carelessly, could be
misread as identifying a registered jet ski’s owner.
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Maixner’s Report for November 23 to December 2 stated that Nagel agreed to
be interviewed with attorney Larson present. When Maixner arrived on November
23, attorney Larson delivered a three-page letter to the Attorney General of North
Dakota declaring that the BCI had no authority to investigate “the identity of the
person who submitted an anonymous tip to the KVLY Valley News Live
Whistleblower Hotline” and a lengthy Memorandum, titled “Regarding BCI
Investigation of Anonymous Tip,” that argued why Nagel could not be convicted of
violating the relevant North Dakota statute. Though Larson’s jurisdictional argument
was rejected and the BCI investigation continued, Nagel was never interviewed. In
early February 2016, based on Maixner’s final report, the county attorney assigned
to decide the issue concluded there was insufficient evidence to support a prosecution
for criminal defamation.
At the same time they requested BCI’s criminal investigation, the JPD and the
Sheriff’s Department began a joint internal investigation of the false accusation of
misuse of government property. Two experienced officers, Major John Johnson of
the JPD and Major Jason Falk of the Sheriff’s Department, interviewed over 30
people from the two departments. Nagel was the last to be interviewed on February
19, 2016. In the interview, Nagel denied mailing the packet to KVLY and said he did
not know who sent it. Nagel denied telling JPD Police Officer Jason Prochnow after
the KVLY interview that he knew who sent it but would not disclose the
whistleblower’s identity.4 He denied telling Edinger after the KVLY interview he
knew who sent it. Nagel said he participated in the KVLY interview to “clear [his]
name.” He said his statement that “someone in fear of losing their job” sent the
packet did not refer to anyone in particular.
4
In his deposition, Prochnow testified that, in a short conversation in a hallway,
Nagel whispered, “I know who did this, but I’m not saying.”
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In late February, Johnson and Falk submitted reports summarizing their
findings and conclusions from the internal investigation. Major Johnson concluded
that Nagel’s statements in the KVLY interview would not “lea[d] the public to
believe that he was clearing his name,” and his appearance “brought discredit to
himself but also [the JPD and the Sheriff’s Department].” Major Falk noted that four
individuals interviewed recalled Nagel telling them he knew who sent the packet.
Falk concluded, “It is extremely difficult not to believe that Detective Nagel is
protecting the identity of whoever is responsible for the false allegation.” After
reviewing these reports, Edinger convened a Review Board of four officers and one
citizen to determine if JPD officers had violated JPD policies “surrounding or related
to the Whistle Blower broadcast of November 4th, 2015.” After reviewing the reports
from the criminal and internal investigations and the JPD Rules and Regulations and
Code of Ethics, the Review Board unanimously recommended Nagel be terminated.
In a March 7, 2016 letter to City Administrator Jeffrey Fuchs, Edinger agreed
with the Review Board and recommended Nagel’s termination. “The review board
determined Sgt. Nagel violated 19 policies,” Edinger noted. He opined that Nagel
violated the Peace Officer’s Code of Conduct by being aware of alleged felony
misuse of government property and not reporting it. He noted several witnesses heard
Nagel talk about knowledge of the incident, contradicting his internal interview,
which “likely makes him a ‘Giglio impaired law enforcement officer.’”5 In addition,
Edinger opined, “Sgt. Nagel eroded public trust in local law enforcement to a severe
degree,” making him “no longer a viable law enforcement officer.”
In a letter to Nagel dated March 9, 2016, Fuchs and Jamestown Mayor Katie
Anderson concurred in the recommendations of the Review Board and Edinger and
5
In Giglio v. United States, 405 U.S. 150 (1972), the Supreme Court held that
the prosecution must disclose in a criminal case evidence that would impeach its
witnesses, such as a testifying police officer’s prior untruthfulness.
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terminated Nagel’s employment for violations of the Law Enforcement Code of
Ethics and JPD Rules and Regulations. Nagel promptly appealed to the Jamestown
Civil Service Commission, which conducted an eight hour post-termination hearing
on April 27. Nagel, represented by counsel, submitted 121 exhibits, called seven
witnesses including five experts, made an opening statement, examined and cross-
examined witnesses, and submitted a one-hundred-page closing brief. On May 20,
the Commission affirmed Nagel’s dismissal. This lawsuit followed.
II. The First Amendment Retaliation Claim
“[T]he First Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public concern.” Garcetti
v. Ceballos, 547 U.S. 410, 417 (2006). Garcetti noted two inquiries in determining
whether public employee speech is protected against employer retaliation:
The first requires determining whether the employee spoke as a citizen
on a matter of public concern. If the answer is no, the employee has no
First Amendment cause of action based on his or her employer’s
reaction to the speech. If the answer is yes, then the possibility of a First
Amendment claim arises. The question becomes whether the relevant
government entity had an adequate justification for treating the
employee differently from any other member of the general public.
547 U.S. at 418 (citations omitted). “The critical question under Garcetti 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). “Under Garcetti, when a public employee speaks on a matter of public
concern pursuant to his official duties, the speech is unprotected against employer
retaliation.” Lyons v. Vaught, 875 F.3d 1168, 1173 (8th Cir. 2017). Underlying
factual disputes concerning whether the plaintiff’s speech is protected “should be
submitted to the jury through special interrogatories or special verdict forms,” for
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ultimate review of the legal issue by the court. Shands v. City of Kennett, 993 F.2d
1337, 1342 (8th Cir. 1993).
The district court concluded that Nagel was not speaking as a citizen in the
KVLY interview. He agreed to be interviewed as a representative of the FOP, he was
identified as a Jamestown police officer, his gun and handcuffs were visible, and the
story’s subject was feud and fraud at the Stutsman County Courthouse. We agree.
Nagel argues he spoke as a citizen because he removed his badge, left the courthouse,
instructed Stanwood not to identify him as a JPD officer, and took FOP “comp” time
for the interview. However, Nagel told the interviewer he knew about the photo sent
to the Whistleblower Hotline, did not know who sent it, but “can say it’s somebody
that would be in fear of losing their job.”
These references to internal law enforcement affairs made clear to the viewing
public that Nagel’s appearance at the interview was ordinarily within the scope of his
duties as a member of the JPD and President of the FOP. “[W]hen a government
employee answers a reporter’s questions involving matters relating to his
employment, there will be circumstances in which the employee’s answers will take
on the character of ‘[o]fficial communications,’ and thus will not be entitled to First
Amendment protections.” Foley v. Town of Randolph, 598 F.3d 1, 8 (1st Cir. 2010)
(quoting Garcetti, 547 U.S. at 422). As in Foley and in Nixon v. City of Houston, 511
F.3d 494, 498-99 (5th Cir. 2007), this was such a circumstance. Though Nagel was
not required to speak to the media at the scene of its investigation, he chose to do so.
Predictably, the reporter portrayed him as a representative of the JPD and the FOP.
The district court further concluded that Nagel’s speech during the interview
was not on a matter of public concern because his asserted desire “to clear the name
of Dominic Brimm, his Facebook alias,” was a purely private interest. Nagel argues
that government malfeasance is a matter of public concern even if the allegation
proves to be false. That is no doubt true. But in determining whether employee
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speech addressed a matter of public concern, we examine the content, form, and
context of the speech. Connick v. Myers, 461 U.S. 138, 147-48 (1983). If the
employee’s main motivation is to further a private interest, his “speech is not
protected, even if the public would have an interest in the topic of [his] speech.”
Anzaldua v. Ne. Ambulance and Fire Prot. Dist., 793 F.3d 822, 833 (8th Cir. 2015)
(quotation omitted). Here, Nagel’s reported speech at the KVLY interview was an
attempt to distance himself from the matter of public concern being investigated --
despite the photo’s link to Dominic Brimm, Nagel denied sending the whistleblower
packet or knowing who sent it.
The district court further concluded that, even assuming Nagel was a citizen
commenting on a matter of public concern, his speech at the interview was not First
Amendment protected under the second Garcetti inquiry -- “whether the relevant
government entity had an adequate justification for treating the employee differently
from any other member of the general public.” 547 U.S. at 418. This inquiry requires
a court to balance “the interests of the [employee], as a citizen, in commenting upon
matters of public concern and the interest of the State, as an employer, in promoting
the efficiency of the public services it performs through its employees.” Pickering
v. Bd. of Educ., 391 U.S. 563, 568 (1968). Applying non-exclusive factors this court
has weighed for many years,6 the district court concluded “it is clear that the City’s
interest outweighs that of Nagel” -- the KVLY interview “created great disharmony
in the workplace, interfered with Nagel’s ability to perform his duties, and impaired
his working relationships with other employees.” Again, we agree.
Regarding the employer’s interest in preventing disruption and disharmony in
the workplace, the JPD, as a public safety organization, “has a more significant
interest than the typical government employer in regulating the speech activities of
6
See, e.g., Anzaldua, 793 F.3d at 835; Tyler v. City of Mountain Home, Ark.,
72 F.3d 568, 570 (8th Cir. 1995); Shands, 993 F.3d at 1344.
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its employees in order to promote efficiency, foster loyalty and obedience to superior
officers, maintain morale, and instill public confidence.” Shands, 993 F.2d at 1344
(quotation omitted); see Morgan v. Robinson, 920 F.3d 521, 526 (8th Cir. 2019) (en
banc). We give “considerable judicial deference” to government determinations that
a public safety employee’s speech “had caused or would cause dissension and
disruption.” Anzaldua, 793 F.3d at 834 (quotation omitted).
Nagel argues there is insufficient evidence of disruption, as evidenced by the
fact that the City did not fire him until four months after the story aired. We disagree.
The summary judgment record contains overwhelming evidence of actual disruption.
Indeed, the undisputed evidence of actual disruption and demonstrated impact far
exceeds that in Anzaldua and in Morgan, a case in which we affirmed the grant of
summary judgment because the claimed First Amendment violation was not “clearly
established.” Following airing of the newsclip, the Sheriff’s Department barred
Nagel from their offices and cancelled the FOP’s ATM and vending machine
contracts. Some officers shunned Nagel for talking to the news media about an
internal issue. Others were distressed by the rift it created with the Sheriff’s
Department, and with good reason. The public complaints to Edinger reflected, not
surprisingly, that the citizens of Stutsman County have a strong interest in good
working relations between two agencies operating out of the same courthouse and
sharing responsibilities for effective law enforcement.
The false whistleblower allegation implied that Sheriff Kaiser had violated the
law by misusing government property, a theme fostered by Nagel’s participation in
the KVLY interview. This triggered a BCI investigation into whether members of
either agency had committed criminal defamation and a lengthy internal investigation.
After over thirty internal investigation interviews, the investigators found that Nagel
lied in the KVLY interview and again in his internal interview by denying he knew
who sent the whistleblower packet, a finding which the Review Board and Chief
Edinger adopted. The finding that Nagel had been dishonest, even if wrong, made
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him a Giglio-impaired officer because prosecutors would now be required to disclose
the finding any time he testified. The “shunning” by other officers further
compromised Nagel’s ability to perform his job effectively by adversely affecting the
close working relations essential in a police department. An amicable working
relationship between the two law enforcement agencies was an important employer
interest. See Tyler, 72 F.3d at 570.
For these reasons, we conclude the district court properly granted Defendants
summary judgment dismissing Nagel’s First Amendment retaliation claim because
he failed to prove his speech as a public employee was protected by the First
Amendment under Connick, Pickering, Garcetti, and Lane.
III. The Procedural Due Process Claim
Defendants concede that Nagel possessed a property interest under North
Dakota law in continued employment with the JPD. Therefore, the Due Process
Clause of the Fourteenth Amendment required that he not be deprived of that interest
“except pursuant to constitutionally adequate procedures.” Cleveland Bd. of Educ.
v. Loudermill, 470 U.S. 532, 541 (1985). In Loudermill, the Court reaffirmed that the
Due Process Clause requires “some form of pretermination hearing” prior to an
employee’s discharge. Id. at 542. On appeal, Nagel argues the district court erred in
concluding that the City afforded him constitutionally adequate pre-termination
process. We review the grant of summary judgment on this claim de novo. Krentz
v. Robertson, 228 F.3d 897, 902 (8th Cir. 2000).
The pretermination hearing serves “as an initial check against mistaken
decisions -- essentially, a determination of whether there are reasonable grounds to
believe that the charges against the employee are true and support the proposed
action.” Loudermill, 470 U.S. at 545-46. Prior to termination, “[t]he tenured public
employee is entitled to oral or written notice of the charges against him, an
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explanation of the employer’s evidence, and an opportunity to present his side of the
story.” Id. at 546. The pretermination hearing “need not be elaborate,” and “the
existence of post-termination procedures is relevant to the necessary scope of
pretermination procedures.” Id. at 545, 547 n.12. Here, Nagel was afforded a full
trial-like Civil Service Commission hearing in which he was represented by counsel.7
Nagel’s primary argument on appeal is that the City clearly violated the Due
Process Clause requirements of Loudermill because the only arguable pretermination
hearing was an internal investigation interview in which Major Johnson refused to
explain the charges he was investigating and gave Nagel no opportunity “to present
his side.” We reject this contention, first because it drastically understates the
panoply of pretermination procedures that served “as an initial check against mistaken
decisions” in this unusual case.
The process began with the BCI’s criminal investigation of who had falsely
accused Thom and Sheriff Kaiser of unlawfully misusing government property.
When Special Agent Maixner arrived to interview Nagel on November 23, attorney
Larson presented a letter demanding that the Attorney General end the investigation
and a lengthy legal memorandum explaining that Nagel had committed no offense
and denying any “relationship or connection between an anonymous tip to the
Whistleblower Hotline and Thomas Nagel’s employment with the Jamestown Police
7
Nagel argues the district court erred by citing our statement in Smutka v. City
of Hutchinson that “robust post-termination proceedings may cure superficial
pretermination proceedings,” 451 F.3d 522, 527 (8th Cir. 2006) (emphasis added), in
a case in which the employer provided no pretermination process. The point is
irrelevant, as pretermination process was provided in both Smutka and in this case.
Our use of the word “cure” should not give rise to this issue. It was a shorthand for
our more precise interpretation of Loudermill in other cases: “as long as there are
adequate post-termination [proceedings] available, the pretermination [proceedings]
need not be extensive.” Krentz, 228 F.3d at 903 (quotation omitted); see Sutton v.
Bailey, 702 F.3d 444, 447-49 (8th Cir. 2012).
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Department.” In late December, Larson wrote Special Agent Maixner advising that
“word on the street” was that Stutsman County has used a similar jet ski “for law
enforcement operations,” and that entering Stutsman County and the registration
number of the jet ski Thom was riding on the “Game and Fish Watercraft Renewal
Web Site” would produce a “registration is current” response.
On January 14, 2016, Larson filed a grievance with the Stutsman County
Commissioners alleging that County Auditor Bradley “for no good reason maligned
and vilified Nagel and the FOP in his remarks during the KVLY newsclip.” On
January 25 and 27, Nagel filed two grievances with the City Personnel Director
against Chief Edinger for actions taken after the KVLY newsclip aired; each
grievance included a lengthy defense of Nagel’s actions on November 4.
On February 11, Major Johnson advised Nagel that “I needed to interview him
as part of the internal investigation.” Nagel responded that dealings should be
through attorney Larson. On February 15, Johnson received a letter from Larson
threatening criminal charges and a § 1983 lawsuit against Edinger and Johnson.
Johnson’s response confirmed the purpose of the investigation was “violations of the
Rules and Regulations of the Jamestown Police Department” and ordered Nagel to
appear for an interview during normal working hours on February 19. To protect
Nagel’s right to criminal immunity under Garrity v. New Jersey, 385 U.S. 493 (1967),
Larson obtained a writ of mandamus excluding employees of any other investigative
agency from attending the interview, including Major Falk. Johnson then conducted
the interview on February 19 with Larson present.
At the interview’s outset, Johnson stated that he “had been assigned by Chief
Edinger to conduct an internal investigation into the incident November 4 that
occurred on . . . Valley News Live.” After Nagel confirmed his familiarity with the
incident, Johnson read Nagel his “Garrity rights”:
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You are hereby ordered to fully cooperate with the investigating officer.
Your failure to cooperate will create an objective and subjective fear of
termination. You have the following rights and responsibilities during
this investigation: You have the right to be informed of the allegations
involved. You’ll be asked questions directed and narrowly related to the
performance of your official duties. Statements made during any
interviews may be used as evidence of misconduct or as the basis for
seeking disciplinary action against you. Any statements made by you
during these interviews cannot be used against you in any subsequent
criminal proceeding.
Nagel asked what allegations were involved. Johnson replied, “violation[s] of
Jamestown Police Department’s Rules and Regulations” and the “Code of Ethics.”
When pressed by Nagel on the “work related nature” of the investigation, Johnson
said “you were a representative of the Jamestown Police Department on November
4, 2015 when you appeared in front of the camera . . . and you may have discredited
our police department by doing that.” This confirmed that Nagel faced disciplinary
action depending on what the investigation discovered. See Powell v. Mikulecky,
891 F.2d 1454, 1459 (10th Cir. 1989). Johnson then questioned Nagel about his
involvement in the KVLY story and what he knew about the whistleblower’s identity.
The questions made clear that other persons interviewed had said Nagel admitted
knowing but refused to disclose who sent the whistleblower packet to KVLY, giving
Nagel an opportunity to respond on an issue that could obviously result in discipline.
Before concluding the interview, Johnson asked Nagel if there was “something else”
he would like to add. Nagel declined.
Loudermill requires public employers to include in the pretermination process
a “meaningful opportunity to invoke the discretion of the decisionmaker . . . before
the termination takes effect.” 470 U.S. at 543. Throughout the lengthy process
following the KVLY newsclip, Nagel repeatedly confirmed that, as a participant, he
“knew enough about the incident to prepare a response,” Smutka, 451 F.3d at 527,
and he had many meaningful opportunities to present his side of the case. A
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meaningful opportunity to respond may occur prior to the completion of an
investigation into possible wrongdoing. See Post v. Harper, 980 F.2d 491, 494-95
(8th Cir. 1992). It is well established that Major Johnson was not obligated “to
provide all the details of the charges.” Larson v. City of Fergus Falls, 229 F.3d 692,
697 (8th Cir. 2000); see Sutton, 702 F.3d at 448. Nagel acknowledged receiving and
consulting the JPD Rules and Regulations manual as a JPD officer. See Keefe v.
Adams, 840 F.3d 523, 535-36 (8th Cir. 2016). He appreciated the gravity of the
interview and zealously presented his side of the events surrounding the KVLY story,
as he had done in the January grievances.
Nagel’s internal investigation interview departs from most of our Loudermill
cases in one notable way. Unlike the plaintiffs in Post and Keefe, Nagel did not meet
with a supervisor in his pretermination hearing. However, this does not render the
pretermination process deficient. An investigative meeting can provide an employee
constitutionally sufficient pretermination process even when the meeting is not
conducted by the employee’s supervisor. See Danielson v. City of Seattle, 742 P.2d
717, 722-23 (Wash. 1987) (internal police department interview during which
plaintiff officer admitted the charge was sufficient pretermination process); Riccio v.
Cty. of Fairfax, 907 F.2d 1459, 1465 (4th Cir. 1990) (police officer’s meetings with
officer investigating allegations of wrongdoing provided effective notice of the
charges). Extra layers of review did not rob Nagel of an opportunity to respond.
They helped ensure the accuracy of the City’s decision to terminate.
Nagel was fired in part for lying in his interview and not disclosing the person
who sent a false misuse-of-property allegation to the media. But lying in the initial
opportunity to respond does not entitle the employee to a separate opportunity to
respond to the charge of dishonesty. See Keefe, 840 F.3d at 535-36 (when plaintiff’s
response at an informal pretermination meeting “provided the predicate” for his
removal, no additional opportunity to respond was necessary). Major Johnson’s
questions made it clear that other persons said that Nagel knew the whistleblower’s
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identity. Nagel knew the chaos and disruption the false accusation had caused in both
law enforcement agencies, knew it was his duty as a police officer to disclose the
wrongdoer, and knew that failing to do so would almost certainty lead to discipline
if not dismissal. In these circumstances, a requirement that the employer provide an
additional opportunity to respond before adverse action is taken would be an
unwarranted intrusion on the “governmental interest in the expeditious removal of
unsatisfactory employees.” Loudermill, 470 U.S. at 543.
Though Nagel declined to be interviewed by the BCI and declined Major
Johnson’s invitation to say more at the end of that interview, he took full advantage
of many opportunities to explain why he had done nothing wrong in the grievances
he filed against Edinger and Bradley and in Larson’s attack on the BCI’s jurisdiction
and grievance against Auditor Bradley. Unfortunately for Nagel, facts pointed the
other way, especially fellow officers contradicting his insistence he did not know who
sent a screenshot photo identified by his Facebook name “Dominic” to the media.
Based on ample pretermination evidence guarding against a “mistaken decision,”
Major Johnson, Major Falk, the Review Board, and Chief Edinger concluded that
Nagel had not been truthful and had brought discredit on the JPD. The City’s
decisionmakers agreed and fired Nagel. Their decision was upheld after a full trial-
type post-termination hearing. The district court did not err in concluding there was
no deprivation of Nagel’s federal right to procedural due process.
IV. The North Dakota Constitution Claims
Finally, Nagel argues the district court erred in dismissing without prejudice
his claim that Defendants’ actions violated his free speech and due process rights
under Article I, Sections 4, 5, and 9 of the North Dakota Constitution. When the
district court has disposed of all federal claims that conferred original jurisdiction, it
may decline to exercise supplemental jurisdiction over remaining state law claims.
28 U.S.C. § 1367(c)(3). Usually, the dismissal of the federal claims “will point
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toward declining to exercise jurisdiction over the remaining state-law claims.”
Wilson v. Miller, 821 F.3d 963, 971 (8th Cir. 2016) (quotation omitted). Such a
dismissal is without prejudice and is reviewed for abuse of discretion. See Johnson
v. City of Pine Bluff, 450 F. App’x 557, 557 (8th Cir. 2012).
There is no North Dakota statute that creates a private right of action for
violations of the North Dakota Constitution, like 42 U.S.C. § 1983. In Kristensen v.
Strinden, 343 N.W.2d 67, 70 (N.D. 1983), the Supreme Court of North Dakota stated
that “our court to date has not implied a direct cause of action for damages for
violations of the North Dakota constitutional provisions relied upon,” though North
Dakota courts have power to do so. The district court, declining to take the
“extraordinary step” of inferring a right of action under the North Dakota Constitution
when the Supreme Court of North Dakota has not done so, dismissed these claims
without prejudice so Nagel may pursue them in state court. There was no abuse of
discretion.
For the foregoing reasons, the judgment of the district court is affirmed.
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