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Cundy-Harris v. State Department of Veterans' Affairs12/3/1999
erests. Benjamin, 138 Wn.2d at 520. The United States Supreme Court has recognized that, in engaging in the Pickering balance, courts must grant public employers "wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch." Connick v. Myers, 461 U.S. 138, 151, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983). Moreover, "courts should not require government employers to demonstrate that an employee's speech actually disrupted efficient office operation; rather, 'reasonable predictions of disruption' are sufficient." Moran, 147 F.3d at 846 (quoting Waters, 511 U.S. at 673). Finally, courts should afford "substantial weight" to such reasonable predictions of disruption. Benjamin, 138 Wn.2d at 520 (quoting Waters, 511 U.S. at 673).
Here, under the Pickering balancing test, the State prevails. Two facts are determinative. First, Cundy-Harris occupied a position in which "personal loyalty and confidence" were necessary to the proper functioning of her relationship with DVA Director King. Second, we must give "substantial weight" to King's determination that he lacked confidence in Cundy-Harris.
With regard to the first fact, it is well-established that "{h}igh- level officials must be permitted to accomplish their organizational objectives through key deputies who are loyal, cooperative, willing to carry out their superiors' policies, and perceived by the public as sharing their superiors' aims{.}" Hall v. Ford, 856 F.2d 255, 263 (D.C. Cir. 1988). Further, the State's interest in avoiding disruption is enhanced when the employee asserting her right to speak serves in a "'confidential, policymaking, or public contact role.'" Moran, 147 F.3d at 846 (quoting Rankin v. McPherson, 483 U.S. 378, 390-91, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987)).
In Moran, the court concluded that it was "scarcely debatable" that the relationship between a deputy insurance commissioner who reported directly to the State's Insurance Commissioner was the "'kind of close working relationship {} for which it can be persuasively claimed that personal loyalty and confidence are necessary to {the relationship's} proper functioning.'" Moran, 147 F.3d at 850 (quoting Pickering, 391 U.S. at 570). Because Cundy-Harris, as Human Resources Manager, reported directly to the Director of the DVA and was in charge of recommending important personnel decisions to the Director, King and Cundy-Harris' relationship was one where personal loyalty and confidence was necessary to the relationship's proper functioning.
Regarding the second fact, King stated that Cundy-Harris was released when he determined that he "did not see any way that Ms. Cundy-Harris was going to be able to accept my philosophy and direction for the agency. As a key position in my management team, I saw no option but to have her resign her position." Clerk's Papers at 85. For purposes of this stage of the analysis, the court assumes that Cundy-Harris' speech was a factor in King's determination, a Conclusion that the record amply supports. Mindful that courts shall give substantial weight to "reasonable predictions of disruption," the question presented is whether King's stated lack of confidence in Cundy-Harris was reasonable based on Cundy-Harris' speech.
Here, King's determination was reasonable. To King's knowledge, Cundy- Harris had twice expressed considerable dismay over the findings and content of the Salisbury Report. He believed that Cundy-Harris was unwilling to accept the ultimate findings of the report that substantial wrongdoing had occurred at Retsil and in the DVA's
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