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A former Minot city attorney is asking an appeals court to reconsider its decision in July to affirm the dismissal of her employment claim.
Colleen Auer, who served as city attorney in 2014 from March 31 until her firing May 2, said the Eighth Circuit Court panel's decision is inconsistent with the circuit court's ruling in 2000 on a similar claim of retaliatory firing by a city government. She stated the court's opinion "unjustifiably departs from circuit precedent to strip a public employee of First Amendment rights and protections established by the Supreme Court."
"There is no material factual, legal or evidentiary distinction between these cases or the Free Speech Claims that could account for these contradictory determinations. Consequently, the full court should act to resolve this intra-circuit conflict and to restore the integrity of Supreme Court and circuit law establishing these fundamental rights and protections of significant interest to the public," Auer wrote.
She also argues the court based its decision on wrong information about what happened at a Minot City Council meeting, despite being in possession of a recording of the meeting.
As part of her legal action brought in U.S. District Court, Auer claimed the council retaliated against her for exercising free speech rights. As evidence, she noted the council voted immediately to uphold her firing after she spoke to accuse acting city manager Cindy Hemphill of violating state and local law in firing her without first consulting the council.
The panel of three judges concluded Auer failed to "present sufficient evidence at summary judgment to support a finding that her speech was a substantial or motivating factor in the council's decision." The panel explained that Hemphill's remarks about why she fired Auer without consulting the council came after Auer's speech to the council. Thus, it can be inferred the council was acting on Hemphill's comments rather than Auer's.
However, Hemphill did not speak after Auer at the council meeting. Earlier in the meeting, before Auer arrived, Hemphill mentioned only that the firing decision was made by her in consultation with the council president.
Auer said there is a stronger case for her position than that of the employee whose case was upheld by the court in 2000.
A decision by the court on a rehearing is expected by mid-September. If the court decides to rehear it, the case could heard by the original three-member panel or by the full slate of judges in the Eighth Circuit.
Auer said she filed a nonconforming, incomplete request for rehearing in the rush to meet the deadline, knowing she could ask for an extension to file a more complete document. She then asked for the 14-day extension that she said typically is granted by the court clerk.
Before receiving Auer's extension request, the clerk passed her initial document to the court panel, which chose not to grant the extension. Auer is asking the court to overturn the panel's rejection. Without an extension, the reconsideration would be based on information in the incomplete document.
Auer wrote the panel's "inappropriate, self-interested intervention" in denying the extension ensures she is denied her right to fully inform the rest of the circuit judges of the problems with the ruling. She added such action "is evidence in itself of its recognition of wrongdoing and keen desire to keep those misdeeds cloaked from its colleagues on the bench who, by rights and sworn oath, are entitled to see them."
Panel judges in this case are David Stras of Minneapolis, Bobby Shepherd of El Dorado, Arkansas, and Steven Colloton of Des Moines, Iowa.
Regardless of the court outcome, Auer said, the fight is not over.
"I'm not done," she said in a prepared statement. "Taking on corruption in any context - public or private - is never easy. No one would choose to do it. But when you find yourself in that situation, as I did working for the City, you have a choice to make. Reveal it, conceal it, or run from it.
"As the City Attorney, it was my job to protect the legal interests of the City. I did that while I worked there until the day I was unlawfully forced out. I have continued to do that work through four years of civil litigation with the City. And I will keep doing that work - using any and all means available to me - until I accomplish my objective which is to fully unveil the corruption that has plagued the City and make those responsible answer for it. Because no one is above the law. Especially not those who would abuse the public trust for personal gain. We must hold them accountable. And, I am just stepping up to do my part. Nothing more, nothing less."