Thomas Berdin was employed by the city of Florida City as a worker on its maintenance crew for many years.1 Berdin's job consisted of maintaining certain areas of the city by mowing grass, cleaning streets, picking up trash, and trimming hedges and trees. In December 1973, the crew was also assigned to maintain the baseball field and the city hired no new employees.

Appellant John Duggan was the mayor of Florida City at the time in issue. On April 11, 1974, Mayor Duggan visited the baseball field and approached the three-man maintenance crew, saying, "How you boys doing?" Berdin replied that they could do much better if they had a couple of more workers. Mayor Duggan responded, "What, is it too much for you?" Berdin replied that the crew was doing all it could but that they could make a better showing if they had more workers.

At this point, Mayor Duggan walked away. He stood aside for a moment, returned to where Berdin was working, and stated, "You don't run my job. I am going to show you who the boss is. You is fired."2 Berdin subsequently collected his final check from the city clerk.

Berdin filed a complaint under 42 U.S.C. sec. 1983 against Mayor Duggan and Florida City alleging, among other things, that the plaintiff had been discharged for exercising his first amendment right to speak.3 Following a bench trial, judgment was entered in favor of Duggan and Florida City on the grounds that Berdin's speech was not protected speech since his speech did not involve a matter of public concern. Berdin then filed a motion to alter or amend the judgment or for rehearing, stating that the issue of protected speech was not specifically covered or emphasized at trial and requesting an opportunity to prove that plaintiff's speech was, in fact, protected. Agreeing that the basis of its decision had not been focused upon at trial, the district court granted the motion to take further testimony on the issue.4

According to the testimony of Berdin and several homeowners, the streets, trees, lawns, and public facilities fell into general disrepair after 1973 and continued in such a state through 1974. The record indicates that Berdin received complaints from citizens regarding the poor conditions of the streets and lawns, citizens appeared at City Hall to voice complaints, and Berdin complained to Commissioner Thompson and requested more men for the maintenance crew. Mayor Duggan testified that the streets and lawns were in good condition, there was ample manpower on the maintenance crew, and that he received no complaints about the condition of the streets and lawns.

Finding Berdin's speech to be a matter of public concern, the district court concluded that the speech was constitutionally protected and entered a final judgment in favor of Berdin and against both defendants. This judgment included damages for back pay less money earned elsewhere, costs, and attorney's fees. Minimum punitive damages were also awarded against defendant Duggan. Both defendants filed motions for new trial, which were denied. The present appeal followed, with the plaintiff filing a notice of cross-appeal on the issue of the award of punitive damages and attorney's fees. We conclude that the judgment of the district court should be affirmed.

In order for Berdin to succeed on the merits, he must demonstrate that his remarks at the baseball field were a motivating factor in the decision to terminate5 and that those remarks were constitutionally protected.6 Once the employee has shouldered this burden, the burden of proof shifts to the government to show by a preponderance of the evidence that it would have reached the same decision to discipline the employee in the absence of the protected speech.7 Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); Paschal v. Florida Public Employees Relations Commission, 666 F.2d 1381 (11th Cir.), cert. denied, --- U.S. ----, 102 S. Ct. 2911, 73 L. Ed. 2d 1319 (1982). Because of the peculiar facts of this case, the only inquiry we need address with regard to Berdin's basic first amendment claim is whether his speech was constitutionally protected.

Whether a public employee's speech is constitutionally protected is determined by a balancing of the employee's interest in free speech and the state's interest in promoting the efficiency of the public services performed through its employees. Pickering v. Board of Education of Township High School District 205, Will County, Illinois, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). This balancing test applies equally to private and public expressions by a public employee. Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S. Ct. 693, 58 L. Ed. 2d 619 (1979).

Prior to Givhan, the cases involving a public employee's right of free speech dealt with public expressions by the employee. In Givhan, a school teacher was dismissed after privately complaining to the principal about certain policies and practices of the school which she perceived to be racially discriminatory. Striking the Pickering balance in favor of the employee, the Supreme Court held that the teacher's criticisms of school policy were protected notwithstanding the private nature of the communication. Thus, the fact that Berdin's expression was directed to Duggan privately8 does not render his speech outside the purview of the first amendment.

Applying the Pickering test involves considerations such as whether the speech was directed toward a person with whom the employee would normally be in contact in the course of his daily work, whether the statements tended to interfere with internal discipline or harmony among co-workers, and whether the speech concerned a matter of public concern. Where private expression is at issue, the Supreme Court has indicated that the time, place, and manner of the speech are to be weighed in the Pickering calculus.9 Givhan, 439 U.S. at 415 n. 4, 99 S. Ct. at 696, 58 L.Ed.2d at 624.

In the instant case, Berdin and Duggan did not normally come in contact during the course of their daily work. No close working relationship existed between this maintenance crewman and the town mayor, and both parties testified that no anger or hostility existed between the two. Further, there was no evidence that Berdin's speech resulted in an internal discipline problem or disharmony among co-workers. Rather, Berdin's onlooking fellow workers continued work as usual.10 Finally, the district court found, based on the testimony and credibility of the witnesses, that Berdin's speech was a matter of public concern. While the specific words may not seem important to the public at large, after independent evaluation of the record, we do not find the district court's ruling that the evidence supported a finding of public concern to be clearly erroneous.11 Consequently, Berdin's criticism of Florida City's maintenance practices is not unlike Givhan's criticism of Western Line's school policy. Both speakers felt strongly enough about the subject matter to personally confront their employer. Thus, we find that under the circumstances of this case the city's interest in efficiency of services does not outweigh the interest of the public employee in free speech and that the speech is constitutionally protected.

Mayor Duggan asserts that his action of firing Berdin12 is protected by a qualified immunity.13 Certainly, a qualified immunity does exist for certain executive officers for discretionary acts performed in the course of official conduct. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). However, the defense of qualified immunity is unavailable to government officials who, though otherwise covered, act in such a manner as to be violative of clearly established statutory or constitutional law. Harlow v. Fitzgerald, --- U.S. ----, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982).

The disciplining of a public employee, for exercising his first amendment right to speak, clearly contravenes established law. See Perry v. Sinderman, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967). In Harlow, the Supreme Court stated that where

the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.14 .. Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action.

Harlow 102 S. Ct. at 2739 (footnote supplied). Accordingly, we find that Duggan should have known in 1974 that his action of firing Berdin was an impermissible exercise of his discretionary power,15 violative of this employee's first amendment rights.

In Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), the Supreme Court held that a municipality is liable in a section 1983 action only when "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." 436 U.S. at 694, 98 S.Ct. at 2037. The municipality may not assert the good faith of its agents as a defense to the liability. Owen v. City of Independence, Missouri, 445 U.S. 622, 100 S. Ct. 1398, 68 L. Ed. 2d 673 (1980). Thus, the inquiry becomes one of whether Florida City had any policy, ordinance, or regulation that could fairly be said to represent official policy granting the mayor the authority to fire public employees.

Florida City maintains that the existence of any such policy is "unknown to the appellant, City." Brief of City of Florida at 19. Florida City Ordinance 73-1, however, grants the mayor authority over city employees with the power to hire and fire. The ordinance imposes no limit on the mayor's discretion. Established by the City Council, Ordinance 73-1 was later ratified by the town residents in an election as Resolution 73-2.16

Florida City also argues that Duggan was not the final authority of administrative decisions but, rather, was answerable to the City Commission. The question of whether the city delegated to the mayor the final authority to make personnel decisions is a question of fact for the trial judge in the first instance. Hearn v. City of Gainesville, 688 F.2d 1328, 1334-35 (11th Cir.1982); Schneider v. City of Atlanta, 628 F.2d 915, 920 (5th Cir.1980). We note the district court's finding that "the mayor was clothed with the authority to actually make the firing decision. Not only is this clear from the evidence of the authority that had been granted him under the type of government that the city operated, but because the evidence otherwise shows that all it took was the mayor to say, 'Get your stuff and go, you are fired,' that is what happened and the city closed him out." (Record, Vol. 6, p. 9).

A district court finding, explicit or deemed, is measured under Rule 52(a) and rejected only "when although there is evidence to support it, [we are] left with the definite and firm conviction that a mistake has been committed." Hearn v. City of Gainesville, 688 F.2d at 1335 (citations omitted). We agree with the district court that Duggan's actions constituted the official policy of Florida City within the meaning of Monell.17

After a review of the record, the findings and conclusions of the district court, and the briefs of the parties, we find the other issues raised by defendants devoid of merit.18 Likewise, we reject plaintiff's contentions on cross-appeal.19 The judgments of the district court are AFFIRMED.