John R. Holland, Denver, for plaintiff-appellant.
Stephen W. Miller, Golden, for defendants-appellees Jefferson County Bd. of Health and Walt Brown, Acting Director.
Bradley, Campbell & Carney, Beverly Fulton, Victor F. Boog, Golden, for defendants-appellees Otto Bebber and Richard Newman, Individually.
Doctor Carl Johnson, former Jefferson County Public Health Officer, filed a complaint in the Jefferson County District Court against the Jefferson County Board of Health (board), two individual members of the board, and the acting director of the Jefferson County Health Department. Johnson sought various forms of relief including a temporary injunction ordering his reinstatement to his former position pending trial on the merits.  Among other assertions, Johnson claimed the board discharged him without complying with the procedural requirements of the Jefferson County personnel rules, and in unlawful retaliation for activities protected by the First Amendment guarantee of free speech, U.S. Const.Amends. I and XIV. The court refused to grant a temporary injunction, and Johnson brought this appeal pursuant to C.A.R. 1(a)(3). Although we agree with the trial court's ruling that the personnel rules did not apply to the discharge of a public health officer, who by statute serves at the pleasure of the county board of health, section 25-1-505(1), C.R.S.1973 (1982 Repl.Vol. 11), we conclude that the trial court failed to apply appropriate constitutional standards in assessing Johnson's request for injunctive relief in connection with his free speech claim. We therefore vacate the judgment and remand to the trial court for further proceedings. 
On June 20, 1973, Johnson was appointed Jefferson County Public Health Officer, effective September 1, 1973, to serve at the pleasure of the board. In December of 1974 Johnson received an inquiry from a county commissioner relating to the safety of rezoning
for residential use a parcel of farm land located near the Rocky Flats Plant, a facility in Jefferson County engaged in the production of nuclear weaponry. After consulting several local experts, Johnson advised the commissioner that radiation levels in the area exceeded related state guidelines and that he believed there might indeed be a safety hazard. The rezoning request was denied.
The commissioner's inquiry sparked various research efforts on the part of Johnson relating to possible health hazards generated by the Rocky Flats Plant. His endeavors included a survey of radiation levels in areas surrounding the plant, the development of a new method of measuring levels of plutonium contamination, advocacy of strict state standards defining the maximum "safe" levels of radiation, and the study of differential cancer rates. Funding sources for his research efforts included not only Jefferson County, but also the National Institute of Health. Some of Johnson's conclusions were quite alarming. Johnson, for example, uncovered evidence which, in his opinion, disclosed that in 1957 an explosion and fire took place at the plant which blew out hundreds of industrial filters and released large amounts of plutonium, an event which he claimed was largely unreported. His study of local cancer rates led him to conclude that radiation from the plant had caused an excess rate of 24% in males and 10% in females for all types of cancer. His studies and findings received considerable attention, and, typically with advance board approval, he traveled nationally and internationally to attend and address various scientific conferences.
Throughout his tenure as public health officer Johnson reported the results of his studies to the board. A majority of the five member board consistently approved continued studies of the health hazards generated by the Rocky Flats Plant and evaluated Johnson's job performance as above average to outstanding. In contrast, however, board chairman Otto Bebber was highly critical of Johnson. He ranked Johnson as an average or unsatisfactory public health officer. Bebber, recommending that Johnson should place greater focus on epidemiological concerns, criticized him for frequent absences, for his calling of press conferences, and for meddling in plutonium and uranium evaluations in areas other than Jefferson County. On two occasions Bebber, without board authorization, took it upon himself to curtail Johnson's activities. In January of 1976 he prohibited Johnson from attending a pending meeting of the Colorado Land Use Commission. In April of the following year he advised a news reporter that Johnson would be publicly censured for giving an interview detailing some of his findings. In each of these instances the majority of the board disagreed with Bebber's actions, and on the latter occasion the board passed a resolution expressing support for Johnson's studies.
On May 31, 1979, the board adopted recently drafted county personnel rules, effective March 15, 1980. These rules permitted a board to dismiss an employee by giving to the employee a written notice of intent to dismiss which contained the reasons for the dismissal. The rules provided that the dismissal would become final three working days following the delivery of the notice of intent to dismiss, unless the employee invoked a grievance procedure established by the rules. See Jefferson County, Co., Personnel Rule XI(B)(3) (1980).
Beginning in late 1980, several high level employees of the Jefferson County Health Department submitted resignations. In December of that year Walter Brown, the administrative assistant of the department, informed the board of his intent to retire on May 31, 1981. The following month Dan Tipton, the director of the environmental health division, informed the board that he was resigning and moving to Maine, where his wife had secured employment. Also, in April of 1981 Doris McCoy, the director of nursing, informed the board of her intent to resign, citing as her reason a desire for a change in careers. On April 17, 1981, some board members met in executive session in order to discuss their concerns about Johnson and the health department. It is not clear from the record which board members,
in addition to chairman Bebber, attended this meeting. Chairman Bebber related to the other members that Tipton had confided to him that the true reason for his resignation was an inability to work and communicate with Johnson. Doris McCoy, who was also present, told the board members that her resignation was due to Johnson's lack of leadership and lack of support for her efforts. The board members were of the view that Bebber should tell Johnson to look for other employment. Bebber later met with Johnson and, according to Johnson, told him that the board members were insisting on his ouster due to his Rocky Flats studies.
In May of 1981 Charles DeShazer assumed office as a new member of the board.  On May 15 the full board met and again discussed Johnson. In executive session the board heard from Doris McCoy, the director of nursing, who described numerous problems she perceived in Johnson's administrative abilities. In her opinion he was a "one issue director" who had no real interest in or understanding of routine health department programs and concerns. At the conclusion of the executive session the meeting was opened to the public. At the opening of the meeting Chairman Bebber invited a motion to dismiss Johnson as public health officer. Johnson stated "I'd rather resign than be dismissed" and requested an opportunity to resign in order to retain accrued employee benefits. His request was accepted by the board in a three to one vote, with one abstention. Three days later Johnson submitted his written resignation to the board.
On June 11, 1981, Johnson filed a complaint under C.R.C.P. 106(a)(4) and later amended his complaint to encompass a variety of theories including injunctive and declaratory relief, money damages, and punitive damages.  He initially sought a temporary injunction ordering the board to reinstate him pending the trial of the case. An extensive hearing was held on Johnson's motion. During the hearing a wealth of evidence was presented detailing not only the course of events culminating in what Johnson characterizes as "his constructive discharge," but also the scientific merit of Johnson's studies and the possible motivations of the three board members who voted to accept his resignation.
Johnson contended that the board action was generated by concerns that his studies would damage property values and development potential in the areas surrounding the Rocky Flats Plant and that the alleged administrative deficiencies were a mere pretext for his removal. He presented evidence that Bebber had at one time owned property near the Rocky Flats Plant and had repeatedly expressed concerns about maintaining the area's property values.  Similarly, according to Johnson's testimony, board member Richard Newman voted to accept the resignation because Johnson had initiated an investigation by the United States Environmental Protection Agency of
several plants located in the Rocky Flats Industrial Park including one in which Newman had an ownership interest.  There was also evidence that the third board member voting for Johnson's ouster, Charles DeShazer, had only just taken office and had never met him.
Johnson was not alone in his view of the board's action. Fredric Jacobus, who was the predecessor of board member DeShazer, testified that the allegations of poor administration were "mere smokescreens for an unjustifiable and personal attack on this man's integrity, professionalism and legitimate public health activities, particularly for his Rocky Flats investigations." This view was shared by Marcia Walsh, the board member who voted against ...