A federal judge has dismissed an attorney’s retaliation claim against her former employer, a special district based in Lakewood, while at the same time permitting the lawyer’s defamation claim against a blogger to proceed.

Mary Joanne “Jo” Deziel Timmins sued the Green Mountain Water and Sanitation District after it fired her in the summer of 2021. According to Timmins, the board of directors retaliated against her for bringing to the public’s attention the alleged malfeasance and lawbreaking she learned about while serving as the district’s counsel.

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Timmins also named as a defendant John Kiess Henderson, who she accused of conspiring with the board and defaming her by posting untrue statements on his website.

U.S. District Court Judge Charlotte N. Sweeney previously dismissed Timmins’ claims against Green Mountain late last year. At the time, she found Timmins had not satisfied the U.S. Supreme Court’s requirement that public employees show their speech was not related to their official duties — a requirement for First Amendment protection. Sweeney permitted Timmins to amend her lawsuit to better describe how her speech was unrelated to her duties as legal counsel.

But last week, the judge decided Timmins’ latest allegations continued to illustrate that her comments about the board’s misconduct stemmed directly from her job representing Green Mountain.

“Even though Ms. Timmins’ statements were made to members of the press and public — individuals outside of her chain of command — the Court must also assess the content of her statements to determine whether she spoke pursuant to her official duties,” Sweeney wrote in a March 7 order. “As the District Defendants argue, this speech stemmed from the work Ms. Timmins was paid to do as the District’s legal counsel.”

Jeffrey A. Roberts, executive director of the Colorado Freedom of Information Coalition, criticized the decision as having a “chilling effect” on government employees who wish to speak out about official misconduct.

“Sometimes, the only way the public can know if public business is discussed in secret, which the law generally prohibits, is for someone on the inside to blow the whistle,” he said.

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In a separate order issued three days later, Sweeney declined to dismiss Timmins’ related claim for defamation against Henderson. His allegedly-false statements about her, in Timmins’ view, contributed to the board’s decision to fire her.

Timmins came to represent the special district in early 2019, around the time the board voted to terminate an intergovernmental agreement with the nearby Big Sky Metropolitan District to transport Big Sky’s wastewater for treatment. Green Mountain’s about-face on the agreement resulted in the filing of a half-dozen lawsuits, which had the potential to send Green Mountain into bankruptcy.

Timmins learned multiple board members had been receiving “pro bono” legal advice from Henderson, who has written about special districts’ “abuse” on his website, Rooney Valley News. It was Henderson who was responsible for drafting the board resolution to get out of the Big Sky agreement.

Timmins became concerned after learning Henderson was working as a public defender, meaning he was not allowed to practice law outside his job. She warned board members about communicating with Henderson, about preserving their emails and about not violating open meetings law. According to Timmins, board members Alex Plotkin, Jeffrey Baker and Karen Morgan did not comply.

Beginning in 2021, Timmins spoke up at meetings to disclose board members’ alleged legal violations and their actions that reportedly endangered Green Mountain’s ability to defend against the lawsuit. She also spoke to reporters about what she witnessed. Despite winning the Big Sky lawsuit and avoiding $140 million in liability for the district, the board’s majority voted to fire her.

The district argued to the court it fired Timmins because her public statements “generated distrust in and friction with her client, impeded her performance as counsel, and disrupted the regular operations of the District.” Timmins countered that the defendants retaliated against her First Amendment-protected speech.

In 2006, the Supreme Court decided Garcetti v. Ceballos, a 5-4 ruling in which the majority determined public employees’ speech is not constitutionally-protected if made pursuant to their official duties. Government employers, reasoned the court, need “sufficient discretion to manage their operations.”

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Justice David H. Souter, writing in dissent, slammed the decision for its effect on employees “whose specific public job responsibilities bring them face to face with wrongdoing and incompetence in government, who refuse to avert their eyes and shut their mouths.”

Sweeney, in dismissing Timmins’ original allegations in December, acknowledged that some speech by public employees may enjoy First Amendment protection, even if it stems from their job. But after reviewing the updated allegations, Sweeney believed Timmins’ case remained clear-cut under Garcetti.

Timmins’ speech “involves and was related to the type of activities Ms. Timmins was paid to do as a legal professional representing the District,” Sweeney wrote. “Ms. Timmins, as the District’s legal counsel, did not remove her attorney hat simply because she was speaking after hours to individuals outside her chain of command.”

Although Sweeney dismissed all of Timmins’ First Amendment allegations against Green Mountain and the directors who fired her, she kept intact Timmins’ claims of defamation and breach of contract against Henderson. On his website, Henderson stated or suggested Timmins had no legal strategy, paid for her professional awards and failed to ask for a jury trial in the Big Sky lawsuit.

Sweeney believed it was necessary to review the facts before deciding to grant Henderson’s dismissal motion. Unless the parties choose not to forge ahead with the discovery of evidence, Sweeney indicated she will wait to rule after seeing all of the materials.

Lawyers for the parties did not immediately respond to a request for comment.

The case is Timmins v. Henderson et al.