concurring in part and dissenting in part.
On September 13, 1983, Police Chief Lloyd Gramling, with the approval of City *735Manager Carl Johnson, relieved Lieutenant R.J. Melton of his duties with the Oklahoma City Police Department. Melton was terminated after nearly twenty-one years of loyal service for violating a portion of § 1.01 of the police department’s operation manual: “Whatever I see or hear of a confidential nature or that is confided to me in my official capacity will be kept ever secret unless revelation is necessary in the performance of my duty.” Relying on the findings of an internal affairs investigation commenced August 1, 1983, a Disciplinary Review Board concluded that Melton improperly had provided a tape recording of a confidential communication between himself and an assistant U.S. attorney to defense counsel of Judge William Page. Judge Page, a friend of Melton for whom Melton testified at trial, was convicted of racketeering and extortion on July 29, 1983. United States v. Page, No. CR-83-73-R (W.D.Okla. filed April 6, 1983), aff'd, 808 F.2d 723 (10th Cir.), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 683 (1987).
Following his discharge, Melton instituted this suit on January 9, 1984, against Oklahoma City and various law enforcement officials connected with the incident, alleging (1) a deprivation of his free speech and due process rights in violation of 42 U.S.C. § 1983, (2) a conspiracy to retaliate against him for testifying on behalf of a defendant in a federal criminal proceeding as proscribed by 42 U.S.C. § 1985(2), and (3) a pattern of racketeering designed to impede the administration of justice in contravention of 18 U.S.C. §§ 1964 & 1503. On February 4, 1985, a jury rendered a general verdict for Melton in the amount of $1,272,000 on his free speech and due process claims, but returned a verdict in favor of the defendants on his conspiracy theory. The district court struck a $28,200 punitive damage award in Melton’s favor and directed a verdict for the defendants on his racketeering charge. The motion for attorney’s fees under 42 U.S.C. § 1988 of internal affairs investigator Carl Smith, the only defendant exonerated on each of Melton’s allegations, was denied. These six consolidated appeals ensued.
The court has delivered a thorough opinion, sorting out the myriad of difficult questions involved, and I join in the court’s disposition of the official-capacity immunity, racketeering, conspiracy, punitive damages, and attorney’s fees issues contained in parts IY-A, Y and VI. But much of the court’s approach to the defendants’ asserted liability under the free speech and due process provisions of our Constitution is overly broad, failing to find support in the record or binding precedent. The record certainly reveals a harsh treatment of Melton, seemingly unwarranted when his “misconduct” is weighed against his lengthy and unblemished service to the police force. But unfortunately, law and justice are not always coextensive. Consequently, the salient issue is not whether the firing of Melton was unfair, but whether the firing of Melton was contrary to law, and whether that violation of law reached constitutional dimensions.
I.
The court first undertakes an analysis of Melton’s claim that the defendants deprived him of his first amendment right to freedom of speech when they allegedly discharged him on the basis of his (1) trial testimony in favor of Judge Page, and (2) disclosure of a communication with the government to Judge Page’s defense counsel. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977), established a three-prong test to determine whether a governmental entity’s decision to discharge an employee contravenes the employee’s first amendment guarantees. The employee must initially show as a matter of law that the speech at issue deserves constitutional protection. The court in this instance correctly points out that this inquiry involves two steps: Whether the speech constitutes a matter of public concern, and, if so, whether the employee’s interest in making the statement outweighs “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Educ., 391 U.S. 563, *736568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). If the speech is worthy of protection, the employee then has the burden of proving as a factual matter that the protected speech was a “motivating factor” in the detrimental employment decision. Mt. Healthy, 429 U.S. at 274, 97 S.Ct. at 569. Lastly, if the employee establishes his case, the employer must be given an opportunity to persuade the jury that it would have reached the same decision in the absence of the protected activity. Id. See generally Koch v. City of Hutchinson, 847 F.2d 1436, 1440 n. 11 (10th Cir.) (en banc), cert. denied, — U.S. -, 109 S.Ct. 262, 102 L.Ed.2d 250 (1988).
A.
Accepting the propriety of the court’s conclusion that Melton’s trial testimony was a matter of public concern which outweighed Oklahoma City’s interest in the effective functioning of its police department, the record contains evidence insufficient for any reasonable jury to conclude that Melton’s trial testimony was the “motivating factor” or cause for his discharge. The letter of September 13, 1983, from Police Chief Gramling to Melton concerning the reason for the discharge makes no reference to the trial testimony, but rather refers only to the tape recorded conversation Melton furnished Judge Page’s defense. Gramling testified that Melton could not be terminated for testifying at Page’s trial. Rec. vol. XIV, at 877. Melton’s expert, Dr. George Kirkham, testified that the action taken against Melton was not based on his appearance as a trial witness. Id. vol. XI, at 554-55. Furthermore, the testimony of Melton himself along with members of the review board unequivocally indicates that Melton’s appearance on behalf of Judge Page had nothing to do with his discharge. E.g., id. vol. X, at 253, vol. XIII, at 746, 829.
As the court notes, defense counsel did a less than desirable job throughout the trial of preserving error by contemporaneous objection. See Fed.R.Evid. 103 (rulings on evidence generally may not be assigned error unless brought to the attention of the trial judge); Fed.R.Civ.P. 51 (party generally may not assign error to an instruction unless objection is made prior to jury deliberation). Nevertheless, instruction five in my estimation is plain error. Despite the absence of evidence sufficient to carry Melton’s burden, that instruction permitted the jury to find Melton’s appearance as a defense witness for Judge Page a motivating factor in the defendants’ decision to terminate Melton. This is a “particularly egregious error” which justifies invoking the plain-error exception to the contemporaneous objection rule. “[A] miscarriage of justice would otherwise result.” United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985). See also Corriz v. Naranjo, 667 F.2d 892, 901 (10th Cir.) (Doyle, J., specially concurring) (instructions not properly objected to at trial to be reviewed where error may well have been a generating factor which culminated in unwarranted verdict or where a “miscarriage of justice may occur”), cert. dismissed, 458 U.S. 1123, 103 S.Ct. 5, 73 L.Ed.2d 1394 (1982); 1 S. Childress & M. Davis, Standards of Review § 4.3 at 241-42 (1986) (federal appeals courts have fashioned a plain error exception in both criminal and civil cases by which to review unpreserved errors for a miscarriage of justice). Because no reasonable jury could find that Melton’s testimony was the cause of his discharge on the evidence before it, the district court erred in failing to grant judgment to defendants on that point as a matter of law. No triable issue of fact is present if the evidence is so one-sided as to make a verdict for the opposing party impossible. See Missouri Pac. R.R. Co. v. Kansas Gas & Elec. Co., 862 F.2d 796, 800 (10th Cir.1988).
B.
The constitutional ramifications of Melton’s disclosure to Page’s defense counsel of the recorded conversation between himself and an assistant U.S. attorney are more troublesome. No doubt that disclosure was the “motivating factor” in Melton’s discharge; the defendants so admitted throughout the trial. E.g., rec. vol. *737XII, at 660-61, vol. XIII, at 753. Problems arise, however, with regard to the protected status of this speech. Ultimately though, my concerns relate not to the court’s result on this issue, but rather to the court’s overbroad application of first amendment doctrine.
Whether Melton’s speech addresses a matter of public concern depends on the content, context, and form of the conversation as revealed by the entire record. Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 1690-91, 75 L.Ed.2d 708 (1983). In Koch, 847 F.2d at 1445, we recently recognized that “[a]fter Connick, many courts have particularly focused on the extent to which the content of the employee speech was calculated to disclose wrongdoing or inefficiency or other malfeasance on the part of government officials in the conduct of their official duties.” Speech which may be of general interest to the public is not automatically afforded first amendment protection. Wilson v. City of Littleton, 732 F.2d 765, 769 (10th Cir.1984). More recently, in Conaway v. Smith, 853 F.2d 789, 796 (10th Cir.1988), we emphasized that in analyzing whether speech constitutes a matter of public concern, the focus is on the motive of the speaker, “i.e., whether the speech was calculated to disclose misconduct or dealt with only personal disputes and grievances with no relevance to the public interests.” (emphasis in original).
In this case, the evidence shows that the government had interviewed Melton as a potential defense witness because he was a friend of Judge Page. Rec. vol. X, at 111. Melton informed an assistant U.S. attorney that monies Page received from a government informant may have been legitimate. Moreover, Melton directly placed the informant’s credibility into question. See id. at 182-220 (transcript of taped conversation). Melton, however, recorded the interview for a purely private purpose. As a friend of Page, Melton believed he (Melton) was under surveillance and did not want to risk being misquoted. Id. at 110, 113, 182. Subsequently, Page’s defense counsel asked Melton to appear as a character witness for the judge. During a discussion a few days before trial, defense counsel first became aware of the recording. Id. at 69-72. Melton allowed counsel to review the tape and prepare for Melton’s signature an affidavit in support of a motion to dismiss the charges against Page based upon the government’s failure to comply with Brady v. Maryland, 373 U.S. 83, 86-88, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963) (prosecution’s suppression of evidence favorable to an accused who has requested it violates due process), in violation of a court order. The trial judge in the Page prosecution denied the motion.
Notwithstanding the ruling of the trial judge in the Page prosecution, the district court in this case concluded that the information Melton provided the government was Brady material which the prosecution was obligated to give to the defense; and the court so instructed the jury in instruction five: “You are told that as a matter of law the conversation between the plaintiff and Prosecutor Fredenburg contained ‘Brady’ information that the prosecutor was obligated under court order to turn over to defense counsel in the Page case.” Why defendants’ counsel in this case did not press the prior court’s ruling before the jury in view of Melton’s continual references to a Brady violation in the Page prosecution, and why the district court declined to defer to the prior court’s decision, remain unanswered. But because Melton was not a party or privy to the Page trial, he was not precluded from raising the issue anew in this case. See generally 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §§ 4448-49 (1981).
Melton’s tape recording at least arguably contained colorable Brady material to which Page’s defense was entitled. This conclusion alone, however, does not entitle Melton’s actions to constitutional protection. We must still ask whether Melton disclosed the tape merely to help a friend in trouble — a purely private motiver-or to disclose malfeasance on the part of the prosecution — a matter of public concern. Although the record provides no sure answers, Melton’s testimony leads me to believe the latter:
*738Melton: I was asked about taking any notes first and I advised him no, I had not. And then he asked me if I had taped it, and I said yes, I did.
Counsel: Did he advise you or talk to you? Do you remember him talking to you about the Brady rule and the prosecutor and law enforcement’s responsibility thereunder?
Melton: Yes, sir, he did. And I was somewhat familiar with Brady material prior to him discussing it with me, anyway.
Counsel: What was your state of mind? What did you think the obligation was under Brady at that time?
Melton: Well, one was it very explicit, that the prosecutor does turn over any information to the defense attorney. Whether requested or not, they’re supposed to do it. That is the law, as I understand it, and as I understood it at the time talking to Mr. Goetcher [Page’s defense counsel]. Mr. Goetcher reaffirmed this. And there were other considerations that were made in turning over the tape to the defense, not just based upon Brady. That was my biggest concern.
Counsel: What were the others?
Melton: The one was that it would show beyond a reasonable doubt in anyone’s mind that I did, in fact, have an interview with Wes Fredenburg [assistant U.S. attorney], be no doubt whatsoever.
The second being that I had a moral obligation under my Code of Ethics to protect the innocent against deception, and also to — I can’t quote — right now I can’t quote the Code of Ethics verbatim. But I did have this obligation under the first part of my Code of Ethics of duty.
I had no problem with turning over this tape to the U.S. Attorney on this. Also, it is a state and a federal law that if you have information regarding a case, that it doesn’t make any difference whether it’s for the defense or for the prosecution, and you’re asked to supply that information, if you don’t turn it over, you could be filed on in Court in a criminal action.
Counsel: Were you concerned about a possible obstruction?
Melton: I was concerned with that. I didn’t want to get caught up in an obstruction of justice charge.
Rec. vol. X, at 120-21. This conversation leads to the court’s justifiable conclusion that Melton’s concern in disclosing the tape was public. Unlike the plaintiff in Connick, 461 U.S. at 148, 103 S.Ct. at 1690, Melton was seeking to provide exculpatory information which he believed it was his ethical duty to disclose and which the prosecution had not yet disclosed to defense counsel. Consequently, Meltons actions served to inform, albeit indirectly, the public that the prosecution may not have been fully discharging its responsibilities. But the inference contained in the court’s opinion, court op. at 714, that “information relating to a public official’s guilt or innocence” is necessarily a matter of public concern is impermissibly overbroad. The proper focus must remain principally upon the motive of the speaker. Conaway, 853 F.2d at 796-97; Koch, 847 F.2d 1445-47.1
Having determined that Melton’s disclosure of the recorded conversation constituted a matter of public concern, the court next balances Melton’s interest in relin*739quishing the tape with the state’s interest in preserving a harmonious and effective police force, and concludes that “the City failed to make its case.” Court op. at 716. In so doing, the court purports to establish a rule that “the government must introduce evidence of an actual disruption of its services resulting from the speech at issue.” Id. at 715-16 (emphasis added). Such a rule, however, is absolutely contrary to Supreme Court precedent. As an inferior federal court, we therefore are not empowered to make such a sweeping pronouncement. See Brown v. Allen, 344 U.S. 443, 540, 73 S.Ct. 397, 427, 97 L.Ed. 469 (1953) (Jackson, J., concurring) (“We are not final because we are infallible, but we are infallible only because we are final”).
In Connick, the plaintiff, an assistant district attorney, circulated a office questionnaire asking, among other things, whether the employees felt pressure from their superiors to work in political campaigns. The Court specifically rejected the view that once speech was held to be a matter of public concern, the government had the burden to “clearly demonstrate” that the speech “substantially interfered” with departmental operations. Connick, 461 U.S. at 150, 103 S.Ct. at 1691. Instead, “the State’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression.” Id. The Court continued:
When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate. Furthermore, we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action. We caution that a stronger showing may be necessary if the employee’s speech more substantially involved matters of public concern.
Id. at 151-52, 103 S.Ct. at 1692. The Court concluded that plaintiff's first amendment interest did not require the district attorney to “tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships.” Id. at 154, 103 S.Ct. at 1694 (emphasis added). Proof of actual disruption was unnecessary.
Admittedly, in Rankin, 107 S.Ct. at 2899, and Pickering, 391 U.S. at 570-71, 88 S.Ct. at 1735-36, the Court, while holding in favor of the employees, noted the respective employers’ failure to present any evidence of office disruption. But these passing references to the employers’ lack of evidence is a far cry from the judicial affirmation which the court today makes it out to be. In Koch, 847 F.2d at 1452 n. 22, we emphasized the “heightened governmental interest in maintaining harmony among employees in the law enforcement context, where ‘[mutual] trust and respect among [employees] ... are particularly important’ and ‘[t]he need for confidentiality cannot be gainsaid.’ ” (quoting Egger v. Phillips, 710 F.2d 292, 319 (7th Cir.), cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983)). Accord Conaway, 853 F.2d at 798. Despite the court's contrary implication in this case, Connick binds us: The extent of the government’s burden depends on the nature of the employee’s speech. Connick, 461 U.S. at 152, 103 S.Ct. at 1692.
While recognizing in this case the police department’s interest in preventing disruption to the close working relationship between law enforcement officials and prosecutors so vital to the administration of the criminal justice system, the first amendment rights of an employee seeking to ensure that the ends of justice are met by revealing evidence tending to exonerate a criminal defendant cannot be disregarded. As we recently stated in Conaway, 853 F.2d at 798: “It would be anomalous to hold that because the employee’s whistle blowing might jeopardize the harmony of the office or tarnish the integrity of the department, the law will not allow him to speak out on his perception of potential improprieties....” Moreover, Melton did not voice his concerns to the media, but to an attorney. Any disruption to the Oklahoma City Police Department most likely resulted from its own publication of the charges against Melton. See id. at 798-99. Finally, the police department was not offi-*740dally involved in the investigation of Judge Page. Rather, the investigation was solely a federal matter in which Melton played no official role. Considering all these factors, I am constrained to agree with the court’s conclusion that Melton’s first amendment interest in disclosing the recorded conversation outweighs the governmental interest at stake in this instance.
II.
In contrast, the court’s approach to Melton’s claim that the defendants deprived him of property without due process of law in violation of the fourteenth amendment is wholly unacceptable. Before government employees are entitled to a pretermination hearing, they must first establish the presence of an interest protected by the Constitution:
A public employee facing discharge is entitled to the safeguards of procedural due process only if he can demonstrate that the termination implicates a property or liberty interest protected by the Due Process Clause; if a property or liberty interest is not implicated, he must settle for whatever procedures are provided by statute or regulation.
Sipes v. United States, 744 F.2d 1418, 1420 (10th Cir.1984). See also Rosewitz v. Latting, 689 F.2d 175, 177 (10th Cir.1982) (“normally the issue of whether the plaintiff has a property interest protected by the fourteenth amendment is dispositive”). In Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), the Supreme Court explained that to have a property interest in a benefit, an individual must enjoy “a legitimate claim of entitlement to it,” rather than a mere “unilateral expectation of it.”
A.
Melton first asserts he was denied a property interest in his continued employment with the police department. Although ultimately concluding that Melton received the process due him under the standards set forth in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), the court first determines that “the trial court did not err in ruling that Mr. Melton had a valid property interest in his continued employment.” Court op. at 718 n. 15. The determination of whether Melton had a property interest in continued employment is a question of state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). Melton’s situation is directly controlled by our recent decision in Graham v. City of Oklahoma City, 859 F.2d 142 (10th Cir.1988). Therefore, the court need not reach the question of “what process is due.”
In Graham, an Oklahoma City police officer filed suit against the City and Chief Gramling alleging, among other things, that his termination for purportedly filing a false police report deprived him of a property interest in employment without due process. We held that Graham did not possess a property interest under Oklahoma law because the Oklahoma City Charter grants “all power to discipline and discharge city employees to the city manager and specifically states ‘removals and demotions shall be made solely for the good of the service.’ ” Id. at 146. Relying on Umholtz v. City of Tulsa, 565 P.2d 15 (Okla. 1977), we rejected, as the court must here, the argument that the Police Department Operations Manual created a property interest by providing for discharge only for cause. In Umholtz, the Oklahoma Supreme Court held the discipline procedures set forth by the police department did not legally affect the specific powers granted under the city charter. Id. at 22. See also 11 Okla.Stat. § 1-102(1) (“Once a municipal charter has been adopted and approved, it becomes the organic law of the municipality in all matter pertaining to the local government of the municipality and prevails over state law on matters relating to purely municipal concerns”). This case is indistinguishable from Graham. As we reasoned there, the Oklahoma City Charter is simply not sufficient to provide Melton a legitimate claim of entitlement to continued employment. Graham, 859 F.2d at 146.
B.
Nor am I prepared to accept the court’s cursory conclusion that Melton had a prop*741erty interest in his status as a retired police officer. Presumably, the provisions of the Oklahoma Municipal Police Pension and Retirement System, 11 Okla.Stat. §§ 50-101 to 50-136.1, govern Melton’s involuntary retirement. The court reasons that § 50-125 establishes a protected interest for Melton as a retired police officer. Court op. at 719. That section reads in relevant part:
Members retired under the provisions of this article may retain their status as peace officers of the State of Oklahoma, retired, and as such may retain the right to keep and bear firearms when approved by the officials of the municipality of retirement.
11 Okla.Stat. § 50-125 (emphasis added).
Contrary to the court’s dubious construction, the plain language of § 50-125 indicates that whether retired officers “may retain” their status as peace officers and their right to possess firearms is entirely within the discretion of their superiors. Additionally, neither the court not Melton point to any rule or regulation which entitles him to wear his police uniform in security-type employment. Consequently, under Oklahoma law, Melton has no legitimate claim of entitlement to, and a fortio-ri no property interest in, any status as a retired police officer.
III.
Melton likewise fails to prove under the applicable legal standard that defendants deprived him of a liberty interest without due process of law. In Paul v. Davis, 424 U.S. 693, 712, 96 S.Ct. 1155, 1165, 47 L.Ed.2d 405 (1976), the Supreme Court held that an individual’s interest in a good name or reputation alone does not constitute liberty within the meaning of the fourteenth amendment. In Asbill v. Housing Auth., 726 F.2d 1499, 1503 (10th Cir.1984), we later noted:
In a series of cases, the [Supreme] Court has held that for an employee to make a successful liberty deprivation claim she must show that her dismissal resulted in the publication of information which was false and stigmatizing — information which had the general effect of curtailing future freedom of choice or action,
(emphasis in original). Nevertheless, the court today erroneously holds that the police department’s publication alone of perjury charges against Melton, subsequently dropped, impaired his “liberty interest in good name and reputation.” Court op. at 721.
The penury charges initially leveled against Melton and never publicly retracted may very well have had a stigmatizing effect upon him. But after his discharge, Melton apparently did not seek further employment as a police officer, and thus could only surmise that he could not obtain like employment. Cf. rec. vol. X, at 163-64. In Conaway, 853 F.2d at 789, we stated that “[a]bsent any evidence that Conaway’s attempts to obtain other employment have been hindered by the charge of insubordination, we find that no protected liberty interest was infringed.” Similarly, in Ewers v. Board of County Comm’rs, 802 F.2d 1242, 1249 (10th Cir.1986), reh’g granted on other grounds, 813 F.2d 1583 (1987), cert. denied, — U.S. -, 108 S.Ct. 704, 98 L.Ed.2d 655 (1988), “we h[e]ld that Ewers failed to establish that the accusations stigmatized him in that they had the general effect of curtailing his future freedom of choice with regard to employment opportunities.” These cases control this situation. Melton has not proven the defendants’ deprived him of liberty; at most, he has stated a state law action in defamation.
Even assuming, however, that Melton proved stigmatization, the most to which he is entitled on the liberty issue is a new trial. The district court charged the jury in instruction seven that “[w]hen the termination is accompanied by public dissemination of the charges against him, and those charges would stigmatize the employee’s reputation or foreclose future employment opportunities, due process requires that that employee be provided ... an opportunity to clear his name.” (emphasis added). Under Paul and its progeny, this portion of instruction seven, which allowed the jury to find a liberty interest in reputation alone, is *742simply wrong, and while unobjected to by defense counsel, constitutes plain error.
The court acknowledges Paul’s holding, court op. at 721, but then relies on our discussion in Miller v. City of Mission, 705 F.2d 368, 373 (10th Cir.1983), to uphold the district court’s instruction. Admittedly, instruction seven essentially tracks a portion of the language in Miller. That portion, however, must be read in view of the court’s actual holding in the case, 705 F.2d at 373, in order to avoid a conflict with Paul, which is binding Supreme Court authority. Concerning the sufficiency of the evidence, we held that the record contained “ample evidence from which the jury could have concluded that the circumstances surrounding Miller’s termination placed a stigma on him, and as a practical matter foreclosed other employment opportunities.” Id. (emphasis added). See also Walker v. United States, 744 F.2d 67, 69 n. 3 (10th Cir.1984) (Paul v. Davis held that “a liberty interest was not infringed when the only loss suffered at the hands of the government is a ‘stigma’ or damage to reputation”) (emphasis in original).
Recently, in Wheeler v. John Deere Co., 862 F.2d 1404, 1412 n. 5 (10th Cir.1988), we directed the district courts to “cautiously and sparingly” charge the jury with appellate court dicta:
“What an appellate Judge says for the Court does not mean that such language may, or should, be used as a jury charge. It all depends on whether the words presumably chosen by one artificer [appellate judge] for others of presumed like skill [trial judge] communicate the applicable legal principles to those [jurors] attending, as it were, their-once-in-a-lifetime-law-school-for-a-day.”
(quoting United States Lines Co. v. Williams, 365 F.2d 332, 335 (5th Cir.1966)). In this case, the district court should have recognized that the isolated segment drawn from Miller did not “communicate the applicable legal principles.” To the extent Miller may be read as contrary to Supreme Court precedent, I am mindful of Judge Lamm’s admonition of years ago: “To say that we proceed in the correction of errors nisi, upon the theory we commit none ourselves tickles the judicial fancy, but is quite untrue.” Donnell v. Wright, 199 Mo. 304, 97 S.W. 928, 932 (1906).
Moreover, the district court’s failure to instruct the jury on the falsity requirement cannot be overlooked. See court op. at 722 & n. 21. Falsity is a fundamental element of Melton’s case which he did not prove. See Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882, 883, 51 L.Ed.2d 92 (1977). Although the court noted that at trial defense counsel failed to timely object, that failure should be of no consequence in matters pertaining to well established legal principles which a plaintiff has the burden of proving before recovering a substantial damage award. See Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259, 1266 (10th Cir.1988) (plain error occurs where “substantial right” of party is affected).
Lastly, even if I were to agree that Melton was deprived of a liberty interest, the court’s conclusion that he was entitled to a name-clearing hearing complete with the right to confront and cross-examine witnesses before an administrative review board finds no support in precedent. See court op. at 721-22. “Due process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). “In general, something less than a.full evidentiary hearing is sufficient prior to adverse administrative action.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985). Balancing Melton’s interest in a good name, the police department’s interest in discharging employee’s guilty of misconduct, the avoidance of overwhelming administrative burdens, and the risk of a mistaken termination as required by Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), a trial-type proceeding on a charge which was not even the reason for Melton’s release, is unwarranted. The police department’s public retraction of the perjury charge indicating that no evidence existed to suggest Melton was guilty of perjury might well be suffi-*743dent. But at most, Melton was entitled to written notice of the perjury charge, an explanation of the evidence and an opportunity to present his side of the story. Koerpel v. Heckler, 797 F.2d 858, 868-69 (10th Cir.1986). See also Rosewitz v. Lotting, 689 F.2d 175, 177 (10th Cir.1982) (“The City ... has an important interest in efficient functioning of the city machinery which may be impeded by imposing a requirement of adversarial, trial-like hearings for every discharged employee”).
IV.
In view of my legal conclusion that Melton’s discharge was based upon his constitutionally protected disclosure to Judge Page’s defense counsel of the recorded conversation between himself and the government, the court properly reaches and decides the questions of municipal liability and qualified immunity as they pertain to the disclosure issue. Because the Oklahoma City Charter makes the City Manager ultimately responsible for the dismissal of city employees, and the manager approved the Disciplinary Review Board’s decision to terminate Melton, rec. vol. XII, at 935, 938, Melton’s discharge surely constitutes an act of official municipal policy for which municipal liability may be imposed under the reasoning of Pembaur v. Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 1298-99, 89 L.Ed.2d 452 (1986) (if decision to follow particular course of action is made by government’s authorized decisionmakers, it represents an act of official policy regardless of how many times the action is taken). But because the individual defendants’ actions at the time of the incident were not proscribed by “clearly established law” of which reasonable officials would be aware, the court properly concludes that the principles of Harlow v. Fitzgerald, 457 U.S. 800, 815-19, 102 S.Ct. 2727, 2736-39, 73 L.Ed.2d 396 (1982), preclude their liability. Court op. at 730.
Conclusion
Contrary to the court’s approach, I would grant judgment as a matter of law in favor of all the defendants on Melton’s claim that he was deprived of property and liberty without due process of law, as well as on the claim that his discharge was based upon his trial testimony for Judge Page in violation of the first amendment. I would grant qualified immunity to the individual defendants on Melton’s remaining first amendment claim surrounding disclosure of the tape recording, but remand for a new trial on the issue of damages to be assessed against the City of Oklahoma City for discharging Melton for an impermissible reason; namely, disclosure of a tape recording protected by the first amendment.
Accordingly, I concur in part and dissent in part.
. The form and context of Melton's speech likewise fall within the realm of "public concern.” In Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 2898, 97 L.Ed.2d 315 (1987), the Supreme Court found that plaintiffs private statement to a coworker nonetheless addressed a matter of public concern. Similarly, Melton’s failure to express his concerns in a public forum does not remove them from first amendment protection. Conaway, 853 F.2d at 797.
The record reveals that the defendant’s main objection to Melton’s speech was its recorded nature. No one contested Melton’s right to tape record his conversation with the prosecution or speak with defense counsel. Melton’s death knell sounded when he handed over the purportedly confidential tape to Page’s defense counsel. See rec. vol. XII at 660-61, XIII, at 752-53. Any reason, however, for affording a tape recording any less protection than simple recollection, written notes or the like escapes me.