dissenting:
Regretfully, I must dissent from the majority position.
The issue on this portion of the appeal relates only to the official written report submitted by Mr. Koch as to the cause of the fire and the grant of judgment n.o.v. by the trial court on the First Amendment issue. This was a report required to be submitted as one of his duties as fire marshal. He and two inspectors made the investigation. The plaintiff Koch in his report concluded that the fire was caused by arson. It is on this report alone that the plaintiff relies as protected speech.
At the time the official report was submitted no official position had been taken by the plaintiff’s superiors as to the cause of the fire. There was no issue, no dispute as to the fire. The report was not critical of any policies in effect at the time nor of the performance of duties by any city employees or officials. The report was in the exercise of a narrow affirmative duty placed on the plaintiff to investigate and make a report on the cause of fires. His immediate superior was the fire chief. It was thus an isolated and independent exercise of plaintiff’s duties and not part of any ongoing problem or issue. It represented plaintiff’s official conclusion as to the cause of this fire and nothing more. The record does not in any way indicate that plaintiff intended the report to be anything other than the ordinary exercise of his routine duties within the fire department although the matter was serious.
Common understanding tells us that plaintiff was doing what the multitude of city employees in Kansas were doing that same day — submitting reports and statements as to their activities, conclusions, and opinions in the performance of their duties. Each was of a greater or lesser significance, but each was part of the fuel for the machinery of government and each had an impact on the public and was of interest to the taxpayers and the public generally. It would be expected by common knowledge that each submission would become public knowledge by reason of its nature, or by its impact on individuals or groups or by reason of the sunshine laws. The fact that the reports would become generally known seems to be present in every instance such as this and does not serve to help us reach a conclusion.
Public knowledge or public airing of a statement such as this does not of itself make it of “public concern” as the term is used in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708. Whether the statement was made public, how it was made public, who made it public, or the extent of the publicity would not seem to be significant. Key v. Rutherford, 645 F.2d 880 (10th Cir.1981). As the Court said in Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619:
“The First Amendment forbids abridgment of the ‘freedom of speech.’ Neither the Amendment itself nor our decisions indicate that this freedom is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public. We decline to adopt such a view of the First Amendment.”
*1500Connick tells us that the “nature of the employee’s expression” is the significant factor. This is a question of subject matter and context as the Court there states. This is the issue before us.
If any and every official report by a public employee regardless of its “nature” became a matter of “public concern” because it received publicity there would be no room for expression of opinion or “give and take” in the conduct of the public business, as we said in Schmidt v. Fremont County School District No. 25, 558 F.2d 982 (10th Cir.1977). Also as the Court said in Connick, “government offices could not function if every employment decision became a constitutional matter.”
What was the “nature of the employee’s expression” in the case before us? The record shows, as already described, that the report by plaintiff was a statement of his conclusions as a public employee limited to a matter within his official duties. The Court in Connick makes a reference to Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811, as follows:
“The repeated emphasis in Pickering on the right of a public employee ‘as a citizen, in commenting upon matters of public concern,’ was not accidental. This language, reiterated in all of Pickering’s progeny, reflects both the historical evolvement of the rights of public employees, and the common-sense realization that government offices could not function if every employment decision became a constitutional matter."
The Court in the same opinion thereafter said:
“We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior. Cf. Bishop v. Wood, [426 U.S. 341,] at 349-350 [96 S.Ct. 2074, 2079-2080, 48 L.Ed.2d 684], Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government; this does not require a grant of immunity for employee grievances not afforded by the First Amendment to those who do not work for the State.”
The basic consideration by the Court in Connick was the fact that the “speech” arose from and concerned the refusal by plaintiff to accept a transfer and the office dispute as to her position. This was the “personal interest" referred to by the Court. When the statement is placed in the “personal interest” category it is neither of “public concern” nor is it advanced by the employee “as a citizen.” It thus fails on both requirements set forth in Pickering and emphasized in Connick. We have considered several personal interest cases. Saye v. St. Vrain Valley School District RE-1J, 785 F.2d 862 (10th Cir.1986); Bailey v. Kirk, 777 F.2d 567 (10th Cir.1985); Sipes v. United States, 744 F.2d 1418 (10th Cir.1984), and Wilson v. City of Littleton, Colo., 732 F.2d 765 (10th Cir.1984), wherein the requirements of Pickering were not met.
There is, of course, no personal interest element in the case before us, but there exists an equally evident failure to meet the Pickering-Connick requirements. This is the fact that the report here concerned was not made by the plaintiff “as a citizen commenting____” It was instead made by the employee solely in his official capacity. Thus, in my view, the report did not invoke First Amendment protection.
In Schmidt v. Fremont County School District No. 25, 558 F.2d 982 (10th Cir.1977), we also considered a statement of general interest by a school principal which we described as a “part of his official functions” and thus did not invoke First Amendment protection. We there said in part:
“Furthermore, to hold otherwise would preclude discussion between a school board and its employees on the formulation and administration of matters of policy in the school system. A give and take is expected in discussions as to internal issues.”
*1501See also Wilson v. City of Littleton, Colo., 732 F.2d 765 (10th Cir.1984).
Thus the report here considered is well within our holding in Schmidt. It is purely an official statement, presented as such, and plaintiff was “speaking” only as a public employee and not as a citizen. This does not meet the requirements set forth in Pickering and Connick.
I would thus affirm the trial court.