(concurring). The majority correctly concludes that under the law as it exists today, these defendants are not entitled to the defense of qualified immunity. Because I am bound by that law, I concur with the majority's holding. I write separately, though, to express my dissatisfaction with what I perceive to be significant flaws in qualified immunity jurisprudence.
In a democratic society, the operation of government relies upon the participation of average citizens. Generally speaking, these individuals are not legal experts. Nonetheless, the positions they occupy, often at great personal sacrifice and without compensation, require them to make controversial decisions on matters of public importance without the luxury of time or complete knowledge. The doctrine of qualified immunity enables officials to carry out their vital public duties in a vigorous, principled manner. It is not in society's best interest to have these individuals subjected to personal liability whenever their conduct falls short of some legal ideal. In the end, qualified immunity acts to "protect the public at large, not to benefit its agents." Wyatt v. Cole, - U.S. -, 112 S. Ct. 1827, 1833 (1992).
Society, of course, also benefits from the informed opinions of public employees. After all, these employees are often in the best position to know what problems may exist within an agency. No reasonable person can suggest that civic-minded, responsible individuals should be punished for voicing their opinion on matters of public concern.
The difficulty lies in trying to strike a balance between the employee's interest in expressing his or her views and the employer's interest in ensuring the effective and efficient fulfillment of its responsibilities *358to the public. Pickering v. Board of Education, 461 U.S. 563 (1968). In my view, the law unrealistically skews this balance, leaving courts to express fine-sounding platitudes about the need for qualified immunity, but effectively limiting their ability to implement the doctrine.
The reason why is quite simple. Qualified immunity is an affirmative defense pleaded in a motion for summary judgment. At that stage, courts are bound to review the pleadings in the light most favorable to the party opposing the motion for summary judgment. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 317, 401 N.W.2d 816 (1987). In qualified immunity cases, that party will be the employee. Summary judgment can only be granted if, after giving every reasonable inference to the employee, the undisputed facts indicate that under no circumstances can the employee recover. Id.
This is proper. Matters that are in dispute, especially those which implicate a person's right to free speech, should not be disposed of at summary judgment. The problem with qualified immunity analysis is that it prevents courts from truly considering all the undisputed facts of a case. As a result, public officials are subjected to litigation and liability in cases where a more encompassing inquiry at the summary judgment stage would have recognized their right to qualified immunity.
As the majority explains, there are only two inquiries to be addressed at this stage:
1) whether Burkes' statements to the State Auditor and the Attorney General touched upon matters of public concern, Connick v. Myers, 461 U.S. 138, 147-48 (1983), and if so,
*3592) whether Burkes' interest in making the statements exceeded the trustees' interest in ensuring the effective and efficient fulfillment of their responsibilities to the public. Pickering v. Board of Education, 461 U.S. 563 (1968).
These tests limit courts to considering solely the employee's speech and the disruptive aspects of that speech. Rankin v. McPherson, 483 U.S. 378 (1987); Barnhill v. Board of Regents, 166 Wis. 2d 395 (1992).1 Thus, at the summary judgment stage on the issue of qualified immunity, courts cannot consider undisputed facts indicating that the employee's performance had been so poor that he or she was about to be fired anyway. Nor can courts adequately look at undisputed evidence that the employee's relationship with the employer was deteriorating, or that the employer has completely lost confidence in the employee's ability to perform his or her responsibilities for reasons unrelated to the speech.
In my opinion, Connick, Pickering and their progeny unduly limit a court's ability to review all undisputed facts when determining whether or not to recognize the defense of qualified immunity. The result is to place employers in a very difficult position. Suppose, for instance, the public employer has an employee who occupies an important, even vital government post. Suppose further that this employee's performance *360has been so poor, and his behavior so erratic, that the employer is legitimately concerned that its operations are threatened. In fact, it is so concerned that it is on the verge of discharging the employee. Getting wind of this, the employee rushes to the press or to law enforcement officials or even to the employer itself and makes accusations of corruption which may or may not be accurate. I believe that an employer in that situation should not be so intimidated by the fear of litigation that it fails to do what it reasonably believes is in the public interest. I would allow courts to consider these undisputed facts in the qualified immunity analysis.
The scenario described above is not so different, in my view, from what happened in this case. I believe the pleadings in this case, even when read in a light most favorable to Burkes, amply establish that his relationship with the trustees was deteriorating long before he raised his vague allegations of "influence peddling" and "employee intimidation" to the attorney general.2 Ideally, all of the undisputed facts pertaining to Burkes' relationship with the trustees, even though unrelated to Burkes' actual speech, could be considered in a court's analysis of whether the trustees' decision to discharge Burkes was reasonable given the entire context of the relationship.
The approach I recommend is consistent with the sentiments, if not the analysis, expressed in many Supreme Court decisions. For instance, in Waters v. Churchill, — U.S. —, 1994 WL 223511 (U.S.) (1994), the Court observed that:
*361The key to First Amendment analysis of government employment decisions, then, is this: The government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate.
Id. at — .
On other occasions, the Court has declared that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, —U.S. —, 112 S. Ct. 534, 537 (1991); Anderson v. Creighton, 483 U.S. 635, 638 (1987). The Court has also instructed that "[i]n performing the [Pickering] balancing, the [employee's] statement will not be considered in a vacuum; the manner, time, and place of the employee's expression are relevant, as is the context in which the dispute arose." Rankin, 483 U.S. at 388. Unfortunately, in my opinion, the Court then compromises these common sense sentiments by preventing courts from truly engaging in a comprehensive consideration of all undisputed facts.
I would favor lending substance to these sentiments by allowing courts in cases such as this to consider the entire context of the employment relationship. If, in light of all the undisputed facts, including those which preceded the employee's speech, it appears the employer reasonably believed its discharge of the employee was necessary to ensure efficient operations, I would grant qualified immunity. As the law stands today, nothing prevents a public employee whose job is *362threatened from making vague allegations of corruption in order to acquire an immunity of their own, an immunity from the government's rightful exercise of its duty to ensure effective operations. Such a result is inconsistent with the goals qualified immunity is designed to further. ("[PJermitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties." Anderson, 483 U.S. at 638.) I believe qualified immunity requires us to engage in a more searching inquiry.
I am authorized to state that Justice DONALD W. STEINMETZ and Justice WILLIAM A. BABLITCH join in this concurring opinion.
The idea that employers must demonstrate actual disruption, however, was rejected recently in Waters v. Churchill, — U.S. —, 1994 WL 223511 (U.S.) (1994), where the Supreme Court noted that its prior cases had "consistently given greater deference to government predictions of harm used to justify restriction of employee speech that to predictions of harm used to justify restrictions on the speech of the public at large." Id. at
It is undisputed that at the June board meeting, and again at the June 23 meeting at which he was discharged, Burkes told the trustees that he was not aware that anyone associated with SWIB had done anything illegal or even improper with respect to finders fees in the real estate division.