Judge hears arguments in Gibbons texting case

Cathleen Allison / Nevada Appeal / File photo

Gov. Jim Gibbons demonstrates how he text messages with his thumbs in a meeting in summer 2008 with the Nevada press corps.

Associated Press

Friday, March 12, 2010 | 3:45 p.m.

A federal judge on Friday heard arguments on how much should proceed of a woman's lawsuit against Gov. Jim Gibbons over her firing from a state job.

U.S. District Judge Robert C. Jones pressed lawyers for Mary Keating, who claims she was improperly fired because the governor believed she leaked information about personal messages sent from his state cell phone.

The judge, at a hearing in Reno, questioned them over claims that Keating's due process and First Amendment rights were violated.

Keating lawyer Monique Laxalt said her client has cause for action because she was moved from a managerial position working for Gibbons' budget director to a non-managerial job with the Nevada Department of Conservation and Natural Resources.

Keating, a certified public accountant, now works for the state controller overseeing federal stimulus funds to the state.

"She was an exemplary 25-year state employee. ... It's a demotion if the duties are not similar," Laxalt said.

The judge said Keating would have cause for action had she been left without a job, but she has since worked for other state agencies for similar pay.

"They didn't take away her job; they changed her assignment," Jones said. "What happened here was a change of duties."

Stephen Quinn, chief deputy attorney general representing Gibbons, said afterward that he thinks the judge's comments struck at the heart of Keating's due process claim.

"I think they'll lose their due process claim," he said. "The fact is she has suffered no loss of income and no interruption of employment."

Keating was working for state Budget Director Andrew Clinger when she was fired in May after news broke about the governor's private text messages to another woman.

Gibbons later apologized for the more than 800 texts and reimbursed the state $130.

Keating is suing Gibbons and Clinger for unspecified damages and reinstatement to the post where she oversaw, among other things, the governor's office expenditures.

Laxalt on Friday argued Gibbons was involved in Keating's termination, citing a statement he made in early 2007 expressing a desire to get rid of her.

Gibbons made the comment to first lady Dawn Gibbons in the presence of staff, said Keating attorney Cal Dunlap, who also represents Dawn Gibbons in a pending divorce from the governor.

"It was a statement of intent," Laxalt said.

The judge replied, "There's nothing unlawful about his statement."

Quinn noted there was a 1 1/2-year time lag between when the comment was made and when Keating was terminated. He maintained there's no evidence of the governor's involvement in Klinger's decision to move her from the position.

Gov. Gibbons, in a deposition, said he was unaware of Keating's name until the lawsuit was filed, and he had nothing to do with the firing.

His lawyers, in court documents, said Keating was terminated because of "repeated rude and discourteous treatment of others."

Dunlap, after the hearing, acknowledged that Jones would rule against the lawsuit's First Amendment claim.

"(That's) because she stated she didn't go to the media" with information about the governor's private text messages to another woman, Dunlap said.

Jones said he intends to issue a later ruling that will narrow the scope of the case but keep it alive.

"You still have a lawsuit," he told Dunlap and Laxalt.

Keating also is asking for damages for emotional distress and humiliation, among other things.