In a split decision, a federal appeals court ruled that officers’ complaints about a superior’s conduct were not a public concern and therefore not protected speech. The dissenting judge said the officers had a right to voice their complaints since they addressed the performance, functioning and mismanagement of a public agency. -DB
Metropolitan News-Enterprise
July 14, 2009
By Kenneth Ofgang
Complaints by police officers about their supervisors’ conduct are not protected by the First Amendment, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Judge Diarmuid F. O’Scannlain, writing for a divided panel that affirmed a judgment in favor of the city of San Bernardino, said the dispute was an intradepartmental matter and not a subject of public concern.
Judge Pamela Ann Rymer agreed, while dissenting Judge Kim M. Wardlaw argued that matters involving “the performance, functioning, and mismanagement of government agencies” may implicate employee free speech rights.
The plaintiffs in the case, Michael Desrochers and Steve Lowes, are among four SBPD sergeants who filed an internal grievance against a lieutenant in April 2006. While the other two accepted an informal resolution, Desrochers and Lowes formally accused their superior of criticizing them in front of others and acting unprofessionally in other ways, including placing the department in a negative light by making critical comments in meetings with officers from other agencies.
The pair claimed that it was in retaliation for that grievance that Desrochers was transferred over his objection from the Homicide Unit that he had headed to the Robbery Unit, and that Lownes was suspended for two weeks. They also claimed that then-Chief Michael Billdt and the assistant chief failed to take appropriate corrective action in response to their grievance.
Billdt retired earlier this year, following a plebiscite in which three-quarters of the officers indicated a lack of confidence in his leadership, and was replaced by former Bell Gardens Chief Keith Kilmer.
Free Speech Rights
The city contended that Descrochers was transferred because he botched a murder probe, and that Lowes disobeyed orders and endangered a suspect in custody. The city also contended that their grievance was a matter of personal interest, rather than public concern, and thus did not implicate public employee free speech rights under Connick v. Myers (1983) 461 U.S. 138.
Connick held that the New Orleans district attorney did not violate the First Amendment by firing an assistant for circulating a questionnaire that solicited criticism of office personnel and policies.
U.S. District Judge Virginia Phillips of the Central District of California found that there were no issues of public concern involved, granted summary judgment on the free speech claim under 42 U.S.C. Sec. 1983, and declined to hear the plaintiffs’ state law claims.
O’Scannlain said the district judge was correct. He said he was “not persuaded” by the officers’ claim that they were concerned with the “competency,” “preparedness,” “efficiency,” and “morale” of the department.
‘Broad Language’
The jurist acknowledged that the Ninth Circuit has “at times…employed broad language” in determining what constitutes a matter of public concern for purposes of public employee First Amendment claims. There is, however, no precedent for extending free speech protection as broadly as the plaintiffs are seeking, he said.
O’Scannlain postulated:
“For example, what if we judges prohibited our law clerks from taking coffee breaks? Suppose they responded with a memorandum complaining about the action. While they might assert—perhaps fairly—that caffeine deprivation would adversely affect their performance, morale, efficiency, and thus, their competency, no one would seriously contend that such speech addressed a matter of public concern…. Similarly, the reality that poor interpersonal relationships amongst coworkers might hamper the work of a government office does not automatically transform speech on such issues into speech on a matter of public concern.”
What the sergeants were claiming, the judge continued, was that their lieutenants were “arrogant” and “irreverent” and that the chief and assistant chief disagreed with that assessment, “but that does not mean they were incompetent, and it certainly does not mean that they were malfeasant.”
The judge added, in a footnote, that the individual defendants were entitled to qualified immunity even if a constitutional violation occurred.
Wardlaw, however, contended in dissent that the evidence, viewed in the plaintiffs’ favor for purposes of summary judgment, raised triable questions as to whether the officers’ speech addressed the important public issue of police moral.
“Issues of performance, discipline, and morale in public safety organizations are especially matters of public concern, given the direct impact of such entities on the well-being of the public,” Wardlaw wrote, citing a case in which the Ninth Circuit held that an officer who discussed police salaries at a council meeting and in a television interview was engaged in speech on a matter of public concern.
“Certainly, if police salaries are deemed a matter of public concern because they indirectly affect police competence, then speech that directly addresses police ompetence must also satisfy this element,” the jurist argued.
The case is Desrochers v. City of San Bernardino, 07-56773.
Copyright 2009 Metropolitan News Company