In 1999, the 6th circuit heard a case about a police officer who sued after he was put on 20 day suspension for writing an anonymous newsletter about police department practices. The appeals court majority decided to reverse the decision of the district court and grant qualified immunity to the police department. They decided that the newsletter topics were not a matter of public concern, but merely personal grievances.

PATRICK BUCKLEY, Plaintiff-Appellee, v. CITY OF PORTAGE, RICHARD J. WHITE, Chief of Police, Individually and in his official capacity as Chief of Police of the Portage Police Department, jointly and severally; MICHAEL L. STAMPFLER, City Manager, Individually and in his capacity as Portage City Manager, jointly and severally, Defendants-Appellants.

No. 98-1783
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
1999 U.S. App. LEXIS 23254

September 16, 1999, Filed

Judge David Nelson for the Majority:

A qualified immunity defense asserted by the police chief and city manager was rejected by the district court. The present interlocutory appeal followed.

The appeal turns on the issue of whether the plaintiff’s speech addressed matters of “public concern,” one of the prerequisites to recovery under § 1983 in a case of this sort. We conclude that the newsletters in question do not address matters of public concern. The denial of qualified immunity will therefore be reversed.

Explaining:

Patrick Buckley, the plaintiff, has been a City of Portage police officer for 25 years. In 1992 Mr. Buckley began anonymous publication of a newsletter, The Lookout, devoted largely to internal police department matters. Copies of the newsletter were distributed to Portage police officers and to individual members of the public, as well as to Western Michigan University, the Kalamazoo Gazette, and others. Central to this cause of action are issues 80 and 81 of The Lookout, published in March of 1997.

Issue 80 contained, among other things, two articles that discussed police chief Richard White’s policy of allowing officers to earn overtime pay for attending committee meetings, notwithstanding that overtime pay was not authorized for the performance of street patrol duties. One article questioned whether “the citizens of Portage are getting short changed.” Issue 81 resumed the challenge to Chief White’s policy regarding overtime pay, adverting this time to the availability of overtime pay for a physical fitness testing program. The article complained that because of the unavailability of overtime pay for street patrol work, patrol officers often worked with only four officers on the street.

Issue 81 also contained a report of a deputy police chief’s alleged mishandling of a purse retrieved from a fire scene. The deputy chief took possession of the purse at the direction of the fire chief. Upon returning to the police station, the deputy chief gave the purse to a junior officer with instructions to store the purse for safe-keeping. The junior officer placed the purse in a file cabinet and forgot about it. The officer was off work for the next three days; upon return to work, he remembered the purse and turned it over to another officer. The article on this incident implied that the deputy chief’s handling of the purse was highly improper. The article questioned why the deputy chief never told anyone that he took the purse, whether anything was missing from the purse, and whether the fire department (which is the agency in charge of a fire scene) was aware of the removal of the purse.

Another article in Issue 81 suggested that a newly hired female officer received her position only because of her friendship with the deputy chief. The article questioned whether proper procedures were followed in hiring the female officer, and it suggested that the deputy chief lacked integrity.

Issues 80 and 81 led to two internal investigations at the Portage police department. The firefighters’ union expressed outrage about the alleged mishandling of property at a fire scene, and this prompted Chief White to retain an independent investigator to look into the matter. The independent investigator exonerated the deputy chief, concluding that the deputy chief had fulfilled his duty by turning the purse over to a junior officer.

Chief White initiated another investigation to determine whether the junior officer had acted improperly in handling the purse. As a result of this investigation, two officers were disciplined for failing to follow proper procedures for safeguarding property.

Although Chief White had previously surmised that Officer Buckley was the author of The Lookout, the chief’s suspicions were confirmed after the internal investigations. Chief White initially concluded that Buckley should be fired for insubordination and defamation. After meeting with City Manager Michael Stampfler, however, Chief White ultimately decided to suspend Buckley for 20 days. A written notice of suspension informed the officer that he was being disciplined for his insubordination and criticism of department members and policies and for spreading rumors and gossip. The officer responded by filing the present lawsuit.

Still the Court does not see this as public concern:

When Mr. Buckley’s articles are read in context, it is clear that his complaints center on Chief White’s allocation of department funds for overtime pay. This is a matter of workplace concern, but in and of itself it is not a matter of public concern. See Barnes v. McDowell, 848 F.2d 725, 734 (6th Cir. 1988) (“The mere fact that public monies and government efficiency are related to the subject of a public employee’s speech do not, by themselves, qualify that speech as being addressed to a matter of public concern.”) Buckley does comment that the citizens of Portage are getting short-changed, but he does so only after noting that fewer patrol officers on the street means that only half the officers can take a lunch break. The passing reference to the citizens of Portage, as Rahn teaches, is not enough to transform a beef about internal department funding allocations into comment on a matter of public concern.

Mr. Buckley also maintains that his articles on the deputy chief’s alleged mishandling of the purse and his alleged role in the hiring of the female officer address matters of public concern. Again we disagree.

In pieces entitled “Integrity: Part Deux” and “Integrity: My Ass,” Mr. Buckley essentially complains that the deputy chief failed to follow proper internal procedure. This failure, the articles conclude, evinces the deputy chief’s lack of integrity, morals, and scruples. Referring to the deputy chief, Mr. Buckley writes,

“This is the fair haired boy. This guy can do no wrong. Unlike the rest of us, he has no faults and he has managed to convince certain folks of this. He has proven time and again that he has no morals or scruples but you’ve got to admit, he has chutzpah. And he believes he has integrity.”

Although we are mindful that complaints of corruption and illegal behavior are matters of public concern, we do not believe that every slighting reference by a government employee to an alleged lack of character and indifference to internal operating rules on the part of the top brass amounts to a matter of public concern.

But writing in diseent, Judge Nathaniel Jones:

The majority reverses the district court’s denial of qualified immunity to the defendants in this case because it concludes that topics such as lack of overtime pay for police patrolling, improper hiring practices by a public agency, and mishandling of evidence taken from a fire scene are not “matters of public concern,” but rather “matters only of personal interest” to Buckley. Because I cannot agree with the majority, I dissent.

Continuing:

it should be emphasized that “if any part of an employee’s speech, which contributes to the discharge, relates to matters of public concern, the court must conduct a balancing of interests test as set forth in Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 [1968].” Rahn v. Drake Ctr., Inc., 31 F.3d 407, 411 (6th Cir. 1994) (emphasis added). Indeed, “the entire speech of the employee does not have to address matters of public concern, as long as some portion of the speech touches upon matters of public concern.” Id. at 412. As the majority conducts on such balancing test, it necessarily concludes that nothing in Issues 80 and 81 of the Lookout touched upon public concern.

Contrary to the majority’s view, I believe that Buckley’s speech clearly consisted of at least three matters of public concern. First, as recognized by the majority, Buckley criticizes the allocation of funds for overtime pay for police officers. Specifically, Buckley faulted the policy of allowing overtime pay for police officers when they serve on internal committees, but not when they go to “Ninja training” (which officers were requested to do on their off-days), or when they perform patrol duties longer than normal hours. The relevant portion of the speech reads as follows:

RULES CHANGE AGAIN

What’s my point? The administration (Blinkin) asks an officer to change his days off so he can go to Ninja training without being paid overtime. Being a person of tremendous integrity[,] this dutiful officer agrees. Uh oh! They forgot that we have 50 or 60 people out with varying injuries and sickness so they realize that by giving this integrity filled officer Saturday as a day off that only four officers would be scheduled. How many months ago was it said that we wouldn’t work with just four officers? O.K., so they didn’t really mean it. The command officers were told that in no way, shape or form would overtime be paid. Not only that but they realized there would only be four officers the following Saturday also. Too bad guys. Suck it up. So what if only 2 of the 4 got lunch breaks. Who really cared that two of the 4 were early cars so for a time period we really only had two officers out there. We can’t afford the overtime.

Concluding:

There are several flaws in the majority’s conclusions. First, it is a hallmark principle that speech does not lose First Amendment protection merely because others find it offensive. See, e.g., Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989) (flag burning); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 99 L. Ed. 2d 41, 108 S. Ct. 876 (1988) (parody advertisement); Cohen v. California, 403 U.S. 15, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971) (jacket bearing words “Fuck the Draft”).

Second, the majority disregards Rahn’s rule that “the entire speech does not have to address matters of public concern, as long as some portion of the speech touches upon matters of public concern.” Rahn, 31 F.3d at 412 (citing Connick, 461 U.S. 138 at 149). While Buckley does attack the character and integrity of his superiors in the articles, it is indisputable that he is doing so within the context of raising matters of public concern–lack of patrol officers, evidence mishandling, and improper hiring practices. As I explained, I believe that any of these charges qualifies as a matter of public concern and should come within the First Amendment’s ambit.

Finally, it is error for the majority to characterize Buckley’s speech as “unflattering,” or to infer that Buckley’s criticisms of his superiors were disproportionate to the alleged improprieties when determining whether the matters constituted public concerns. Such considerations are only relevant in the Pickering balancing test.

For the above reasons, I dissent. I would affirm the district court’s denial of qualified immunity to the defendants and let the case proceed to trial.

The Supreme Court agreed with the Majority by denying cert, Buckley v City of Portage, 530 U.S. 1262 (2000).

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