Petition — Fitzgerald v. Nations

Uffice- Supreme Uourt, U.S.

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APR 8 1981

50-1689

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IN THE

Supreme Court of the United States

... TERM, 1981

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EDWARD P. FITZGERALD

Petitioner,

VS.

GUS O. NATIONS, EARL J. GATES, FRANK C. BICK,

HARRY T. BUSSMANN, JR., and HUGH SCOTT, JR.,

Comprising the Board of Police Commissioners,

St. Louis County, Missouri,

Respondents.

tin,

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PETITION FOR WRIT OF CERTIORARI

To The Missouri Court of Appeals

Eastern District

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LONDON, GREENBERG & FLEMING

LAWRENCE J. FLEMING

C. JOHN PLEBAN

1600 Boatmen’s Tower

100 North Broadway

St. Louis, Missouri 63102

(314) 231-8700

Attorneys for Petitioner

SISSON PRESS, 1627 Locust Street — St. Louis, Mo. 63103 — 241-5956

BRO.

QUESTIONS PRESENTED

1. Does a policeman’s statements made in good faith criticiz-

ing practices and policies in the police department come under

the protection of the First Amendment, and command the

application of balancing the interests of the employee as a

citizen in commenting upon matters of public concern against

the interest of the state, as an employer, in promoting the

efficiency of the public services it performs through its

employees?

2. May arule promulgated by a governmental body be broad

and sweeping when it concerns the limitation of a particular

group of public employees’ freedom of speech?

—

IN THE

Supreme Court of the United States

eae

... TERM, 1981

—

NO. .s.

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EDWARD P. FITZGERALD

Petitioner,

VS.

GUS O. NATIONS, EARL J. GATES, FRANK C. BICK,

HARRY T. BUSSMANN, JR., and HUGH SCOTT, JR.,

Comprising the Board of Police Commissioners,

St. Louis County, Missouri,

Respondents.

<_-

PETITION FOR WRIT OF CERTIORARI

To The Missouri Court of Appeals

Eastern District

INDEX

Page

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Tapio of Awiborities ... .....665s 5 eee v

Crpiaiome Betow «6.6 ic cece ychaeenn este eee 1

PUTO oo isk cvvacenvs tnade bale 1

Constitutional Provisions Involved .................... 1

Statement of Facts... 0... icicsscucectunay see 2

Reasons for Granting the Writ .......................,. 18

Conchuslion send encase enee'h es ame 6 me 9 eured een 24

fir A-1

Papel Boon ccc cnccenivuvdundaseee A-7

Reppendiz © ooo eke cceesseneneeds FOR A-9

PRECEDING PAGE WAS BLANK |

_V—

TABLE OF AUTHORITIES

Page

Arnett v, Kennedy, 416 U.S. 134 (1974) .............4. 21

Ashton v. Kentucky, 384 U.S. 195 (1966) .............. 20

Baggett v. Bullitt, 377 U.S. 360 (1963) ................ 11

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) ...... 19

Beilah v. Board of Public Education, 357 U.S. 399 (1958) 15

Bence v. Breier, 501 F.2d 1185 (7th Cir. 1974) .......... 21

Bridges v. Wixon, 326 U.S. 185 (1944) ................ 15

Cramp v. Board of Public Instruction, 368 U.S. 279 (1961) 11

Elfbrandt v. Russell, 384 U.S. 11 (1966) .............. 11,19

Erznoznik v. Jacksonville, 422 U.S. 205 (1975) .......... 15

First National Bank v. Belotti, 435 U.S. 765 (1978) ...... 15

Garrity v. New Jersey, 385 U.S. 493 (1967) ........... 11, 12

Gerende v. Board of Supervisors, 341 U.S. 56 (1950) .... 11

Givhan v. Western Consolidated School District, et al.,

Oe Wa RD 65s ve ks cc cece inecesxy ets 11, 14, 15, 17

Grayned v. City of Rockford, 408 U.S. 104 (1972) ...... 21

Griswold v. Connecticut, 381 U.S. 479 (1965) .......... 19

Hostrop v. Board of Junior College Dist. No. 515, Etc.

Fie.,' G08 FOG GOO (Fle Gee, BUTE) occ cc tcc ese. 17

Jannetta v. Cole, 493 F.2d 1334 (4th Cir. 1974) ........ 17

Keyishian v. Board of Education, 385 U.S. 589 (1967) ... 11

Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970) ........ 21

PRECEDING PAGE WAS BLANK —

= Vj —

Pickering v. Board of Education, 391 U.S. 563 (1968)

11, 12, 18,16, 17, 18, 21,22

Porter v. Califano, 592 F.2d 770 (5th Cir. 1979) ........ 17

Ramsey v. Allen, 501 F.2d 1090 (10th Cir. 1974) ........ 18

Ring v. Schlesinger, 502 F.2d 479 (1974) .............. 16

Schneck v. United States, 249 U.S. 47 (1918) .......... 12

Schneider v. State, 808 U.S. 147 (1989) ................ 12

Smith v. Losee, 485 F.2d 334 (10th Cir. 1973) .......... 18

State ex rel. Anderson v. Brand, 303 U.S. 95 (1937) ...... 11

Thomas v. Collins, 323 U.S. 516 (1944) ................ 12

United States v. C.1.0., 335 U.S. 106 (1948) ............ 12

West Virginia State Board of Education v. Barnette,

ee et ees 12

Whitehall v. Elkins, 389 U.S. 54 (1967) ............... oa

Whitney v. California, 274 U.S. 357 (1926) ............ 12

Wieman v. Updegraff, 344 U.S. 183 (1952) ............ 11

x ve

Petitioner prays that a Writ of Certiorari be issued to review

the judgment of the Missouri Court of Appeals, Eastern Dis-

trict, entered in this cause on October 28, 1980. The Missouri

Supreme Court denied petitioner’s Application for Transfer

on February 9, 1981.

OPINIONS BELOW

The Opinion of the Missouri Court of Appeals, Eastern

District, dated October 28, 1980, is not yet reported, but is

appended hereto as Appendix A. The order denying a transfer

is also appended hereto as Appendix B. The opinion of the

Board of Police Commissioners for the City of St. Louis is

appended hereto as Appendix C.

JURISDICTION

The judgment of the Missouri Court of Appeals, Eastern

District, was entered on October 28, 1980; the Application for

Transfer was denied by the Missouri Supreme Court on Febru-

ary 9, 1981. jurisdiction of this Court is invoked under 28

U.S.C. §1257(3),

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Constitution, Amendment I:

“Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress.of grievances.”

U.S. Constitution, Amendment XIV:

. . . No State shall make or enforce any law which

shall abridge the privilege or immunities of citizens of the

United States; nor shall any State deprive any person

rah es

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.”

STATEMENT OF FACTS

This case arises from the decision by the St. Louis County

Board of Police Commissioners (hereinafter “Board”), to

terminate the employment of a concededly calm and reliable

veteran policeman, Petitioner Edward P. Fitzgerald, because

he criticized a departmental policy and accused his superior

of lying when the policy's existence was denied. Petitioner’s

suit alleged that the termination of his employment violated

the First and Fourteenth Amendments to the Constitution and

that the Board’s termination of employment was not based

upon substantial and competent evidence on the record as a

whole.

Petitioner had been the subject of charges and specifications

filed by the Department for alleged violations of Articles 12.2

and 33 of the Department’s rules and regulations, as follows:

Article 12: Insubordinate Conduct, that is,

12.2 Treats with contempt or is nag ae

in language toward a supervisory officer in

the execution of Departmental duties.

Article 33: General Article, that is,

Commits any neglect or disorder, though not

specifically mentioned herein, which is to the

prejudice of good order and discipline in the

Department, impairs the efficiency of the De-

artment, is in violation of any rat re’ or state

aw, county or municipal ordinance, or is of a

naure to bring discredit upon the Depart-

ment.

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In its Findings of Fact, the Board noted that prior to peti-

tioner’s dismissal on November 30, 1976, he was a veteran St.

Louis County Police officer assigned to the First Precinct and

under the command of Captain Dennis Long. At some time

prior to August 9, 1976, petitioner had posted a notice on the

roll call bulletin board in the First Precinct District Station

which asserted that he would call Major Bergauer, Colonel

Kleinknecht, the Police Board, Supervisor McNary and any

other supervisor or commander “a damn liar to their face” if

they asserted there was no “quota system” in the First Precinct.

The Board found that, during a roll call meeting on August 9,

1976, upon Captain Long’s question, petitioner acknowledged

that the notice was his, and when Captain Long twice denied

the existence of such a system, petitioner called him a “damn

liar”. The Board asserted that petitioner's conduct showed “. . .

a lack of working relationship and personal loyalty” by petition-

er toward command personnel and that the St. Louis County

Police Department is a “quasimilitary” organization in which

respect for command personnel and discipline are essential to

the proper functioning of the Department. As a factual con-

clusion, the Board further asserted that petitioner's “. . . be-

havior, comments, assertions and conduct were calculated to

undermine and foster distrust of the Department’s command

personnel, to hold them in disrepute, to cause aspersions on

their integrity and to encourse by his own example insubor-

nation and contempt by other younger and more impression-

able members of the command”,

In its Conclusion of Law, the Board held that petitioner's

conduct was a violation of Articles 12.2 and 33. It further held

that petitioner’s speech was not protected because it threatened

“significant working relationships vital to the administration

of a police department” The Circuit Court’s order did not

address the First Amendment issue (Tr. 8).

ndlad

A summary of the hearing before the Board, reveals the

following:

The Department initiated the presentation of evidence at

the Board trial. Captain Dennis Long, commander of the

First Precinct had first observed petitioner's notice on the

bulletin board on July 26, 1976, and he asked Sgt. Albrecht

to read the notice to the men at a roll call on August 9, 1976.

At that roll call, Long twice informed petitioner there was no

“quota system” in the First Precinct and twice petitioner called

him a “damn liar”. Long inquired whether petitioner was aware

of the seriousness of his accusations, to which petitioner al-

legedly replied that he was, because he was putting his job

on the line. Capt. Long’s stated opinioi. was that the petitioner's

notice “. . . had the effect of undermining . . .” the First

Precinct Command, and that there were no personnel prob-

lems when he arrived at the First Precinct. The greater part

of Capt. Long’s direct testimony, however, was devoted to

the particulars of a productivity rating system for officers in

the First Precinct which was the initial source of controversy.

Long stated that, although he never established a “quota sys-

tem” per se with a specific number of required arrests for each

officer, he did, in fact, initiate and establish a system of activity

sheets, which were aggregates of 28 daily report sheets used

to “rank and rate” the officers by quantity of arrests made and

traffic citations given. Capt. Long admitted that the activity

sheets did not reflect the quality of the arrests and citations.

He indicated that he used the reports in “dealing” with officers

having low performance levels, (i.e., those “not working to

their potential level” having “no self-initiating activity”). As a

result of “low performance level” based on the 28 day reports,

he regularly transferred officers to the afternoon waich, which

he admitted was an undesirable watch. In addition, one officer

was “terminated” based on his low ratings, while those officers

with high ratings were allowed to pick their beats, admittedly

a “reward of sorts”. Capt. Long indicated that the easiest and

best way was to increase “productivity was to increase the

number of moving and non-moving violations”. Although he

never spoke to the men as a group regarding the system,

Long was aware that there was dissatisfaction among the men

of the First Precinct with this “productivity” system. In addi-

tion, he was aware of a petition signed by several officers

indicating their dissatisfaction with what they regarded as a

“quota system”. Two officers who spoke with Capt. Long about

the system were permanently assigned to the afternoon watch.

The system criticized by petitioner was abandoned one month

after petitioner's dismissal in favor of a system which reflected

the quality of arrests and tickets.

Sgt. Joseph Kennedy, who prepared “raw figures” for Capt.

Long from the activity sheets, testified that the numbers on

the 28 day reports indicated a “ranking of some sort” based

on accumulated total. While it was his testimony that he did

not affirmatively make the information on running totals avail-

able to the men, he indicated, however, that an officer could

see his running totals from which he could calculate how

many arrests were necessary to rank first, because there was

no policy against it and because there was no way to be sure

that the reports were not seen in his desk.

Lt. Norvell Benoist, testifying on behalf of the Department

stated that he suggested the use of a daily activity sheet to

Capt. Long and Lt. Crews at a meeting on March 8, 1975,

and that quantitative reports were subsequently developed.

However, Department policy regarding the 28 day report

system was never reduced to writing and posted. Benoist stated

that he was aware that the system generated competition

among new men and that several officers were transferred on

the basis of the reports. He indicated that he began to hear

a

complaints from the men regarding the system in February,

1976, approximately one year after it was implemented. Lt.

Benoist admitted that transfer to the afternoon watch was a

“recognized form of summary punishment” within “certain

elements” of the Department. An officer's incentive to issue

traffic warnings instead of citations, Benoist stated would be

“his own conscience and judgment”, because they did not

show up on the 28 day reports.

In testifying as to petitioner’s activities, Lt. Benoist stated

that he had a discussion with petitioner prior to the confronta-

tion on August 9, during which he informed petitioner that

there was no “quota system” in the First Precinct. In addition,

Benoist attended a meeting of First Precinct Command per-

sonnel prior to August 9, 1976, in which it was decided that

petitioner's notice presented a “public challenge” that would

“have to be met”. A confrontation with appellant at the roll

call meeting on August 9 was decided on, Lt. Benoist identified

Department's Exhibit *13 as petitioner's 1975 annual evalua-

tion. He stated that although the comments at the top of the

form described petitioner's calmness and reliability in favor-

able terms, petitioner was reported needing improvement in

two areas out of twenty-three. [Lt. Benoist indicated that

petitioner was the only officer ever disciplined for expressing

his opinion regarding the system. ]

Lt. Robert Crews, testifying on the Department's behalf,

stated that several officers complained to him that the reports

constituted a “quota system”, although he tried to explain

them as “productivity sheets”. Crews stated that, although

daily reports could have been used, the 28-day reports were

used because they compared one officer to another. As a

result, he received many complaints from officers prior to the

petition and petitioner's bulletin board notice on August 9.

ona

He admitted that the “productivity system” was indirectly

telling officers to issue traffic citations rather than warnings

for which they would receive no credit. Crews further admit-

ted that the “productivity sheets” rated and ranked officers,

who could, on one hand, initiate arrests purely for the purpose

of being ranked first, or who, on the other hand, could be

summarily punished for not ranking high consistently. He

thus confirmed the fact that the 28 day reports were the basis

for both discipline and reward. Lt Crews further testified

that he used the “productivity sheets” to take petitioner off

his beat. He identified petitioner's Exhibit B as a rating sheet

pertaining to petitioner which Crews had refused to sign be-

cause he had not participated collectively with Sgt. Albrecht

in its preparation and because Albrecht had rated petitioner

“to high”. Crews downgraded petitioner in the areas of ‘com-

pliance” and “initiative”, stating that “compliance” could be

upgraded by more arrests and traffic citations.

Two officers from the Division of Inspectional Services testi-

fied on behalf of the Department regarding the system in use

in the First Precinct. Lt. William Vaughan testified that while

assigned to the staff inspectional team he participated in an

elevation of the First Precinct in the areas of productivity,

tickets and accidents. As a result of his investigation, he advised

the First Precinct Command personnel that they should give

more tickets. He testified that 28 day reports were the best

system for evaluating productivity in these areas, even though

there were a number of inquiries and complaints regarding

its used in the First Precinct. His opinion, however, was that

if he were still a member of the staff inspectional team, he

would consider it improper to transfer or summarily punish

an officer solely on the basis of the 28 day productivity reports,

In addition, Vaughan testified that petitioner’s bulletin board

notice had an effect on command personnel — “. . . some of

oe

them probably believed there was a quota system”. Major

Thomas Moonier, Executive Director of the Division of Inspec-

tional Services and responsible for the Bureau of Staff

Inspection, testified that he visited the First Precinct on two

occasions, once after Lt. Vaughan’s investigation report and

once after the appearance of a newspaper article regarding

the existence of a “quota system” in the First Precinct. Although

Moonier stated that he knew that the 28 day productivity

report system was not being used in other Precincts and that

the men in the First Precinct were dissatisfied with the system,

he still concluded that there was no “quota system” in use in

the First Precinct.

Major John Bergauer, under whom petitioner served for a

period of time, testified that some time after he became aware

of petitioner's bulletin board notice, he sent a request for

investigation of petitioner to Superintendent of Police Klein-

knecht, pursuant to a complaint filed against petitioner by

Capt. Long. Bergauer’s testimony was that petitioner's notice

had a detrimental effect on discipline, although he indicated

that he had no way of knowing the actual effect on the men.

Regarding the “productivity system” itself, Bergauer stated

that he also was aware of complaints by the men. He stated

that he was aware that the complaints and objections by the

men of the First Precinct was that a “quota system” would

have a bad effect on the rights of St. Louis County citizens.

Bergauer indicated that he too, was aware of, and identified

at the Board trial, a petition signed by sixty police officers

against the “quota svstem” which they felt existed in the First

Precinct.

Colonel Gilbert Klenknecht, Superintendent of Police for

St. Louis County, also testified for the Department. He testi-

fied that he was ultimately charged with the responsibility of

disciplining and terminating petitioner. He had been aware

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of petitioner's bulletin board notice and had discussed it with

Captain Long prior to the roll call confrontation on August 9,

1976. He also was aware of the petition signed by several

officers and criticism by men of the First Precinct prior to that

date. Kleinknecht assigned investigation of Capt. Long’s com-

plaint of insubordination against petitioner on August 12, 1976,

ten days after he had expressed his opinion to the County

Council that a “quota system” did not exist in the First

Precinct and would not be tolerated. Regarding the complaints

filed by and against petitioner, Kleinknecht indicated that the

investigation into the charges against petitioner by Major

Moonier lasted almost four months, while the investigation

of petitioner's complaint against Capt. Long lasted only one

and one-half months.

Regarding the “productivity” system used in the First

Precinct, Kleinknecht testified that he was aware that the

system was in use only in the First Precinct. He was aware

that the “numbers” involved in the system involved “a ranking

of the sort”, however, his testimony indicated that he “really

didn’t know what they meant”. He was able to testify, never-

theless, that the only way an officer could rank at the top

would be to produce more arrests and traffic citations than

any other officer. Kleinkneclit further testified that he was

aware as early as May 3, 1975, that officers of the First Precinct

could be transferred to the afternoon watch based on low

rankings and that this could be considered punishment in their

eyes. In addition, Kleinknecht indicated that he had been

aware of the petition expressing officers’ dissatisfaction with

the system and that nothing was done about this.

At the close of the Department's evidence, petitioner offered

several exhibits for admittance by the Police Board, including

appellant's Exhibits AAA, a report of the St. Louis County

Grand Jury which found that a “quota system” exisited in the

— Pe

First Precinct, in addition to several exhibits consisting of

copies of petitions submitted to the County Council. All of

these exhibits, with the exception of Exhibit E (a copy of a

letter from Congressman Hungate), were refused by the

Police Board on the basis that they were irrelevant to the

charge of insubordination. The Board stated that these Exhibits

were irrelevant, and that even though petitioner might justi-

fiably call a superior a liar, it still constituted insubordination.

The Board, however, stated that these exhibits would be a

part of the record on appeal.

at Chinn

REASONS FOR GRANTING THE WRIT

I

FURTHER DIRECTION IS NEEDED TO ENSURE THAT

THE WELL-SETTLED MANDATE THAT POLICEMEN

ARE NOT SUBJECT TO A WATERED-DOWN VERSION

OF CONSTITUTIONAL RIGHTS IS NOT C3LITERATED

BY CLARIFYING AND LIMITING THE EXTENT TO

WHICH A POLICEMAN’S EMPLOYMENT MAY BE

TERMINATED FOR SPEECH WHICH UNDER THE

FIRST AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION FALLS WITHIN THE

PROTECTION OF AND RIGHT TO FREEDOM OF

SPEECH.

Petitioner submits that this case represents a substantial

and radical departure from the fundamental principle enun-

ciated in a line of cases that public employees enjoy the full

protection of the First Amendment. State ex rel, Anderson v.

Brand, 303 U.S. 95 (1937); Gerende v. Board of Superivsors,

341 U.S. 56 (1950); Wieman v. Updegraff, 344 U.S. 183 (1952);

Cramp v. Board of Public Instruction, 368 U.S. 279 (1961);

Baggett v. Bullitt, 377 U.S. 360 (1963); Elfbrandt v. Russell,

384 U.S. 11 (1966); Keyishian v. Board of Regents, 385 U.S.

589 (1967); Whitehall v. Elkins, 389 U.S. 54 (1967); Garrity

v. New Jersey, 385 U.S. 493 (1967); Pickering v. Board of

Education; 391 U.S. 563 (1968). More specifically, the decision

in the instant case ignores and renders meaningless the decision

of this Court in Givhan v. Western Lines Consolidated School

District et al, 489 U.S. 410 (1979).

The categories of speech which do not fall within the gambit

of the First Amendment's protection are few. The preferred

treatment given to the freedoms by the First Amendment,

=

which are the very foundation of our democratic institution,

make them of vital interest and importance. Freedom of speech

has been the rule. To say there are restrictions to this rule is

correct, but the exceptions have been limited to well-defined

and narrowly limited classes of speech. Repeatedly the Court

has held that to restrict these liberties there must be a justifica-

tion of a clear public interest, threatened not by remote, but

by clear and present danger. Schneck v. United States, 249 U.S.

47, 52 (1918); Whitney v. California, 274 U.S. 357 (1926);

West Virginia State Board of Education v. Barnette, 319 USS.

624, 739 (1942); Thomas v. Collins, 323 U.S. 516, 529-530

(1944); United States v. C.1.0., 335 U.S. 106, 140 (1948);

Schneider v. State, 308 U.S. 147, 161 (1939).

Since “policemen, like teachers and lawyers, are not rele-

gated to a watered-down version of constitutional rights’,

Garrity, supra, at 620, the Missouri Court of Appeals has

impermissibly fashioned a rule which makes broad inroads

into the First Amendment rights. Its decision would require

a policeman, or presumably any public employee, to risk his

livelihood whenever he makes a good faith effort to correct

and remedy a departmental policy, which he honestly and

with good reason believes to be detrimental to the department

and to the general public as a whole. The court reasoned

that because the remarks of the policeman were spoken to a

superior, the First Amendment would not protect that speech.

Further, because he was a policeman, in a quasimilitary

organization, he was afforded even less protection. The court,

however, gave no consideration or analysis to balancing the

interests of the employee as a citizen in commenting upon

matters of public concern against the interest of the state, as

an employer, in promoting the efficiency of the public services

it performs through its employees. Pickering v. Board of Educa-

tion, 8391 U.S. 563 (1968). Basically, the decision below oblit-

-_ =

erated from First Amendment protection a broad category of

speech, repeatedly held protected according to this court's

decisions — that being statements by public offiicials on mat-

ters of public concern.

In Pickering, the court’s decision seemingly encompasses

two major points. First, the balancing test mentioned above

must be used in deciding whether a public employee's speech

is given protection under the First Amendment. Secondly,

absent proof of false statements knowingly or recklessly made

by a public employee, his right to speak on issues of public

concern may not furnish a basis for dismissal due to the fact

that his constitutional right to tree speech would be violated.

The decision below gives no regard to those two points.

The lower court apparently missed the rule to be derived from

Pickering. As stated, the decision is void as to any balancing

of interest of the parties. The second part of the Pickering

test, regarding the truth or falsity of the employees state-

ments, was not applied or understood by the court below. The

comment by the court that “[flor reasons which we do not

fully comprehend, the great majority of the testimony in this

case before the Board dealt with the presence or absence of

a quota system in the First Precinct” is illustrative of the fact

that the court ignored that aspect of the Pickering test. The

fact that this Court considered the issue of the truth or falsity

of the teacher’s commentary as an additional element of the

balancing test in Pickering, should direct the lower court to

consider and apply this element. That Petitioner’s assertions

were true, or at least not made with reckless disregard to their

truth or falsity, and were “effective criticism,” is evidenced by

the following facts:

1. No other Precincts employed such a quantitive “pro-

_ ductivity system”,

pa a

2. Several of the First Precinct command personnel ad-

mitted that the system could be and was considered by the

men of the First Precinct to be a “quota system”.

3. Dissatisfaction was expressed by several police officers

both within and without the First Precinct about the 28 day

reporting system.

4. The St. Louis County Grand Jury issued a contemporan-

eous report finding that a “quota system” existed in the First

Precinct.

5. One month after petitioner's dismissal from the Depart-

ment, after public light had been shed on the purely quan-

titative system, it was abandoned in favor of a system which

included a “qualitative” anlysis of arrests and traffic citations.

The lower court also completely ignored the decision of

this Court in Givhan v. Western Line Consolidated School

District, supra. Similar to Givhan, wherein a teacher was fired

for voicing her criticisms and complaints regarding the school

district’s practices and policies, Petitioner was fired for voic-

ing his criticisms and complaints regarding the department’s

policies and practices that he felt very harmful to the depart-

ment and general public. This Court held that a public em-

ployee does not forfeit his First Amendment protection

against governmental abridgment of freedom of speech when

he arranges to communicate privately with his employer

rather than to express his views publicly. Supra, at 415-416.

Moreover, the principle was thought not to be in a position

to complain about the teacher’s views in light of the fact that

he opened the door to her — invited the speech. Supra, at 415.

In the instant case, since Petitioner spoke with his Captain

dwing roll call, with no civilians present, the speech could

hs categorized as private, therefore falling within the First

a ee

Amendment’s protection under Givhan. A good faith statement

by a public employee communicating concerns respecting the

proper operation of a public agency directly to an executive

personnel or superior of that agency, rather than externally

to the public at large, should be included in the free speech

clause. While this was held true in Givhan, it may be even

more important that a public employee in the police depart-

ment be free to voice his concerns regarding the department

to his superiors within that department. Additionally, it is

important to note that the Captain initiated the confrontation

at the roll call and called for a response from Petitioner.

Petitioner did not confront his superior, but rather vice versa.

This Court has regarded as important and meriting review,

decisions placing a class of people’s communication outside the

First Amendment. See, Bridges v. Wixon, 326 U.S. 135, 148,

(1944) (aliens residing in this county); First Nat. Bank b.

Bellotti, 435 U.S. 765, (1978) (corporations); Erznoznik v.

Jacksonville, 422 U.S. 205, 212 (1975) (minors); Beilah v.

Board of Public Education, 357 U.S. 399, 405 (1958) (public

school teachers ). The Missouri Court of Appeals decision that

policemen’s communications is beyond the reach of the First

Amendment is similarly worthy of review by this court.

— es

Il

FURTHER DIRECTION IS NEEDED TO RESOLVE A

DECISIVE SPLIT AMONG THE UNITED STATES COURT

OF APPEALS AND THE MISSOURI COURT OF APPEALS

REGARDING THE MANDATORY NATURE OF THE

BALANCING OF INTERESTS TEST FORMULATED IN

THE PICKERING DECISION.

The Missouri Court of Appeals’ decision conflicts not only

with this Court’s mandate in Pickering, supra, but conflicts

with decisions of other federal courts which, relying on the

Pickering test, hold that a public employee’s statements to his

superiors are protected by the First Amendment unless, on the

facts of the case, “the interest of the State, as an employer, in

promoting the efficiency of the public services it performs

through its employees’ outweights the First Amendment

interest of the employee. Pickering, supra, at 568.

The D.C. Circuit followed Pickering’s First Amendment

balancing test in Ring v. Schlesinger, 502 F.2d 479 (1974).

In that case, a teacher employed in a Naval facility, sent a

memorandum to four people responsible for school matters,

charging maladministration of the school in that the principal

was incompetent and had disregarded professional ethics.

Supra, at 481-482, 487. The court analyzed the constitutionality

of the teacher’s discharge under the Pickering test and re-

manded for new trial because the district court had uncritically

accepted the conclusion of the commanding officer that the

memo had impaired the efficiency of the service. The court

found that there must be a balancing of the First Amendment

freedoms against the asserted governmental interests. Supra,

at 490,

wT ae

In Jannetta v. Cole, 493 F.2d 1334 (4th Cir. 1974), the

Fourth Circuit used the Pickering balancing test wherein a

fireman had been fired for circulating a petition protesting a

recent promotion in the fire department. The court found that

although there was some lowering of morale in the department,

its overall operation of the department was not impaired. In

rejecting the notion that the speech must be directed to the

public on a public issue, supra, at 1337 n. 4, the court found

that under the Pickering test, the fireman was protected under

the First Amendment. Supra, at 1387.

The Fifth Circuit is in accord. In Porter v. Califano, 592 F.

2d 770 (5th Cir. 1979), an employee of the Social Security

Administration was suspended primarily for writing and dis-

tributing a letter which, among other things, sharply criticized

two of her superiors, The court went to great lengths in dis-

cussing the Pickering test. Moreover, it held that an employee's

speech which accurately reveals corruption is likewise pro-

tected under the First Amendment, even though the speech

may disrupt and demoralize the office. Supra, at 773-774. In

remand, the court held that the district court “must determine,

among other things, to what extent Porter’s, allegations were

false, to what extent they were malicious or reckless . . . to

what extent they ‘substantially and materially’ adversely

affected the government . . . and to conduct the balancing

test prescribed in Pickering.” ({ootnotes and citations omitted ).

Supra, at 778-779.

In the Seventh Circuit, the court found that Pickering holds

that “an employee's speech may be regulated only if a public

entity can show that its functions are being substantially

impeded by the employee's statements”. Hostrop v. Board of

Junior College Dist. No. 515, Etc., Ill. 471 F.2d 488 (7th Cir.

1972). In that case, a college president circulated among his

tien

staff, which later was made public, questioning the proposed

changes in the college’s program. Supra, at 490, When balanc-

ing the employee’s right to free speech yersus the interest of

the State in promoting the efficiency of its operation, the em-

ployee’s rights were clearly paramount. Supra, at 492-493.

The Tenth Circuit has repeatedly held likewise. In Ramsey

v. Allen, 501 F.2d 1090 (10th Cir. 1974), several college

teachers were fired because of their criticisms of the college

policies. Using Pickering, the court found the teachers’ dis-

missals were unconstitutional under the First Amendment.

Supra, at 1098-1099. The court held that the record failed “to

disclose that their activities were in any way excessive or

unduly burdensome to the school” and therefore protected

under the freedom of speech clause. Supra, at 1098, See also,

Smith v. Losee, 485 F.2d 334 (10th Cir, 1973).

In summation, the decision below presents not only an

important issue of constitutional law but conflicts with rulings

of other courts of appeals that communications by public

employees to their superiors implicate First Amendment

interests.

_

Ill

FURTHER DIRECTION IS NEEDED TO ENSURE THAT

RULES AND REGULATIONS PROMULGATED BY A

GOVERNMENTAL BODY REGULATING FIRST AMEND-

MENT RIGHTS MUST BE NARROWLY AND PRECISELY

DRAWN SO AS TO EXPRESS ONLY THE LEGITIMATE

STATE INTERESTS INVOLVED IN ORDER TO PRO-

HIBIT A CHILLING EFFEGI ON THE FUNDAMENTAL

RIGHT OF FREEDOM OF SPEECH.

Petitioner asserts that the regulations involved in this case

are vague, overboard and chill the exercise of First Amend-

ment rights by police officers subjected to them, because there

are no specific standards by which a policeman can reasonably

decide what speech is allowable and what speech is grounds

for termination. This Court has repeatedly recognized that

“. . . because freedoms of expression in general . . . are vul-

nerable to gravely damaging, yet barely visible encroachments,

the mere threat of sanctions is sufficient present infringement

to justify redress”. Bantam Books, Inc. v. Sullivan, 872 U.S.

58, 66 (1963). A governmental purpose to control or prevent

activtities constitutionally subject to state regulation may not

be achieved by means which sweep unnecessarily broadly and

thereby invade the area of protected freedoms. Griswold v.

Connecticut, 381 U.S. 479 (1965). More specifically, a statute

touching First Amendment rights must be narrowly drawn

to define and punish specific conduct as constituting a clear

and present danger to a substantial interest of the state, and

legitimate legislative goals cannot be pursued by means that

broadly stifle fundamental personal liberties when the end

can be more. narrowly achieved. Elfbrandt v. Russell, supra.

The court’s decision below will unquestionably result in a

“chilling” of the First Amendment rights of policemen in the

~ 20 —

State of Missouri and elsewhere. An officer who chose to speak

upon a matter of public concern would be putting his job on

the line, knowing that any criticism he leveled at department

policies would be successfully encountered by such catch-all

phrases as “contrary to discipline and loyalty necessary to

the operation of a quasi-military organization” and by the

opinions of superiors that he was “insubordinate”. This is

especially true in light of the fact that the regulations involved

provide no specific standard by which to scrutinize whethe,

public criticism was objectionable or whether it was a lawful

exercise of First Amendment rights to criticize public officials

in the exircise of their duties,

Freedom of speech is of paramount importance and may

not be denied merely because it may create dispute. In

Ashton v. Kentucky, 384 U.S. 195 (1966), this Court pointed

out that vague laws in any area suffered a constitutional

infirmity, but that where First Amendment rights were in-

volved, the Court looked even more closely lest, under the

guise of regulating conduct that was reachable by the police

power, freedom of speech or of press suffered.

A 1972 decision of this Court set out the policies underlying

and proscription against vagueness:

“First, because we assume that man is free to steer be-

tween lawful and unlawful conduct, we insist that laws

give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited, so that he may

act accordingly. Vague laws. may trap the innocent by

not providing a fair veces tose if arbitrary and

discriminatory enforcement is to be ‘prevented, laws must

provide explicit standards for those who apply-them. A

vague law impermissibly delegates basic policy matters

.., for resolution on an ad hoc and subjective basis, with

all the attendant dangers of arbitrary and discriminatory

ee

application. Third, but related, where a vague statute

“abut[s] upon sensitive areas of basic First Amendment

freedoms,” it “operates to inhibit the exercise of [those]

freedoms.” Uncertain meanings inevitably lead citizens

to “‘steer far wider of the lawful zone’. . . then if the

boundaries of the forbidden areas were clearly marked”

(citations omitted). Grayned v. City of Rockford, 408

U.S. 104, 108-108 (1972).

Granted, there are cases where there must be a broad rule

or standard. This was seen in Arnett v. Kennedy, 416 U.S, 134

(1974), wherein this Court held the provision authorizing re-

moval or suspension of federal civil service employees “for

such cause as will promote the efficiency of the service” was

not unconstitutionally vague, since it was Congress’ intent

to lay down this general standard “in order to give myriad

different federal employees performing widely disparate tasks

a common standard of job protection”. Supra, at 159. Such

is not the case today. The vagueness of the police rules was .

not the result of the necessity of broad application of a uni-

form rule to a huge group of people in many different activi-

ties. Rather, the standard here formulated was done so by

the St. Louis County Police Department to apply to one group

of people, in basically the same situation, performing essen-

tially the same job functions. See, Bence v. Breier, 501 F.2d

1185 (7th Cir. 1974).

A rule very similar to the one under which Petitioner was

dismissed was held unconstitutionally vague in Muller v.

Conlisk, 429 F.2d 901 (7th Cir. 1970). In that case, the rule

prohibited policemen from “[e]ngaging in any activity, conver-

sation, deliberation, or discussion which is derogatory to the

Department of any member or policy of the Department”.

Supra, at 902. Using Pickering, supra, and other Supreme

Court decisions, the court concluded that the state could

~ 29 —

not entirely deny the right of its employees to criticize their

employer. Pickering, supra, at 570. The First Amendment

would reach and protect some speech by policemen which

could be considered “derogatory to the department”. The court

concluded therefore that the rule “on its face prohibits all

such speech, even private conversation, and is for that reason

unavoidably overbroad in violation of the First Amendment

as it applies to the states through the Fourteenth Amend-

ment”, Supra, at 904. Accordingly, the rule under which Peti-

tioner was dismissed prohibits all speech, most of which is

protected under the First Amendment, and should be declared

by this Court vague and overbroad.

CONCLUSION

For the foregoing reasons, this petition for a writ of certiorari

to the Missouri Court of Appeals, Eastern District should be

granted and the judgment of that court reviewed on the merits.

LONDON, GREENBERG & FLEMING

LAWRENCE J. FLEMING

C. JOHN PLEBAN

1600 Boatmen’s Tower

100 North Broadway

St. Louis, Missouri 63102

(314) 231-8700

Attorneys for Petitioner

— APPENDIX —

spe

APPENDIX A

IN THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT

DIVISION FOUR

No. 41790

EDWARD P. FITZGERALD,

Plaintiff-Appellant,

GUS O. NATIONS, EARL J. GATES, FRANK C, BICK,

HARRY T, BUSSMANN, JR., and HUGH SCOTT, JR.

Comprising the Board of Police Commissioners,

St. Louis County, Missouri,

Defendants-Respondents.

Appeal from the Circuit Court of St. Louis County

Hon. Milton Saitz, Judge

OPINION FILED: October 28, 1980

Edward Fitzgerald appeals from the order of the trial court

affirming the action of the St. Louis County Board of Police

Commissioners which had in turn affirmed the action of the

Superintendent of Police in terminating Fitzgerald as a St.

Louis County police officer. We affirm.

The facts which form the basis for the termination are undis-

puted. Sometime in July, 1976, Fitzgerald posted a notice on

the bulletin board in the First Precinct, where he was

stationed, The notice took issue with certain comments to the

so

press by Major Bergauer that no “quota system” existed in

the First Precinct. It then recited “Well I'll call Major Bergauer,

the Colonel, the Police Board, McNary, [the County Super-

visor], the Council [St. Louis County Council], any supervisor,

or, commandor (sic) a damn liar to their face, if they tell me

that there is no “quota” system in the Ist Prct.; and that

officers haven't and aren't punished for not participating or

competing. Fitz.” (Emphasis in original).

Captain Long, after consulting with other officers, concluded

that inasmuch as the notice was posted in a place where it

could be seen by all employees working in the precinct, a

response before the employees was necessary. On August 9,

1976, (after Fitzgerald returned from vacation) at the roll

call for Fitzgerald’s shift, Long had the notice read. He then

asked if Fitzgerald had written the notice, to which Fitzgerald

replied affirmatively. Long then denied that any quota system

existed in the precinct. Fitzgerald responded that the Captain

was a “damn liar.” Long advised Fitzgerald of the seriousness

of such a statement to a superior and Fitzgerald evidenced

his understanding of that by advising that he was putting his

“job on the line.” Long repeated his statement that no quota

system existed and Fitzgerald again called Long a “damn liar.”

On appeal to the Board from the order of the Superintendent

terminating Fitzgerald’s employment the Board found Fitz-

gerald guilty of insubordination and of conduct “prejudicial

to order and discipline in the Department . . . impair[ing]

the efficiency of the same and bringing discredit upon it.”

‘In the context of this case “quota system” referred to a prac-

tice of imposing upon the police officers a quota of arrests

or other activities as an acceptable level of performance.

~~

On appeal, Fitzgerald raises three alleged points of error.

We consider first his contention that his termination was based

upon speech protected by the First Amendment, United

States Constitution, and was predicated on regulations which

are vague and overbroad. Fitzgerald places his reliance upon

Pickering v. Board of Education, 391 U.S. 563 (1968) wherein

the court held that termination of a school teacher for state-

ments contained in a letter to, and published in, a news-

paper was a violation of the teacher's First Amendment

rights. The court based its conclusion on the fact that the

statements were of public concern and were “in no way

directed toward any person with whom appellant would

normally be in contact in the course of his daily work as a

teacher.” The statements for which Fitzgerald was terminated

clearly were directed toward a person with whom he would

normally be in contact in the course of his daily work, and

were made in the presence of people with whom both he

and Captain Long had to work. While the question of

whether a quota system was in effect in the First Precinct?

is a matter of public concern, Fitzgerald was not terminated

for his expressiens concerning that matter. He was terminated

because he called the Captain a “damn liar.” That was a

vitrolic personal attack based upon Fitzgerald’s attitude that

anyone holding a different viewpoint from his own is not

only incorrect but mendacious. The First Amendment does

not protect one from the consequences of such speech, includ-

*We need not and do not decide whether a “quota system”

existed. There was evidence that an evaluation system was

utilized in the precinct and that that system included numeri-

cal rating of the police officers based in part upon their

reportable activities including arrests and citations. Whether

this was a “quota system” depends entirely upon one’s defini-

tion of that term.

oe ee

ing termination of public employment, particularly where it

occurs in a military or quasi-military organization such as

the police force. Arnett v. Kennedy, 416 U.S. 134 (1974),

Parker v. Levy, 417 U.S. 733 (1974); Jenson v. Olson, 353

F.2d 825 (8th Cir. 1965); Margri v. Giarrusso, 379 F.Supp.

353 (D.C. La. 1974); Milani v. Miller, 515 S.W.2d 412 (Mo.

1974); Vorbeck v. McNeal, 560 S.W.2d 245 (Mo. App. 1977);

Brown, v. Alberda, 579 $.W.2d 719 (Mo. App. 1979).

Nor do we find the regulations vague or overbroad. Much

has been written on this subject matter, both by the United

States Supreme Court and the Missouri Courts. It is unneces-

sary to repeat what has been previously written. It is sufficie.it

to say that regulations similar and even less definite than those

before us have been upheld against charges of vagueness and

overbreadth particularly where, as here, the conduct charged

clearly falls under the regulations, as was recognized by

Fitzgerald when he stated he was putting his job on the line.

See Arnett v. Kennedy, supra, Milini v. Miller, supra, Giessow

v. Litz, 558 $.W.2d 742 (Mo. App. 1977); Miller v. Whaley,

581 $.W.2d 916 (Mo. App. 1979).

Fitzgerald’s next point is that he was denied a fair hearing

because the Board refused to admit into evidence a grand jury

report on the Department’s system of evaluatiton which

Fitzgerald contends supports his position that a quota system

existed. For reasons which we do not fully comprehend, the

great majority of the testimony in this case before the Board

dealt with the presence or absence of a quota system in the

First Precinct. The Board found that no quota system existed

in that precinct but specifically held that its action in uphold-

ing Fitzgerald’s termination was not based upon that finding

but rather upon the undisputed actions of Fitzgerald in twice

calling Long a “damn liar.” The evidence which Fitzgerald

a ae

contends should have been admitted was clearly irrelevant

to the charges for which he was terminated. In addition, it

was (as were the petitions from other policemen and citizens

which the Board also refused to admit) the rankest form of

hearsay. We find no error in the Board’s actions in refusing

to admit this material into evidence.

Fitzgerald’s final point is that the evidence fails to establish

sufficient grounds for termination because (1) there was no

evidence that his statements were prejudicial to good order

and discipline of the department or impaired the efficiency

of the department and (2) there was no evidence of contempt

or disrespect toward Long because the verbal exchange was

in the nature of symbolic speech initiated by Long.

As to the first point, there was evidence by several officers

that Fitzgerald’s statements impaired the efficiency of the

precinct and was prejudicial to discipline and good order,

particularly as it affected the newer officers present at the

roll call. In view of the circumstances and Fitzgerald’s actions,

it would seem that no evidence would have been required

for the conduct speaks for itself. Discipline cannot be main-

tained in any organization, particularly not a quasimilitary

one, if employees can, without repercussion, call their super-

visors “damn liars.” See Jenson v. Olson, supra; Magri v.

Giarrusso, supra.

As to the second point, there was nothing “symbolic” about

this speech. Nor was the verbal exchange initiated bv Long.

It was initiated by Fitzgerald when he placed his notice on

the precinct bulletin board. Fitzgerald, having hurled down the

gauntlet, could expect Long’s response as a necessary action

of a superior officer confronted with an attack upon his policies.

Fitzgerald chose to place his complaints before the employees

—

in the precinct and he is in no position to complain that his

assertions were challenged in the same form.

Judgment affirmed.

Gerald M. Smith /s/

Gerald M. Smith, Presiding Judge

Harold L. Satz /s/ Concurs

Harold L. Satz, Judge —_----— ---

Paul J. Simon, /s/ Concurs

Paul J. Simon, Judge

ay es

APPENDIX B

SUPREME COURT No. 62724

IN THE SUPREME COURT OF MISSOURI

EASTERN DISTRICT No. 41790

TRANSFER

Edward P. Fitzgerald,

Appellant,

VS.

Gus O. Nations, et al.,

Respondents

Now at this day, on consideration of Appellant’s Application

to transfer the above entitled cause from the Eastern District

Court of Appeals, it is ordered that said application be, and

the same is hereby denied.

STATE OF MISSOURI-SCT.

I THOMAS F. SIMON, Clerk of the Supreme Court of the

State of Missouri, certify that the foregoing is a full, true and

complete transcript of the judgment of said Supreme Court,

entered of record at the January Session thereof, 1981, and on

the 9th day of Febrauray 1981, in the above entitled cause.

—

Given under my hand and seal of said Court, at the City ot

Jefferson City, this 9th day of February 1981.

Thomas Simon, Clerk /s/

Anne Berhorst, D.C. /s/

ee

APPENDIX C

ST. LOUIS COUNTY

BOARD OF POLICE COMMISSIONS

ST. LOUIS COUNTY MISSOURI

MISSOURI

In re: EDWARD P. FITZGERALD

BOARDS FINDING OF FACT,

CONCLUSIONS OF LAW AND DECISION

The Superintendent of Police, Colonel G. H. Kleinknecht,

by letter under date of November 30, 1976, terminated then

Officer Edward P. Fitzgerald as an officer with the St. Louis

County Police Department. That letter, assigned as the reason

and charged then Officer Fitzgerald with the violation under

Articles 12 and 33 of the St. Louis County Police Depart-

ment’s “Manual ‘Conduct and Discipline’ Rules and Regula-

tions”. Thereafter, and in a timely fashion Fitzgerald appealed

to this Board and a hearing was held commencing on March

14, 1977, and from time to time thereafter until concluded

or or about March 23, 1977. Both the Department and Mr.

Fitzgerald were represented by counsel and after the Depart-

ment’s case had been concluded defendant offered certain

exhibits identified in the transcript and then rested without

calling witnesses.

FINDINGS OF FACT

As a consequence of the evidence and testimony adduced,

inclusive of the exhibits offered and received into evidence,

the Board finds the following facts:

— A-10 —

Edward Fitzgerald, prior to November 30, 1976, was a St.

Louis County Police Officer and had been such for a number

of years. At the time of the discipline which was the subject

of this hearing he was assigned as a beat officer in the First

Precinct and had held such assignment prior to August 9th

and until his termination. Fitzgerald posted a ‘Notice’ dated

July 10, 1976, (Department's Exhibit 6) on the bulletin board

in the First Precinct District Station which contained an asser-

tion that there existed a quota system’ in the First Precinct.

In the notice, Mr. Fitzgerald asserted that he would call

Major Bergauer, Col. Kleinknecht, the Police Board, McNary

(County Supervisor), and any supervisor or commander ‘a

damn liar to their face’ if they asserted there was no ‘quota

system’ in the First Precinct. The bulletin board, upon which

the notice was posted was located in the roll call room where

all the officers in the precinct attend roll call and receive their

assignments prior to the commencement of their duty on each

watch. The board was erected at the Precinct Commander

Capt. Dennis Long’s direction and constituted a method of

disseminating official as well as other information to officers

in the First Precinct.

At the time the notice was posted the Precinct Commander

Captain Long was responsible for the administration of the

First Precinct and responsible for the supervision of all officers

assigned thereto and Fitzgerald was a member of that com-

mand. On August 9, 1976, at roll call in said precinct Fitzgerald

in the presence of several other County officers of Capt. Long’s

command confirmed to Capt. Long that the ‘notice’ was

written and posted by him. The Captain then told Fitzgerald

in the presence of other officers that there was no quota

system in the First Precinct and in response in the presence

of other officers Fitzgerald called Capt. Long a ‘damn liar’ and

asserted that there was a quota system in existence. After

—A-ll—

Fitzgerald's initial response Capt. Long informed Fitzgerald

that it was a serious matter calling his commanding officer a

liar’, Fitzgerald recognized the seriousness of his actions when

he stated that he would put his job on the line because there

was a quota system. After Capt. Long reiterated that there

was no quota system in the First Precinct Fitzgerald again

called Capt. Long a ‘damn liar’ in the presence of his fellow

officers at roll call. As a result of the occurrence on August 9,

1976, Capt. Long on August 10, 1976, initiated a formal com-

plaint against Fitzgerald (Department's Exhibit 7).

The assertions by Fitzgerald that a quota system existed

were conveyed to the St. Louis County Council by letter from

Fitzgerald (Department's Exhibit 20) in which Fitzgerald

charged not only that a quota system exists but that it had

the effect of creating an atmosphere of a ‘police state’ in St.

Louis County, A letter from Superintendent G. H. Kleinknecht

to the County Council under date of August 2 (Department's

Exhibit 83) denied the existence of a quota system as charged

by Fitzgerald. Thereupon a subsequent letter by Fitzgerald

(Department's Exhibit 19) was sent to the County Council

under date of September 19, 1976, with certain enclosures

which indicated the Department had a volatile situation within

it wherein ‘anything could trigger a walkout’ and that he

(Fitzgerald) would be the first to encourage it. A letter

(Department’s Exhibit 19) was replete with criticism of both

the Superintendent of Police, the leadership of the Department

and other insubordinate and caustic assertions. Fitzgerald

openly avowed that he disagreed with the policies of the

Department, its management and its concept of proper police

work as developed by the Department’s administration and

clearly indicated he would choose his own concept of police

work over that of the Department or that required by the

command personnel in the First Precinct.

— A-12 —

While an effort was sade to fasten upon the catchword

‘quota system’ as being properly descriptive of the qualitative

and quantitative analysis of the performance of personnel in

the First Precinct we think the record rather clearly shows

that such did not exist and we so find. To subvert a many

faceted performance evaluation of personnel with a non-

descriptive but popularly misunderstood catchword such as

‘quota system’ is, we think, to purposely mislead and to inten-

tionally misstate. The Board finds from the evidence that

while different interpretations and names for the performance

evaluation analysis which existed in the First Precinct was

indicated that only someone bent upon misleading would

represent that sole emphasis was on volume of work. As a

matter of fact, ‘volume’ was a less important factor in a process

which included an extensive list of performance standards by

which an officer's performance was assayed.

Appellant’s defense seems to have been predicated on the

proposition that any utterance if true is protected no matter

how insubordinate, caustic, vituperative, or otherwise inappro-

priate within the context of a military command, While the

Board finds that Fitzgerald seemed bent upon misrepresenting

the performance evaluation system by a condescendingly criti-

cal ‘label’ the Board is not persuaded that truth, half-truth,

or quarter-truth under these circumstances in this context and

in the domestic constabulary charged with preserving and

maintaining domestic order could be a defense or an excuse.

This police department (as indeed all) is quasi-miltary

both in organization, operation, and, of necessity, in disciplines.

It is essential to a proper functioning of this activity that

respect for command personnel and discipline characterize

every subordinate officer's behavior. If the Denartment is to

respond effectively and efficiently to the challenge of keeping

communities safe and of preserving domestic tranquility

—A-16 —

officers must be ready and willing to act in accordance with

established departmental policies. They must, of necessity,

sublimate whatever penchant they may have individually

either to decide for themselves how and when and where they

will perform and resist the temptation to demonstrate their

independence or their contempt toward those whose duty it

is to direct them. Fitzgerald was not a ‘beginner’. He was a

veteran officer who seemed obsessed with the compulsion

to be insubordinate and whose behavior, comments, assertions,

conduct, etc. were calculated to undermine and foster distrust

of the Department's command personnel, to hold them in

disrepute, to cast aspersions on their integrity and to callously

encourage by his own example insubordinate and contempt by

other younger and more impresionable members of the com-

mand. The Board finds that the conduct of which he here

stands charged and which has gone almost wholly uncallenged

when taken together with a previous history of insubordination

and contumacy' show a lack working relationship and _per-

sonal loyalty on Fitzgerald’s behalf toward his immediate

superiors, command personnel, the Superintendent and the

Department which is so essential to this kind of activity.

‘The Board also finds Fitzgerald was twice before reprimanded

for insubordination in that on March 9, 1975, after an abusive,

disrespectful and insubordinate memoranda toward his super-

ior Major Bergauer was disciplined as he had been on a prior

occasion on November 1, 1972, when the refused to attend

a community relations seminar in violation of an order from

his superior. In his disrespectful and discourteous reply to the

last level order Fitzgerald indicated that he and not the

superintendent of the Department was going to decide what

training or seminars he (Fitzgerald) would attend.

—A-l4—

CONCLUSIONS OF LAW

The Board concludes as a matter of law from the facts as

found above that Fitzgerald was insubordinate to Capt. Long,

his commanding officer, when he called Capt. Long a ‘damn

liar’ and that said insubordination was compounded and em-

phasized by that utterance in the presence of other officers

of the Department who were under the direct command of

Capt. Long. The repetition of that insubordinate, ungentle-

menly, unmilitary, vitriolic epithet, in the precinct roll call

on August 9, 1976, after having been admonished of the seri-

ousness of that sort of utterance constitutes beyond cavil, a

violation of the letter and the spirit of Article 12.2 in that

such utterances and conduct treated with contempt and was

disrespectful in language and deportment toward a super-

visory officer in the execution of department duties and at the

same time a violation of Article 33 for the reason that all

the foregoing are prejudicial to order and discipline in the

Department and they impair the efficiency of the same and

bring discredit upon it. That those utterances of Fitzgerald

were calculated to and did in fact create dissention and foster

lack of respect between patrolmen of the department and

command personnel of the department so as to make it im-

possible for the command to function seems uncontrovertible.

Certainly a police officer under these circumstances has no

protected right to make statements which vilify, defame,

castigate and demean superior officers in a way which threatens

significant working relationships vital to the administration of

a police department.

While this record supports a finding that communications

explicitly insubordinate, vitrolic and untrue were directed to

the St. Louis County Council and do in letter and spirit con-

stitute violations of both Article 12 and Article 33 of the

manual of rules and regulations of conduct and discipline the

— A-15—-

Board is reluctant to interfere with the access by any citizen

to his elected representatives and for that reason expressly

do not conclude as a matter of law that Fitzgerald’s action in

writing to the County Council on either occasion constitutes

an Offense for which the Superintendent ought punish, ought

discipline or the Board ought confirm.

While the Board would not want to be understood as being

anything other than critical and condemnatory of remarks

at any time to any one calculated to encourage or to produce

striking or other stoppages which are illegal under Section

105.530 R.S.Mo. and while constitutional rights will never

provide a shield for actions clearly against the public interest

(i.e. Striking, walk-offs, and other job action) and would

constitute a clear and present danger to the public health,

safety and welfare so as to disentitle them to constitutional

protection (Thomas v. Collins, 323, U.S. 516, 529-543, 1944,

at Loc Cit 9-10), we in nowise predicate our ruling herein on

Fitzgerald’s correspondence with the St. Louis County Council.

We think Fitzgerald’s conduct on August 9th is clearly

within the doctrine in Jenson v. Olson, 353 Fed. 2d 825 (Eighth

Circuit 1965). In that case plaintiff was dismissed as a munici-

pal employee as a result of having made repeated criticisms

and charges relative to political influence and fault in the

welfare department as well as alleging inequities and ineffi-

ciencies within the department operation. In this connection

the Court in Jenson said:

“Here plaintiff asserts a right to make any criticism or

charges he deems warranted under the protection of the

First and Fourteenth Amendments. Within the bounds

imposed by the laws of libel and slander no one would

deny the plaintiff has the right. Plaintiff, however, has no

right to poe employment. He may speak if he pleases

and level charges at all suspects but if the exercise of this

— A-16—

privilege disrupts his own work and reduces the efficiency

of the department he is subject to discharge for cause.

The plaintiff has an absolute obligation to satisfactorily

perform the duties and work inherent in his position. One

of these duties is to conform to departmental regulations

in making his investigations and reports. He may speak

as he wishes but also must be responsible to his statements.

When his speech is disruptive of the proper functioning

of the public’s business the privilege of governmental em-

ployment may be withdrawn without it being said that he

was denied his freedom of speech. To hold otherwise

would enable governmental employees to practice the

rankest form of insubordination and safely hide behind

the right of free speech.” (Emphasis added / Loc Cit. 828)

oO ° 9

“Here plaintiff asserts a right to make any criticism or

advance any charges he deems warranted and remain

absolutely secure in his position. He wants the Constitu-

tion to serve as a personal protection in this dispute

between himself and his superiors. It was not intended

to nor does it serve that function.” (Ibid 829)

Again in Magri v. Giarrusso 379 Fed. Supl. 353 (E.D. La

1974) the President of the Patrolmen’s Association of New

Orleans was dismissed. He continually had been critical of the

police department’s practices and policies, A dispute between

Magri, the officer, and the Superintendent of Police Depart-

ment arose concerning the interpretation of a particular collec-

tive bargaining agreement. During the dispute Magri labeled

a new pay plan as a ‘cruel hoax’ on the City’s policemen and

called for the Superintendent to rescind the order, referred

to the Superintendent as ‘a coward’ asserted that the Super-

intendent was lying, and called for the Superintendent's resig-

nation. The Court noted that Magri’s final derrogatory public

comment about the Superintendent for which he was fired

was when he referred to the Superintendent as a liar. The

Magri court noted that the Superintendent at that juncture

—A-17—

took the position that he could not permit personal attacks

on his credibility, integrity and leadership abilities which

had obviously been impugned when Magri had called him a

‘coward’ and a ‘liar’, Magri was dismissed for his public state-

ments which the Superintendent had concluded had proven

detrimental to the department. He contended his dismissal was

in abrogation of his right of freedom of speech guaranteed by

the First and Fourteenth Amendments of the United States

Constitution. The Magri court disagreed and sustained his

dismissal. The Magri court in so ruling stated:

“It hardly needs pointing out that the Superintendent

needs the confidence and loyalty of his men in order to

run an effective police department, in order to maintain

an efficient and disciplined force. Magri’s insubordinate

pores bordering on the defamatory worked to destroy

this relationship between the Superintendent and _ his

men.” (Loc Cit 361) (Emphasis added)

° vo 9

“A public employee enjoys the rights of freedom of ex-

pression conferred by the First Amendment. The Court

would have recognized and, indeed, encouraged respon-

sible public criticism of the Superintendent’s policies, of

the proposed police pay raise and of the proposed com-

pulsory arbitration bill. But that does not include the

vitriolic remarks which this court finds threatens signifi-

cant working relationships vital to the administration of

the police department.” (Emphasis added )

Again in Arnett v. Kennedy 416 U.S. 134, 94 S.Ct. 1633,

L.Ed. 2d 15 (1974). The Court recognized the legal principle

that in appropriate situations a government employee can be

dismissed as a result of his speech without offending the First

Amendment. In this context the Court stated:

“The phrase ‘such cause as will promote the efficiency of

the service’ as a standard of employee job protection is

so

without doubt intended to authorize dismissal for speech

as well as other conduct. Pickering v. Board of Education,

391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed. 2d 811

(1968), makes it clear that in certain situations the dis-

charge of a government employee may be based on his

speech without offending guarantees of the First Amend-

ment: °°* 416 U.S. 160, 94 S.Ct. at 1647.

The Court in Arnett quoted approvingly from Meehan v. Macy,

129 U.S. App. D.C. 217, 230, 392 F. 2d 822, 835 (1968), modi-

fied, 188 U.S. App. D.C. 38, 425 F.2d 469, aff'd en banc 138

U.S. App. D.C. 41, 425 F 2d 492 (1969), where that court

stated:

“°?° We think it is inherent in the employment relation-

ship as a matter of common sense if not common law that

[a Government] employee . . . cannot reasonably assert a

right to keep his job while at the same time he inveighs

against his superiors in public with intemporate and de-

famatory [cartoons] . . . . [Dismissal in such circumstances

neither] comes as an unfair suprise [nor] is so unexpected

. as to chill . . . freedom to engage in appropriate

speech”, 416 at 161-162, 94 S.Ct. 1648.

In Parker v. Levy, 417 U.S. 733, 94 S Ct. 2547, 41 L. Ed, 2d

439 (1974), on the issue of freedom of speech the court said

with respect to comments made by a military officer:

“His conduct, that of a commissioned officer publicly

urging enlisted personnel to refuse to obey orders which

might send them into combat, was unprotected under the

most expansive notions of the First Amendment.” 417 U.S.

at 761, 94 S.Ct. 2564.

Parker goes off on the need of discipline in the military. That

principle of discipline was recognized and incorporated into

the police officer field in the State of Missouri by the case of

— A-19 —

Milani v. Miller 515 S.W. 2d 412 (Mo, 1974), where the Court

stated with reference to Parker v. Levy that:

“We hold that the principles declaring the validity of such

regulations as necessary for the discipline of the military,

are also applicable to the internal regulation and discipline

of a metropolitan police department.” 515 S.W. 2d at 418

In the Fitzgerald matter before us we find as a matter of

law that the St. Louis County Police Department is a quasi-

military organization, and that the statements, assertions,

action and conduct of Fitzgerald were detrimental to the

department’s efficient operation, to its reputation, to its rela-

tionship between patrolmen and command personnel, to dis-

cipline within the department violative of Articles 12 and 33

of the department’s regulation and that Fitzgerald was prop-

erly terminated by the Superintendent and that the First

Amendment of the United States Constittuion does not man-

date our finding to the contrary.

— A-20—

DECISION

It is hereby ordered that the decision of the Superintendent

of Police terminating Edward P. Fitzgerald as a St. Louis

County Police Officer be affirmed.

Gus O. Nations /s/

Chairman, St. Louis County Board

of Police Commissioners

Earl J. Gates /s/

Vice-Chairman, St. Louis County

Boar dof Police Commissioners

Frank C, Bick /s/

Secretary, St. Louis County

Board of Police Commissioners

Harry T. Burrnar /s/

Member, St. Louis County Board

tof Police Commissioners

Hugh Scott /s/

Member, St. Louis County Board

of Police Commissioners

DATE: October 7, 1977