# Petition — Fitzgerald v. Nations

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 452 U.S. 906

## Text

Uffice- Supreme Uourt, U.S.
ee ee

APR 8 1981

50-1689

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IN THE

Supreme Court of the United States

... TERM, 1981

—_—

PR ks

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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,
i

PETITION FOR WRIT OF CERTIORARI
To The Missouri Court of Appeals
Eastern District

—
<P -

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.

<
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
(Jucstions Presemfed.... ..... 6.¢.055%.0 055 eee i
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

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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.

pee ee

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1593%3A1. Public record. Not legal advice.