Petition for Writ of Certiorari — Smith v. Fruin

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' 94 877 NOV 1 41994

Ne@ccice OF THE CLERK

Supreme Court ofthe Hnited States

—~>

OctéBer Term, 1994

JOHN S. SMITH,

| 4 Petitioner,

VS.

JAMES’FRUIN, ROBERT BIEBEL, STEPHEN KUHN and

WILLIAM MURRAY,

Respondents.

Petition for Writ of Certiorari to the United States Court of

Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

RICHARD J. BRZECZEK

Counsel of Record

RICHARD J. BRZECZEK

& ASSOCIATES

Attorneys for Petitioner

5251 North Central Avenue

Chicago, Illinois 60630

(312) 283-8711

ingen a (800) 3 APPEAL + (800) 5 APPEAL * (800) BRIEF 21

- —

MPS LETT

II.

QUESTIONS PRESENTED FOR REVIEW

Does the First Amendment protect a public employee’s speech

where the employee speaks out in the non-enforcement of a

public health law in which the employee has a personal interest

as a citizen and not connected with his employment?

Did the United States Court of Appeals for the Seventh Circuit

err by expanding the definition of "purely private interest" to

include speech by a public employee on a matter of public

concern motivated, in part, by personal interest not connected

with his employment?

TABLE OF CONTENTS

TAs GF ATEN bbe ccc tseweccseeenceccess iv

SUTRERIOEC TIAL, SEASEIMMTE ccc ccccccccccvccscces vii

CONSTITUTIONAL PROVISIONS,

poe Pe eee eT Tee PPC eT Ce PECL eee viii

SEIGREESE GF SUM GED 0 cc ccccccuswesedsansscenas 1

SST GS FUPNTE ic ccksvic cd ab bewehbeses b

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I. THE COURT OF APPEALS ERRED IN

DENYING FIRST AMENDMENT PROTECTION

TO A PUBLIC EMPLOYEE’S SPEECH WHERE

THE EMPLOYEE SPEAKS OUT ON THE

NONENFORCEMENT OF A PUBLIC HEALTH

LAW IN WHICH THE EMPLOYEE HAS AN

INTEREST AS A CITIZEN AND NOT IN

CONNECTION WITH HIS EMPLOYMENT.......... 6

II. THE COURT OF APPEALS ERRED BY

EXPANDING THE DEFINITION OF "PURELY

PRIVATE INTEREST” TO INCLUDE SPEECH BY

A PUBLIC EMPLOYEE ON A MATTER OF

PUBLIC CONCERN MOTIVATED, IN PART, BY A

PERSONAL INTEREST NOT CONNECTED WITH

eR et, re ne re sea rey 11

CUTAN oc ccccencdene cute eeeeuaaneshe eee 17

APPENDIX

A.

Order of the United States Court of Appeals

for the Seventh Circuit Dated August 15, 1994 .. la

Decision of the United State Court of Appeals

for the Seventh Circuit Dated June 30, 1994 .... 3a

Memorandum Opinion and Order of the

United States District Court for the Northern

District of Illinois, Eastern Division Dated

''y |. Arr ee eee 21a

Memorandum Opinion and Order of the United

States District Court for the Northern

District of Illinois, Eastern Division Dated

October 21, 1992 .....- ccc cccscccccccees 27a

Regulations Involved ....-.----+-++e++00- 32a

Chicago Police Department Special Order

Dated July 14, 1988 .......----- eee eeee: 38a

iil

TABLE OF AUTHORITIES

United States Supreme Court Cases

Connick v. Myers, 461 U.S. 138 (1983) .. 4,5, 6, 7, 8, 10, 11, 12, 15

Pickering v. Board of Education, 391 U.S. 563 (1988) ......... 4

Rankin v. McPherson, 483 U.S. 378 (1987) .............. 7, 11

Appellate Court Cases

Calloway v. Hafeman, 832 F.2d 414 (7th Cir. 1987) .......... 14

Altman v. Hurst, 734 F.2d 1240 (7th Cir. 1984) ............. 13

Barkoo v. Melby, 901 F.2d 613 (7th Cir. 1990) .............. 12

Beik v. Town of Minocqua, 858 F.2d 1258 (7th Cir. 1988) . 7, 12, 15

Breuer v. Hart, 909 F.2d 1035 (7th Cir. 1990) .............. 15

Colburn v. Trustees of Indiana University, 973 F.2d 581 (7th Cir.

OI ss a ee 12

Glass v. Dachel, F.3rd 733 (7th Cir. 1993) ................. 15

Griffin v. Thomas, 929 F.2d 1210 (7th Cir. 1991) ............ 13

Hartman v. The Board of Trustees of Community College District

No. 508, Cook County, Illinois, 4 F.3d 465 (7th Cir. 1993) ..... 12

Hesse v. Board of Education of Township High School District No. 211,

Cook County, Illinois, 848 F.2d 748 (7th Cir. 1968) .....-.--- 13

Kinsey v. Salado Independent School District, 916 F.2d 273, 278-279

(Ri TITTY oon a cence coe eutienss ene censsege eees 9, 16

Linhart v. Glatfelter, 771 F.2d 1004 (7th Cir. 1985) .....----- 13

O’Connor v. Steeves, 994 F.2d 905, 913 (1st Cir. 1993) ....---- 8

Phares v. Gustafson, 856 F.2d 1003 (7th Cir. 1988) ...-.----- 13

Rode v. Dellarciprete, 845 F.2d 1195 (3rd Cir. Sees 16

Smith v. Fruin, 28 F.3d 646, at 651 (7th Cir. 1994) ......- 7, 12, 37

Tau v. Freeh, 27 F.3d 635 (D.C. Cir. 1994) ....-----eseeeeee 16

Zaky v. United Veterans Administration, 793 F.2d 832 (7th Cir.

I aii ee EEE RSET TR EE ET 13

Zamboni v. Stamler, 847 F.2d 73, p. 78 (3rd Cir. 1988) ...-- 9, 16

District Court Cases

Smith v. Martin, 819 F.Supp 733, 734 (N.D. Ill. 1992) .....---- 9

Statutes and Ordinances

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EE EERE a ere ore Sree ee pa

ee ed ee deeb awe ews

Chicago Clean Indoor Air Ordinance

SD ONAL S$ NT

Petitioner seeks to review the June 30, 1994 decision of the

United States Court of Appeals for the Seventh Circuit which granted

judgment for the Respondents. The Court of Appeals for the Seventh

Circuit had jurisdiction over the appeal pursuant to 28 U.S.C. sec. 1292.

Subsequently, the Court of Appeals for the Seventh Circuit denied

Petitioner’s Petition for Rehearing with a suggestion for a hearing en

banc on August 15, 1994. 28 U.S.C. sec. 1254(1) confers this Court

with jurisdiction to review the judgment of the Court of Appeals for the

Seventh Circuit by Writ of Certiorari.

CONSTITUTIONAL PROVISIONS AND STATUTES

FIRST AMENDMENT

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.

42 U.S.C. sec. 1983

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the District

of Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of rights, privileges or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress. For the

purposes of this section, any Act of Congress applicable exclusively to

the District of Columbia shall be considered to be a statute of the

District of Columbia.

STATEMENT OF CASE

In 1988, the Chicago City Council passed the Chicago Clean

Indoor Air Ordinance ("Ordinance") which, among other things

restricted smoking in public buildings and prohibited retaliation against

City employees for requesting enforcement of the Ordinance.

(Appendix E) Shortly thereafter, the Chicago Police Superintendent

issued a department-wide Special Order which tracked the language of

the Ordinance. (Appendix F)

Petitioner, JOHN S. SMITH, was a detective assigned to the

Chicago Police Department's ("CPD") Area 5 Violent Crimes Section

and, for many years before, investigated sex offenses committed against

women and children. Petitioner is a non-smoker and an amateur

competitive long-distance marathon runner.

Virtually immediately after the passage of the Ordinance and

the issuance of the CPD Special Order, Petitioner made repeated

requests to JAMES E. FRUIN, his commander and the person in

overall charge of detectives at Area 5, to enforce the provisions of the

Ordinance and the Special Order by designating no smoking areas in

the Area 5 police facility. Petitioner also informed FRUIN that

Petitioner did not want to inhale other people’s carcinogens in the form

of second-hand smoke and that he was particularly sensitive to second-

1

hand smoke. Petitioner’s requests to FRUIN were never

accommodated. After almost three years of fruitless efforts on the part

of the Petitioner in the form of repeated requests made to FRUIN,

Petitioner contacted a senior official in the Department of Health of

the City of Chicago, charged with the enforcement of the Ordinance,

and related his inability to get the Ordinance enforced in the Area 5

facility as well as his personal frustration of being continually subjected

to second-hand smoke while working in the Area 5 facility. Subsequent

thereto, Petitioner was directed to contact a senior officer in the police

department’s Legal Affairs Section which Petitioner did on June 12,

1991. Petitioner informed the senior Legal Affairs officer of

Petitioner’s inability to get the Ordinance and Special Order enforced

and expressed his personal frustration of having to be exposed to

second-hand smoke while working in the Area 5 facility.

On June 13, 1991 Petitioner was advised by his immediate

supervisor, SERGEANT ROBERT BIEBEL, that he was going to be

given a smoke-free environment. Petitioner was given a "surveillance

assignment” which Petitioner later learned to be pretextual and which

lasted for several weeks until terminated as a result of a newspaper

article appearing in the Chicago Tribune on July 4, 1991. Petitioner

filed his cause of action in the United States District Court for the

2

Northern District of Illinois, Eastern Division on July 9, 1991 alleging,

among other things, violation of his First Amendment Rights enforced

through the federally enacted statute 42 U.S.C. sec. 1983.

Subsequent to the filing of his action in the district court,

Petitioner was further retaliated against by being placed on the evening

shift for a period of seven months; then on the midnight shift for

another seven months even though Petitioner had been assigned to the

day shift for many years prior to the filing of the lawsuit. Petitioner

was also placed on involuntary medical leave for psychiatric reasons

despite the fact that the CPD mental health professional found nothing

psychologically wrong with the Petitioner. Petitioner also suffered

significantly lower performance ratings, but for twenty years prior to his

filing the lawsuit Petitioner enjoyed relatively high performance ratings

and had an unblemished record. Upon his return to duty from the

involuntary medical leave for psychiatric reasons, Petitioner was placed

in an intensely supervised program designed for problem employees.

The Respondents brought a motion for summary judgment in

the district court on the basis of qualified immunity alleging that in

June of 1991 Petitioner’s First Amendment protection regarding free

speech as it related to Petitioner’s complaints about second-hand smoke

in the work place was not clearly defined.

3

The district court made a preliminary determination, in a

Memorandum Opinion and Order dated October 21, 1992, that

Petitioner’s speech as it related to the inhalation of second-hand smoke

is a matter of public concern within the protection of Pickering v.

Board of Education, 391 U.S. 563 (1988) and Connick v. Myers, 461

U.S. 138 (1983). (Appendix D) After a full briefing by the parties on

the issue of qualified immunity, the district court in a Memorandum

Opinion and Order dated June 28, 1993, denied the Respondents

motion for summary judgment on the grounds of qualified immunity as

to four of the original six defendants. (Appendix C)

The Respondents perfected an appeal to the United States

Court of Appeals for the Seventh Circuit. The Court of Appeals

reversed the district court’s decision holding that Petitioner’s speech

was not protected by the First Amendment as speech on a matter of

public concern; that Petitioner’s speech was solely on his own behalf

and in his own interest; and Respondents were entitled to judgment on

this ground alone and that the district court need not have reached the

question of qualified immunity. (Appendix B) Petitioner sought

rehearing before the Seventh Circuit with suggestion for rehearing en

banc which was denied by order of the Seventh Circuit on August 15,

1994. (Appendix A)

SUMMARY OF ARGUMENT

The Court of Appeals incorrectly applied the threshold test as

set down by this Court in Connick v. Myers, 461 U.S. 138 (1983), in

determining whether a public employee’s speech is a matter of public

concern or is it speech of purely (emphasis added) private interest.

The decision by the Court of Appeals is incorrect as it creates new and

larger boundaries for speech which is to be considered purely private

interest and, correspondingly, creates new and more restrictive

boundaries for speech which touches on matters of public concern. The

Court of Appeals thereby reduced the scope of First Amendment

protections previously and clearly defined by this Court. The Court of

Appeals also shifts the relative importance or weight of the three-

pronged Connick test in which an employee’s speech must be analyzed

as to content, form and context with content being the most important.

The Court of Appeals’ analysis of Petitioner’s speech is incomplete as

it only addresses the effects of second-hand smoke which allegedly only

involved him personally and therefore held that he was speaking solely

on his own behalf and in his own interest in voicing those concerns.

The Court of Appeals conveniently ignores Petitioner's demand for the

enforcement of the Ordinance or, alternatively, minimizes its import

by dismissing it as an after-the-fact self-serving statement. Lastly, the

5

Court of Appeals overrides the preeminence of the "content" prong of

the Connick test by holding that even if the "content" prong can lead

one to conclude that the speech is a matter of public concern, the

"form" and "context" should be given greater weight if the speaker has

a personal interest in the matter about which he spoke.

For all of these reasons, this Court should grant the Petition for

Certiorari, reverse the decision of the United States Court of Appeals

for the Seventh Circuit and remand to the district court for further

proceedings.

I. THE COURT OF APPEALS ERRED IN DENYING FIRST

AMENDMENT PROTECTION TO A PUBLIC EMPLOYEE’S

SPEECH WHERE THE EMPLOYEE SPEAKS OUT ON THE

NONENFORCEMENT OF A PUBLIC HEALTH LAW IN WHICH

THE EMPLOYEE HAS AN INTEREST AS A CITIZEN AND NOT IN

CONNECTION WITH HIS EMPLOYMENT.

When employee expression cannot be fairly considered as

relating to any (emphasis added) matter of political, social, or other

concern to the community, government officials should enjoy wide

latitude in managing their offices, without intrusive oversight by the

judiciary in the name of the First Amendment. Connick, 461 U.S. at

146. This Court continues to zealously guard First Amendment

protections as to any matter of political, social or other concern to the

community even if the statement is inappropriate or controversial in

character. Rankin v. McPherson, 483 U.S. 378 (1987). The First

Amendment does not protect speech and assembly only to the extent

that it can be characterized as political. Great secular causes with

smaller ones, are guarded. Connick, 461 U.S. at 147. While the

Chicago City Council was not a pioneer in enacting public health

legislation designed to protect persons from the effects of second-hand

smoke, it did follow the lead of numerous jurisdictions at all levels of

government when the Ordinance was enacted. The Court of Appeals

admitted the public concern nature of the effects of second-hand smoke

when it stated that it had no doubt that the issue of second-hand smoke

was a matter of widespread public interest in July of 1991 and that it

certainly remains the subject of considerable public debate today. Smith

v. Fruin, 28 F.3d 646, 651 (7th Cir. 1994) (Appendix B). The Seventh

Circuit recognizes that “content” is the greatest single factor in the

Connick inquiry. Belk v. Town of Minocqua, 858 F.2d 1258 (7th Cir.

1988). Despite its correct analysis in Belk, that content is the most

important factor in the Connick test, the Court of Appeals chose to

ignore that precedent and give greater weight to the form and context

of Petitioner’s speech and then went on to erroneously analyze the form

and context of Petitioner’s speech.

The Courts of Appeals have adopted various approaches for

determining whether a topic of employee’s speech is of "public concern”

using the "threshold inquiry” required by Connick, 461 U.S. 138. Some

circuits have adopted a content-based analysis, focusing exclusively on

which information is needed or appropriate to enable the members of

society to make and form decisions about the operation of their

government. O’Connor v. Steeves, 994 F.2d 905, 913 (1st Cir. 1993).

Other circuits have adopted an analysis which turns either entirely, or

in part, on the employee’s subjective intent. Id. However, where a

public employee speaks out on a topic which is clearly a legitimate

matter of inherent concern to the electorate, the court may eschew

further inquiry into the employee’s motives as revealed by the "form

and context" of the expression. Id., at 913-914.

By focusing solely on an employee’s motivation as are the

Seventh Circuit, a court does not fully analyze the content, form and

context of the speech as is required by the three-pronged Connick

threshold test. The Fifth Circuit has expressly recognized that an

employee’s speech may contain a mixture of public and personal

concerns and it does not read Connick, 461 U.S. 138, to exclude the

8

possibility that an issue of private concern to the employee may also be

an issue of public concern. Kinsey v. Salado Independent Schoo!

District, 916 F.2d 273, 278-279 (5th Cir. 1990). It is clear that only a

portion of a communication need address a matter of public concern.

Id. Likewise, the Third Circuit has held that while a public employee

has a personal stake in the speech at issue, the speaker’s motivation is

merely one factor to be considered, but not necessarily controlling, in

assessing the character of the employee’s speech. "Complete reliance"

on the employee’s motivation in speaking is inappropriate. It is

unlikely that any employee who lacks a personal interest in the subject

that gives rise to the speech in question would file a lawsuit to vindicate

his or her First Amendment rights. Zamboni v. Stamler, 847 F.2d 73,

78 (3rd Cir. 1988); see also, Smith v. Martin, 819 F.Supp 733, 734

(N.D. Ill. 1992) (Appendix D).

The continuing debate anchored by the proliferation of public

health legislation designed to protect individuals against the deleterious

effects of second-hand smoke clearly make the issue of second-hand

smoke in the work place not only a matter that may touch on public

concern but is, in fact, a matter of public concern. The fact that the

Petitioner was concerned about the effects of second-hand smoke on

his own health did not override the more important "content" analysis

9

that the issue is one of public concern as well. There is nothing in the

record to show that Petitioner had a solely private motivation as it

related to his employment at that time, i.e. to advance his personal

career or to defend against some adverse personnel action. Rather, his

personal motivation was that of any citizen who would expect

compliance with, and enforcement of, a public health law in a police

station by the police officers who are primarily charged with the

enforcement of all laws.

The Seventh Circuit misapplied the threshold inquiry required

by the Connick test and erroneously ruled that a personal interest in an

issue of public concern by a public employee speaking on his own

behalf is not speech protected by the First Amendment as speech on a

matter of public concern.

For the reason set forth above, this Court should grant the

Petition for Certiorari, reverse the decision of the Court of Appeals and

remand to the district court for further proceedings.

10

CES SRT SGN RENT I RAIS ANNE HR

Il. THE COURT OF APPEALS ERRED BY EXPANDING THE

DEFINITION OF "PURELY PRIVATE INTEREST” TO

INCLUDE SPEECH BY A PUBLIC EMPLOYEE ON A

MATTER OF PUBLIC CONCERN MOTIVATED, IN PART,

BY A PERSONAL INTEREST NOT CONNECTED WITH HIS

EMPLOYMENT.

In analyzing and contrasting the difference between matters of

public concern and matters only (emphasis added) of personal interest,

this Court held in Connick, that when a public employee speaks not as

a citizen upon matters of public concern but instead as an employee

upon matters only of personal interest, absent the most unusual

circumstances, a federal court is not the appropriate forum in which to

review the wisdom of a personal decision taken by a public agency

allegedly in. a reaction to the employee’s behavior. 461 U.S. at 147.

This Court, in analyzing the statement made by the speaker in

expressing a desire to see a more efficient assassination attempt on the

President’s life if one was to be made in the future, applied the

threshold test of its prior decision in Connick and came to the

conclusion that it plainly dealt with a matter of public concern despite

the fact that it was made in a private conversation and despite the fact

that it was inappropriate or controversial in character. Rankin, 483

US. at 388.

While Connick, uses the words, "... only of personal interest ...”

other courts in applying Connick have used parallel expressions such as

"purely (emphasis added) private interest", Belk, 858 F.2d at 1262, n5;

"entirely (emphasis added) personal in nature." Smith, 28 F.3d at 651.

In the Seventh Circuit there appears to be well established precedent

that when speech was not a matter of public concern but rather that of

purely (emphasis added) private interest, the purely (emphasis added)

private interest is generally and inextricably connected to a personnel

matter involving the speaker. In Colburn v. Trustees of Indiana

University, 973 F.2d 581 (7th Cir. 1992), the overriding reasons for the

speech were the concerns of a few individuals whose careers may be on

the line and the speech appeared more like an internal personal dispute

than an effort to make the public aware of wrongdoing. In Hartman

v. The Board of Trustees of Community College District No. 508, Cook

County, Illinois, 4 F.3d 465 (7th Cir. 1993), Hartman’s speech related

predominately to her personal interest in resolving the friction between

herself and Glover (another Defendant) and not as part of some

broader effort to protest sexual harassment. In Vukadinovich v.

Bartels, 853 F.2d 1387 (7th Cir. 1988), the plaintiff was attempting to

articulate his private dissatisfaction with his termination and the reasons

given for it. In Barkoo v. Melby, 901 F.2d 613 (7th Cir. 1990), the

12

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plaintiff provided no evidence that she was concerned with anything

more than advancing her career or, more appropriately here, preventing

her career from going downhill. In Yatvin v. Madison Metropolitan

School District, 840 F.2d 412 (7th Cir. 1988), the plaintiff wanted to

advance her career and not promote a cause. In Zaky v. United

Veterans Administration, 793 F.2d 832 (7th Cir. 1986), the plaintiff's

statements were made in defense of numerous complaints against the

plaintiff and were made in the context of an employee protecting his

job in a matter of personal interest. In Hesse v. Board of Education of

Township High School District No. 211, Cook County, Illinois, 848 F.2d

748 (7th Cir. 1988), the plaintiff's speech was not voiced out of a

concern for the public but rather plaintiff's criticisms merely defended

the plaintiff's personal teaching methods. In Griffin v. Thomas, 929

F.2d 1210 (7th Cir. 1991), the plaintiff's speech related directly to her

performance rating which was a matter of purely private concern. In

Phares v. Gustafson, 856 F.2d 1003 (7th Cir. 1988), the plaintiffs

speech related directly to having her position reclassified as a medical

records librarian. In Altman v. Hurst, 734 F.2d 1240 (7th Cir. 1984), the

plaintiff, in advising a fellow officer to appeal a disciplinary action and

becoming subject to retaliatory action for such advice, was not

protected by the First Amendment. In Linhart v. Glatfelter, 771 F.2d

13

1004 (7th Cir. 1985), the plaintiff's speech was only for the purposes of

securing his job as chief of police. In Calloway v. Hafeman, 832 F.2d

414 (7th Cir. 1987), plaintiffs remarks were connected to her

subsequent demotion by virtue of her reassignment. All of the

foregoing decisions of the Seventh Circuit clearly show how the speaker

was attempting to advance his or her career or to defend against some

type of adverse personne! action by attempting to raise issues

purporting to be matters of public concern. An analysis of these

decisions clearly shows the specific employment or personnel

connection of the speaker and that the speech was uttered and

motivated either in response to the adverse personnel action or in

anticipation of a contemplated adverse personnel action. Petitioner’s

speech was to promote a cause, i.e. the enforcement of the public

health ordinance and the creation of a smoke-free work environment.

Nothing in the record discloses that Petitioner was seeking to advance

his career or to prepare a defense against some adverse personnel

action when he undertook the speech on the issue of the public and

individual health hazards of second-hand smoke and_ the

nonenforcement of the public health ordinance.

Furthermore, not all situations are clear-cut, i.e. either matters

of public concern or matters of purely private interest. The Courts of

14

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Appeals have resolved issues regarding mixed statements, i.e. those

statements which touch on matters of public concern and have the

personal interest of the speaker. For example, the Seventh Circuit in

Belk, 858 F.2d 1258, held that the plaintiffs allegations were bound up

in a personal dispute with her employer but that the substance of her

threats and grievance undeniably relates to matters of concern to the

public. In Glass v. Dachel, 2 F.3d 733 (7th Cir. 1993), the Court of

Appeals held that while matters of public concern include speech aimed

at uncovering wrongdoing or breaches of the public trust, a personal

stake in exposing the wrongdoing is not alone sufficient to declare that

the speech does not also involve matters of public concern. Motive

may be relevant but not dispositive. In Breuer v. Hart, 909 F.2d 1035

(7th Cir. 1990), the Court of Appeals held that motive behind the

employee’s speech, while relevant to the public concern inquiry, is not

dispositive. The finding that the speaker was motivated by a narrow

self-interest may, in itself, strongly suggest that his speech involved a

private dispute. Yet, such a finding alone cannot disqualify a speaker

from protection. Wrongdoing may often be revealed to the proper

authority only by those who have some personal stake in exposing

wrongdoing. The Seventh Circuit has repeatedly recognized that

"content" is the greatest single factor in the Connick inquiry. In

15

Zamboni, 847 F.2d at 78, all of the expressions of the plaintiff referred

to policy issues as well as to his personal complaint. Because of the

former, the Third Circuit held as a matter of law that the plaintiff's

speech was speech on a matter of public concern. The Fifth Circuit

held in Kinsey, 916 F.2d at 279, that although the plaintiff undoubtedly

had a personal interest in the outcome of the school board election, his

motive is not the controlling issue. In Tao v. Freeh, 27 F.3d 635 (D.C.

Cir. 1994), the D.C. Circuit observed that while the speech

(communicated in a letter) may have been instigated by an individual

personnel dispute, its content reaches beyond that dispute to a broader

issue - racial discrimination in a public agency. Id. at 640. The

plaintiff's complaint of discrimination, while expressed in connection

with her disappointment over not being promoted, was a matter of

serious public import that was broader than her individual personnel

dispute. Id. at 641. Dismissing plaintiff's speech as unprotected merely

because he had a personal stake in the controversy fetters public debate

on an important issue because it muzzles an affected public employee

from speaking out. Id. at 640 (quoting Rode v. Dellarciprete, 845 F.2d

1195 (3rd Cir. 1988)).

16

CONCLUSION

It is clear that the Court of Appeals impermissibly and

erroneously expanded the definition of "purely private interest." Public

employees speaking out on matters of public concern have always had

a personal interest or a personal motivation in the subject matter about

which they are speaking or advocating. The determination by the

Seventh Circuit in Smith, 28 F.3d 646 that the First Amendment is not

available to the Petitioner because he had a personal interest in and/or

was personally motivated by the issue of second-hand smoke (which the

Seventh Circuit acknowledges is a matter of public concern) slams the

door on the First Amendment for the Petitioner and all those who

would have derived the public health benefits from his speech.

For the reasons set forth above, this Court should grant the

Petition for Certiorari, reverse the decision of the Court of Appeals,

and remand to the district court for further proceedings.

Respectfully submitted,

VN AAHULSEA oa ieee

RICHARD J. BRZECZEK

Attorney for Plaintiff/Petitioner

Richard J. Brzeczek and Associates, Ltd.

5251 N. Central Avenue

Chicago, Illinois 60630

(312) 283-8711 (office)

(312) 283-3783 (fax)

17

APPENDIX A — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

DATED AUGUST 15, 1994

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

August 15, 1994

Before

Honorable WALTER J. CUMMINGS, Circuit Judge

Honorable MICHAEL S. KANNE, Circuit Judge

Honorable ILANA DIAMOND ROVNER, Circuit Judge

No. 93-2839

JOHN S. SMITH,

Plaintiff-Appellee,

v.

JAMES FRUIN, ROBERT BIEBEL, STEPHEN KUHN, and

WILLIAM MURRAY,

Defendants-Appellants.

No.91C 4257

Milton I. Shadur, Judge

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

la

Appendix A

ORDER

On consideration of the petition for rehearing with

suggestion for rehearing en banc filed by plaintiff/appellee on

July 13, 1994, no judge in active service has requested a vote

thereon, and all of the judges on the original panel have voted to

deny the petition. Accordingly,

IT IS HEREBY ORDERED that the petition for rehearing

with suggestion for rehearing en banc be, and the same is, hereby

DENIED.

2a

APPENDIX B — DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

DATED JUNE 30, 1994

John S. SMITH, Plaintiff-Appellee,

v.

James FRUIN, Robert Biebel, Stephen

Kuhn, and William Murray,

Defendants-Appellants.

No. 93-2839.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 17, 1994.

Decided June 30, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied Aug. 15, 1994.

* * *

Richard J. Brzeczek, Brzeczek & Associates, Chicago, IL

(argued), for plaintiff-appellee.

Lawrence Rosenthal, Deputy Corp. Counsel (argued),

Frederick S. Rhine, Asst. Corp. Counsel, Terence J. Moran,

Benna R. Solomon, Susan S. Sher, Office of Corp. Counsel,

Chicago, IL, for defendants-appellants.

3a

Appendix B

Before CUMMINGS, KANNE, and ROVNER, Circuit

Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

John S. Smith, a Chicago police detective, brought suit

against his superiors in the police department contending that

they had given him a sham surveillance assignment as a

punishment for voicing his concerns about smoking in his

workplace. The appellants moved for summary judgment on the

basis of qualified immunity. The district court denied the motion,

reasoning that it should have been clear to the appellants that

Detective Smith’s complaints constituted protected speech on a

matter of public concern, for which he could not be penalized.

Because we conclude based on the undisputed facts that

Detective Smith’s complaints were in the nature of personal

grievances rather than speech on a matter of public concern, we

reverse.

I. FACTS

At all times relevant to this action, Detective Smith was

assigned to the Violent Crimes Section of the Chicago Police

Department, Area 5. Commander James Fruin headed the Area 5

Detective Division until his retirement from the police force on

July 9, 1991. Robert Biebel and Stephen Kuhn are both sergeants

who supervised Detective Smith and other detectives in the Area

5 Violent Crimes Section during the relevant time frame.

Sergeant William Murray has supervised case management for

detectives assigned to the Violent Crimes Section of Area 5 since

1986.

In 1988, the Chicago City Council enacted the Clean Indoor

4a

Appendix B

Air Ordinance, declaring, “It is the purpose of this section and the

policy of the city to provide smoke-free areas in enclosed public

places and to regulate smoking in places of employment.”

Chicago Municipal Code § 7-32-030. The ordinance further

provided that “[nJo employer shall .. . in any manner retaliate

against any employee . . . because such employee . . . exercises

any rights afforded by this section.” Chicago Municipal Code

§ 7-32-060(d). The Superintendent of Police subsequently issued

Special Order 88-18, which instructed all employees of the police

department to honor and enforce the provisions of the ordinance,

directed supervisory personnel to establish smoke-free areas for

non-smoking employees, and forbade retaliation against any

department employee who exercised his or her rights under the

ordinance.

Apparently, smokers at Area 5 headquarters frequently did

not honor posted admonitions not to smoke in areas designated

smoke-free. This prompted Detective Smith (who describes

himself as particularly sensitive to tobacco smoke) to complain to

Commander Fruin in January 1991 that the ordinance was not

being enforced at Area 5. Detective Smith repeated the objection

to Fruin in March, explaining that “I don’t want people to quit

smoking on my behalf. I just want a place to work where I don’t

have to smell their smoke.” On both occasions, Commander

Fruin told Smith that he would see what could be done. By April,

however, Detective Smith’s concerns had not yet been

addressed.’ He spoke once again to Commander Fruin that

month, requesting a work location that was smoke-free and

reiterating that he “didn’t want to smell smoke anymore.” He also

1. The record does suggest that supervisory personnel were reminded of

Special Order No. 88-18 during a staff meeting and admonished that its provisions

were to be adhered to strictly.

Sa

Appendix B

made similar complaints to Biebel and Kuhn. Detective Smith

subsequently explained at his deposition that he had raised the

issue with Commander Fruin solely on his own behalf:

Q. When you complained to Fruin about the smoking, did

you complain only on your own behalf?

A. I don’t speak for anyone else other than myself.

Q. So you were speaking for yourself when you complained

to Fruin—

A. That’s correct.

Q. — that the smoke bothered you in particular?

A. Idon’timplicate anyone else, just me. Smith Dep. 48-49.

On April 24, 1991, Smith contacted the City Health

Department. Smith apprised Stuart Sikes, an assistant to a Deputy

Health Commissioner, that there was “too much smoke for him”

at Area 5 Headquarters. Smith called Sikes once again a month

later, reporting that “he was still being disturbed by cigarette

smoke.” In each instance, Smith described the problem only in

terms of what he experienced personally; he did not report any

incidents involving other nonsmokers nor did he purport to speak

on anyone’s behalf but his own.

On June 12, 1991, Smith made a similar call to Lieutenant

John Klein, Commanding Officer of the police department’s

Office of Legal Affairs. Again his complaint was framed in

personal terms. Klein promptly initiated an inquiry into Smith’s

concerns, which culminated in the Chief of Detectives contacting

Commander Fruin that same day.

6a

Appendix B

On June 13,1991, the day after Smith had contacted Klein,

Sergeant Biebel advised Smith of a new assignment: beginning

the following day, Smith was to station himself in an unmarked

car in the 1500 block of North Austin Avenue from 9:00 a.m. to

5:00 p.m. and record the license plate numbers of all large dark

blue, red, and maroon cars driven northbound by African

American men. Commander Fruin had conceived of this

assignment and approved Biebel’s suggestion that it be given to

Smith, whose usual purview was the investigation of sex crimes.”

Smith contends that this assignment was concocted solely to

punish him for his speech; the city contends that the assignment

was not a sham, but instead was a genuine surveillance

assignment initiated in conjunction with the investigation of a

large-scale fencing operation taking place in that area. At this

juncture of the proceedings, however, we will assume that

Detective Smith’s take on the assignment is accurate. Smith

stationed himself as ordered and copied down license plate

numbers for a total of twelve days over a three-week period. (No

one else relieved Smith, either at the end of his shift or when he

left his post for lunch; nor did anyone take his place on two days

when he was absent from work for medical reasons. )

Columnist Mike Royko discussed Smith’s plight in the J uly

4,1991 issue of the Chicago Tribune. Royko quoted Smith as

saying “I came to work on June 14, and my sergeant told me that

2. Although Murray was the case management sergeant in the Violent

Crimes Section of Area 5, he claims not to have given Smith any assignment

directly. Instead, his practice purportedly was to give assignments to the on-duty

sergeant for a particular shift, who would himself assign cases to the detectives.

However, Smith contends that Murray, as his watch commander, was directly

involved in giving the surveillance assigmment to him. Smith also avers that on one

occasion during this assignment, Murray made it a point to drive by Smith’s post in

order to verify that Smith was on the job.

Ta

Appendix B

the commander said that if I wanted a smoke-free environment, I

was going to get a smoke-free environment.” Mike Royko, More

tax money goes up in smoke, Chicago Tribune, July 4,1991, at

A3. Royko went on to write:

Those who follow the news probably

have noticed that on any given day in

Chicago, especially when the weather is hot,

people are shooting, stabbing and bopping

each other. They are grabbing purses, wallets,

rings, chains, watches, emptying cash

registers, crawling through open windows,

jumping out of gangways, doorways and

bushes.

When you toss in the wife-beaters, the

saloon brawlers, the flashers and peeping

Toms, the drunken drivers, the teenage

vandals and the assorted nuts and zanies,

there isn’t nearly enough police manpower to

handle the mayhem and madness.

And here we have a cop with 20 years’

experience, 14 as a detective, spending his

workday jotting down the license numbers of

black motorists who happen to be driving

north on Austin Avenue.

Detective Smith has talked to attorney

Richard Brzeczek, formerly police

superintendent, and they might go into court

next week and slap the department with a

lawsuit. If they don’t, some bungalow owner

Appendix B

should, on the grounds that this is one hell of a

way to spend his real-estate taxes.

In the meantime, I suggest that Police

Supt. LeRoy Martin ask Detective Smith’s

commander to explain the purpose of

Detective Smith’s goofy assignment.

And if he doesn’t get a _ suitable

explanation, Supt. Martin should provide that

commander with an environment that is not

only smoke-free, but authority-free.

Id. Several days after the article appeared, Smith was removed

from the surveillance assignment. Smith was subsequently

disciplined for publicly criticizing his commanding officer

without first pursuing the matter internally and for revealing to

the public the details of an ongoing undercover operation; the

propriety of this measure is not at issue here. No one was assigned

to replace Smith on Austin Avenue, purportedly because the

publicity had compromised the surveillance effort.

Smith brought suit in the district court under 42 U.S.C.

§ 1983, contending that his superiors had penalized him with the

surveillance assignment for his complaints about smoking, in

violation of his rights under the First and Fourteenth

Amendments. See Marshall v. Allen, 984 F.2d 787, 789 n. 1 (7th

Cir.1993).’ At the completion of discovery, the defendants moved

3. Although the focus of Smith’s retaliation charge is on the surveillance

assignment, we should note that Smith also asserts that the retaliation continued ina

slightly different manner after the surveillance was discontinued. Although Smith

(Cont'd)

Appendix B

for summary judgment. In an initial ruling, the district court

concluded that Smith’s complaints about second-hand smoke

qualified as protected speech on a matter of public concern within

the ambit of Pickering v. Board of Education, 391 U.S. 563, 88

S.Ct. 1731, 20 L.Ed.2d 811 (1968), and Connick v. Myers, 461

U.S. 138,103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Smith v. Martin,

819 F.Supp. 733, 734 (N.D.I11.1992). The court went on to

conclude that whether the surveillance assignment was

retaliatory or not was a disputed matter that could only be

resolved at trial. Jd.‘ In a second, unpublished opinion, the court

rejected the appellants’ defense of qualified immunity, reasoning

that it was clear in June of 1991 (when Smith was given the

assignment) that Smith’s complaints amounted to speech on a

matter of public concern and consequently that he could not be

(Cont'd)

had been working during the daytime shift as was his preference, beginning in July

1991 he was placed on the 5 p.m. to 1a.m. shift for seven months without rotation;

following that he was reassigned to the midnight shift.

We should also point out that although the nature of the retaliation Smith has

alleged may to some seem mild relative to the kinds of retaliation (e.g. demotion or

discharge) frequently alleged in other cases, the degree of retaliation is immaterial

to the issue we address. As we have recognized, even minor forms of retaliation can

support a First Amendmentclaim, for they may have just as much of achilling effect

on speech as more drastic measures. See Glass v. Dachel, 2 F.3d 733, 741 (7th

Cir.1993).

4. In the same opinion, the district court dismissed a second claim that the

defendants had conspired to deprive Smith of his civil rights in violation of 42

U.S.C. § 1985(3). The court found Smith’ s failure to allege the requisite “ ‘class-

based, invidiously discriminatory animus’ ” fatal to this claim. Smith, 819 F. Supp.

at 735 (quoting Griffin v. Breckenridge, 403 U.S. 88, 102,91 S.Ct. 1790, 1798, 29

L.Ed.2d 338 (1971)).

10a

Appendix B

disciplined or penalized for voicing his objections. June 29,1993

Mem.Op. and Order at 3-5, 1993 WL 243159.°

The district court’s denial of qualified immunity to the

appellants is, to the extent it turns on a question of law, a final

decision over which we have appellate jurisdiction under 28

U.S.C. § 1291. Marshall v. Allen, 984 F.2d 787, 789 (7th

Cir.1993) (citing Mitchell v. Forsyth, 472 U.S. 511, 530, 105

S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985)).

II. ANALYSIS

As we explained in Marshall, “[t}he defense of qualified

immunity shields government officials performing discretionary

functions ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.’ ” 984 F.2d at 791 (quoting Harlow v. Fitzgerald, 467

U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)).

Thus, “[e]ssentially, qualified immunity is a defense ‘contingent

on the state of the law.’ ” Jd. at 792 (quoting Elliott v. Thomas,

937 F.2d 338, 341 (7th Cir.1991), cert. denied, _ U.S. _, 112

S.Ct. 1242,117 L.Ed.2d 475 (1992)). When the law is settled ona

particular point, public employees are expected to conform their

5. In addition to Fruin, Biebel, Kuhn, and Murray, Smith also named then-

Superintendent of Police Leroy Martin and Lieutenant Klein as defendants in his

complaint. However, the district court concluded that Martin and Klein were

entitled to qualified immunity based on the timing and limited extent of the

information tiey had ac., sired of Smith’s complaints. June 29, 1993 Mem.Op. and

Order at 5. Smith has not challenged this ruling on appeal. Our references to the

“defendants” are therefore restricted to the four remaining defendants who were

denied qualified immunity.

lla

Appendix B

conduct accordingly, and they may be held liable when they do

not. On the other hand, they “need not predict [the law’s]

evolution, need not know that in the fight between broad and

narrow readings of a precedent the broad reading will become

ascendant.” Greenberg v. Kmetko, 922 F.2d 382, 385 (7th

Cir.1991). Accordingly, “[i]f it were not clearly established that

their conduct violated the law at the time the officials allegedly

acted, then they are entitled to qualified immunity.” Marshall,

984 F.2d at 792 (citing Siegert v. Gilley, 500 U.S. 226, 231-32,

111 S.Ct. 1789,1793,114 L.Ed.2d 277 (1991)); Glass v. Dachel, 2

F.3d 733, 740 (7th Cir. 1993).

The precise question before us, then, is whether in July 1991

it was sufficiently clear that Detective Smith’s complaints about

smoking in the workplace fell within the protective scope of the

First Amendment. That is a question of law that we examine de

novo. Glass, 2 F.3d at 740. Marshall, 984 F.2d at 793. Of course,

as this case comes to us at the summary judgment stage, we

interpret the record in a light most favorable to Detective Smith,

the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).

What must be made manifestly clear is that not every word a

public employee utters is protected by the First Amendment.®

Rather, as the Supreme Court recently reiterated:

To be protected, the speech must be on a matter of public

6. When we say “protected,” we are speaking only in terms of the public

employer's ability to restrain or discipline the employee for the speech in question.

Speech that does not address a matter of public concern and which is not protected in

that sense may still be entitled to First Amendment protection in other contexts. See

Connick, 461 U.S. at 147, 103 S.Ct. at 1690.

12a

4

Appendix B

concern, and the employee’s interest in expressing herself on this

matter must not be outweighed by any injury the speech could

cause to “ ‘the interest of the State, as an employer, in promoting

the efficiency of the public services it performs through its

employees.’ ” Connick, supra, [461 U.S.] at 142 [103 S.Ct. at

1687] (quoting Pickering v. Board of Ed. of Township High

School Dist., 391 U.S. 563, 568 [88 S.Ct. 1731, 1735, 20 L.Ed.2d

811] (1968)). It is also agreed that it is the Court’s task to apply

the Connick test to the facts. 461 U.S., at 148, n. 7, and 150, n. 10

[103 S.Ct. at 1690, n. 7, and 1692, n. 10).

Waters v. Churchill, __U.S. __, __, 114 S.Ct. 1878,1884-85,128

L.Ed.2d 686 (1994).’ Our analysis in this case is focused on the

first prong of the Connick-Pickering test, that is, whether

Detective Smith’s speech addressed “a matter of public

concern.” See Gray v. Lacke, 885 F.2d 399, 410 (7th Cir. 1989);

Vukadinovich v. Bartels, 853 F.2d 1387, 1390 & n. 5 (7th

Cir.1988). We make that determination based on “the content,

7. Wehave noted:

“[T]he purpose of the ‘public concern’ requirement is

to distinguish grievances of an entirely personal

character from statements of broader interest

concerning one’s job, rather than to fix the boundaries

of the First Amendment.” Swank v. Smart, 898 F.2d

1247, 1251 (7th Cir.1990), paraphrasing Flanagan v.

Munger, 890 F.2d 1557, 1563-65 (10th Cir.1989). The

greater the potential social, as distinct from purely

private, significance of the employee's speech, the less

likely is the employer to be justified in seeking to

punish or suppress it.

Eberhardt v. O'Malley, 17 F.3d 1023, 1026 (7th Cir. 1994).

13a

Appendix B

form, and context of a given statement as revealed by the whole

record.” Connick, 461 U.S. at 147-48,103 S.Ct. at 1690. Content

is the most important of these factors. Yoggerst v. Hedges, 739

F.2d 293, 296 (7th Cir. 1984). Yet, as we have emphasized time

and again, our inquiry must also take into account “the point of

the speech in question: was it the employee’s point to bring

wrongdoing to light? Or to raise other issues of public concern,

because they are of public concern? Or was the point to further

some purely private interest.” Linhart v. Glatfelter, 771 F.2d

1004, 1010 (7th Cir.1985); see also, e.g., Marshall, 984 F.2d at

795; Colburn v. Trustees of Indiana Univ., 973 F.2d 581, 585-86

(7th Cir.1992); Barkoo v. Melby, 901 F.2d 613, 618 (7th

Cir.1990); Gray, 885 F.2d at 411; Vukadinovich, 853 F.2d at

1389-91; Hesse v. Board of Education of Township High School

Dist. No. 211, 848 F.2d 748, 752 (7th Cir.1988), cert. denied, 489

U.S. 1015, 109 S.Ct. 1128,103 L.Ed.2d 190 (1989); Callaway v.

Hafeman, 832 F.2d 414, 417 (7th Cir.1987); but see Belk v. Town

of Minocqua, 858 F.2d 1258,1263-64 (7th Cir. 1988) (if content of

speech is of public concern, employee’s personal motivation to

speak does not defeat finding that speech is protected).

In this case, the district court thought it beyond dispute that

“the inhalation of second-hand smoke is a matter of public

concern.” 819 F.Supp. at 734; see also June 29, 1993 Mem.Op.

and Order at 2. As the court pointed out, the City’s enactment of

the Clean Indoor Air Ordinance three years before Smith began to

air his concerns established the public’s interest in this subject.

Id. at 3-4. And because it was clear long before July of 1991 that

public employees enjoyed First Amendment protection for

speech on matters of public concern, the court reasoned, the

defendants could not reasonably have claimed any doubt about

the state of the law vis a vis Smith’s complaints. Jd. at 4-5. The

error we detect in the district court’s reasoning lies in its premise:

Appendix B

that because the subject of Detective Smith’s complaints was one

of public interest generally, his statements about that subject were

necessarily speech on a matter of public concern. As we explain

below, we find as a matter of law that Smith’s speech did not fall

into this category. Consequently, we need not proceed further

with the qualified immunity analysis; for only if Smith’s remarks

were speech on a matter of public concern would we have to

inquire whether Smith’s superiors reasonably should have

understood them to be protected.

We have no doubt that the issue of second-hand smoke was a

matter of widespread public interest in July of 1991; it certainly

remains the subject of considerable public debate today. But the

fact that an employee speaks up on a topic that may be deemed

one of public import does not automatically render his remarks on

that subject protected. Hartman v. Board of Trustees of

Community College District 508, 4 F.3d 465, 471 (7th Cir.1993).

The content and form of the employee’s remarks, along with the

underlying circumstances, including the employee’s reasons for

speaking, remain essential to this determination. See Colburn,

973 F.2d at 587; Barkoo, 901 F.2d at 618-19; Egger v. Phillips,

710 F.2d 292, 317 (7th Cir. 1983) (en banc).

Our review of the record as a whole convinces us that

Smith’s complaints were entirely personal in nature. We use the

word “personal” in two senses: on his own behalf and in his own

interest. As the content of Smith’s remarks makes clear, each time

he raised the smoking issue, he spoke solely in terms of his own

sensitivity to smoke and the difficulty he had experienced with

smokers at Area 5 headquarters. He did not cite any difficulties

experienced by other non-smokers, nor did he purport to speak on

behalf of anyone but himself. See Colburn, 973 F.2d at 587. The

relief he requested was likewise individual; he simply wanted a

15a

Appendix B

work environment in which he would not be exposed to second-

hand smoke. Smith himself summed it up succinctly when asked

at his deposition why he had raised the matter with his superiors

and with the Health Department: “I’m a non-smoker and I’m a

runner, and I don’t appreciate having to inhale other people’s

carcinogens.”

Smith also chose to raise his concerns in a largely private

setting. See Colburn, 973 F.2d at 587-88; Callaway, 832 F.2d at

417. With the exception of his complaints to the Health

Department, each of his complaints was, so far as the record

reveals, made to superiors within the police department on a one-

to-one basis. Of course, the fact that the speech in question

occurred in the context of private conversations does not

necessarily signify that the speech is of private rather than public

concern. Givhan v. Western Line Consolidated School District,

439 U.S. 410, 415-16, 99 S.Ct. 693, 696-97, 58 L.Ed.2d 619

(1979); Colburn, 973 F.2d at 588; Gray, 885 F.2d at 411. But

given the content of Smith’s remarks, the fact that they were made

in the context of private conversations with his superiors tends to

confirm their personal nature. See Colburn, 973 F.2d at 588. His

inquiries to the Health Department arguably may have taken on a

somewhat more public quality to the extent he sought assistance

outside the chain of command within the police department. See

Glass, 2 F.3d at 741.* Again, however, Smith’s concerns were

voiced solely in personal terms and for personal reasons,

confirming that his motivation in speaking was personal. See

Colburn, 973 F.2d at 586-87; Barkoo, 901 F.2d at 619.°

8. Indeed, the city cites Smith’s decision to circumvent the hierarchy within

the police department as a circumstance that would justify a decision to take adverse

action against Smith for his speech. Appellees’ Br. at 37.

9. Smith’s remarks to the Chicago Tribune, of course, were printed in a

(Cont'd)

16a

Appendix B

Because Smith’s complaints were both motivated by and

framed in terms of his own interests, they did not constitute

speech on a matter of public concern. The public, we agree, had a

significant interest in workplace smoking, as evidenced by the

Chicago City Council’s effort to guarantee non-smoking workers

protection from second-hand smoke. Yet, we cannot say that

Smith’s remarks were of intrinsically greater concern to the

public than complaints concerning sexual harassment (Gray, 885

F.2d at 411; Callaway, 832 F.2d at 417), public education (see

Vukadinovich, 853 F.2d at 1390-91; Hesse, 848 F.2d at 751-52),

the appointment of a new police chief (Linhart, 771 F.2d at 1010-

11), or the alleged requests of a city official for assistance in

procuring sexual favors from other city employees (see Hartman,

4 F.3d at 471-72). We have found remarks on each of those topics

not to constitute speech on a matter of public concern where, as

here, they were made for purely personal reasons rather than a

desire to air the merits of the issue. Thus, although the content of

some remarks may lift the speech to the level of public concern

even if the employee’s reasons for speaking out are entirely self-

interested, see Glass, 2 F.3d at 741; Belk, 858 F.2d at 1263-64, we

(Cont'd) \

highly public forum. But see Egger, 710 F.2d at 317 (“the factors which determine

whether a story is newsworthy are hardly cotermin{oJus with the factors which

determine whether the communication has societal ramifications, and, in any event,

newspaper editors cannot decide the question for us”); Gray, 885 F.2d at 411.

However, Smith does not rely on this speech (and whatever adverse reaction the

Tribune column itself may have provoked) as a basis for his claim. The focus of

Smith’s case is instead on his earlier speech and the surveillance assignment that he

was allegedly given in retaliation for that speech. After the Tribune column

appeared, Smith was removed from that assignment. We do note that the record

reflects some question as to whether certain subsequent personnel decisions

concerning Detective Smith were made in retaliation for his speech and/or his

lawsuit. However, those matters are not before us.

17a

Appendix B

do not think that the speech at issue here, focused as it was on the

difficulties the speaker himself had experienced as a non-smoker,

can be placed in this category. See Barkoo, 901 F.2d at 620.

At his deposition, when asked if there was any other reason

why he had pursued the smoking issue, Smith did add: “It’s the

law” and “I’m paid to enforce the law. We’ re not to break it.” This

testimony could be read to reflect a concern with the integrity of

the police department independent of Smith’s own interests as a

non-smoker. But given the plainly individual focus of Smith’s

complaints, this single remark offered after-the-fact in the midst

of litigation does not, in our view, transform the character of

Smith’s speech. See Limes-Miller v. City of Chicago, 773 F.Supp.

1130, 1142-43 & n. 17 (N.D.I11.1991). At the same time, although

citizens no doubt have an interest in how their government

conducts its business, “[t]o presume that all matters which

transpire within a government office are of public concern would

mean that virtually every remark — and certainly every criticism

directed at a public official — would plant the seed of a

constitutional case.” Connick, 461 U.S. at 149, 103 S.Ct. at 1691.

Thus, remarks that are otherwise personal in nature do not take on

a public import due simply to the “supposed popular interest in

the way public institutions are run.” Ferrara v. Mills, 781 F.2d

1508, 1516 (11th Cir.1986) (quoted with approval in Hesse, 848

F.2d at 752, and Vukadinovich, 853 F.2d at 1391); see also

Barkoo, 901 F.2d at 618.

We agree with the suggestion of Detective Smith’s counsel] at

oral argument that a public employee ought not have to “form an

organization” before her remarks will be deemed speech on a

matter of public concern. Nor should she be required to call a

press conference. Barkoo, 901 F.2d at 619. If a public employee

speaks as a citizen on a matter of public concern, her speech is

Appendix B

entitled to First Amendment protection whether she speaks as a

lone individual or as the representative of many others, and

whether she does so discreetly with her co-workers or in a more

public fashion. See Gray, 885 F.2d at 411 (“the private nature of a

Statement does not ‘vitiate the status of the statement as

addressing a matter of public concern’” (quoting Rankin v.

McPherson, 483 U.S. 378, 386-87 n. 11, 107 S.Ct. 2891, 2898 n.

11, 97 L.Ed.2d 315 (1987)); Barkoo, 901 F.2d at 619. And we do

not mean to suggest that merely because the employee has a

personal interest in the subject of her remarks, they do not

constitute speech on a matter of public concern. As we observed

in Colburn, “[mJany public employees who speak out about

conduct within their places of employment have some interest in

the institution of change, and this by itself would not prevent their

speech from being constitutionally protected.” 973 F.2d at 587

(citing Breuer v. Hart, 909 F.2d 1035, 1039 (7th Cir. 1990)); see

also Glass, 2 F.3d at 741. But where, as here, the speech and the

underlying circumstances on the whole indicate that the

employee was speaking as an individual employee pursuing

personal interests, we are compelled to conclude as a matter of

law that his speech was not protected by the First Amendment as

speech on a matter of public concern. Connick, 461 U.S. at 147,

103 S.Ct. at 1690.

We must also stress that we do not sit in review of the merits

of Smith’s complaints or the wisdom of the actions the police

department allegedly took in response to those complaints. These

are matters beyond our purview, once we have concluded that

Smith’s remarks did not constitute protected speech. Connick,

461 U.S. at 146-47, 103 S.Ct. at 1690. It may be, as the district

court suggested, that Smith’s superiors conducted themselves in a

deplorable fashion. See June 29, 1993 Mem.Op. and Order at 1;

819 F.Supp. at 734. If so, Smith’s remedies, if any, lie in the

19a

Appendix B

Chicago Clean Indoor Air Ordinance and the internal grievance

procedures available to municipal employees.'° Smith’s only

claim to federal jurisdiction rests on the First Amendment.

Having concluded that Smith’s complaints did not constitute

speech on a matter of public concern, our intervention is at an

end.

III. CONCLUSION

Because Smith spoke solely on his own behalf and in his own

interest in voicing his concerns about second-hand smoke within

the Chicago Police Department, his speech was not protected by

the First Amendment as speech on a matter of public concern. The

defendants were therefore entitled to judgment in their favor on

this ground; the district court need not have reached the question

of qualified immunity.

REVERSED.

10. We concede that the remedies available under the ordinance are quite

minimal. Section 7-32-080(c) allows for fines of only $25 to $100 for violations of

the ordinance.

APPENDIX C — MEMORANDUM OPINION AND

ORDER OF THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION DATED JUNE 28, 1993

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 91 C 4257

JOHN S. SMITH,

Plaintiff,

v.

LEROY MARTIN, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Chicago Police Detective John Smith (“Smith”) has been the

victim of what for current purposes must be recognized as a truly

outrageous type of retaliation for his having spoken out against

being forcibly subjected to the inhalation of second-hand smoke

in the performance of his official duties. This Court’s October 21,

1992 memorandum opinion and order (the “Opinion”) made

short shrift of the motion filed by defendants (all of whom are

fellow members of the Chicago Police Department) for summary

judgment — a motion that had been advanced on less than

colorable grounds.

Defendants then sought to appeal from that denial on

2la

Appendix C

qualified immunity grounds, even though the opinion had not

dealt with that issue at all.' That appeal aborted when the Court of

Appeals dismissed it on the strength of its opinion in Gosnell v.

City of Troy, 979 F.2d 1257, 1260-61 (7th Cir. 1992). Now the

qualified immunity issue is again before this Court, this time ina

fully-briefed posture. This time around it proves successful as to

two of the six defendants, but unsuccessful as to the other four.

It may be well to explain at the outset what defendants are

plainly incorrect in arguing. As amplified a bit later, it borders on

the frivolous for defendants to argue that nonsmokers’ exposure

to second-hand smoke was not, at the time defendants acted in a

retaliatory fashion against Smith for complaining in June 1991,

“a matter of public concern” within the meaning of Pickering v.

Board of Education, 391 U.S. 563, 568 (1968) and Connick v.

Myers, 461 U.S. 138, 146 (1983). And given the long-established

place of Pickering and Connick in the constitutional firmament,

there can be no contention that the right of a public employee not

to be retaliated against for the exercise of First Amendment

rights? was not then “clearly established” within the meaning of

1. Defendants’ original memorandum in support of their summary judgment

motion had referred only briefly to the subject of qualified immunity — it was the

memorandum’s final argument, occupying just one page of a 28-plus-page

memorandum devoted to a host of other issues. All of the remaining briefing did not

really speak to that subject at all, so that the Opinion focused on the issues that the

parties had debated at some length. Indeed, the qualified immunity argument in

defendants’ original memorandum had an entirely different thrust from what is now

advanced by defendants as the key element in such aclaim.

2. As always, this opinion adheres to the conventional and convenient

(though technically imprecise) practice of referring to the relevant underlying Bill

of Rights provisions (each of which of course imposes limitations only on the

federal government) rather than to the Fourteenth Amendment (which applies to

state actors and has been construed to embody such Bill of Rights guaranties).

Appendix C

the definitive qualified immunity decisions in Harlow vy.

Fitzgerald, 457 U.S. 800, 818 (1982) and Anderson v. Creighton,

483 U.S. 635, 640 (1987). Finally, defendants’ argument —

advanced in their original summary judgment motion but

apparently abandoned in their current effort — that Smith cannot

recover because he had no property interest in a particular job

assignment (defendants’ Sept. 4, 1992 Mem. 28) is absurd

(indeed, the only case that defendants cited for that proposition,

Aliman v. Hurst, 734 F.2d 1240 (1984), expressly confirms the

existence of a substantive due process claim for conduct such as

that complained of by Smith (id. at 1243)).

But those failed contentions do not necessarily prove fatal to

defendants’ current motion, because qualified immunity is a

game in which even one strike is out. What does doom the

collective motion by defendants is the fact that it also fails on the

only issue that merits more than brief mention: the contention that

it was somehow not clear in June 1991 that the point of Smith’s

speech was to deal with matters of public concern, rather than

solely to improve his personal working conditions.

On that score the area of “public concern” was certainly

established beyond dispute well before June 1991. Some three

years earlier the City of Chicago had enacted its Clean Indoor Air

Ordinance that stated in part (Chicago Mun. Code § 7-32-030

(emphasis added)):

It is the purpose of this section and the policy

of the City to provide smoke-free areas in

enclosed public places and to regulate

smoking in places of employment.?

3. [Footnote by this Court] It may be noted parenthetically that earlier this

(Cont'd)

23a

Appendix C

That ordinance continued with an equally express provision (id.

§ 7-32-060(d)) on which Smith was entitled to rely:

No employer shall . . . in any matter retaliate

against any employee...because such

employee. . . exercises any rights afforded by

this Section.

That much is not contested by defendants. Instead they urge

that Smith invoked the public policy of the ordinance solely in his

own personal interest, rather than as a matter of public concern.

Two recent decisions from our Court of Appeals provide the total

answer to that argument.

First, last fall Churchill v. Waters, 977 F.2d 1114, 1128 (7th

Cir. 1992) dealt with a comparable qualified immunity attack on a

claim that was based (like Smith’s) on retaliation for the exercise

of First Amendment rights. And the court there rejected an

argument predicated on defendants’ claimed unawareness at the

time of their retaliation that plaintiff’s speech related to a matter

of public concern (id., citations omitted):

[I]n 1987 the law was clear that the speech of

(Cont’d)

month the Supreme Court upheld a 42 U.S.C. § 1983 complaint by a prison inmate

based on his involuntary exposure to second-hand smoke (Helling v. McKinney, 61

U.S.L.W. 4648 (U.S. June 18, 1993)). McKinney’s cellmate was a very heavy

cigarette smoker, and seven of the nine Justices found that McKinney had stated a

claim for relief under the Eighth Amendment's proscription of cruel and unusual

punishment. In so doing they affirmed the Court of Appeals’ “conclu[sion) that

society’s attitude had evolved to the point that involuntary exposure to

unreasonably dangerous levels of ETS [environmental tobacco smoke] violated

current standards of decency” (61 U.S.L.W. at 4649).

Appendix C

public employees while at work was

protected under the First Amendment if it was

about matters of public concern in connection

with their workplace. Thus, “a reasonable

official [shJould [have] underst[ood] that

what he [was] doing violate[d]” the

employee’s free speech rights if he fired her

for speaking out on a matter of public

concern. We believe it is immaterial that the

defendants were allegedly unaware of

whether Churchill’s speech was in regard to a

matter of public concern — for while we

decline to impose a due process requirement

that public officials investigate the precise

content of an employee’s alleged complaint,

we hold that ignorance of the nature of the

employee’s speech (in particular in light of

the record before us) is inadequate to insulate

officials from a § 1983 action.

Even more recently, Marshall v. Allen, 984 F.2d 787 (7th Cir.

1993) has reviewed the law of qualified immunity in precisely the

present context, confirming the viability of Smith’s claim against

that defense. Too much of the Marshall opinion is on point here to

justify quoting it at length. What is most critical for current

purposes is that neither Churchill nor Marshall purported to be

announcing new doctrine — instead each of those cases relied on

well-established law that antedated the June 19, 1991 actions of

defendants here.

What has been said up to now saves Smith’s claim against all

defendants as a group. But for a reason that brings into play a

different facet of qualified immunity, Smith cannot keep former

Appendix C

Superintendent of Police Leroy Martin and Lieutenant John

Klein in the case. Based (1) on the limited information that each

of them had about Smith’s grievance and (2) on when it was in the

sequence of events that each of them acquired that information, it

cannot be said that Smith had a clearly established constitutional

right to have either of them do more than he did in response to that

information. Accordingly, each of defendants Martin and Klein is

dismissed as a defendant on qualified immunity grounds.

Conclusion

In summary, there is no genuine issue of material fact as to

defendants Leroy Martin and John Klein, and each of them is

entitled to a judgment as a matter of law on qualified immunity

grounds. Accordingly-each is dismissed as a defendant. But as to

the remaining defendants (former Commander of Detectives

James Fruin and Police Sergeants Robert Biebel, Stephen Kuhn

and William Murray), their motion for summary judgment on

qualified immunity grounds is denied. This Court accordingly

sets a status hearing for 9 a.m. July 8, 1993 to discuss setting the

case for trial.

s/ Milton I. Shadur

Milton I. Shadur

Senior United States District Judge

Date: June 28, 1993

26a

APPENDIX D — MEMORANDUM OPINION AND

ORDER OF THE UNITED STATES DISTRICT COURT,

N.D. ILLINOIS, E.D. DATED OCTOBER 21, 1992

John S. SMITH,

Plaintiff,

v.

Leroy MARTIN, et al.,

Defendants.

No. 91 C 4257.

United States District Court,

N.D. Illinois, E.D.

Oct. 21, 1992.

* * *

Richard J. Brzeczek, Chicago, IL, for plaintiff.

Kelly R. Welsh and Terence J. Moran, Chicago, IL, for

defendants.

MEMORANDUM OPINION & ORDER

SHADUR, Senior District Judge.

Defendants have moved for summary judgment against John

Smith (“Smith”), who claims a violation of his constitutional

rights because he was allegedly punished for speaking out against

the deliberate flouting of the Chicago Clean Indoor Air Ordinance

by defendants — fellow members of the Chicago Police

Department. Smith has responded to that motion on the three

issues that this Court identified for the parties in its September 11,

27a

Appendix D

1992 oral directive. Although each side has necessarily occupied

substantial space in addressing the issues,’ no extended

discussion is required to deal with defendants’ motion, which is

denied.*

First Amendment Protection

This Court has had occasion in the past to comment on the

remarkable level of serendipity that is associated with the

business of federal judging. Once again a current opinion from

our Court of Appeals has delivered a timely message applicable

to a pending motion — this time it is the thorough treatment in

Churchill v. Waters, 977 F.2d 1114 (7th Cir. 1992) of the same

issues that are posted here.

As to the first and most critical threshold question —

whether the inhalation of second-hand smoke is a matter of public

concern within the protection of such cases as Pickering v. Board

of Education, 391 U.S. 563, 568, 574, 88 S. Ct. 1731, 1734-35,

1737-38, 20 L. Ed. 2d 811 (1968) and Connick v. Myers, 461 U.S.

138, 142-49, 103 S. Ct. 1684, 1687-91, 75 L. Ed. 2d 708 (1983) —

last week’s extended opinion in Churchill (see especially 977

F.2d at 1120-21) confirms a resounding “yes” answer. And

relatedly, the need to draw all reasonable inferences in Smith’s

favor on defendants’ summary judgment motion precludes the

1. Smith is granted leave for the filing of a response in excess of 15 pages in

that respect.

2. Defendants’ reply memorandum is not due to be filed until November 6.

But the nature of summary judgment motions is that if any genuine issue of material

(that is, outcome-determinative) fact is identified by the party opposing the motion,

nothing that the movant can say by way of reply will make any difference — the

motion has to fail.

Appendix D

entry of judgment for defendants as a matter of law under this

Court’s analysis in Limes-Miller v. City of Chicago, 773 F. Supp.

1130, 1141-43 (N.D. Ill. 1991).

Like the plaintiffs in Churchill and Limes-Miller, Smith’s

involvement in an issue of public concern did grow out of his own

personal interest in the subject. After all, who among us

ordinarily gets aggressively involved in issues in which he or she

has no personal interest? But here the asserted retaliation by

defendants took place after Smith had sought to bring the matter

onto a larger stage by “going public” with it to the Chicago

Department of Health and (at that Department's directive) to the

Police Department’s Legal Affairs Unit. That reasonably fits the

public-concern model that this Court distinguished in Limes-

Miller. It is of course not essential to that conclusion that the

public employee’s speech must have taken place in a public

forum (see, e.g., Rankin v. McPherson, 483 U.S. 378, 388-89, 107

S. Ct. 2891, 2899-2900, 97 L. Ed. 2d 315 (1987)), although the

fact of Smith’s having gone to the public media after the

retaliation might well be taken into account in evaluating the

public-concern nature of his grievance at an earlier stage.

Second, defendants’ arguments as to the validity of the

seemingly outrageous assignment that defendants inflicted on

Smith after he had spoken out on the smoking issue (arguments

that, if established, would also show the absence of retaliatory

motive) cannot survive the granting of the necessary favorable

inferences to Smith. No trier of fact is obligated as a matter of law

to accept what in surface terms seems a pretextual cover story. On

that score this Court, like the factfinder at trial, is not required to

accept defendants’ testimony about the claimed legitimacy of the

investigation and the reason for enlisting Smith in it, given the

suspicious timing and the total absence of some internal records

that would normally accompany such matters.

Appendix D

Actionable Conspiracy

As with the matters just discussed, the issue of conspiracy

vel non is for the trier of fact. Circumstantial evidence —

inferences from all of the circumstances, including such a facially

bizarre assignment coming hard on the heels of Smith’s

complaints about the second-hand smoke issue — could

reasonably lead to such a determination despite the absence of

any express admissions by defendants or any other direct

evidence.

But that potential finding of a conspiracy is simply relevant

to legal questions that would affect the direct liability of

individual defendants under 42 U.S.C. § 1983,° for example by

bearing on the admissibility of evidentiary matters under Fed. R.

Evid. 801(d)(2)(E). Defendants are right in their contention that

Smith has not asserted the type of “class-based, invidiously

discriminatory animus” that fits Section 1985(3), as definitively

cabined by Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct.

1790, 1798, 29 L. Ed. 2d 338 (1971) and its progeny.

Section 1983 Liability

As already indicated, it is basic doctrine that the Section

1983 responsibility of individual defendants must be direct and

not vicarious. In those terms, and once again with the required

inferences drawn in Smith’s favor for summary judgment

purposes:

1. Each of defendants James Fruin, Robert

Biebel, Steven Kuhn and William Murray

3. Further citations to Title 42 provisions will simply take the form “Section

30a

Appendix D

was directly involved in what must be

assumed for present purposes to have been a

pretextual and retaliatory assignment in

response to Smith’s exercise of his First

Amendment rights. That is enough to keep

those four defendants in the case.

2. Defendant John Klein (“Klein”) was

apprised of the assertedly retaliatory

assignment. If a trier of fact were to find that

he turned a blind eye to the matter rather than

acting to correct it as Smith had asked, cases

such as Rascon v. Hardiman, 803 F.2d 269,

276 (7th Cir. 1986) would support a finding of

Section 1983 liability on Klein’s part as well.

3. Ifthe evidence in Smith’s favor is credited

(as it must be for the moment), former

Superintendent of Police Leroy Martin had a

direct involvement akin to Klein’s: his having

been notified of the unlawful conduct of his

subordinates, without then taking appropriate

action to correct it as was within his power.

Again the principle of Rascon and like cases

averts summary judgment and leaves the

matter to the triers of fact.

Conclusion

Except for the dismissal of Smith’s Section 1985(3) claim,

material issues of fact preclude the entry of summary judgment

in defendants’ favor. This action will proceed to trial.

3la

APPENDIX E — REGULATIONS INVOLVED

CHAPTER 7-32

NO-SMOKING REGULATIONS

Article II. Clean Indoor Air Ordinance

§$7-32-030. (192-20.) Title and purpose

This section shall be known and may be cited as the “Clean

Indoor Air Ordinance”, and shall be liberally construed and

applied to promote its purpose and policies. It is the purpose of

this section and the policy of the city to provide smoke-free areas

in enclosed public places and to regulate smoking in places of

employment.

(Added Coun. J. 5-25-88, p.13940, eff. 7-24-88.)

§7-32-040. (192-20.1.) Definitions

Whenever used in section 7-32-030 through 7-32-090, the

following words and phrases shall have the following meanings:

“Bar” means an enclosed area which is devoted to the

serving of alcoholic beverages for consumption on the premises

and in which the serving of food is only incidental to the

consumption of such beverages. Although a restaurant may

contain a bar, the term “bar” shall not include the restaurant

dining area.

“Dining Area” means any enclosed area containing a counter

or tables upon which meals are served.

“Employee” means any person who is employed by any

employer in consideration for direct or indirect monetary wages

Appendix E

or profit, and any person who volunteers his or her services for a

not-for-profit entity.

“Employer” means any person, partnership, corporation,

including a municipal corporation, or non-profit entity who

employes the services of one or more persons.

“Enclosed Area” means all space between a floor and ceiling

which is surrounded on all sides by walls or windows with

appropriate openings for ingress and egress and is not intended to

mean areas commonly described as public lobbies and common

corridors.

“Place of Employment” means any enclosed area under the

control of a public or private employer which employees

normally frequent during the course of employment including,

but not limited to work areas, employee lounges, cafeterias,

restrooms and conference rooms. A private residence is not a

“place of employment” unless it is used as a child care or health

care facility.

“Public Place” means any enclosed area to which the public

is invited. For the purpose of this section, a hospital is a public

place.

“Restaurant” means any coffee shop, cafeteria,

luncheonette, sandwich shop, private or public school cafeteria

or eating establishment, and any other eating establishment,

organization, or club which gives or offers for sale food to the

public, guests, patrons or employees.

“Service Line” means any indoor line at which one or more

persons are waiting for or receiving services of any kind, whether

or not such service involves the exchange of money.

33a

Appendix E

“Smoking” means inhaling, exhaling, burning or carrying

any lighted cigar, pipe or cigarette.

(Added Coun. J. 5-25-88, p.13941, eff. 7-24-88.)

§7-32-050. (192-20.2.) Smoking in public places

Smoking shall be prohibited in all public places except in

designated smoking areas.

When establishing a designated smoking area, the person

establishing such area shall utilize existing physical barriers,

ventilation systems, and other physical elements of the premises

to minimize the intrusion of smoke into areas where smoking is

not permitted.

(a) In all waiting areas of airport terminals, train stations

and bus depots, the area where smoking is prohibited must

include either (i) a contiguous area of at least 50% of the total

seating capacity of the facility or (ii) a separate waiting room for

nonsmokers, so long as the room designated for nonsmokers

contains at least 50% of the total seating capacity of the waiting

area.

(b) Any owner, operator, manager or other person in control

of a public place may declare that entire facility as a nonsmoking

area.

(c) Smoking is prohibited in all areas of the following

public places:

1) Public Restrooms;

2) Polling Places;

3) Service Lines;

Appendix E

4) Public Meeting and Public Assembly Rooms;

5) Taxicabs.

(d) Notwithstanding any other provision of this section, the

following areas shall not be subject to the smoking restrictions of

this section:

1) Bars;

2) Private residences;

3) Restaurants, hotel and motel conference or meeting

rooms and public and private banquet or assembly rooms while

these places are being used for private functions.

However, any owner, operator, manager or other person who

controls any establishment described in this subsection may

designate the entire establishment, or any portion thereof, as a

nonsmoking area.

(Added Coun. J. 5-25-88, p.13941, eff. 7-24-88.)

§7-32-060. (192-20.3.) Regulation of smoking in places of

employment

Employers shall provide smoke-free areas for nonsmoking

employees within existing facilities to the maximum extent

practicable, but employers, owners, operators, managers, or

other persons who control the premises are not required to make

physical modifications in providing these areas.

(a) Each employee shall be able to designate his or her own

work area as nonsmoking area, if such work area is not also a

public place, and to post the same with an appropriate sign to be

provided by the employer. If, due to the proximity of smokers,

size of the work area, poor ventilation or other factors, such

35a

Appendix E

designation does not reduce the effects of smoke to the

satisfaction of the employee, the employer shal! made additional

accommodation by assigning the employees to different but

comparable work areas, expanding the size of the work area

subject to the prohibition against smoking or implementing other

measures reasonably calculated to minimize or eliminate the

effects of smoke on the employee.

(b) Every employer shall adopt a smoking policy which

shall be communicated to all employees. All employers shall

supply a written copy of the smoking policy upon request to any

existing or prospective employee. In any dispute arising under

the smoking policy, the health concerns of the nonsmoker shall be

given priority.

(c) Notwithstanding any other provision of this section,

every employer shall have the right to designate any place of

employment, or any portion thereof, as a nonsmoking area.

(d) No employer shall discharge, refuse to hire, or in any

manner retaliate against any employee or applicant for

employment because such employee or applicant exercises any

rights afforded by this section.

(Added Coun. J. 5-25-88, p. 13942, eff. 7-24-88.)

§7-32-070. (190-20.4.) Signs

Signs indicating “No Smoking” or “No Smoking-Except in

Designated Areas” shall be appropriately posted in all public

places. Signs indicating “Smoking Permitted” shall be posted in

all designated smoking areas located in places of employment

and public places.

(Added Coun. J. 5-25-88, p. 13942, eff. 7-24-88.)

36a

Appendix E

§7-32-080. (192-20.5.) Violation and penalties

(a) It shall be unlawful for any person who owns, operates,

or otherwise controls any premises or facility subject to

regulation under this ordinance to fail to comply with any of the

requirements of sections 7-32-030 through 7-32-070.

(b) It shall be unlawful for any person to smoke in any area

designated pursuant to sections 7-32-030 through 7-32-070 as a

nonsmoking area.

(c) Any person who violates any provision of section 7-32-

030 through 7-32-070 shall be subject to a fine not less than

twenty-five dollars ($25) and not more than one hundred dollars

($100).

(d) This section shall not be interpreted or construed to

permit smoking where it is otherwise restricted or prohibited by

any other applicable ordinance or statute.

(Added Coun. J. 5-25-88, p.13942, eff. 7-24-88.)

§7-32-090. (192-20.6.) Severability

If any provision, clause, sentence or paragraph of section 7-

32-030 through 7-32-080 or application thereof shall be held

invalid by a court of competent jurisdiction, such invalidity shall

not affect the other provisions of this section which can be given

effect without the invalid provision or application, and to this end

the provisions of this section are declared to be severable.

(Added Coun. J. 5-25-88, p.13943, eff. 7-24-88.)

37a

APPENDIX F — CHICAGO POLICE DEPARTMENT

SPECIAL ORDER DATED JULY 14, 1988

CHICAGO POLICE

DEPARTMENT

SPECIAL ORDER

Date ofIssue: 14July 1988

Effective Date: 15 July 1988

No: 88-18

Subject: CLEAN INDOOR AIR ORDINANCE

Distribution: C

Related Directives: Municipal Code of Chicago, Chapter 192-

20 et seq; Department Notice: Ordinances

(Enacted and Amended)

I. PURPOSE

This order:

A. provides policy and guidance relative to the application

of the Clean Indoor Air Ordinance to enclosed Department

facilities.

B. sets forth Department procedures for enforcing the

provisions of this Ordinance.

38a

Appendix F

Il. POLICY

A. Smoke-free areas for both nonsmoking Department

members and the general public will be provided within existing

Department facilities to the maximum extent practicable, as

required by the Municipal Code of Chicago.

B. When interviews, meetings, etc., are conducted in an

area within a Department facility where a “Smoking Permitted”

sign is posted AND A NONSMOKING MEMBER(S) IS

PRESENT, at the request of the nonsmoking member(s), the area

will be designated as a “No Smoking” area throughout the

duration of the interview, meeting, etc.

C. The Department will not discharge, refuse to hire, or in

any manner retaliate against any member or applicant for

employment because such member or applicant exercises any

rights afforded by the Clean Indoor Air Ordinance.

D. The health concerns of the nonsmoking person will be

given priority in the process of resolving any disputes which may

arise as a result of the policy established in this directive.

III. DEPARTMENT FACILITIES

A. The Department has the right to designate any place of

employment, or any portion thereof as a nonsmoking area.

B. Smoking is prohibited in the following places:

1. public restrooms.

2. service lines.

39a

Appendix F

3. areas used for polling places.

4. public meeting and public assembly rooms.

5. designated/posted nonsmoking areas.

C. Unit commanding officers/supervisors shall:

1. provide smoke-free areas for nonsmoking members.

2. designate work areas as “Smoking Permitted” or “No

Smoking” in a manner intended to minimize or eliminate the

effects of smoke on nonsmoking members.

3. ensure that “No Smoking” signs are posted in

nonsmoking areas and “Smoking Permitted” signs are posted in

smoking areas.

NOTE: The Acting Chief Operating Engineer

of the Property Management Division is

charged with the responsibility of posting

“No Smoking” signs in those locations where

smoking is prohibited as outlined in Item III-

B of this directive and with posting other

appropriate signs in Department facilities.

D. A Department member shall be able to designate his

work area as a nonsmoking area, if such work area is not also a

public place, and to post the same with an appropriate sign to be

provided by the Department. If due to the proximity of smokers,

size of the work area, poor ventilation or other factors, such

designation does not reduce the effects of smoke to the

satisfaction of the member, the commanding officer/supervisor

Appendix F

shall make additional accommodation by assigning the member

to a different but comparable work area, expanding the size of the

work area subject to the prohibition against smoking or

implementing other measures reasonably calculated to minimize

or eliminate the effects of smoke on the member.

IV. ENFORCEMENT PROCEDURES, PUBLIC PLACES

A. When acomplaint limited solely to the issue of smoking

in a public place is received in the Communication Operations

Section, it will not routinely result in the assignment of a field

unit. However, if in evaluating the incident the dispatcher

determines that the existing work load and available Department

resources permit the assignment of a field unit, the appropriate

assignment will be made.

B. Whenever a violation of the Clean Indoor Air Ordinance

occurring in a public place is brought to the attention of a sworn

Department member, the member will exercise persuasion and

warning to seek compliance with the Ordinance and resort to the

use of an Ordinance Complaint Form or physical arrest only when

such measures have failed.

Authenticated by: JJC

LeRoy Martin

Superintendent of Police

88-57 JPC

4la