Balton v. City of Milwaukee, 97-1703

• Decision Date: 15 January 1998
• Docket Number: No. 97-1703,97-1703
• Parties: 13 IER Cases 1135 Kelvin BALTON and Tyrone Barnes, Plaintiffs-Appellants, v. CITY OF MILWAUKEE and Dennis Michalowski, individually and in his official capacity as Deputy Chief of the Milwaukee Fire Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1036

133 F.3d 1036

13 IER Cases 1135

Kelvin BALTON and Tyrone Barnes, Plaintiffs-Appellants, v. CITY OF MILWAUKEE and Dennis Michalowski, individually and in his official capacity as Deputy Chief of the

Milwaukee Fire Department, Defendants-Appellees.

No. 97-1703.

United States Court of Appeals,

Seventh Circuit.

Argued Oct. 8, 1997.

Decided Jan. 15, 1998.

Curry First, First, Blondis, Albrecht, Bangert & Novotnak, Peter Koneazny (argued), American Civil Liberty Union of Wisconsin, Milwaukee, WI, for Plaintiffs-Appellants.

Melanie R. Swank (argued), Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants-Appellees.

Before CUDAHY, COFFEY, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

Kelvin Balton and Tyrone Barnes are firefighters, more precisely "assistant chief dispatchers," with the City of Milwaukee Fire Department. In this suit they contend that a performance evaluation rating them "below average" for "professional qualities," issued by the deputy chief of the fire department, Dennis Michalowski, violated their constitutional rights to freedom of association or, as more peculiar to this case, their freedom "not to associate."

Rank and file members of the fire department are represented by a union (Firefighters Local 215) that bargains with the City of Milwaukee over wages and conditions of employment. Members of the fire department above the rank and file level, the "command staff," are not unionized, but they have an organization, the Chief Officers Association, which looks after their interests. The Chiefs Association performs no collective bargaining tasks, but it benefits from contract provisions negotiated by Local 215. In that regard, the Association represents its members in "informal conversations" with Local 215 on contract issues.

In addition to Balton and Barnes, there are apparently two other firefighters in the city who hold the title of "assistant chief dispatchers." Until 1993 assistant chief dispatchers were not eligible for membership in the Chiefs Association. In 1993, however, assistant chief dispatchers were allowed to join the Association, and Barnes and Balton did so because they believed being members would assist them in obtaining pay grade increases and other benefits. Dues for Association members are $260 a year and, as far as we can determine, almost every fire department command level officer is a member of the Association.

Joining the Association did not turn out to be the pay raise and benefits elixir Balton and Barnes envisioned. They apparently learned, with Balton doing the research, that the Milwaukee Fire Department paid its assistant chief dispatchers as well as or more than the rate of pay received by those doing comparable work in other cities. So the Association was apparently not going to aggressively go to bat for Balton's and Barnes' interests as they saw them. This caused their zeal for the Association to wane, and both Barnes and Balton became delinquent in paying their dues.

In May of 1994 the Association treasurer reminded Balton and Barnes that their dues were in arrears. They did not pony up, so the treasurer mentioned the delinquencies to Michalowski, who tried to turn on the heat. A month later, in June, Michalowski and Balton's and Barnes' immediate supervisor, Anthony Stanford--the chief dispatcher--met to discuss the dues situation. Balton and Barnes did not indicate that they no longer wished to be members of the Association. A few weeks later, Balton and Barnes told Stanford that another meeting with Michalowski was unnecessary because they decided to pay their delinquent dues. Neither said they no longer wanted to be members of the Association, although Balton later claimed he didn't want to give Michalowski that news because it would rile him up and he might retaliate against them.

No dues were paid by either Balton or Barnes through September of 1994. Neither responded to a treasurer's notice to pay up, and Stanford subsequently reminded the pair of their responsibility to pay. During this time, both Balton and Barnes repeatedly indicated to Stanford that they would pay their dues. This assertion, we note, comes from the defendants' proposed findings of fact in support of their motion for summary judgment. Balton and Barnes responded to this assertion by saying they "disagree in part" with respect to the last sentence. However, neither Balton nor Barnes supported their disagreement with any explanation or citation to the record, and the district court held, and we agree, that this weak statement was insufficient to negate the proposed finding which the defendants properly supported with sworn affidavit evidence.

Balton and Barnes continued to assure Stanford that they would pay their dues, and although Barnes made a partial payment, they remained in arrears when Michalowski spoke to them again about the delinquencies. Eventually, near the end of September 1994, Balton told Stanford that he no longer wished to be a member of the Association. Whether or not Barnes took the same position is unclear, but it's a safe bet that he wasn't enthusiastic about maintaining his membership, so we can safely assume he did what Balton did. On or about September 28, 1994, Stanford told Michalowski that Balton (and we think Barnes) no longer wished to be members of the Association. Michalowski then wrote up a "form 131 performance evaluation" on Balton and Barnes.

The form 131 lists 10 "performance factors" to be ranked on a five-step scale ranging from "far below average" to "well above average." "Professional qualities" was one of the 10 factors, ¹ and Michalowski marked the item "below average" on Balton's evaluation. Barnes also received a similarly marked "form 131." Michalowski sent the forms to August Erdmann, ² the chief of the Milwaukee Fire Department, with a "justification" memorandum stating:

Balton [and Barnes] has refused to make dues payments to the Milwaukee Fire Department Chief Officers' Association. He has been talked to about this at least on 3 occasions.

Balton [and Barnes] told me that he would pay his dues. To date, he has not contacted the treasurer of the Association or made payments.

Balton [and Barnes] is only one of two department officers who fail to realize the importance of the Association to the officers and the Department.

Form 131's in general are not used by the Milwaukee Fire Department in determining promotion, pay increases, demotion, discipline, or discharge. But Balton and Barnes considered the assessments to be matters of "grave importance," and they saw them as "serious marks" on their careers and as direct threats to their job security. And so, although Balton and Barnes do not allege that they suffered any identifiable adverse consequences from the notations on the form 131's, they filed this suit claiming, curiously, a violation of their First Amendment rights "not to associate" with the Association.

The district court, on the defendants' motion for summary judgment, employed a Pickering/Connick "public concern" analysis in dismissing the suit, and Balton and Barnes attack that approach to their case on this appeal. Our short answer to the appeal is that even though we agree that a Pickering/Connick approach to disputes of this sort may be a bit flawed, we nevertheless think the case was properly given the boot.

It is helpful, at the outset, to keep the facts 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), in mind. In Pickering the Supreme Court held impermissible under the First Amendment the dismissal of a high school teacher for sending a letter to a local newspaper in connection with a proposed school tax increase. The teacher's letter criticized the board of education for its allocation of school funds between athletics and education and its handling of bond issue proposals. The issues were the subject of public attention at the time, and the teacher was exercising his rights as a citizen; for that, said the Court, he could not be fired. Pickering, 391 U.S. at 571-74, 88 S.Ct. at 1736-38.

In Connick, plaintiff Myers, an assistant district attorney in New Orleans, was faced with an unwanted transfer to another department. She expressed to her supervisors her disagreement with the move and then distributed a questionnaire to co-workers soliciting their views on office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressure to work in political campaigns. Myers was fired for distributing the questionnaire, which her supervisors considered an act of insubordination. The Supreme Court found that with the exception of the question about pressure to work in political campaigns, the questionnaire involved private, not public concerns--the focus of the questions was not to evaluate the performance of the office but instead "to gather ammunition for another round of controversy with her superiors." Connick, 461 U.S. at 148, 103 S.Ct. at 1691. Even though one statement involved a matter of public concern, Myers' termination, said the Court, was not a First Amendment violation. In performing a balancing test, the Court found any harm to public debate outweighed by the government's interest as an employer. The questionnaire interfered with working relationships and potentially undermined confidence in Myers' supervisors. As such, Myers' speech was, on balance, essentially a matter of private concern unprotected by the First Amendment.

A Pickering/Connick balancing test, so useful in resolving public employee free speech cases, is not easily transferable to freedom of association cases. That's because some associational choices-for instance, whom to marry--are purely private matters. As such, one would think they would usually come up short in a private versus public concern...