Phillips v. Adult Prob. Dept., City & Cty. of San Francisco

• Decision Date: 29 January 1974
• Docket Number: No. 72-1074.,72-1074.
• Citation: 491 F.2d 951
• Parties: Nelson L. PHILLIPS, Plaintiff-Appellant, v. City and County of San Francisco: ADULT PROBATION DEPARTMENT OF THE CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

491 F.2d 951 (1974)

Nelson L. PHILLIPS, Plaintiff-Appellant, v. City and County of San Francisco: ADULT PROBATION DEPARTMENT OF THE CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants-Appellees.

No. 72-1074.

United States Court of Appeals, Ninth Circuit.

January 29, 1974.

Stuart Weinberg, of Levy & Van Bourg, Paul N. Halvonik, Charles C. Marson, of American Civil Liberties Union, Jerome B. Falk, Jr. (argued), San Francisco, Cal., for plaintiff-appellant.

Thomas M. O'Connor, City Atty., Raymond D. Williamson, Jr., George E. Krueger, Deputy City Attys. (argued), San Francisco, Cal., for defendants-appellees.

Before DUNIWAY and CHOY, Circuit Judges, and JAMESON,^* District Judge.

JAMESON, District Judge:

This appeal is from a summary judgment of dismissal of an action under the Civil Rights Act, 42 U.S.C. §§ 1981, 1983, and 1985.¹

Statement of Facts

Appellant was a deputy probation officer in the Family Support Section of the Adult Probation Department of the City and County of San Francisco. His work involved divorce and child support problems among a clientele which was approximately 75% black, 10% Latin American or Spanish-speaking, and 15% Caucasian or Oriental. In September, 1970 he placed on the walls of his office a poster, approximately two feet by three feet in size, which contained the legend "Wanted by the F.B.I." Beneath this legend were drawings of H. Rap Brown, Angela Davis and Eldridge Cleaver, who at the time were fugitives sought by the Federal Bureau of Investigation for the offense of unlawful flight to avoid prosecution. Below these likenesses were three additional lines:

"Faith, Beauty, Integrity

REWARD

Love-Peace-Happiness"

Appellant stated that he placed the poster in his office as "a symbolic statement and protest" because he believed "that the individuals depicted in the poster * * * were not being depicted fairly by the mass media and public opinion".

Appellant's co-workers brought the poster to the attention of appellee Jenkins, Chief Adult Probation Officer, who, upon observation, directed appellant to remove the poster within two days or face suspension. Jenkins stated that in his opinion "the poster was offensive to law enforcement, was unprofessional, had no place in a public building, was disrespectful and in poor taste". Several employees stated that if appellant was permitted to keep the poster on his wall, they would, as a form of protest to appellant's poster, place upon their walls posters offensive to various other ethnic or religious groups.² Jenkins "had no doubts that if he did not take immediate action, these other posters would have gone up on office walls and the result on work production and morale would have been devastating at a time when tremendously heavy case loads impose a severe burden upon my staff."

Appellant disobeyed Jenkins' order to remove the poster³ and was suspended for a period of five days, the letter of suspension stating that it was "based on your refusal to remove from the wall of your office a poster sign that I deem to be unprofessional and in poor taste".

Appellant sought administrative review of his suspension pursuant to the rules of the Civil Service Commission of the City and County of San Francisco. The matter was heard by an Employee Grievance Appeals Committee, which found that appellees had violated appellant's constitutional right of free expression. The Committee's decision was advisory only and was rejected by Jenkins. This action followed, appellant contending in the district court, as he does on this appeal, that appellees' actions were in violation of his First, Fifth and Fourteenth Amendment rights.

Opinion of District Court

The district court was of the opinion that appellant had failed to state "a cause of action under the Civil Rights Act", and that even if a cause of action had been stated, the affidavits filed on behalf of the appellees⁴ "show that the poster * * * caused a substantial and material interference with the working of the Probation Department", and that the "conclusory statements" in appellant's complaint and affidavit that "no disruption was caused by the poster was not sufficient to put the matter in issue". Indulging "every legitimate inference to be drawn" from appellant's evidence, the court concluded that "there is no evidence of sufficient substance to support a verdict" for the appellant and that the appellees "are entitled to summary judgment".

Contentions on Appeal

Appellant contends that (1) the exercise of his right of free expression may not be infringed by his superiors in the absence of a clearly defined policy which describes the circumstances in which such expression will not be allowed; and (2) his poster was constitutionally protected expression, and no showing of a countervailing and compelling state interest which would justify suppression has been made by appellees.

Absence of Formal Regulations

Appellant first argues that his suspension was constitutionally impermissible since the Probation Department did not have "carefully delineated" regulations which "forbid the placing of posters on the walls of its employees' offices", and other employees "have decorations of a political or social nature on their walls and are not subjected to discipline".⁵ We find no merit in this contention and agree with appellees that they had discretion to determine that appellant's office was an inappropriate place to display a poster expressing approval of persons who were then fugitives from justice.

It is not essential that a public employer spell out in detail all conduct which is deemed improper and may result in disciplinary action.⁶ It is "inherent in the employment relationship as a matter of common sense", Meehan, supra at 835, that a probation officer does not have the right to place on his walls a poster favorably depicting persons who are fugitives from justice. His supervisor could reasonably conclude that the poster was unprofessional, in poor taste, and inconsistent with the proper performance of appellant's duties as a probation officer.⁷ The supervisor was acting within his discretion in directing appellant to remove the objectionable poster within two days or face suspension. The sanction of a five-day suspension was imposed only after appellant failed to comply with the warning and order.⁸

Applicability of First Amendment

The district court found that the "main issue" was "whether the First Amendment is applicable * * * where a public employer seeks to regulate the manner in which a particular employee may express himself during work hours and on work premises". Appellant argues that his poster was constitutionally protected expression and that no compelling reason has been given to justify its suppression by appellees.

It is well settled that First Amendment rights of expression are not absolute, and that regulation as to time, place and manner of exercise is proper when reasonably related to a valid public interest. Cox v. Louisiana, 379 U.S. 536, 558, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). While "the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected", Keyishian v. Board of Regents, 385 U.S. 589, 605-606, 87 S.Ct. 675, 685, 17 L.Ed.2d 629 (1967), "it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Pickering v. Board of Education, 391 U. S. 563, 568, 88 S.Ct. 1731, 1734, 20 L. Ed.2d 811 (1968). The problem "is to arrive at a balance between the interests of the public employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public service it performs through its employees." Id.⁹

The governmental interest in maintaining a high level of service by assuring the efficiency of its employees in the performance of their tasks "comprehends the maintenance of discipline, the prevalence of harmony among co-workers, and the elimination of conduct which may reasonably be thought to have `impeded' the proper performance" by a public employee of his duties.¹⁰ Goldwasser v. Brown, 135 U.S.App.D.C. 222, 417 F.2d 1169, 1176 (1969), cert. denied, 397 U.S. 922, 90 S.Ct. 918, 25 L. Ed.2d 103 (1970). This governmental interest may, consistent with the First Amendment, require public employees "to suspend or refrain from certain activities * * * that are embraced within the constitutional rights of others, when such activities are reasonably deemed inconsistent with their public status and duties". Meehan, supra 392 F.2d at 832.

Appellant's major function as a probation officer was to deal with divorce and child support problems by emphasizing "the need for faithfully paying the amounts either...