598 F.2d 916 (5th Cir. 1979), 77-1299, Davis v. Williams

Docket Nº:77-1299.
Citation:598 F.2d 916
Party Name:Robert Michael DAVIS et al., Plaintiffs-Appellees, v. Lewis WILLIAMS et al., Defendants-Appellants.
Case Date:July 11, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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598 F.2d 916 (5th Cir. 1979)

Robert Michael DAVIS et al., Plaintiffs-Appellees,


Lewis WILLIAMS et al., Defendants-Appellants.

No. 77-1299.

United States Court of Appeals, Fifth Circuit

July 11, 1979

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        Don J. Rorschach, City Atty., John W. Chandler, Asst. City Atty., Irving, Tex., for defendants-appellants.

        Frederick M. Baron, Dallas, Tex., for plaintiffs-appellees.

        Appeal from the United States District Court for the Northern District of Texas.

        Before GEWIN, GEE and RUBIN, Circuit Judges.

        ALVIN B. RUBIN, Circuit Judge:

"Silence," the King of the Turtles barked back, "I'm king, and you're only a turtle named Mack." 1

        Those in authority do not readily accept public criticism by their subordinates. They are particularly sensitive when employee censure brings their governance into public disrepute. Hence, employee comment about a superior is likely to lead to consideration of drastic retaliation, including instant dismissal.

        Public employees, like the employees of those private industries whose management's prerogatives were not restricted by collective bargaining agreements, were long subject to discharge without cause. Even a patently reasonable expression of opinion about management was a dangerous step for employees in such a vulnerable position. Today, however, the power of private employers to discharge employees is often limited by bargaining agreements allowing discharge only for "cause," and the power of public agencies is circumscribed by doctrines protecting the exercise of first amendment rights. In this suit, now narrowed considerably by events in the trial court and by the scope of the present appeal, we consider the validity of a municipal ordinance and a fire department regulation that make fire department employees subject to discharge for "conduct prejudicial to good order." We declare the challenged

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portions of the ordinance and fire department regulation unconstitutional for reasons set forth below.


        In 1975, the Irving, Texas City Council decided to have firefighters operate a municipal emergency ambulance service. The firefighters' association thought this would require more additional firemen than were contemplated by the fire chief. At a city budget hearing, the chief advised the council that only a minimal increase in personnel would be needed. The association opposed his position, and took its stand: a number of additional firefighters would be required. Association representatives continued the debate in other public forums.

        At a meeting of the firefighters' association, the membership voted to send a letter to the chief opposing his position and accusing him of "an inexcusable lack of concern for the lives and safety of the men under your command." The letter continued, "(Y)ou have made it your official policy to gamble, not only with our lives, but with the lives of all those under our protection," renounced his leadership and made other comments critical of his management of the department. The association also voted to send a copy of the letter to each member of the city council and to the local newspaper. Davis, one of the plaintiffs-appellees, was directed, as president of the association, to obtain the signatures of at least 51% Of the membership, and then to release the letter.

        Having learned that the letter was being circulated, local newspapers investigated the apparently newsworthy situation. A reporter approached the chief, who declined comment. The chief telephoned Davis, however, to remind him that the fire department had established grievance procedures. The reporter then interviewed Davis, who discussed the controversy in detail. His comments generated additional friction between the firefighters and the chief when they were featured the next day on the front page of the Irving Daily News. 2

        The chief considered his authority threatened by this spark of independence from the lower echelons of the department, and therefore consulted the city attorney regarding his power to punish Davis. He then suspended Davis indefinitely by a written order, which cited as authority both the fire department rules and regulations, 3 and ordinance No. 2201, which sets forth in Section 37 as grounds for removal or suspension:

(8) Conduct prejudicial to good order;

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(14) Violation of any of the rules and regulations of the Fire Department and Police Department or of special orders, as applicable, and/or these rules and regulations.

        After reciting the facts leading up to Davis' statement to the newspaper and quoting his comments, the order concluded:

In this article, a copy of which is attached hereto, Robert Michael Davis is quoted repeatedly criticising my leadership as Chief and making statements that have certainly tended to disrupt department morale.

Based upon an overall review of the conduct of Fire Equipment Operator II, Robert Michael Davis in this matter, including the violations of the Fire Department Rules and Regulations and City of Irving Ordinance No. 2201, I have given Fire Equipment Operator II, Robert Michael Davis an indefinite suspension for each such separate action and violation.

        This ignited the conflagration. Davis and the association sued contending, among other things, that the ordinance and regulations are vague, overbroad and facially unconstitutional under the first and fourteenth amendments. The district court held that they were unconstitutional, both facially and as applied to Davis. It therefore enjoined their enforcement and ordered Davis' reinstatement, with costs and attorney's fees taxed to the defendants. On appeal, the chief, the commission and the city contest only that portion of the judgment that holds invalid the rule and ordinance against "(c)onduct prejudicial to good order" and enjoins their enforcement. We are thus to determine whether such a provision governing the behavior of municipal firefighters is so vague or overbroad as to offend the Constitution. 4


        The issue is, therefore, presented in an unusual and narrow context. No appeal has been taken from the injunction that forbids the enforcement of Article 5.3 of the Fire Regulations, the "derogatory statements adverse criticism" provision set forth in footnote 3 above. Presumably the ordinance and Article 5.5 forbid only that kind of "(c)onduct prejudicial to good order" not forbidden by the more specific provisions of Article 5.3. In any case, the city cannot now penalize, under these catch-all provisions, conduct it has been forbidden to punish under Article 5.3.

        This narrow ledge is treacherous for the defendants, however, for the city nevertheless asserts, in effect, that it may punish some kinds of conduct expressive of opinion. Certainly some prejudicial conduct is not communicative in nature, E. g., striking a superior or stealing his car. However at least one objective of the conduct-prejudicial-to-good-order standard is apparently to forbid the kind of conduct that expresses an idea or a thought the kind of behavior that is communicative and hence shielded by the first amendment. 5 Article 5.3 may

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remove some such conduct from coverage under Article 5.5, but conduct of this nature is still substantially encompassed by the latter article. For example, disclosure of a secret department policy, criticism of the mayor or picketing of the fire department with signs saying "Firefighters are underpaid," might result in sanction under Article 5.5, but not under Article 5.3.

        Thus the municipal code has, on its face, at least some application to conduct that would be considered "speech" under the first amendment. That impact cannot be dismissed as tangential or even minimal. There is potentially a wide difference between "conduct prejudicial to good order" and activities " that would tend to disrupt department morale", or other conduct of the kind mentioned in 5.3. Moreover the power to discharge for activity a superior considers prejudicial to good order cannot be sanctioned on the thesis, once acceptable, that a public employee is subject to sanction or discharge at his superior's whim. Even though an untenured teacher can be discharged "for no reason whatsoever," he must be reinstated "if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms." Mt. Healthy City School District Board of Education v. Doyle, 1977, 429 U.S. 274, 283-84, 97 S.Ct. 568, 574, 50 L.Ed.2d 471, 481. Nor may continuance in public employment be based on political adherence. Municipal employees may not be discharged pursuant to a legislative scheme that broadly stifles the exercise of fundamental personal liberty. Elrod v. Burns, 1976, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547. Even on the narrower ground asserted by the concurring opinion in Elrod, a "nonpolicymaking, nonconfidential government employee can(not) be discharged . . . from a job that he is satisfactorily performing upon the sole ground of his political beliefs." Id. at 375, 96 S.Ct. at 2690, 49 L.Ed. at 566 (Stewart, J. concurring in the judgment). We conclude that such an employee cannot be discharged for the exercise of other first amendment rights.


        These considerations limit the effect that could constitutionally be given to the ordinance. They do not directly address its validity as overbroad and vague. The question whether such a general standard for discipline of public employees is valid was confronted in Arnett v. Kennedy, 1974, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15. The Court there considered a provision of the Lloyd-LaFollette Act, 5 U.S.C. § 7501, which provides...

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