617 F.2d 1100 (5th Cir. 1980), 77-1299, Davis v. Williams

Docket Nº:77-1299.
Citation:617 F.2d 1100
Party Name:Robert Michael DAVIS et al., Plaintiffs-Appellees, v. Lewis WILLIAMS et al., Defendants-Appellants.
Case Date:May 19, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1100

617 F.2d 1100 (5th Cir. 1980)

Robert Michael DAVIS et al., Plaintiffs-Appellees,

v.

Lewis WILLIAMS et al., Defendants-Appellants.

No. 77-1299.

United States Court of Appeals, Fifth Circuit

May 19, 1980

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

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

Michael S. Wolly, Washington, D. C., amicus curiae.

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

Before COLEMAN, Chief Judge, and BROWN, AINSWORTH, GODBOLD, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON and THOMAS A. CLARK, Circuit Judges. [*]

Page 1101

GEE, Circuit Judge:

Intransigence and a leavening of imprudence have transmuted this personnel controversy in the Irving, Texas, fire department into a constitutional one.

In 1976 the Irving city fathers decided to take over an ambulance service and have the fire department operate it. The local fire fighters' association, an appellee here, took the view that many new people would have to be hired to do this. Appellant Williams, the fire chief, thought only a few more would be needed. The matter became a public issue on which feelings within the department ran high.

Following a budget meeting at which Chief Williams defended his minimal hiring plan, the fire fighters' association held its own meeting and prepared an open letter to Williams, denouncing his leadership and accusing him, among other things, of gambling with their lives and those of the citizenry and of failing to stand up for the special interests of the fire fighters. Learning that this letter was being circulated for signatures, the local newspaper made for the troubled waters with baited hook. A reporter informed Williams of the impending letter. Williams declined comment before seeing it and called appellee Davis, the association's president. When Davis acknowledged circulation of the letter, Chief Williams reminded him of the existence of established grievance procedures.

Next the reporter approached Davis, who obliged him with comments, based on the letter, that were bannered in next morning's paper:

IPFFA president Mike Davis said the "morale of the fire department has steadily dropped since the chief has assumed the leadership of the department more than eight years ago.

"We feel the chief has never really assumed his leadership responsibilities, and as a result of his eight years as chief, the morale of the department is at an all-time low.

"We realize this (the letter) is a serious measure and may permanently sever our relationship with the chief, but we wish to bring this situation to the attention of city management and the general public."

Chief Williams, feeling his authority and position traduced and intending to punish Davis if he could, consulted the city attorney for legal advice. He then suspended Davis indefinitely by a written order, which cited as its authority the following:

IRVING DEPARTMENT OF FIRE RULES & REGULATIONS

ARTICLE 5.3 MEMBERS

All members shall:

41. Refrain from being a party to any malicious gossip, report, or activity that would tend to disrupt department morale or bring discredit to the department or any member thereof; or making derogatory statements or adversely criticizing department policy, activities, or officers, except by written report to the Chief of the Department, through channels.

ARTICLE 5.5 OFFENSES

Offenses are punishable by reprimand, reduction in rank, suspension, or dismissal.

A. Offenses

(5) Conduct prejudicial to good order.

ORDINANCE NO. 2201 CITY OF IRVING, TEXAS

SECTION 37. GROUNDS FOR REMOVAL OR SUSPENSION

(8) Conduct prejudicial to good order;

Page 1102

The order then continued by reciting the facts leading up to Davis' statements to the newspaper and quoting his comments set out above. It 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 Officer 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 suit followed, proceeding under 42 U.S.C. § 1983 and contending, among other things, that the above provisions are vague, overbroad, and facially unconstitutional under the first and fourteenth amendments. The district court held that they were unconstitutional, both facially and as they had been applied to Davis. 1 It therefore enjoined enforcement of the provisions and ordered Davis' reinstatement, with costs and attorney's fees. On this appeal, Chief Williams, the commission, and the city (hereafter collectively referred to as the city) complain only of that portion of the judgment that holds facially invalid the rule and ordinance against "(c)onduct prejudicial to good order." 2 We are thus to determine whether such a provision, as applied to the behavior of municipal fire fighters, is so vague or overbroad as to offend the Constitution. Our inquiry is somewhat narrowed, however, by the context of this case.

Page 1103

In the first place, the city remains enjoined, by that portion of the judgment from which it did not appeal, from enforcing article 5.3(41), 3 that portion of the rules most offensive to the first amendment. In the setting of this case, therefore, the provisions of article 5.3(41) must be viewed as subtracted from the general catch-all ordinance, since, if they cannot be enforced as specific prohibition, no more can they be enforced as subsumed in a general one. Second, the catch-all prohibition comes to us not standing alone but rounding out a lengthy list of more specific provisions pertaining to such proscribed categories of conduct as "insubordination," "absent without leave," and the like. Obviously, it is not intended that the catch-all provision re-prohibit in general terms what other provisions of the rules have already forbidden in specific ones. Nor, if it were so intended, can we envision how it would add weight to a specific charge: "insubordination prejudicial to good order," for example, seems to amount to no more than "insubordination." We therefore conclude that the provision in these fire department rules condemning "(c)onduct prejudicial to good order" is properly viewed as applying to undesirable conduct not specifically forbidden by other, more specific rules but of the same general kind. Thus, it falls in the category of such venerable omnibus clauses as those punishing "conduct unbecoming an officer and a gentleman," art. 95 of the old Articles of War (presently brought forward as art. 133, Uniform Code of Military Justice), and art. 134 of that Code, punishing "disorders and neglects to the prejudice of good order and discipline . . . ." 4

As was noted in the dissent from our panel's opinion, 5 catch-all provisions such as this persist in military and civil-service codes, though often challenged and sometimes invalidated on grounds such as those asserted here. See, e. g., Bence v. Breier, 501 F.2d 1185 (7th Cir. 1974), and generally, Note Vagueness Doctrine, 53 Tex.L.Rev. 1298 (1975). The reason why they continue to appear seems manifest. For in private employment, one can be disciplined or discharged for almost any reason or for no reason; that this arrangement obtains is generally known. In civil-service employment, by contrast, discharge or discipline must rest on "cause." Fair notice consequently requires some attempt at specifying what actions constitute cause, but it may well be impossible for the mind to imagine or the hand to transcribe every sort of human misconduct that might fairly call for discipline. And if it were possible, the product would doubtless fill volumes of particulars and therefore go unread except perhaps by superiors searching out ad hoc grounds for disciplinary action already determined on.

Thus, ironically, these catch-all provisions, so often attacked on vagueness (due process) and overbreadth (first amendment) grounds, 6 probably give the only notice that can practically and...

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