Pesek v. City of Brunswick

• Decision Date: 02 July 1992
• Docket Number: No. 91-CV-991.,91-CV-991.
• Citation: 794 F. Supp. 768
• Parties: Raymond J. PESEK, Plaintiff, v. CITY OF BRUNSWICK, et al., Defendant.
• Court: U.S. District Court — Northern District of Ohio

794 F. Supp. 768

Raymond J. PESEK, Plaintiff, v. CITY OF BRUNSWICK, et al., Defendant.

No. 91-CV-991.

United States District Court, N.D. Ohio, E.D.

July 2, 1992.

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Avery S. Friedman, Gloria Rowland Homolak, Friedman & Associates, Cleveland, Ohio, for plaintiff.

Timothy T. Reid, Reid, Berry & Stanard, Cleveland, Ohio, for defendant City of Brunswick.

Charles F. Clarke, III, Martin Harris, Squire, Sanders & Dempsey, Timothy T. Reid, Reid, Berry & Stanard, Cleveland, Ohio, for defendant Robert Trimble.

Mark J. Valponi, Kelley, McCann & Livingstone, Timothy T. Reid, Reid, Berry & Stanard, Cleveland, Ohio, for defendant Gregory Crane.

Timothy T. Reid, Reid, Berry & Stanard, Cleveland, Ohio, Gene McKenna, Armbruster, Kelley, McKenna & Modugno, Akron, Ohio, for defendant Tex Combs.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

SAM H. BELL, District Judge.

Trial of this cause was held by this court without the intervention of a jury on April 21 and April 22, 1992. It was instituted with the filing of a complaint by plaintiff Raymond J. Pesek on May 22, 1991 against defendants the City of Brunswick (hereinafter Brunswick), Robert Trimble, Gregory Crane, and Tex Combs. The complaint seeks recovery pursuant to 42 U.S.C. § 1983 and alleges primarily that defendants violated Pesek's right of free speech under the first amendment to the United States Constitution in not allowing him to speak at a Brunswick City Council meeting. But Mr. Pesek alleges not only a violation of his first amendment rights; he also seeks a declaration that the portion of the Brunswick City Charter upon which the alleged restriction was based is both unconstitutional on its face and as applied. Plaintiff, finally, alleges that he was suspended from his public employment for attempting to exercise his first amendment rights and that the suspension resulted in a deprivation of his fourteenth amendment procedural due process, substantive due process, and privileges and immunities rights.

The court has heard all of the testimony and has before it all of the evidence presented in this case. Based upon this testimony and evidence, the following represents this court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52.

I. FINDINGS OF FACT

1. Plaintiff Pesek is a citizen and part-time employee of Brunswick serving as a paramedic and firefighter.

2. Brunswick is a municipality chartered under the rules and regulations of the state of Ohio and is subject to the provisions of the United States Constitution.

3. Defendant Trimble is and was at all relevant times the Brunswick City Manager.

4. Defendant Crane is and was at all relevant times the Brunswick Director of Safety. As the director of safety, he is responsible for the supervision over the Chief of the Brunswick Fire Department.

5. Defendant Combs is and was at all relevant times the chief of the Brunswick Fire Department and as such is responsible for the supervision of employees of the fire department, including Pesek.

6. The Brunswick City Council held a meeting on April 15, 1991. In attendance at this meeting were Pesek and all three individual defendants (Pesek testimony). Brunswick councilperson Dale Strasser presided over this meeting (Strasser Testimony). This meeting was open to the public and 41 residents of Brunswick attended (Defendants' Exhibit G, minutes of April 15, 1991 meeting with attached sign-in sheet). There were several items on the agenda for this meeting and, at certain times, members of the public were allowed to express their views (id.).

7. Item number seven on the agenda was labeled "Staffing Fire Stations # 1 and # 2" (id.). Specifically, the Council discussed possible ways to staff the fire station 24 hours per day and to reduce fire and ambulance response time (id.).

8. Sometime during this discussion, Pesek raised his hand, desiring to speak to Council on the subject of improving Brunswick's ambulance and fire services, including response time (Pesek testimony). At this point Trimble, sitting next to Strasser, pointed toward Pesek and whispered to Strasser that Pesek was not allowed to speak directly to Council about "fire-related issues" pursuant to the Brunswick City Charter (Strasser testimony). Specifically, Trimble instructed Strasser that if Pesek desired to speak about a "fire-related issue," the Charter required that he go through a chain of command, starting with Trimble as city manager (Trimble testimony).

9. Pursuant to Trimble's instructions, Strasser did not initially recognize Pesek; Pesek, however, yelled "hold on" in a further attempt to be recognized (Pesek testimony). Trimble himself then directly addressed Pesek:

Skip — you want to speak on a fire issue?

Ray — Yes sir.

Skip — Council does not deal with employees. You deal through me if you're an employee.

Ray — I am a citizen and taxpayer.

Skip — You're also an employee.

Ray — Would you put that in writing?

Skip — I already told you, it's in the Charter. Council deals with employees through me — that's in the Charter.

(Defendants' Exhibit F, transcript from tape recording of conversation, see also Defendants' Exhibit G).¹

10. On May 7, 1991 Pesek was issued a letter of suspension for his conduct during the April 15 city council meeting. Specifically, the letter, written by Combs, expresses as follows:

After several directives you did try to communicate with Council of the Whole on April 15, 1991, which was a public meeting.

Please be advised this is in direct violation of Brunswick Fire Department Rules and Regulations, Article 2, Section 5, Shall conform to and obey all rules, orders, resolutions and regulations, whether general, special or verbal. This is also in direct violation of Brunswick Charter, Article 3, Section 3.05 B Prohibitions, which states that all employees shall deal with Council solely through the City Manager.

You are hereby suspended from all duties without pay, beginning May 13, 1991 at 1800 hours. Be advised that you may appeal this decision to Greg Crane, Safety-Service Director, within ten (10) days of this notice. This request for an appeal must be in writing.

Plaintiff's Exhibit 24. The Brunswick City Charter section upon which Pesek's discipline was based, § 3.05(b), provides as follows:

Except for the purpose of inquiries and investigations under Article VI, Section 6, the Council or its members shall deal with City officers and employees who are subject to the direction and supervision of the City Manager solely through the City Manager, and neither the Council nor its members shall give orders to any such officer or employee either publicly or privately.

Plaintiff's Exhibit 1. Defendants thus contend that Pesek, as a fire department employee, is prohibited by the Charter from "trying to communicate" directly to the City Council about "fire-related" issues because § 3.05(b) allows council members to "deal with" employees only through the city manager, Trimble (Trimble testimony; Crane testimony; Combs testimony). Pesek is the only Brunswick employee who has ever been punished in any way for speaking or attempting to speak at a City Council meeting (Crane, Trimble, Strasser, and Councilman Brad Burge testimony).

11. Pesek appealed his suspension and requested a hearing thereon in the form of a letter sent to Combs and Crane on May 9, 1991, pursuant to the Brunswick Division of Fire Rules and Regulations (Plaintiff's Exhibit 26; Plaintiff's Exhibit 2 at p. 6).

12. On July 1, 1991 Crane sent Pesek a letter which stated that a hearing regarding Pesek's appeal of the suspension had been scheduled (Plaintiff's Exhibit 34). Although rescheduling was requested by plaintiff, the hearing was never held. On September 17, 1991 Crane issued a decision upholding the suspension (Plaintiff's Exhibit 46). Crane did agree with Pesek that the notice of the suspension was untimely under the Brunswick Division of Fire Rules and Regulations and ordered that he be reimbursed for lost wages during the one-week suspension period (id.). The suspension was upheld in all other respects (id.).

13. There was no evidence presented that Pesek held a property interest under state law which entitled him to continued employment as a part-time Brunswick firefighter. Pesek offered no evidence of any ordinance, regulation, policy, or express or implied contract which would support any claim that he possessed an entitlement to continued employment under state law.

14. Pesek challenges his suspension directly in this case on substantive and procedural due process and privileges and immunities grounds under the fourteenth amendment. Plaintiff also charges that both the actions on April 15, 1991 in preventing him from speaking and the subsequent suspension therefor violated his first amendment free speech rights. On July 15, 1991 the parties reached a temporary resolution of these disputes by executing an Agreed Judgment on Motion for Preliminary Injunction in which Pesek agreed not to orally address members of Council on employment related matters and Trimble agreed to submit Pesek's communications to the City Council after receiving them from Combs and Crane.

II. CONCLUSIONS OF LAW

A. Introduction

Pesek's § 1983 claim in this case is premised upon several claimed constitutional violations. He alleges that both the restriction imposed upon his speech on April 15, 1991 and the subsequent suspension violated his first amendment rights. He also claims that the suspension violated his fourteenth amendment substantive due process, procedural due process, and privileges and immunities rights. In defending this action, defendants raise several arguments, foremost of which is the contention that Pesek was deprived of none of the claimed constitutional rights in this case. In addition, Brunswick maintains that, even were the court to find that one or more of Pesek's...