Acevedo v. City of Muskogee
| Decision Date | 11 April 1995 |
| Docket Number | No. 82396,82396 |
| Parties | Art ACEVEDO, Appellant, v. The CITY OF MUSKOGEE, a Municipal Corporation, Appellee. |
| Court | Oklahoma Supreme Court |
Certiorari to the Court of Appeals, Division No. 3; Bill Ed Rogers, Trial Judge.
After a pre-termination hearing, the police chief of the City of Muskogee dismissed the appellant, Art Acevedo, for violating police department rules of conduct and a merit system rule. The employee appealed the decision to the City's Merit System Board. The Board held an evidentiary hearing and it upheld the dismissal. Acevedo appealed to the district court asserting that he was fired
for engaging in constitutionally protected speech. The trial judge, Bill Ed Rogers, sustained the Board's decision. The Court of Appeals found that: 1) the employee's termination was supported by the clear weight of the evidence; and 2) Acevedo's right to free speech had not been unconstitutionally restricted. In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the United States Supreme Court held that for a government employee's speech to be protected, it must encompass a matter of public concern and the employee's interest in expression must outweigh any injury the speech could cause to the interest of the state as an employer in promoting the efficiency of public services performed through its employees. We find that although the employee's speech encompassed a matter of public concern, the potential injury to the City's ability to operate its police department outweighed the employee's interest in expression.
CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; TRIAL COURT AFFIRMED; MERIT BOARD SUSTAINED.
William H. Hinkle, Patricia Clifton Smith, Tulsa, for appellant.
Terrance Ball, Asst. City Atty., Muskogee, for appellee.
A single issue is presented: whether the decision to terminate the appellant, Art Acevedo (Acevedo/detective/employee), satisfies the requirements established by the United States Supreme Court in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) for the dismissal of a public employee for exercising a First Amendment 1 right to speak. In Connick, the Supreme Court held that for a government employee's speech to be protected, it must: 1) encompass a matter of public concern; and 2) the employee's interest in expression must outweigh any injury the speech could cause to the interest of the state as an employer in promoting the efficiency of public services performed through its employees. We find that although the employee's speech encompassed a matter of public concern, 2 the potential injury to the City's ability to operate its police department outweighed the employee's interest in expression.
On January 7, 1992, the police chief, Gary Sturm (Sturm/police chief), of the appellee, City of Muskogee (City/employer), presented Acevedo with a "Notice of Hearing on Proposed Disciplinary Action." A pre-termination hearing was held before the Board of Supervisors composed of the police chief, the City's mayor and two police officers on January 13. Six officers were called to testify at the pre-termination hearing--one of these officers was called at Acevedo's suggestion. A "Notice of Termination" was issued to Acevedo on January 21. The termination notice delineated three reasons for his firing. The first reason involved conversations allegedly conducted by Acevedo with rookie officers accusing the police chief and other members of the law enforcement community of wrongdoing in a criminal case in which he asked the officers to document any improprieties The termination notice stated that Acevedo's actions violated the Rules of Conduct outlined by the Muskogee Police Department's Policy and Procedures Manual 5 and Rule X of the of the City's Merit System Rules. 6 Specifically, Acevedo was found to have violated the general rules of conduct of the police department by: acting in a manner unbecoming to an officer; disseminating confidential police department records; and violating or encouraging others to violate the normal chain of command. The alleged violation of the merit system rule related to conduct found discreditable to the service--engaging in activities disruptive to the order and discipline of the City and participating in malicious gossip or other activities bringing disrepute on the City.
and to report directly to him rather than through the normal chain of command. 3 The second ground concerned a letter Acevedo admitted sending to a Washington, D.C. NAACP attorney in which members of the legal community were charged with committing criminal acts, covering up crimes and accusing the officials of discrimination. 4 The police chief indicated that the attitude expressed in the letter caused him to believe that he and the command staff could not place confidence in Acevedo or expect loyalty from him. The third basis for the dismissal was founded on an admission that the employee had furnished police reports to the NAACP attorney. The police chief argued that these reports contained confidential notes taken by investigative officers.
Acevedo appealed to the City's Merit Board (Board) arguing that he was not discharged for the reasons given by the chief of police in his termination letter. Rather, Acevedo argued that he was fired for testifying The investigation involving Acevedo's conduct was conducted from August 1, 1991, through January 13, 1992. During this time, a grand jury was convened to investigate corruption in the police department. It is undisputed that Acevedo testified before the grand jury. However, no charges were brought against the police chief as a result of the grand jury proceedings. Other than his own testimony, Acevedo did not present any evidence that his firing was in retaliation for his testimony. Acevedo's allegation of discrimination was not substantiated by the evidence.
before the grand jury investigating corruption in the police department. A hearing was held on March 4, 1992. At the hearing, two officers testified: that Acevedo had approached them early in their careers with the police department; that he had made charges of improprieties against the police chief and other law enforcement officials and members of the legal community; and that he had encouraged them to record and report any irregularities in police department procedures to him rather than through the normal chain of command. 7 The testimony of one of these officers was controverted by a detective who worked with Acevedo. He alleged that he had been with Acevedo during the week that one of the conversations was supposedly conducted. The detective testified that the discussion couldn't have taken place because he was with Acevedo throughout the week, and that there had not been any contact between the detective and the police officer.
The police chief testified that during the investigation leading up to Acevedo's firing, he interviewed all eighteen rookie officers employed by the City. Two officers, who were interviewed separately, told almost identical stories about Acevedo's attacks on the law enforcement and legal communities. Each of these officers told the police chief that Acevedo had encouraged them to keep track of any wrongdoing within the department and to report directly to him. The police chief told the Board that he did not institute termination proceedings against Acevedo during the term of the grand jury because he had no desire to interfere with the detective's participation in the proceedings. At the conclusion of the hearing, the Board upheld Acevedo's termination.
On appeal, the Court of Appeals found that: 1) the employee's termination was supported by the clear weight of the evidence; and 2) Acevedo's right to free speech had not been unconstitutionally restricted. We granted certiorari on December 15, 1994, to consider a single issue--to determine whether the employee's termination conforms with the test set out by the United States Supreme Court in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
PUBLIC CONCERN, THE POTENTIAL INJURY TO THE CITY'S
ABILITY TO OPERATE ITS POLICE DEPARTMENT
OUTWEIGHED THE EMPLOYEE'S
INTEREST IN EXPRESSION.
Acevedo argues that under the Supreme Court's recent pronouncement in Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994), the Board was required to find that the police chief reasonably and honestly believed that his speech was unprotected before it could uphold his termination. However, Waters is a plurality opinion. 8 Therefore, we rest our pronouncement The United States Supreme Court established the test in Connick for determining whether speech by a government employee may, consistently with the First Amendment, serve as a basis for disciplining or discharging that employee. In Connick, the United States Supreme Court held that for a government employee's speech to be protected, it must encompass a matter of public concern and the employee's interest in expression must outweigh any injury the speech could cause to the interest of the state as an employer in promoting the efficiency of public services performed through its employees.
today upon the prior Supreme Court precedent announced in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
The First Amendment 9 protects speech by public employees which touches on matters of public concern. 10 Although the government as an employer has broader powers concerning its employees' speech than the government as sovereign has respecting the speech of citizens, 11 a government agency may not discharge an employee on a basis which infringes that employee's constitutionally protected interest in free speech. 12
The threshold question in determining whether a discharge impermissibly infringed upon the...
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