Bauers v. Cornett

• Decision Date: 23 January 1989
• Docket Number: No. 87-1752,87-1752
• Citation: 865 F.2d 1517
• Parties: Doris J. BAUERS, Appellant, v. Bruce C. CORNETT, individually and in his official capacity as Director of the Division of Employment Security, Dept. of Labor & Industrial Relations and John F. Meystrick, individually and in his official capacity as Assistant Director of Field Operations, Division of Employment Security, Dept. of Labor & Industrial Relations, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1517

865 F.2d 1517

57 USLW 2447

Doris J. BAUERS, Appellant, v. Bruce C. CORNETT, individually and in his official capacity

as Director of the Division of Employment Security, Dept. of

Labor & Industrial Relations and John F. Meystrick,

individually and in his official capacity as Assistant

Director of Field Operations, Division of Employment

Security, Dept. of Labor & Industrial Relations, Appellees.

No. 87-1752.

United States Court of Appeals,

Eighth Circuit.

Submitted March 14, 1988.

Decided Jan. 23, 1989.

Michael P. Bastian, St. Louis, Mo., for appellant.

Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, Mo., for appellees.

Before HEANEY and JOHN R. GIBSON, Circuit Judges, and HARPER, ^* Senior District Judge.

HEANEY, Circuit Judge.

Doris Bauers posted flyers at her government workplace. The flyers primarily informed her fellow employees about legislation affecting their interests as employees. She sought donations for a fund to pay for a lobbyist and she also indicated that some money might be donated to legislators who favored employee rights. Her employer ordered the flyers removed because their contents allegedly violated laws designed to protect government employees from solicitation for partisan political purposes. Bauers asked the district court to enjoin her employer from removing further flyers, and she sought a declaratory judgment establishing her rights at the workplace. The district court denied her request for injunctive relief. We agree with the district court that Bauers' request for funds to be used in partisan political races is not protected speech. We reverse in part, however, because the district court erred in stating that solicitation for nonpartisan lobbying is also a violation of law. We remand for consideration of whether Mrs. Bauers may make some solicitations at the worksite.

FACTS

Doris Bauers has been an employee of the Missouri Division of Employment Security (Unemployment Office) since 1951. She is an active member of the International Association of Personnel for Employment Service (IAPES), a national organization of state government employees. In 1984, IAPES discontinued lobbying before the Missouri Legislature. Bauers and others subsequently formed the "DES Lobbyist Committee" (Committee), after learning that legislation had been passed adversely affecting their interests as employees. The Committee sought to obtain information on state legislation, to promote legislation beneficial to state employees and to engage a lobbyist for these purposes.

Mrs. Bauers had distributed organizational materials and legislative reports for IAPES lobbying efforts in the past. She had mailed information to fellow employees and had posted flyers on employee bulletin boards located in Unemployment Offices. She continued to do the same for the Committee. In 1986, the Committee was successful In February of that year, Mrs. Bauers prepared an informational flyer on her own time and at her own expense. She sought to inform her fellow employees about the existence of the Bill and about Committee efforts on their behalf. She also sought donations to continue the Committee's work. She mailed the flyers and copies of the Bill to employees at other local offices. The flyers and the attached bill were posted on employee and public-area bulletin boards in these offices. Unemployment Office administrators quickly reacted.

in introducing a bill before the Missouri legislature that would have given state merit system employees a right to a hearing when they were transferred from one office to another. Mo.House Bill 1661 (1986) (Bill). The Bill sought to expose supervisor transfer decisions to the light of a public record so that employees might oppose arbitrary transfers based on impermissible criteria.

On March 18, 1986, appellee Meystrick, the Assistant Director of Field Operations, sent directives to every local office announcing that no solicitations were to be made at the workplace for any purpose. He attached a memo from appellee Cornett, Director of the Unemployment Office, declaring that use of the initials DES to denote the Committee was improper, and that "subject matter of this type should not be distributed or posted in Division facilities." Plaintiff's Exhibit No. 3.

The district court had difficulty determining whether the Unemployment Office had a general policy against solicitation.

In support of their contention that they did not prohibit Bauers' activities because of the flyer's content, the defendants note that the state has a prohibition against solicitation at state offices. Yet, the pertinent guidelines only limit solicitation of state employees by voluntary agencies by requiring those groups to participate in the Missouri State Employee Charitable Campaign. The DES Lobbyist Committee is not a voluntary agency for purposes of the campaign procedures and, therefore, the guidelines do not apply. The defendants assert that notwithstanding the limited reach of the solicitation guidelines, the Division has a general policy against solicitation of all kinds. The exact bounds of this general policy are not clear.

659 F.Supp. 776, 779 (E.D.Mo.1987).

The court received testimony that while this dispute was pending, managerial employees tried to question appellee Cornett and others about any such policy's scope and meaning. They were not given any "straight answers." Preliminary Injunction Hearing 74, 79 (Nov. 14, 1986) (Record). The court also received evidence that other solicitous memos were sometimes posted on bulletin boards.

Plaintiff also submitted copies of a communication from defendant Cornett notifying Division employees that they could join the Association of Retired Missouri State Employees (ARMSE) as associate members for a small fee. * * * These items include two documents urging DES employees to join the Association of Retired Missouri State Employees (ARMSE) and to support bills the group had sponsored in the Missouri General Assembly.

659 F.Supp. at 779.

Mrs. Bauers removed the Committee flyers and filed suit in federal court seeking equitable relief. During the operation of a temporary restraining order, she posted a second flyer. It contained more information about Committee efforts, a second request for donations, and indicated that money collected would also be used to make campaign contributions to state legislators who supported legislation favorable to public employees.

The district court denied her requests for declaratory and injunctive relief because her solicitations violated the Hatch Act, 5 U.S.C. Sec. 1502(a)(2), "especially since the Committee contemplated that he [the lobbyist] would use some of the funds for political contributions * * *. Consequently, plaintiff's attempts to solicit money from other DES employees on behalf of the DES Lobbyist Committee fell squarely within the prohibitions of the Act." 659 F.Supp. at 780-81. The court believed that the employer's actions were privileged because violations of the Hatch Act by state employees

could lead to a loss of federal funding for the whole division. Id. at 781; see 5 U.S.C. 1506(a). The district court did not decide whether the employer had a no-solicitation policy, whether such a policy was selectively enforced, or whether any policy could be applied to conduct that did not violate the Hatch Act. ¹

I. APPLICABLE LAW

A. The Hatch Act

The "Hatch Act" commonly denotes two laws passed in 1939 and 1940 which restrict the political activities of public employees. One part covers federal employees. 5 U.S.C. Sec. 7321 et seq., 53 Stat. 1147 (Aug. 2, 1939). The second part applies to employees of state and local agencies that receive federal funds. 5 U.S.C. Sec. 1501 et seq., 54 Stat. 767 (July 19, 1940).

The appellees have justified their actions as a necessary response to a violation of the Hatch Act. With respect to employees of state and local agencies that receive federal funding, the Hatch Act provides:

(a) A State or local officer or employee may not--

* * *

* * *

(2) directly or indirectly coerce, attempt to coerce, command, or advise a State or local officer or employee to pay, lend, or contribute anything of value to a party, committee, organization, agency, or person for political purposes;

5 U.S.C. Sec. 1502(a)(2) (emphasis added), see also, 5 C.F.R. 151.121(b) (same).

Federal employees are similarly constrained. See 5 U.S.C. Sec. 7323.

The parties disagreed below over the proper interpretation of the term "political purposes." Bauers argued that the Hatch Act only applies to partisan political activity, and that the Committee's activities were nonpartisan. The district court, however, found that the sole purpose of the flyers was to solicit funds, ² and these funds were to be used for partisan purposes. Id. at 778, 80-81. ³

The district court also proceeded to conclude that, in any event, state employees were prohibited from engaging in various nonpartisan as well as partisan activities, while federal employees were only prohibited from engaging in partisan acts. 659 F.Supp. at 780-81 n. 1 (comparing 5 U.S.C. Secs. 1502(a)(2) and 7326(2)). This is the first occasion we are aware of in which a federal court has reached such a conclusion with respect to federal law. We, therefore, pause to consider the scope of the Hatch Act.

1. Congressional Intent

The Hatch Act was passed by Congress to address particular forms of political party

corruption and coercion perpetrated by, and victimizing federal, state and local government employees. Recent congressional investigations had revealed that disbursements under New Deal programs were being diverted by the state and local branches of each political party. A special Senate investigation found:

I.

[T]here has been in several States, and in many forms, unjustifiable political activity in connection with the work of the Works Progress Administration in such States. The committee believes that funds appropriated by...