Bauers v. Cornett

• Decision Date: 04 May 1987
• Docket Number: No. 86-806 C (5).,86-806 C (5).
• Citation: 659 F. Supp. 776
• Parties: Doris J. BAUERS, Plaintiff, v. Bruce C. CORNETT, and John F. Meystrick, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

659 F. Supp. 776

Doris J. BAUERS, Plaintiff, v. Bruce C. CORNETT, and John F. Meystrick, Defendants.

No. 86-806 C (5).

United States District Court, E.D. Missouri, E.D.

May 4, 1987.

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

Michael L. Boicourt, Chief Counsel, Litigation Div., Jefferson City, Mo., for defendants.

MEMORANDUM

LIMBAUGH, District Judge.

This civil action concerns the allegations of Doris J. Bauers, an employee of the Missouri Division of Employment Security (DES), that officials at the Division have prevented her from exercising her rights under the First and Fourteenth Amendments to the United States Constitution. Specifically, Ms. Bauers contends that the officials, Bruce C. Cornett and John F. Meystrick, required her to remove a flyer she had posted in the St. Ann DES branch office and ordered local officials to remove flyers she had mailed to various DES offices in Missouri. Plaintiff claims that defendants' actions violated her First Amendment rights to free speech and association as well as her right to petition the government for redress.

The defendants deny that they violated plaintiff's First Amendment rights. In addition, they claim that if they had not prevented her from disseminating the materials at the DES offices she would have violated the Hatch Act, 5 U.S.C. § 1501 et. seq., and the Missouri State Personnel Law, R.S.Mo. § 36.150.4 (1987 Supp.). Bauers argues, though, that these laws do not prohibit the type of activity the state has regulated here.

Plaintiff's original complaint contained three counts. On April 18, 1986, the Court entered a temporary restraining order which prohibited defendants from interfering with any of Bauers' lobbying activities. This order has continued in force until this date. Before trial, Bauers dismissed Counts II and III, her requests for actual and punitive damages. Under the sole remaining count, the Court must only determine whether defendants violated plaintiff's First Amendment rights and, if so, whether it should enjoin them from taking similar actions in the future. This Memorandum constitutes the Court's findings of fact and conclusions of law for purposes of Fed.R.Civ.P. 52(a).

I. Findings of Fact.

Doris J. Bauers has worked for the Missouri Division of Employment Security since 1951 and in the Division's St. Ann, Missouri office since 1960. She currently holds the title of Claims Supervisor III, a position in the Missouri Merit System. Defendant Bruce C. Cornett is the director of the DES and indirectly supervises the Division's employees, including the plaintiff. Defendant John F. Meystrick is the Assistant Director of Field Operations for the DES. Plaintiff sues the defendants in their individual and official capacities.

Plaintiff Bauers has an active interest in improving the work environment for lower-level employees at DES. She is a member of the International Association of Personnel in Employment Services (IAPES), a nationwide organization, and serves as recording secretary of the Missouri state chapter. The plaintiff also serves as treasurer of an informal group called the DES Lobbyist Committee, a group that lobbies in the Missouri General Assembly for measures favorable to DES employees.

In January 1986, the Committee focused its efforts on obtaining passage of H.B. 1661. This Bill would have given a merit system employee the right to a hearing before his supervisor could transfer him from one office to another. On February 19, 1986, plaintiff produced some flyers which she posted on a bulletin board in the St. Ann office and mailed to other DES offices in Missouri. Plaintiff did not compose, copy or distribute these flyers on state time and did not use state materials.

The document Bauers posted is a request by the Committee for money to reimburse Pete Rodgers, its lobbyist in Jefferson City. The entire text of the document concerns this request, and it ends with the following underscored statement. "We need this money as soon as possible." The document contains only two phrases which even arguably represent statements on behalf of the bill itself, and these phrases are simply background to the plea for money. The Committee contemplated that Rodgers would use some of the money for contributions to various Missouri state legislators as well as for his own expenses.

The administrators of the DES reacted to the flyers with a communication consisting of three documents. In an inter-office communication to all DES local office managers dated March 18, 1986, defendant Meystrick discussed letters he had received from defendant Cornett, his boss, and from Ivan Schraeder, Director of Labor Relations in the Office of Administration. Meystrick noted that "the general policy we are following on this subject is that no solicitations or distributions are to be made by employees on Agency time or on Agency premises regardless of the cause for which the effort is made."

One of the communications referenced in Meystrick's memorandum was a letter he received from Bruce C. Cornett dated March 11, 1986. There, Cornett referred to a memo from Ivan Schraeder, noting that "in keeping with Mr. Schraeder's comments on this subject, please advise whomever is responsible for distributing this communication that the usage of `DES' is considered improper, and also advise local Office Managers that subject matter of this type should not be distributed or posted in Division facilities."

The letter from Schraeder dated February 28, 1986, which was referenced in and accompanied the other two documents, states, with the exception of its heading, salutation and closing, as follows:

We have just received a copy of what appears to be an intradepartment transmittal, produced and circulated on state time. If this is correct, the employee or employees responsible should be cautioned about the no solicitation/no distribution rule in effect in the state. It is inappropriate for any employee to promote personal causes or programs through the use of state facilities and/or time.

We also note that the organizing committee is called `DES Lobby Committee.' We believe that the name is an improper use of the Department's name and status, in that the committee may be mistaken for an officially sanctioned group. It is recommended that you meet with the organizers or known leaders of the group to explain the conflict of interest issues that are raised by the use of the current name and the method of circulation used.

It may also be necessary for you Cornett to communicate with the local office managers again concerning the no solicitation/no distribution rule in light of the `DES Lobby Committee' mailing.

bracketed comment added.

Plaintiff complied with the directive by promptly removing the flyer from the bulletin board at the St. Ann office. Officials at other branch offices also responded to the directive by removing the materials from their offices. Bauers then called defendant Meystrick to ask about the directive. She claims that he told her that Division officials could not allow the DES Lobbyist Committee to distribute and post materials because an unidentified union would then want to have similar privileges.

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.

Further, plaintiff argues that despite the ostensible ban, the Division has allowed other groups to approach DES employees seeking money. For example, DES officials often post notices inviting persons to dutch-treat parties for retiring employees. But, these notices do not constitute solicitation of a type similar to the plaintiff's actions. The other instances of solicitation which plaintiff claims the officials have allowed on a selective basis include a letter from Richard Powell, executive secretary of the Governor's Committee on Employment of the Handicapped, asking DES employees to support a fundraising drive to make Ellis Island and the Statue of Liberty accessible to the handicapped. 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.

Bauers contends that defendants discriminated against her speech based on its content. She provided copies of documents which the defendants have allowed other persons to place on DES bulletin boards. 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. Plaintiff also provided a copy of the 1986 IAPES Spring Convention Report which discussed H.B. 1496, a bill pending in the Missouri General Assembly during the 1986 session. Her evidence at trial also included a copy of five resolutions passed by the International Executive Board of IAPES concerning issues pending in the United States Congress in April 1985. Finally, plaintiff submitted a computer printout that someone posted on the bulletin board in the St. Ann office. The document concerns a bill which was pending in Congress and related to the "WIN" program. It includes the following statement: "Those states which want to take action in support of the amendment should contact their senators and ask...