Baumann v. District of Columbia

• Decision Date: 11 July 2009
• Docket Number: Civil Action No. 09-1189 (CKK).
• Parties: Kristopher BAUMANN, Chairman of The Fraternal Order of Police, Metropolitan Police Labor Committee, Plaintiff, v. The DISTRICT OF COLUMBIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 1

655 F.Supp.2d 1

Kristopher BAUMANN, Chairman of The Fraternal Order of Police, Metropolitan Police Labor Committee, Plaintiff, v. The DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 09-1189 (CKK).

United States District Court, District of Columbia.

July 11, 2009.

Memorandum Opinion Denying Second Motion For Preliminary Injunction August 4, 2009.

COPYRIGHT MATERIAL OMITTED

Gregory T. Lawrence, Anthony Michael Conti, Paul A. Fenn, Conti Fenn & Lawrence LLC, Baltimore, MD, for Plaintiff.

Robert C. Utiger, DC Attorney General, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

Plaintiff Kristopher Baumann, the Chairman of the Fraternal Order of Police and an Officer of the Metropolitan Police Department, brings this action against the District of Columbia and Cathy L. Lanier, the Chief of the Metropolitan Police Department (collectively, "Defendants"), alleging interference with Plaintiff's First Amendment rights and retaliation based on his whistle-blowing activities.¹ Currently pending before the Court is a Motion for a Temporary Restraining Order and Preliminary Injunctive Relief filed by Plaintiff on June 29, 2009, which the parties fully briefed as of July 8, 2009. After thoroughly reviewing the parties' submissions, relevant case law and statutory authority, and the record of the case as a whole, the Court shall DENY Plaintiff's [4] Motion for a Temporary Restraining Order and Preliminary Injunctive Relief, for the reasons that follow.

I. BACKGROUND

A. Factual Background

Plaintiff is the Chairman of the District of Columbia Fraternal Order of Police ("FOP") and an officer employed by the Metropolitan Police Department ("MPD"). Pursuant to Article 9 of the Collective Bargaining Agreement between the FOP and MPD (the "CBA"), Plaintiff is assigned full-time to act as the primary union representative of the FOP. See Pl.'s Mot., Ex. 2 at 6 (FY 2004-FY 2008 CBA).

This case has its origins in a "barricade" incident that occurred on May 30, 2009. Such incidents are subject to various written procedures issued by the MPD. See Pl.'s Mot., Ex. 1 at 1 (11/7/86 Barricade/Hostage Situation Procedures). Following this incident, the Vice-Chairman of the FOP, Wendell Cunningham, contacted Plaintiff to report that several FOP members raised concerns about the procedures that were used. Compl. ¶ 8. In response, Plaintiff ordered an investigation of the incident by the FOP Safety Committee, an entity that is part of the Joint Safety Committee recognized under Article 17 of the CBA. See Pl.'s Mot., Ex. 2 at 18 (FY 2004-FY 2008 CBA).²

On June 5, 2009, Vice-Chairman Cunningham requested a taped copy of the radio communications that occurred during the barricade incident. See Defs.' Opp'n, Ex. A at 1 (6/5/09 Documentation Receipt). In connection with this request, Vice-Chairman Cunningham signed a form ensuring that the radio recordings would not be released to the public:

It is understood, the following recordings are for internal investigation only, there are no public requests for any of these incidents and the recordings will not be released to the public without prior, written approval from the Office of Unified Communications.

Defs.' Opp'n, Ex. A at 1 (6/5/09 Documentation Receipt).

Within hours after the radio recordings were released to Vice-Chairman Cunningham, Defendants state that "MPD received a telephone call from a reporter representing that he had listened to the recording[s]." Defs.' Opp'n at 2. As a result, Chief Lanier ordered Lieutenant Dean Welch to conduct an Internal Affairs investigation "to determine the circumstances under which the recording[s] [were] released." Id. at 2. Although Plaintiffs Complaint alleges that the investigation was launched to specifically investigate Plaintiff and his First Amendment-protected activities, see, e.g., Compl. ¶ 11, the record does not support that position. In fact, Plaintiff's own statements underscore that the investigation involves a broader inquiry into the alleged unauthorized release of the radio recordings to the press as to which Plaintiff may or may not have been involved in some as-yet undetermined capacity. See Pl.'s Reply, Ex. 3 ¶ 15 (Affid. of K. Baumann) ("Lieutenant Welch's questions pertained to whether I ordered the FOP Safety Committee Investigation, whether I released an audio recording to the press, and my communications with other FOP members").

On June 17, 2009, Lieutenant Welch emailed Plaintiff and requested that he provide a convenient date and time to schedule an administrative interview in connection with the investigation:

Chairman/Officer Baumann, I need you to contact me in reference to scheduling an interview concerning an administrative investigation I am conducting. Please provide me with a date and time at your earliest convenience that you can respond to [the Internal Affairs Division]. Thank you for your cooperation.

Pl.'s Mot., Ex. 4 (6/17/09 Email from D. Welch to K. Baumann). Plaintiff received the email while he was testifying as a witness on behalf of the FOP in an arbitration concerning an "All Hands On Deck" initiative ("AHOD"), an apparent hot-button issue between MPD and the FOP. Pl.'s Reply, Ex. 3 ¶ 3 (Affid. of K. Baumann). Plaintiff alleges that the MPD knew that he was testifying at the arbitration at the time of the communication. Compl. ¶ 14. Plaintiff also argues that the communication violated Article 9 of the CBA because, according to Plaintiff, the FOP Chairman may only receive inquiries about his union activities from the MPD's Labor Relations Representative, and not Internal Affairs. See Pl.'s Mot., Ex. 2 (FY2004-FY 2008 CBA) ("[t]he Labor Committee Chairman shall respond to inquiries by the Department's Labor Relationship Representative regarding the type and number of representational activities engaged in for a particular period"). Although Plaintiff repeatedly contacted individuals within the MPD's Labor and Employee Relations Unit to discuss Lieutenant Welch's email, he did not receive timely responses. See Pl.'s Reply, Ex. 3 ¶¶ 5-6, 8-9 (Affid. of K. Baumann).

On June 18, 2009, Plaintiff attended a meeting of the Ward 5 Republicans, where he was invited to speak about crime-related issues in the District of Columbia. Id. ¶ 7. Plaintiff does not dispute that this was a public meeting. See Defs.' Opp'n at 3; Pl.'s Reply at 5. In any event, at the meeting, Plaintiff claims (and Defendants do not dispute) that a uniformed Lieutenant of MPD was present, and that the Lieutenant told Plaintiff that he was on duty and had been ordered to "monitor" Plaintiff's remarks. Compl. ¶ 7.

Finally, on June 19, 2009, Plaintiff reported to an Internal Affairs interview with Lieutenant Welch. Plaintiff was ordered to sign two documents, one that confirmed Plaintiff would respond to questions truthfully, and the other requiring Plaintiff to keep the contents of the interview confidential. Id. ¶ 13. Although the record is not entirely clear, it appears that Plaintiff refused to respond to some or all of Lieutenant Welch's questions on the grounds that they improperly impinged on Plaintiff's union activities and Plaintiff's First Amendment rights. See Compl. ¶ 23 ("[Plaintiff] responded to these questions by asserting that he was, at all times, acting in his capacity as Chairman of the FOP, and thus the question was improper").

B. Procedural Background

Plaintiff filed this lawsuit on June 29, 2009. Plaintiff's two-count Complaint alleges that Defendants violated the District of Columbia Whistleblower Act, D.C. Code § 1-615.51, et seq., by

engag[ing] in prohibited personnel actions, including threatening discipline and initiating an unwarranted, illegal, and improper investigation and monitoring of [Plaintiff's] protected union activities and free speech and association. Further, the Defendant threatened discipline if [Plaintiff] did not respond to questions by the MPD's Internal Affairs Division.

Compl. ¶ 26. Plaintiff also alleges that Defendants violated his rights guaranteed by the First Amendment of the United States Constitution because

[i]n response to [Plaintiff's] union activities challenging the AHOD initiative, and other alleged actions that purportedly form the underlying bases for the interview conducted by Internal Affairs of [Plaintiff], the MPD has taken adverse action against him in the form of a calculated pattern of intimidation and harassment that is meant to make him feel as if his job as a police officer is in jeopardy based upon his union activities.

Id. ¶ 35. Plaintiff seeks compensatory damages, emergency and permanent injunctive relief, and an order compelling disciplinary action against officials found to have acted unlawfully.

In connection with the filing of his Complaint, Plaintiff also filed an Emergency Motion for a Temporary Restraining Order and Preliminary Injunctive Relief (stating identical grounds for relief) seeking (1) to enjoin the Internal Affairs investigation, and (2) to prohibit Defendants' interference with Plaintiff's First Amendment rights by detailing officers at his public speaking engagements and threatening him with discipline for his protected free speech. On June 30, 2009, the Court held a conference call with counsel for both parties on the record to discuss scheduling related to the Motion. Defendants agreed not to call Plaintiff into an interview related to the Internal Affairs investigation or subject Plaintiff to any disciplinary action on any date prior to July 14, 2009. See [3] Order at 1 (Jun. 30, 2009). With that agreement in place, and pursuant to the schedule set by the Court, Defendants filed an Opposition to Plaintiff's Motion on July 2, 2009, and Plaintiff filed a Reply on July 6, 2009.

After reviewing the parties' submissions, on July 7, 2009, the Court issued an Order explaining that Plaintiff had raised a new argument in his Reply that Defendants' actions violated D.C.Code §...