Belch v. Jefferson County, 98-CV-1227.
| Decision Date | 24 August 2000 |
| Docket Number | No. 98-CV-1227.,98-CV-1227. |
| Parties | Gary M. BELCH, Plaintiff, v. JEFFERSON COUNTY; and James Lafferty, in his individual and official capacity, Defendants. |
| Court | U.S. District Court — Northern District of New York |
Hite & Casey, P.C., Albany, NY, Meredith Savitt, of counsel, for Plaintiff.
Roemer, Wallace, & Minneaux, LLP, Albany, NY, John Minneaux, of counsel, for Defendants.
On July 30, 1998, Plaintiff Gary Belch commenced this action pursuant to 42 U.S.C. § 1983, alleging that Defendants disciplined him in violation of his First Amendment rights to freedom of speech and freedom of association and retaliated against him for exercising his First Amendment rights. Plaintiff also alleges that certain sections of the Jefferson County Sheriff's Department Unified Code of Conduct (the "Code of Conduct" or the "Code") are unconstitutional.
At all times relevant herein, Plaintiff, Gary Belch, was a Deputy Sheriff employed by the Jefferson County Sheriff's Department ("Sheriff's Department" or the "Department"). Plaintiff also served as the elected president of the Jefferson County Deputy Sheriff's Benevolent Association, Local 9100 (the "Sheriff's Association" or the "Union").
On September 5, 1997, Plaintiff investigated a motor vehicle accident by speaking with the driver at his place of employment, Channel 7, WWNY-TV. Earlier that same day, the Sheriff's Association had faxed press releases to the media endorsing candidates for election to the County legislature. When Channel 7 personnel recognized Plaintiff, they requested an interview with him concerning the Sheriff's Association's endorsements. At the conclusion of his investigation, Plaintiff agreed to give an on-camera interview with a television reporter.
During the interview, Plaintiff's statements were limited to his endorsement of political candidates running for election to the County legislature. Plaintiff was in uniform and on duty at the time of the interview. A review of a video tape of the interview indicates that a banner reading "Sheriff's Association" ran across the bottom portion television screen for approximately half of the interview. The interviewer's introduction included references both to the "Sheriff's Association" and "deputies" in general. The lead in stated Lafferty Aff., Ex. A. The anchor's conclusion stated "The Association also failed to give support to two other incumbent legislators...." Id.
Shortly after the interview aired, two candidates who had not been endorsed by the Union complained to Sheriff Lafferty about the interview. As a result of these complaints, Sheriff Lafferty commenced an investigation. Undersheriff Simser conducted the investigation and determined that Plaintiff had given a television interview while in uniform and on duty without prior authorization. See Belch Aff. Ex. J. The Undersheriff concluded that this was a clear violation of the Code.1
On October 2, 1998, about one month after the complaints regarding the interview surfaced, Sheriff Lafferty issued a formal Notice of Discipline charging Plaintiff with: (1) making an unauthorized public statement and appearance, in violation of section 4.13 of the Code; (2) improper expenditure of departmental funds, in violation of section 4.16 of the Code; and (3) unexcused absence from post, which is not listed in the Code.
On October 16, 1997, Sheriff Lafferty met with, among others, Plaintiff and his Union representative to discuss the charges. At this meeting, Sheriff Lafferty told Plaintiff that the charges were based on his unauthorized television appearance and that he did not want him to appear on television again in his uniform. However, Sheriff Lafferty also told Plaintiff that as Union President he "could make whatever statement he chose to as long as he did not wear the uniform of the Sheriff's Department or represent himself to be a direct representative of the Sheriff in regards to political statements."2 Belch Aff. Ex. K. Sheriff Lafferty further informed Plaintiff that he intended to put a letter of reprimand in his personnel file as a penalty for violating the Code. See Belch Aff. Ex. K; Ex. L. Plaintiff found this penalty unacceptable and elected to take the matter through the grievance and arbitration procedure set forth in the Collective Bargaining Agreement (the "CBA"). See Lafferty Aff. Ex. E.
On February 6, 1998, the matter was submitted to arbitration. In a decision dated March 6, 1998, the arbitrator found plaintiff guilty of all charges. With respect to the violation of Section 4.13, the Arbitrator found:
The Grievant and his Union argue that even though the Grievant participated in the interview in uniform, he (and the interviewer) made it clear that he was acting in his capacity as Union President, and not as Deputy Sheriff. He argues that the banner across the bottom of the television screen indicated that he was President of the Local Union. However, that banner plus the interviewer's statement are not sufficient to overcome the impression that the uniform gives the viewer. Whenever a police officer wears a uniform, that police officer represents the agency. People identify the uniform and not the person. The Grievant may have been acting in the capacity of Union President, but in the eyes of the viewers, the Grievant was a uniformed representative of the Jefferson County Sheriff's Department. In the instant case, the Grievant participated in a television interview while he was wearing a Deputy Sheriff's uniform. The only conclusion that many people would make is that he was representing the Jefferson County Sheriff's Department.3
Lafferty Aff., Ex. F. The Arbitrator recommended that a letter of reprimand be placed in Plaintiff's personnel file which could be expunged in two years absent any acts of misconduct by Plaintiff.
On April 6, 1998, Sheriff Lafferty rejected the arbitrator's recommendation and issued a formal discipline to Plaintiff that included a one day's suspension and loss of two vacation days. Sheriff Lafferty stated that he "imposed a greater penalty upon [P]laintiff because of his belligerent attitude and his refusal to accept responsibility for his actions even after the arbitrator found him guilty of all charges." Lafferty Aff. ¶ 26. Sheriff Lafferty further stated "I also sincerely wanted to impress upon Plaintiff the importance of adhering to the chain of command." Id.
In April 1998, Plaintiff applied for a position as a Juvenile Aid Officer. Sheriff Lafferty did not select him for this position although Plaintiff was the most senior of all applicants. In October 1998, Plaintiff applied for the position of Detective-Drug Task Force. Sheriff Lafferty again selected someone else for the job.
On April 23, 1998, this Court heard oral argument on Defendants' motion to dismiss the Complaint pursuant to FED. R. CIV. P. 12(c) and Plaintiff's motion to strike Defendants' affirmative defense under the Hatch Act, 5 U.S.C. § 1501, et seq. The Court dismissed the Complaint against Sheriff Lafferty in his official capacity and the claim for punitive damages and granted Plaintiff's cross-motion to strike Defendants' affirmative defense. See Belch v. Jefferson County and James Lafferty, 98-CV-1227, April 23, 1999 [hereinafter Bench Decision].
Presently before the Court are two motions for summary judgment pursuant to FED. R. CIV. P. 56. Defendants seek to dismiss the Complaint in its entirety whereas Plaintiff seeks judgment as a matter of law on the issue of liability. The standard for summary judgment is well-settled and need not be restated here. This Court has set forth the appropriate standard to be applied in numerous published decisions, see, e.g., Hoffman v. County of Delaware, 41 F.Supp.2d 195 (N.D.N.Y.1999), aff'd, 205 F.3d 1323 (2d Cir.2000), and will apply the same standard discussed in these cases to the present motions for summary judgment.
Defendants first move for summary judgment on Plaintiff's claim that Section 4.13 of the Code is overbroad. Plaintiff argues that the Code impermissibly restricts a broad category of speech and, thus, infringes on employees' First Amendment rights. Section 4.13 reads, in pertinent part: "[m]embers and employees of the department shall not ... appear on radio or television ... while holding themselves out as having an official capacity in such matter, without the approval of the Sheriff." Belch Aff., Ex. I.
"The overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when `judged in relation to the statute's plainly legitimate sweep."' Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612-15, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). A "facial challenge will not succeed unless the statute is `substantially' overbroad," National Endowment for the Arts v. Finley, 524 U.S. 569, 619, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (quoting New York State Club Assn., Inc. v. City of New York, 487 U.S. 1, 11, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988)), which means that "a law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications." Id. (quoting New York v. Ferber, 458 U.S. 747, 771, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)). Therefore, when possible, courts should read provisions to be constitutionally valid, see Ferber, 458 U.S. at 769, 102 S.Ct. 3348, and Plaintiff "must establish that no set of circumstances exists under which the [regulation] would be valid." Shabazz v. Cuomo, 1998 WL 102050, at *3 (S.D.N.Y. Mar.5, 1998...
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