De Bleecker v. Montgomery County, Md.

• Decision Date: 08 January 1982
• Docket Number: No. 51,51
• Citation: 292 Md. 498,438 A.2d 1348
• Parties: , 115 L.R.R.M. (BNA) 4461 Michael P. De BLEECKER v. MONTGOMERY COUNTY, MARYLAND, et al.
• Court: Maryland Court of Appeals

Page 498

292 Md. 498

438 A.2d 1348, 115 L.R.R.M. (BNA) 4461

Michael P. De BLEECKER v. MONTGOMERY COUNTY, MARYLAND, et al.

No. 51.

Court of Appeals of Maryland.

Jan. 8, 1982.

D. Leah Meltzer, Bethesda (Gary Howard Simpson, Bethesda, on the brief), for appellant.

Christopher Brown and Michael Millemann, Baltimore, on the brief for the Maryland Lawyers Council, amicus curiae.

Stephen H. Sachs, Atty. Gen., Diana G. Motz, Asst. Atty. Gen., Baltimore, and Robert A. Zarnoch, Asst. Atty. Gen., Annapolis, on the brief for the State of Maryland, amicus curiae.

Hugh E. Donovan, Silver Spring (Donovan & Nash, Silver Spring, on the brief), for appellees Montgomery County, Blake and Sander.

Craig S. Rice, Rockville (McInerney, Layne and Rice, Rockville, on the brief), for appellees, Montgomery County Bd. of Ed. and Norma C. Day.

Argued before MURPHY, C. J., and SMITH, DIGGES, ^* ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

MURPHY, Chief Judge.

The principal issue in this case is whether the trial court, in granting directed verdict motions against Rev. Michael P. De Bleecker, properly concluded as a matter of law that he had not been discharged from his public employment as a teacher in Montgomery County in violation of his constitutionally protected right of free speech under the first amendment to the United States Constitution.

I

De Bleecker filed a four-count declaration in the Circuit Court for Montgomery County, alleging a conspiracy to deprive and a deprivation of his civil rights under 42 U.S.C. §§ 1983 and 1985. ¹ Joined as defendants were Montgomery County, Maryland (the County), the County Board of Education (the Board), Gary Blake, Director of the Montgomery County Detention Center (the Center), Norma Day, Director of Adult Education of the County public school system, and Larry Sander, Director of the County Board of Corrections. The declaration alleged that De Bleecker, an ordained Roman Catholic diocesan priest, was a nontenured temporary teacher employed by the Board for the sole purpose of teaching inmates at the Detention Center; that on July 22, 1977, there was an altercation between inmates at the Center, which was quelled by the use of unnecessary force by a Center guard; that De Bleecker made statements to the inmates and filed a written report with Center authorities, indicating his disagreement with the violent action taken by the guard; and that as a result of his verbal statements and written report, he was discharged from his teaching position at the Center. De Bleecker alleged in the declaration that in terminating his public employment each of the defendants had violated his constitutional right to free speech, that the natural defendants had conspired among themselves to deprive him of his civil rights, and that he was denied his right to an administrative hearing to determine the reason for his discharge. De Bleecker sought compensatory and punitive damages. The defendants filed general issue pleas, together with pleas of justification.

At the trial, De Bleecker testified on his own behalf; he also introduced the depositions of Blake, Day and Sander as part of his case. The evidence so adduced by De Bleecker showed that on July 22, 1977, there was a fight between inmates at the Center, following which De Bleecker and several guards, none of whom had witnessed the fight, found Antonio Thomas lying on the floor in another inmate's cell. De Bleecker testified that he helped Thomas to his feet and was walking with him towards the dormitory when a correctional officer, Sergeant Barricklow, grabbed Thomas and accused him of fighting. According to De Bleecker's testimony, Barricklow, assisted by two other guards, forced Thomas into another cell; that while he (De Bleecker) could not see into the cell, he heard sounds of a struggle; that the guards refused to permit him to enter the cell; and that when Thomas later emerged from the cell, his head was swollen and bloody. De Bleecker said that thereafter he returned to the classroom where some inmates were discussing the incident. De Bleecker admitted expressing to the inmates his disapproval of Sergeant Barricklow's violent conduct and he acknowledged advising them to tell the truth about the incident and not to be afraid. He also told Blake, according to Blake's deposition that he had discussed with the inmates "that the officers were violent and brutal, and something should be done."

De Bleecker submitted a written report to Center officials later that day in which he recounted his observations of the incident and set forth his disapproval of Barricklow's actions. In his report, De Bleecker stated that "as an educator I have to disagree with this violent procedure, since everything seemed to be under control and violence only generates violence." De Bleecker's written report stated that Thomas had "fought back which seems to be psychologically understandable because the man hadn't done anything wrong." The report concluded:

"(T)hey had tied Thomas down on his bed but he seemed to be semi-unconscious. Sgt. Barricklow seemed all of a sudden scared and asked Thomas if he would get him some pills. Then he brought him out to bring him to the nurse and asked me if I had seen anything. I understood that he wanted to ask me if I had seen him hurting Thomas badly. I said 'no' because I did not see him doing it, but I reiterate my statement, that they grabbed the wrong one and that Thomas had been unnecessarily irritated."

De Bleecker testified that three days after he filed his written report, Blake, the Director of the Center, informed him that he was investigating the incident and that De Bleecker was to take the day off because the guards would not permit him inside the Center. Shortly thereafter, Blake wrote to the Board, stating that De Bleecker had acted in an irresponsible and emotional manner and that his report "consists of supposition and false accusations which cannot be substantiated." In his letter, Blake stated that his investigation revealed that Sergeant Barricklow had acted properly; that De Bleecker's discussion with the inmates of the sergeant's violence was a "serious security violation which could result in further incidents and could jeopardize the effectiveness of Sgt. Barricklow"; and that

"(i)nmates are quick to spread gossip and some will attempt to place the security and administration of the Detention Center in a compromising position by spreading rumors. Mr. De Bleecker was considered a staff member therefore, what he says has validity in the inmate population."

Blake advised the Board that De Bleecker's services were no longer desired or permitted at the Center. He said in his letter that De Bleecker's report accusing Sergeant Barricklow of violence had been "proven incorrect" and had created "an irreconcilable gap between himself and the correctional staff." The continuance of De Bleecker's employment, Blake said in his letter, would jeopardize the educational program at the Center.

The evidence revealed that Blake had discussed his findings with both Day and Sander, each of whom agreed with Blake's decision to terminate De Bleecker's employment. De Bleecker was later advised by letter signed by Day that the Board had reviewed the information provided by the Center and as a result found it necessary to terminate his employment as a teacher at the institution.

At the close of De Bleecker's evidence, the trial judge granted the directed verdict motions of all the defendants on all counts. He ruled that "as a pure matter of contract law and employer/employee law (De Bleecker) was not entitled to a pretermination hearing." He observed that "(t)here was no contention made that he was under a specific term of employment," it being conceded that De Bleecker was a temporary, at-will employee. The court also found that because of the difficulty in maintaining order and the need for a high level of discipline in a penal facility, De Bleecker's verbal remarks to the inmates concerning the guard's actions were not constitutionally protected. The trial judge said that De Bleecker's "subsequent discharge grounded upon that conduct is not a violation of any constitutional right." He explained:

"What (De Bleecker) put into that report to Gary Blake was, in my judgment from the evidence thus far, fully protected.

"... It is my judgment at this stage of the case that if the evidence indicated the decision was made to bar him from access to the Detention Center solely upon that report, the case would probably have to proceed forward. But the evidence is just as strong that that was not the sole reason for his being barred from the Detention Center....

"If one considers that Blake and Sander took into consideration the written report as well as the oral conduct in making their decision to terminate or bar his entrance, which would have had the effect to terminate, then perhaps one, under the cases, has to look at the protected conduct and determine whether that was considered by the employer as well. If in fact it was, the protected conduct that was a significant reason for the dismissal, then again perhaps the case would have to go on and be a question for the jury.

"But again, as a matter of law, it is clear from the evidence that he would have been discharged for his unprotected conduct (comments to the inmates) even in the absence of the report."

De Bleecker appealed to the Court of Special Appeals, which affirmed the judgment. De Bleecker v. Montgomery County, 48 Md.App. 455, 427 A.2d 1075 (1981). That court held that a temporary at-will employee who is terminated according to the terms of his contract does not have a constitutionally protected interest in the continuation of his employment. It further concluded that "De Bleecker was not entitled to a pre-termination hearing, and the Board's action in terminating De Bleecker's employment did not violate any of his constitutional rights." 48 Md.App. at 464-65, 427...