Broderick v. Police Commissioner of Boston

• Decision Date: 04 June 1975
• Citation: 330 N.E.2d 199,368 Mass. 33
• Parties: Chester J. BRODERICK et al. v. POLICE COMMISSIONER OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 199

330 N.E.2d 199

368 Mass. 33

Chester J. BRODERICK et al.

v. POLICE COMMISSIONER OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 6, 1975.

Decided June 4, 1975.

Frank J. McGee, Jr., Marshfield (Vincent A. Harrington, Jr., Somerville, with him), for plaintiffs.

Michael De Marco, Boston (Lawrence J. Ball, Boston, with him), for the Police Commissioner of Boston.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

HENNESSEY, Justice.

This is an appeal by the plaintiffs, who are police officers in the city of Boston, from a declaratory judgment entered by a Superior Court judge declaring, in essence, that the officers must provide written answers to a number of written questions addressed to the officers by the defendant, who is the police commissioner of the city of Boston (commissioner). After the appeal was entered in the Appeals Court, the case was transferred to this court on our own motion. We affirm.

On Friday, May 10, 1974, approximately ninety off-duty Boston police officers journeyed to Newport, Rhode Island, to participate in what was planned as a Law Day celebration. The celebration was to take place over the weekend, the main event scheduled being a parade on Saturday wherein the officers were to march as a contingent representing the city of Boston, along with units from several other States and cities. Arrangements had been made for the celebration by the members of the Newport police association. It was planned that the Boston police offficers would spend Friday evening at the Ramada Inn in Portsmouth. The police officers arrived either by private cars or by a bus chartered by the Boston Police Patrolmen's Association, Incorporated.

Shortly after the weekend, the commissioner ¹ received complaints concerning the officers' conduct at the Ramada Inn and during the parade. He assigned a deputy superintendent to investigate. During the course of his investigation, the deputy superintendent received fifteen or sixteen complaints from employees of the inn. In addition, the manager of the inn submitted an affidavit in complaint. The affidavit alleged in general: that a customer at the inn, while playing pool in the bar area, had had his pool cue snatched away in the course of which he had been punched in the chest by a person subsequently identified by the manager as a Boston police officer; that the manager had observed '15 or 20 Police Officers at one point diving and playing in the pool in the nude, screaming and yelling like a bunch of wild kids'; that the manager had seen three nude males walking about in the vicinity of the pool area and the hotel lobby; that during the night a group of men roamed about the hallways using foul and opprobrious language; that at one point during the night the manager was awakened by what he thought were gun shots which were in fact some form of fireworks; that sometime during the night the hotel liquor cabinet was broken into and five quars of liquor were stolen; and that some guests had left the inn without paying for their breakfast. The Portsmouth police were summoned twice in the course of the evening, as well as the State police, who were called once. The deputy superintendent also received complaints regarding the conduct of the police officers during the parade, particularly with respect to those officers operating police motorcycles.

As a result of these complaints, the deputy superintendent sought to ascertain how many Boston police officers were at the Ramada Inn on the days in question; whether all of the police officers present in Rhode Island were scheduled off-duty; and he sought further to investigate the allegations of misconduct to determine whether any disciplinary proceedings were called for. After the preliminary investigation, including interviews with witnesses and the showing of photographs, was concluded, the deputy superintendent prepared a questionnaire which required certain police officers to file a narrative report of the events occurring in Rhode Island, the report to be based on the fifteen questions set forth. The questions inquired generally as to whether the officer had been registered or present at the inn; whether the officer had witnessed any events thereat; and further asked specific questions relating to the activities at the parade.

The questionnaire was submitted to the commanding officers of the various precincts with a directive that it be distributed to those police officers who were listed on the records of the Boston police department as being absent from the duty roster on the days in question. The order to submit a report based on the questions stated, 'It is brought to the attention of all officers concerned that, in accordance with 'Silverio v. Municipal Court of Boston', 355 Mass. 623, (1969) and 'Gardner v. Broderick', 392 U.S. 273, (88 S.Ct. 1913, 20 L.Ed.2d 1082, 247 N.E.2d 379) (1968), when a member of the department is complained against and is directed by his commanding officer to submit his report relative to such complaint, he is required to comply.' On receipt of the questionnaires, the plaintiffs brought suit for declaratory relief (G.L. c. 214), to determine whether they were under any legal duty to respond to the questionnaire. In addition to a declaration of rights the relief sought was an injunction prohibiting the commissioner from ordering the plaintiffs to provide the information requested in the questionnaire. ²

The legal grounds urged by the plaintiffs are that the questionnaire inquired as to 'off-duty noncriminal conduct' and is therefore violative of rights guaranteed by our State and Federal Constitutions, and further that the questionnaire was in violation of St.1973, c. 941, inserting G.L. c. 214, § 1B, which guarantees a right of privacy.

A preliminary injunction was isued by order of a Superior Court judge on May 29, 1974. Trial was held in the Superior Court on June 10, 1974. The judge found that the order to submit the report 'is reasonable and within the respondent's authority' and further found 'that the order of the respondent as to the off-duty conduct of the petitioners and other police officers bears a reasonable relationship to the petitioners' and the other police officers' fitness or capacity to properly function as an on-duty police officer.' The trial judge ordered the preliminary injunction dissolved.

The often quoted epigram by Mr. Justice Holmes written in an opinion of this court, McAuliffe v. Mayor & Aldermen of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892), to the effect that a police officer 'may have a constitutional right to talk politics, but he has no constitutional right to be a policeman,' is, as far as it goes, a correct statement of the law. BOSTON POLICE PATROLMEN'S ASSN. INC. V. BOSTON, --- MASS. --- , 326 N.E.2D 314 (1975)^A; O'HARA V. COMMISSIONER OF PUB. SAFETY, --- MASS. --- , 326 N.E.2D 308 (1975)^B; United States Civil Serv. Commn. v. National Assn. of Letter Carriers, AFL-CIO, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). However, that statement is tempered by the principle that public employment may not 'be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action.' Keyishian v. Regents of the Univ. of the State of N.Y., 385 U.S. 589, 605, 87 S.Ct. 675, 685, 17 L.Ed.2d 629 (1967).

The issue presented here is whether the questionnaire as drawn infringed either the plaintiffs' constitutional or statutory rights. While resolution of this issue at first glance appears to involve the Fifth Amendment to the United States Constitution's privilege against self-incrimination, closer analysis reveals that this constitutional right is only tangentially involved, the more pertinent inquiry here being whether the substance of the inquiry bears a rational connection either specifically to the officer's direct performance of official acts, or generally to the officer's fitness and ability to serve in governmental service.

That requiring the plaintiffs to answer the inquires directed to the activities in Rhode Island does not infringe their Fifth Amendment rights is made clear by the decision of the United States Supreme Court in Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), a case almost directly in point to the issue we consider here. In the Gardner case the court stated that '(i)f appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, . . . the privilege against self-incrimination would not have been a bar to his dismissal.' ³ Id. at 278, 88 S.Ct. at 1916. Accord, Silverio v. Municipal Court of the City of Boston, 355 Mass. 623, 247 N.E.2d 379 (1969). See generally, Beilan v. Board of Educ., Pub. Sch. Dist. of Philadelphia, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958); Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 1324, 2 L.Ed.2d 1423 (1958); Faxon v. School Comm. of Boston, 331 Mass. 531, 120 N.E.2d 772 (1954). But see Slochower v. Board of Higher Educ. of New York City,350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Opinion of the Justices,332 Mass. 763, 126 N.E.2d 100 (1955). As we stated in the Silverio case, supra, at 629, 247 N.E.2d at 384: '(A)n employee knows that if he fails to divulge information pertinent to the issue of his use or abuse of his public trust he may lose his job. The fact of employment poses the continuing choice of whether to divulge such information. The Constitution of the United States, however, as we understand its construction, does not require that a public employer continue to employ in a position of public trust an employee who declines or renders himself...