City and Borough of Sitka v. Swanner, 6293

• Decision Date: 03 September 1982
• Docket Number: No. 6293,6293
• Citation: 649 P.2d 940
• Parties: CITY AND BOROUGH OF SITKA, Appellant, v. James SWANNER, Appellee.
• Court: Alaska Supreme Court

Page 940

649 P.2d 940

CITY AND BOROUGH OF SITKA, Appellant, v. James SWANNER, Appellee.

No. 6293.

Supreme Court of Alaska.

Sept. 3, 1982.

Donald L. Craddick, Sitka, for appellant.

Richard H. Friedman, Sitka, for appellee.

Before RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ., and DIMOND, Senior Justice. ^*

OPINION

DIMOND, Senior Justice.

James Swanner was a captain in the Police Department (department) of the City and Borough of Sitka (Sitka). During the winter and spring of 1980 problems developed within the department which prompted an off-duty meeting of concerned employees. The meeting was held on April 3, and Captain Swanner attended. The police officers drafted two letters at the meeting which expressed their dissatisfaction with certain department policies.

The first letter expressed the patrol officers' concern regarding a patrol vehicle they considered to be unsafe, but were being required to use. This letter was signed by every patrol officer and by Captain Swanner. Swanner wrote "approved" next to his signature, indicating, in accordance with department policy, that he was forwarding a communication to a higher command and that he approved of that communication.

The second letter read as follows:

To Whom It May Concern:

We the undersigned employees of the Sitka Police Department are dissatisfied with the daily change in department policies and general lack of organization. In as much as we share the desire to both strengthen and improve the quality and effectiveness of our police department, we are respectfully requesting your assistance in advising us as to the procedures that would inable (sic) us to air our complaints.

Respectfully submitted,

Every member of the department, except the Chief, signed this letter. Copies were sent to the Chief of Police, members of the Police and Fire Commission, and members of the City Assembly.

On April 8, 1980, at the completion of his shift, Swanner was fired for having signed the two letters. Swanner commenced this action against Sitka for damages he asserted were the result of his being wrongfully discharged. In his complaint Swanner alleged that he had an employment contract with the City of Sitka which was breached when he was fired for causes not listed in the personnel policies, and that he was fired for the exercise of his First Amendment rights in violation of the Federal Civil Rights Act, 42 U.S.C. § 1983 (1976). ¹

The case was tried by a jury which was given two special verdict forms, one with questions relating to the contract claim, and one with questions relating to the civil rights claim. The jury resolved each question in favor of Swanner and awarded damages totaling $88,424.42. ² Pursuant to 42 U.S.C. § 1988 (1976) the trial judge awarded Swanner a total of $16,296.96 in attorney's fees and costs.

On appeal, Sitka contends that the trial court erred by giving improper jury instructions, by refusing to grant a directed verdict against Swanner on the civil rights cause of action, and by awarding Swanner an excessive amount of attorney's fees. We find Sitka's objections to be without merit, and for reasons set forth below affirm the judgment of the superior court. Because Sitka's various objections to the jury instructions all revolve around Swanner's civil rights claim and the correct standard of law to be applied in determining his free speech rights, we believe a review of controlling First Amendment law will resolve all but one of the issues raised on appeal. ³ The issue of attorney's fees will be discussed separately.

I. FIRST AMENDMENT RIGHTS

The proper analysis for determining the extent of a public employee's First Amendment rights was established by the United States Supreme Court in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811, 817 (1968). Due to the wide variety of situations in which public employee free speech issues may arise, the Pickering court expressly declined to establish a general standard against which the statements of all public employees could be judged. Instead, the Court derived a balancing test which allows a government employer to limit the First Amendment rights of an employee only if it can demonstrate that its legitimate interest in promoting efficiency in its operation outweighs the interests of the employee in commenting upon matters of public concern. Id. at 568, 88 S.Ct. at 1734, 20 L.Ed.2d at 817. When making such a determination, relevant factors for consideration include the impact of the statements on co-worker harmony, the proximity of contact between the speaker and the subject of the criticism, the sensitivity of the employer-employee relationship, and the degree of interference with the regular operation of the enterprise or the degree of interference with the performance of the speaker's duties.

Sitka argues that a police officer is in a different category than the ordinary public employee, and that any restriction on Swanner's freedom of speech by the department was justified by the overriding need for discipline, esprit de corps, and uniformity among the members of a police force. In making this argument, Sitka alludes to the unquestioning obedience required in the military, and maintains that such is necessary to ensure the adequate promotion of safety of persons and property. Sitka fails to recognize, however, that a citizen does not waive or forfeit First Amendment rights when he becomes a public employee, ⁴ even if he becomes a police officer. ⁵ Such an argument has been consistently rejected by the courts, and the Pickering balance of interests approach to public employee's First Amendment rights has been expressly held applicable to police officers. ⁶

Subsequent cases have established that the burden is on the employer to demonstrate not only that the exercise of the employee's rights substantially and materially interferred with the discharge of his duties and responsibilities, but also that the prevention of the disruption outweighed the employee's interest in commenting on, and the public's right to be informed about, matters of public concern. Porter v. Califano, 592 F.2d 770, 779 (5th Cir. 1979); Hostrop v. Board of Junior College District No. 515, 471 F.2d 488, 492 (7th Cir. 1972); Battle v. Mulholland, 439 F.2d 321, 325 (5th Cir. 1971). Application of the Pickering balancing test to the instant case reveals that Sitka has failed to meet this burden.

The correspondence upon which Sitka relied as justification for dismissing Swanner was not an adequate ground for dismissal. Neither of the two letters were in any way intemperate so as to give Sitka grounds for dismissal of Swanner on the basis of insubordination, misconduct, or poor job performance. Nothing in the record compels the conclusion that the promotion of general efficiency within the department or the job performance of the police force was disrupted or might suffer as a result of the letters drafted expressing the officer's concerns. On the contrary, the letters were an attempt by the members of the police force to resolve morale problems that had apparently been brewing within the department for quite some time. At most, the letters reflected a difference of opinion between the officers and the Chief of Police, a matter which was clearly of general public interest.

In Clary v. Irvin, 501 F.Supp. 706 (E.D.Tex.1980), the court considered a similar situation in which three members of a Texas police force were discharged for privately criticizing the Chief of Police before members of the city council. The court found that the officer's First Amendment rights had been violated by their discharge and recognized the interest of the plaintiffs as members of a police department in communicating their disquietudes and professional concerns about its chief official to those possessed of the power to remedy the disturbing matters. Id. at 709. Police officers, as providers of a public service, have the prerogative and even the duty to comment on the quality of that service, when trying to improve it. Id. at 710.

Sitka argues that even under a balancing test, the right of free speech does not protect a police officer who is in a "policymaking" position and makes statements critical of departmental action. In support of this position, Sitka relies on a series of United States Supreme Court cases which permit a governmental unit to discharge "policymaking" employees solely because of their political party affiliation without encroaching on the constitutional provision regarding free speech. Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). However, this exception to the general prohibition against patronage dismissals of employees has been tied to the needs of an electoral government and was created to ensure that "representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate." Elrod v. Burns, 427 U.S. 347, 367, 96 S.Ct. 2673, 2686, 49 L.Ed.2d 547, 562 (1976).

We find such a "policymaking" exception inapplicable to Swanner's case. There has been no showing that the office of the police captain in Sitka was part of any patronage system. As the Court stated in Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1294, 63 L.Ed.2d 574, 584 (1980):

(T)he ultimate inquiry is not whether the label "policymaker" or "confidential" fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.

That is not to say, however, that Swanner's position as a police captain within the Sitka Police Department should not be taken into consideration when evaluating Sitka's interest in regulating his conduct. It is clear that Sitka's concern with efficiency...