Grievance of Morrissey

• Decision Date: 04 December 1987
• Docket Number: No. 84-251,84-251
• Citation: 538 A.2d 678,149 Vt. 1
• Court: Vermont Supreme Court
• Parties: GRIEVANCE OF Charles T. MORRISSEY.

Page 678

538 A.2d 678

149 Vt. 1

GRIEVANCE OF Charles T. MORRISSEY.

No. 84-251.

Supreme Court of Vermont.

Dec. 4, 1987.

David Putter and Norman E. Watts, Jr., Law Clerk (on the brief), of Putter & Unger Associates, Montpelier, for plaintiff-appellant.

Jeffrey L. Amestoy, Atty. Gen., Marilyn Signe Skoglund, Asst. Atty. Gen., and Frances C. Lindemann, Law Clerk (on the brief), Montpelier, for defendant-appellee.

Before ALLEN, C.J., HILL, PECK and GIBSON, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

GIBSON, Justice.

On May 25, 1983, Charles Morrissey was dismissed from his post as editor of Vermont Life magazine. The dismissal was precipitated by published interviews in which he was critical of his superior, a co-worker, and a recent reorganization of the magazine's operating structure. Morrissey filed a grievance with the Vermont Labor Relations Board (Board), which made extensive findings of fact and dismissed the grievance. This appeal followed, and we affirm the Board's decision.

Three primary issues are presented on appeal: whether grievant was afforded sufficient notice of the grounds for his dismissal, whether the dismissal was supported by just cause, and whether the dismissal violated grievant's free speech rights under either state or federal constitution. We will address each of these issues after a review of the facts found by the Board.

Grievant's tenure at Vermont Life began in October of 1981, when he was hired as acting editor. He became editor-in-chief in January of 1982, assuming responsibility for planning, coordinating, and directing all aspects of the magazine. As a managerial employee, he did not have the contractual rights enjoyed by most state employees, but the parties agree that he could be dismissed only for cause. Vermont Life is a division within the Agency of Development and Community Affairs (the Agency), and the secretary of the Agency was grievant's only immediate superior.

In the fall of 1982, Arthur Kreizel, then secretary of the Agency, made plans to create a new position at Vermont Life, carrying the title of publisher. The publisher was to have marketing and promotion duties, and it was hoped that this individual would be able to reduce the magazine's operating deficit. Grievant was favorable to this idea in principle. Problems developed, however, when Kreizel decided upon instituting a "co-equal concept," under which the editor and the publisher would have equal authority and would report directly to the secretary. Both grievant and the Senior Board of Editors, an advisory body for the magazine, were adamantly opposed to the co-equal concept. Nevertheless, the Agency and the Department of Personnel began to solicit applications for the publisher's position in the late fall of 1982.

In January of 1983, Milton Eaton became secretary of the Agency, inheriting both the newly created publisher's position and the co-equal concept. The magnitude of the developing problems became clear at a subsequent meeting of the Senate Appropriations Committee, scheduled for February 8, 1983, at which Eaton and grievant were requested to appear. Shortly before the hearing, Eaton held a staff meeting, which grievant attended, and requested briefing on matters that might be brought up. Earlier, grievant had spoken with a state senator on the Committee and had provided her with a series of prepared questions concerning the publisher's position at the magazine. Despite Eaton's request for briefing, grievant did not inform him of the prepared questions.

At the Committee meeting, the senator asked grievant several of the questions he had provided her. Grievant testified, in response, that his job description placed him in charge of Vermont Life and that he had "no reason to assume any change in that arrangement." The senator asked Eaton only whether the senior editor's role would be usurped by that of the publisher, and Eaton replied in the negative. After the Committee hearing, Eaton reprimanded grievant for his performance, telling him that he was not being a team player, that he knew that the co-equal concept had been established, and that Eaton would not tolerate such behavior in the future.

A few weeks after this incident, Eaton scheduled a round of interviews with candidates for the publisher's position. Grievant asked to be a part of the interviewing panel, but Eaton felt that such a role would be inappropriate. Eaton did tell grievant that he wanted his advice regarding the candidates for the position, however. After the initial round of interviews, the panel selected three finalists and designated Leslie Parr as their unanimous first choice. Eaton sent the applications and resumes of the three finalists to grievant on February 28 and requested that he provide his input. In a news article appearing a week later Eaton was quoted as saying that grievant would "be involved in the final decision" regarding the hiring of the publisher.

Some time later, Eaton still had not heard from grievant about the three finalists, and he had several telephone calls placed to him. Receiving no reply, he asked the Agency's personnel officer to contact grievant in an attempt to obtain his input. This officer's efforts to reach grievant by telephone were also unsuccessful.

Leslie Parr was hired as the magazine's new publisher on March 18, 1983, and grievant met her for the first time on that same day. On March 19, still without having communicated with Eaton on the matter, grievant sent a memo to the senior editors in which he stated that he was afraid "the wrong person has been hired." Just before Parr began work at the magazine, Eaton had a brief meeting with the Vermont Life staff in order to explain the organizational structure. Eaton discovered that no preparations had been made for Parr's arrival and that grievant expected her to work in a cubicle outside his office. Eaton requested that a separate office be prepared for Parr. The meeting was otherwise perfunctory, with few questions asked by the staff and no questions asked by grievant. After Eaton left, the staff held what grievant called a "wake" to mark the supposed end of editorial control of the magazine.

Parr began as publisher on April 11, 1983, and she was forced to work in the cubicle initially because no office had been prepared for her. From her first day at the magazine, Parr sought to meet privately with grievant in order to discuss their respective roles and to establish a cooperative relationship. Despite Parr's requests, however, grievant never met privately with her. He also failed to respond to her repeated suggestions that regular staff meetings should be established.

On May 10, a full month after Parr had begun work at the magazine, grievant finally agreed to a meeting. When she entered his office, she found that one of grievant's assistants was already present, precluding any discussion of sensitive topics. Instead, grievant told Parr that he had been promised an interview, and he began to question her about her experience and background, asking if she really felt qualified for the publisher's position. He then brought out Parr's job application and resume and proceeded to question her as if she were applying for the position. Grievant's manner was generally hostile and confrontational.

The following day, grievant asked Parr to attend another meeting in his office. On this occasion, four other staff members were present. All of these employees expressed anger at Parr, and one of them accused her of being an "agent" for the Agency. Grievant again attempted to interview Parr for the position, and Parr responded by stating that she would not be interviewed. Finally, grievant asked Parr if she were planning to return to New York and the meeting ended. Parr sent a memo to grievant the next day, May 12, in which she commented on the inappropriateness of the meeting. She stated that grievant had undermined her relationship with the staff members and had damaged morale, but she expressed hope that she and grievant could "overcome this division and begin to work together." Secretary Eaton was absent during this period of time, having left on a business trip to the Far East in late April.

On May 18, grievant invited a reporter for the Burlington Free Press to interview him about Vermont Life issues, knowing that the interview would be the basis for an article. Grievant discussed Parr's qualifications with the reporter and told him that her lack of direct magazine experience had become apparent. He also provided the reporter with a copy of Parr's May 12 memorandum. He stated that morale at the magazine had been damaged and that he was considering resignation. He recounted his opposition to the co-equal concept and told the reporter that he had suggested to Parr that she consider trying to salvage the situation by returning to New York. Finally, grievant stated that Eaton had promised him input regarding the selection of the publisher and that Eaton had not acted on that promise.

An article appeared on the front page of the Free Press on the following day, reporting grievant's comments and including the substance of Parr's memo to grievant. The article also repeated grievant's statement that Eaton had promised him a role in the hiring decision but that Eaton had "reneged." In addition, grievant talked to a reporter for the Barre-Montpelier Times Argus and told him that a crisis existed at Vermont Life, that Parr should return to New York, and that Vermont Life already had the State of Vermont as a publisher. These comments appeared in an article in the Times Argus, also on May 19. Grievant still had not discussed any of these issues with Eaton, and he had not discussed them privately with Parr. When Parr read the articles, she felt that they ended any possibility of cooperation between grievant and herself.

Eaton returned from his trip to the Far East on May 25, 1983. After speaking to members of his staff,...