Hanneman v. Breier

• Decision Date: 06 January 1976
• Docket Number: No. 75--1271,75--1271
• Parties: Carl E. HANNEMAN, as an Individual and as a representative of the class of Milwaukee Policemen similarly situated, et al., Plaintiffs-Appellants, v. Harold A. BREIER, as an Individual and as Chief of Police of the City of Milwaukee, and the City of Milwaukee, a municipality, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 750

528 F.2d 750

Carl E. HANNEMAN, as an Individual and as a representative

of the class of Milwaukee Policemen similarly

situated, et al., Plaintiffs-Appellants, v. Harold A. BREIER, as an Individual and as Chief of Police of

the City of Milwaukee, and the City of Milwaukee,

a municipality, Defendants-Appellees.

No. 75--1271.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 25, 1975.

Decided Jan. 6, 1976.

David Loeffler, Milwaukee, Wis., for plaintiffs-appellants.

James B. Brennan, Grant F. Langley, Milwaukee, Wis., for defendants-appellees.

Before HASTINGS, Senior Circuit Judge, and SPRECHER and BAUER, Circuit Judges.

HASTINGS, Senior Circuit Judge.

This is an appeal from the dismissal of a class action suit brought by Milwaukee police officers against Harold A. Breier, individually and as Chief of Police of the City of Milwaukee, ¹ charging that the discipline imposed on individual plaintiffs under a police department rule prohibiting disclosure of confidential police business abridged plaintiffs' First and Fourteenth Amendment rights in violation of the Civil Rights Act, 42 U.S.C. § 1983.

The named plaintiffs are members of the Milwaukee Professional Policemen's Protective Association (MPPPA). From July 1970 through January 1972, the City of Milwaukee and the MPPPA were negotiating a collective bargaining agreement covering nonsupervisory law enforcement personnel. The labor agreement eventually negotiated was required to be approved by the mayor and the city council. ²

On August 26, 1970, certain of the named plaintiffs, acting as officers of the MPPPA, distributed to the MPPPA membership a letter endorsing candidates for national, state and local political office running in the upcoming primary. This publication prompted an investigation into the political activities of the MPPPA and its officers to determine whether there had been any violation of a police department regulation prohibiting police officers from using the influence of their office for political purposes. ³ An investigator for the department interviewed certain MPPPA members, including the named plaintiffs. Each was advised that the investigation was confidential.

On September 16, 1970, a front-page story in the Milwaukee Journal disclosed that an internal investigation into the political activity of MPPPA officers was underway. ⁴ The original leak of this story to the press is not attributed to the MPPPA.

On September 17, 1970, the named plaintiffs on behalf of the MPPPA distributed to the mayor, the city council, the city's labor negotiator, and the state labor board, a letter which confirmed that officers of the MPPPA had been questioned by 'agents of the City' in connection with their political activities. ⁵ The letter urged city and state officials to protect the MPPPA officers from pressures being exerted by the City and its agents.

The September 17 letter prompted a separate departmental investigation and resulted in separate charges being brought against the named plaintiffs for breaching the confidentiality of the Department's internal affairs in violation of Rule 29, § 32, which provides:

Members of the Department shall treat as confidential the official business of the Department. They shall not impart it to anyone except those for whom it is intended, or as directed by their commanding officer, or under due process of law; and they shall not make known to any person, whether or not a member of the Department, any special order which they may receive, unless required by the nature of the order. A commanding officer of a district or bureau shall impart to representatives of the press, upon establishing their identity, current news, providing the ends of justice are not thereby defeated.

Each of the named plaintiffs was found guilty of violating the confidentiality rule. The three officers responsible for the August 26 letter were also found to have violated the rule prohibiting political activity. ⁶ Sanctions for these violations were imposed by Police Chief Breier. One officer was suspended for five days; the others were required to work three to five off-days without pay. A record of the disciplinary action was placed in each individual's employment file.

Plaintiffs filed the instant action challenging as unconstitutional the defendant's application of the department's confidentiality rule and requesting injunctive relief and damages. After submission to the district court on depositions and briefs, the case was dismissed on the merits on October 2, 1974. The court based the dismissal on its factual conclusions that the September 17 letter was not necessary to secure plaintiffs' bargaining position and that, contrary to plaintiffs' beliefs and assertions, the departmental investigation was not being conducted for purposes of harassment. ⁷ On February 4, 1975, plaintiffs' motion to alter the judgment was denied, upon the court's further conclusion that the disclosure of confidential information in violation of departmental regulations is not constitutionally protected. ⁸ Plaintiffs appeal from the judgment and orders of October 2 and February 4.

The issue on appeal is whether the imposition of sanctions against police officers, under a police department confidentiality rule, for distribution of a letter confirming the existence of an already publicized internal police investigation violated the disciplined police officers' First and Fourteenth Amendment rights.

It is now well settled that public employees enjoy the full protection of the First Amendment. Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). At the same time, it is also recognized that, because of the nature of the employment relationship, the state as employer has an interest in regulating its employees' public utterances distinct from its interest in regulating the statements of the public at large. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In Pickering the Supreme Court declined to adopt a general standard for reconciling state and individual interests in all cases. Instead the Court set forth a method for analyzing First Amendment issues arising in the public employment context which is appropriate in balancing those interests as they relate to the facts before us in the case at bar.

The plaintiff in Pickering was a teacher discharged for submitting a letter to the local newspaper criticizing school board budgetary policies. The Court found that the public statement at issue related to a matter of general public concern and that 'the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication.' 391 U.S. at 574, 88 S.Ct. at 1738. The Court concluded that no peculiar state interest arising from the employment relationship was at stake and that Pickering was therefore entitled to the same First Amendment protection afforded the general public. Applying the standard of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Court held that Pickering could not be discharged for his public statement, even though it was at least partially false, without proof that the statement was knowingly or recklessly made. 391 U.S. at 574, 88 S.Ct. 1731.

However, the Court cautioned that a different standard may apply where the public statement at issue is of less 'public concern' or where the special nature of the employment relationship makes the need for discipline more compelling. The Court found it relevant, for example, that the statement was not directed at an immediate superior or at an individual with whom Pickering had a close working relationship and was therefore not disruptive of the school's discipline and harmony. Id. at 569--70, 88 S.Ct. 1731. The Court also emphasized that the statement did not contain 'inside' information that could not be effectively refuted by school board publication of the correct data. Id. at 572, 88 S.Ct. 1731. Finally, the Court concluded that publication of the statement neither impaired Pickering's ability to perform his employment duties nor interfered with the regular operation of the schools. Id. at 573, 88 S.Ct. 1731. Only where these missing factors are present and persuasive may an individual's otherwise protected freedom of speech be subordinated to the state interest. 'The problem in any case is to arrive at a balance between the interests of a teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' Id. at 568, 88 S.Ct. at 1734.

This court followed the Pickering analysis in Donahue v. Staunton, 7 Cir., 471 F.2d 475 (1972), cert. denied, 410 U.S. 955, 93 S.Ct. 1419, 35 L.Ed.2d 687 (1973). There a chaplain employed by a state mental institution was discharged on account of his public statements exposing unwholesome conditions within the institution. The defendant in that case urged that the chaplain, as a function of his employment, was required to publicly promote institutional programs and that this function could no longer be performed in view of his outspoken criticism of the institution. We found, however, that this function was not such an integral part of his job that public criticism could not be tolerated. After considering all the state interests applicable in the case, we concluded that 'the interest of society in 'uninhibited and robust debate' on matters of public concern, such as mental health care, and plaintiff's individual interest in being free to speak out on matters of concern to him, outweigh those of the State as an employer.' Id. at 481.

The analysis developed in Pickering and Donahue requires us to consider in the instant appeal whether a state interest inherent in the employment...