Haurilak v. Kelley, Civ. No. N-75-18.

• Decision Date: 03 January 1977
• Docket Number: Civ. No. N-75-18.
• Citation: 425 F. Supp. 626
• Parties: Samuel HAURILAK, Plaintiff, v. Francis X. KELLEY and George F. Regan, Defendants.
• Court: U.S. District Court — District of Connecticut

425 F. Supp. 626

Samuel HAURILAK, Plaintiff, v. Francis X. KELLEY and George F. Regan, Defendants.

Civ. No. N-75-18.

United States District Court, District of Connecticut.

January 3, 1977.

COPYRIGHT MATERIAL OMITTED

Ralph L. Atkins, Chicopee, Mass., for plaintiff.

William J. Curran, Bridgeport, Conn., for defendants.

MEMORANDUM OPINION

LUMBARD, Circuit Judge:^*

Samuel Haurilak brings this action under 42 U.S.C. § 1983 seeking declaratory and injunctive relief and damages. Jurisdiction is founded upon 28 U.S.C. §§ 1343(3) & (4), 2201. Plaintiff is employed as a police officer by the City of Shelton, Connecticut. Defendant Francis X. Kelley is the mayor of Shelton and defendant George F. Regan is the city's chief of police. Plaintiff contends that defendants, acting pursuant to certain police regulations and city ordinances,¹ suspended him from his employment in violation of his First and Fourteenth Amendment guarantees of freedom of speech and expression. The court finds that as applied to plaintiff, the local regulations at issue unconstitutionally infringe upon the right of free speech.

The case was tried to the court upon a stipulated set of facts, which was supplemented by the testimony of Haurilak and Regan. Haurilak has been a member of the Shelton Police Department since 1969. He testified that he began in the patrol division, was later transferred to the youth bureau, and was elevated to the rank of detective some time early in 1972. In November of 1972, the voters of Shelton approved a revision of the city charter that provided for a merit system for the appointment and promotion of city employees. The charter revision empowered the mayor to have a set of rules prepared for implementing the merit system, including a provision for the holding of competitive exams. Pursuant to these provisions, some time in January, 1973 the mayor approved the "Personnel Rules and Merit System" (hereinafter "the Merit System"). According to plaintiff, in June, 1973 a competitive exam was given to members of the police department and applicants for employment with the department; plaintiff claims to have achieved the fourth highest score of the 80 individuals tested. During this time he was attending the University of New Haven, from which he obtained a degree in criminal justice in June, 1974.

In early February, 1974 plaintiff was transferred from his position as a detective in the investigative division to the uniformed police division. Plaintiff contends that he was replaced in the investigative division by an officer who lacked his experience and who had failed the merit exam. Plaintiff then wrote a letter to Alderman Walter Frolish dated February 15, 1974, which laid forth plaintiff's educational background and experience as an officer. It then quoted from several sections of the Merit System, providing that employment was to be based upon merit and fitness, that just and equitable employment incentives should be established, that high morale should be maintained by fair administration, and that the mayor should encourage employee training programs. The letter then explained that plaintiff felt that given his background and education, he did not understand how his transfer could be justified within the merit system; further, plaintiff stated that he had received no explanation from the mayor or chief of police for the transfer. The letter closed by stating, "I am requesting an investigation into the transfers and promotions within the department, as I do not feel that they are consistent with the purpose of the Merit System."

On July 9, 1974 plaintiff wrote a letter to the mayor, copies of which were sent by plaintiff to the chief of police, the city administrative assistant, members of the board of aldermen, and the chairmen of the Democratic and Republican town committees. This letter was similar to that of February 15. It began by stating that ". . . it is my intent to relate to you my endeavors and opinions of the Shelton Police Department as it directly pertains to me." The letter then set forth plaintiff's education and work experience, and again quoted from the Merit System. Plaintiff once again explained that he felt the town's merit system was being improperly applied; plaintiff also indicated that despite his "superior qualifications" he felt that he was being discriminated against for personal or political reasons. Plaintiff then requested that individuals, such as himself, be placed in positions within the department suited to their experience and education. The letter closed by stating, "I believe that with the combined ideas of a rapidly growing city, expanding of the police department and a new facility, and an implementation of a Charter Revision regarding the Merit System, my request is an attempt to professionalize and increase the proficiency of the Shelton Police Department."

In a letter dated July 16, 1974 plaintiff was informed by defendant Regan that, beginning July 17, 1974, he was to be suspended without pay for a period of 15 days. The letter explained that plaintiff's letters of February 15 and July 9 violated the Shelton Police Department Manual of Procedure (hereinafter "the Police Rules"), sections 9 and 10. The letter pointed out that authority for the suspension rested upon Section 6.7.2.2 of the City Charter and Article 11, § 110.2 of the Merit System,² and concluded by stating: "Any further infractions of the rules will result in dismissal."

Sections 9 and 10 of the Police Department Rules provide as follows:

9. Members or employees of the department shall not request the aid of any person outside the department to have them transferred to another assignment or beat or to have them restored to any assignment or beat from which they have been removed by order of a superior officer, or to have them promoted to a higher rank in the service; nor shall they knowingly permit any petition to be gotten up or presented by citizens in their behalf requesting such transfer, restoration, or promotion.

10. Members or employees of the department shall not under any circumstances or in any manner whatsoever speak critically or derogatorily to other members or employees or to any persons outside of the department regarding the orders or instructions issued by superior officer; but where there is sound reason to believe that such orders or instructions are inconsistent or unjust, it is the right and duty of any member or employee to appeal to higher authority in the department.

On July 23, 1974 the International Brotherhood of Police Officers, acting on behalf of plaintiff, requested a hearing on plaintiff's suspension before the Public Employees Appeal Board of the City of Shelton (hereinafter "the Board").³ On August 27, 1974 a public hearing was conducted and the Board, which renders only advisory opinions, held that plaintiff's suspension was unwarranted since he had violated neither police department nor merit system rules and regulations. In a letter to the Board, dated September 4, 1974, Mayor Kelley rejected the Board's findings and recommendations and affirmed plaintiff's suspension. Kelley stated that plaintiff's letters were an attempt to garner support to have him transferred back to the detective bureau and spoke critically and derogatorily of the chief of police. The letter then indicated that Chief Regan had acted within his discretion in finding that plaintiff's letters violated sections 9 and 10 of the Police Rules and that Regan acted within his authority in applying the rules and suspending plaintiff.

Plaintiff then initiated this civil rights suit.⁴ He claims that section 10 of the Police Rules is unconstitutionally vague and overbroad and, further, that as applied in this case sections 9 and 10 unconstitutionally infringe upon his right of free speech. The court holds that sections 9 and 10 may not constitutionally be applied to prohibit the conduct engaged in by the plaintiff and that section 10 is unconstitutionally overbroad.

In Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the Supreme Court indicated that the state's legitimate interest as an employer in promoting the efficiency of the public services it performs through its employees must be balanced against the employees' First Amendment right as citizens to speak out on matters of public concern, including matters relating to their employment. See 391 U.S. at 568, 88 S.Ct. 1731. In striking this balance Pickering and the cases that have followed it have indicated that two broad considerations should be taken into account: first, the character of the speech involved; and, second, the potential such speech has for disrupting the employment relationship and efficient operations. Factors under the first consideration include: whether the statements were defamatory or false, see, e. g., Pickering v. Board of Education, supra, 391 U.S. at 574, 88 S.Ct. 1731; Fisher v. Walker, 464 F.2d 1147, 1153-54 (10th Cir. 1972); Magri v. Giarrusso, 379 F.Supp. 353, 360-61 (E.D.La. 1974); whether the statements concerned matters of public interest, see, e. g., Pickering v. Board of Education, supra, 391 U.S. at 573-74, 88 S.Ct. 1731; Hanneman v. Breir, 528 F.2d 750, 753 (7th Cir. 1976); and, whether the statements were made in a public or private forum, see, e. g., Roseman v. Indiana University of Pennsylvania, 520 F.2d 1364, 1368 (3rd Cir. 1975); Sprague v. Fitzpatrick, 412 F.Supp. 910, 917-20 (E.D. Pa.1976). Factors under the second consideration include: whether the statements were directed at an immediate superior or an individual with whom the speaker had a close working relationship and, thus, whether the statements might interfere with the maintenance of discipline and harmony among co-workers, see, e. g., Pickering v. Board of Education, supra, 391 U.S. at 569-70, 88 S.Ct. 1731; Hanneman v. Breier, supra, 528 F.2d at 753; and, whether the working relationship is of a type for...