Heil v. Santoro
| Decision Date | 03 June 1998 |
| Docket Number | Docket No. 97-7368 |
| Citation | 147 F.3d 103 |
| Parties | 14 IER Cases 30 James HEIL, Plaintiff-Appellant, v. Robert SANTORO, Individually and as Chief of Police of the Village of Rye Brook, N.Y., Salvatore M. Cresenzi, Individually and as Mayor of the Village of Rye Brook and as Police Commissioner on the Board of Police Commissioners of the Village of Rye Brook, The Board of Police, The Board of Police Commissioners of the Village of Rye Brook, The Village of Rye Brook, New York, Christopher Russo, Individually and as Village Administrator of the Village of Rye Brook, Craig Benson, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Craig T. Dickinson, White Plains, New York (Lovett & Gould, White Plains, New York), for Plaintiff-Appellant.
Bertrand B. Pogrebin, Mineola, New York (James P. Clark, Rains & Pogrebin, Mineola, New York, on the brief), for Defendants-Appellees.
Before: OAKES, KEARSE, and FRIEDMAN, Circuit Judges *.
Plaintiff James Heil appeals from a final judgment of the United States District Court for the Southern District of New York, Barrington D. Parker, Jr., Judge, dismissing his complaint, brought under 42 U.S.C. § 1983 (1994), alleging that defendants Village of Rye Brook, New York ("Village" or "Rye Brook"), its Board of Police, and various of its officials, questioned him and suspended him for 10 days without pay in retaliation for exercising his First Amendment rights to freedom of speech, freedom of association, and freedom to petition the government for redress of grievances. The district court granted summary judgment dismissing the complaint, ruling that the First Amendment interests of Heil, a Village police officer, in the speech in which he engaged were outweighed by defendants' interest in preventing interference with the proper functioning of the Village police department. On appeal, Heil contends that he spoke on matters of important public concern and that summary judgment was inappropriate. For the reasons that follow, we affirm.
Most of the pertinent events occurred in 1994 and, as revealed in the parties' submissions on defendants' motion for summary judgment or in Heil's deposition, are not in dispute. At all relevant times, Heil was a police officer in the Rye Brook Police Department. After April 1994, he was also president of the Rye Brook Police Benevolent Association ("PBA"). In early 1994, Village officials began preliminary discussions with officials of the neighboring City of Rye, New York ("Rye" or the "City"), as to the possibility of consolidating the two municipalities' police forces. The Village authorized a feasibility study of such a consolidation, and defendant Robert Santoro, the Village police chief, discussed the matter with Heil, who in turn discussed it with PBA members. In May 1994, defendant Salvatore M. Cresenzi, the Village's mayor, sent Heil a letter inviting him to participate in the discussions with At the end of May 1994, the collective bargaining agreement between the Village and the PBA expired. Between May and July, the two entities participated in several negotiating sessions without reaching agreement on a new contract. Heil made attempts to schedule further sessions but was unsuccessful.
respect to the proposed consolidation and providing him with all of the relevant documents that had been generated.
In August 1994, defendant Craig Benson, who was labor counsel for the Village, co-authored, with labor counsel for the City, a three-page memorandum dated August 19, 1994 ("August Memorandum" or "Memorandum"), outlining a possible strategy for securing agreement by the PBA and the police union representing City policemen to the proposed consolidation. The August Memorandum noted that the major personnel change occasioned by the consolidation would be the elimination of several sergeants' positions, and it opined that this would make it difficult to obtain union support. The Memorandum suggested offering financial incentives for voluntary retirement of sergeants and other adversely affected officers, and it recommended that the municipalities adopt an aggressive negotiating stance:
The Unions should be advised that the City and the Village are of the opinion that they have a statutory right to abolish their Departments and to provide police services through a newly created department. The Unions should also be advised that the City and Village have no obligation to negotiate the abolition of their Departments or the initial terms and conditions for employees of any newly created department.
(Memorandum at 1.) With regard to setting the terms and conditions of employment in the new department, the Memorandum stated:
We believe the approach to take is to present the Unions with the spectr[e] of a contract that the newly formed Department would impose if there is no agreement with the Unions on the terms of the consolidation. Given the opportunity to initially unilaterally establish terms and conditions of employment, a new employer would likely impose a contract with terms and conditions which are inferior to those which are contained in either of the current contracts. The parties can hopefully negotiate a contract similar to the existing contracts.
The August Memorandum was addressed only to the mayors of the Village and the City, the Rye City Manager, and defendant Christopher Russo, the Village Administrator. The Memorandum was faxed to Russo on or about August 19. Elizabeth Bottali, who was then a secretary in the Village's administrative offices, saw the Memorandum and made a photocopy of it before placing the original in Russo's mailbox. Bottali gave the photocopy to her husband who was a police sergeant ("Sergeant Bottali") and was a member of the PBA. Sergeant Bottali gave the Memorandum to Heil.
Heil copied the Memorandum in reduced size on a single page, attached it to an "Improper Practice Charge" form of the New York State Public Employment Relations Board ("PERB"), and, on September 2, 1994, filed the form with PERB as an unfair-labor-practice charge against the Village. Heil checked boxes on the form to allege that the Village had violated New York Civil Service Law §§ 209-a(1)(a), (d), and (e), which deal with interference with employees' right to participate in a labor union, refusal to negotiate in good faith, and refusal to continue all the terms of an expired agreement. Under "Details of Charge," Heil referred cryptically to some terse statements attached to an arbitration demand that was filed contemporaneously with the unfair-labor-practice charge, and to the August Memorandum he appended to the unfair-labor-practice charge.
Defendants assert that on the top of the first page of the August Memorandum, as circulated to its addressees, was the label "CONFIDENTIAL MEMORANDUM." During the ensuing investigation, see Part I.B. below, Bottali and her husband were questioned by Village officials. Bottali stated that when she photocopied the Memorandum it bore the "CONFIDENTIAL MEMORANDUM"
heading; her husband stated that he did not alter the photocopy before giving it to Heil. As appended by Heil to the unfair-labor-practice charge, however, the Memorandum bore no such heading. Heil maintains that the photocopy he received from Bottali's husband did not bear the phrase "CONFIDENTIAL MEMORANDUM" and was not otherwise labeled confidential.
Upon realizing that a copy of the August Memorandum had been obtained by Heil, defendants initiated an investigation. Santoro asked Heil to meet him on September 9 at one of the Village's meeting facilities. When Heil arrived and realized he was to be questioned about the Memorandum by Santoro, Cresenzi, and Benson, he stated that he was taking medication in preparation for surgery the following week and could not answer questions; and he immediately left. Santoro followed Heil outside and ordered him to return. (See, e.g., Deposition of James Heil ("Heil Dep.") at 367 ().) Heil did not return.
Santoro promptly sent Heil a letter instructing him either to appear for questioning on September 12 or to provide details, substantiated by a note from his doctor, as to the medication he claimed prevented him from responding to questioning. Heil did not produce a doctor's note; on September 12, accompanied by a PBA attorney, he appeared for questioning. In response to questions, Heil related the events surrounding his receipt of the Memorandum, stating that the copy he had received did not bear the words "CONFIDENTIAL MEMORANDUM." Heil stated that he could not produce the copy of the Memorandum he received because he had shredded it.
On November 29, Santoro filed disciplinary charges against Heil. In the meantime, on November 8, PERB sent Heil a letter stating that his unfair-labor-practice charge against the Village was deemed withdrawn, and the matter was administratively closed. Heil attributes that withdrawal to the fact that collective bargaining between the Village and the PBA had been resumed.
The November 29 disciplinary charges against Heil alleged that he had violated departmental rules and regulations by (1) publicly disclosing confidential information, (2) failing to obey Santoro's order to return to the September 9 meeting, and (3) failing to provide truthful answers in the September 12 interrogation. Several disciplinary hearings were held before defendant Board of Police Commissioners. The Board dismissed the first charge against Heil during the course of the hearings, and it found him not guilty on the third charge. However, in early 1995, it found him guilty of disobeying Santoro's order to return to the September 9 meeting. As a result of being found guilty of that...
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