Hickory Fire Fighters Ass'n, Local 2653 of Intern. Ass'n of Fire Fighters v. City of Hickory, N. C.
| Decision Date | 03 August 1981 |
| Docket Number | No. 80-1577,80-1577 |
| Citation | 656 F.2d 917 |
| Parties | 108 L.R.R.M. (BNA) 2096 HICKORY FIRE FIGHTERS ASSOCIATION, LOCAL 2653 OF the INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS; Thomas R. Mull; David A. Love; Charles W. Hill; Ernest F. Eckard; Harold Suddreth; Boyd Townsend; Stewart Travis; Boyd L. Lynn; Wilbur Hobby; John Doran; and William Brawley, Appellants, v. The CITY OF HICKORY, NORTH CAROLINA; Wilfred Wells; George D. Murphy; Everett M. Eckard; John N. Grubbs; Glen C. Hilton; Phillip C. Young; Edgar E. Rhyne; Neil W. Clark; and Larson H. Moore, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Shelley Blum, Raleigh, N. C., North Carolina Labor Law Center,for appellants.
Ronald E. Bogle, Hickory, N. C. (E. Murray Tate, Jr., Tate, Young & Morphis, Hickory, N. C., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, and SPROUSE and ERVIN, Circuit Judges.
This case presents several issues concerning the First Amendment rights of a firefighters' association and of certain individuals. The Hickory Fire Fighters Association (the Association) and various individuals filed suit under 42 U.S.C. § 1983 against the City of Hickory, North Carolina, seeking damages and declaratory and injunctive relief. They allege (1) that the restrictions imposed by the city council on speech by representatives of the Association denied and continue to deny the Association and its representatives equal protection of the laws in exercising their First Amendment rights; (2) that the local picketing ordinance unconstitutionally limits the exercise of First Amendment freedoms; (3) that the fire chief's statement that officers who picketed would be dismissed violated and continues to violate the officers' First Amendment rights; and (4) that the removal of the Association's charter from the station wall violated the Association's right of free speech. The district court granted summary judgment to the City on all four claims. We reverse and remand.
The Association is composed of a majority of the firefighters employed by the City of Hickory. Concerned about the local firefighters' wages, various representatives of the Association attempted upon three occasions in 1978 and 1979 to speak to the Hickory City Council during its regular sessions. Those incidents form the basis of the claim that the city council has denied the Association and its representatives equal protection of the laws in exercising the right to free speech.
The first incident occurred on November 17, 1978, when Tom Mull, a party to this action and then president of the Association, called City Manager Wilfred Wells to request that he be placed on the agenda for the next council meeting. Wells' secretary immediately placed Mull on the agenda but called him back five minutes later to report that Wells would not allow him to speak.
The second incident took place on June 19, 1979. At its meeting on that date, the council recognized Lieutenant Charles Hill, a member of the Association and a party to this law suit. After Hill began to speak, the council ruled him out of order. Hill alleges that he was silenced because he was talking as a representative of the Association about firefighters' conditions of employment, while the City alleges that he was ruled out of order because he was intoxicated.
The final incident took place between August 3 and August 7, 1979. On August 3, Mull wrote to City Manager Wells on the Association's letterhead, requesting that Mary Ellen Oyler, Shelley Blum, Charles Kossuth, John Doran, and William Brawley be allowed to speak. Wells refused to allow them to speak to the council as representatives of the Association but stated that he would allow any of them to speak as individuals, if they made individual requests. Only Oyler did so, and she was allowed to speak at the August 7 meeting. Wells publicly commented on this last incident, stating that "(w)hen a municipality receives a request on union stationery that union persons wish to speak on a union matter, it does not have a place on the agenda."
We have recently held in Henrico Professional Firefighters Association, Local 1568 v. Board of Supervisors, 649 F.2d 237 (4th Cir. 1981), that a governing body that regularly allows public comment by individuals and representatives of associations may not deny a representative of a public employees association the opportunity to be heard on employment matters, absent compelling justification. Such discrimination without a compelling interest on the part of the government offends the Constitution under both First Amendment and equal protection analyses. Id., at 241. Thus, if the Hickory City Council opens the floor to the public, it may not prohibit speech by the Association's representatives concerning employment conditions, without a substantial governmental interest. 1
Assuming for purposes of this analysis that portions of the city council meetings are dedicated as public forums, we review the City's justifications for the restrictions it has placed, and wishes to continue to place, on speech made on behalf of the Association.
The City's first argument is that, because a public employee's First Amendment rights may be more severely restricted than those of a private citizen, a compelling governmental interest in efficiency allows the restriction of speech by the Association's representatives. That argument fails to persuade us. As we acknowledged in Henrico, a "public employer may have interests in regulating the speech of its employees that differ from its interests in regulation of speech of the citizenry at large," id. at 243, and it may limit the speech of public employees if its legitimate interest in promoting the efficiency of the public services performed by the employees outweighs the interest of the employees, as private citizens, in commenting upon matters of public concern. See Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). There is lacking in this case, however, as there was in Henrico, any indication that allowing those representatives of the Association who are public employees to speak at a city council meeting would undermine the efficiency of the fire department. On the other hand, the working conditions of the firefighters are a matter of public concern which the Association's representatives are especially well qualified to address. The balancing of interests required by Pickering thus results in a strong tilt toward allowing the speech in question, even though the speakers are public employees.
The City also asserts as a compelling state interest public policy considerations. It argues that the speech in question is actually labor negotiation and that North Carolina law forbids the city council to bargain with unions of public employees. See N.C.Gen.Stat. § 95-98 (1981). 2 The flaw in this argument is that it equates advocacy of the Association's views on firefighters' wages with negotiation. See Henrico, at 244. The two processes are, in fact, quite distinct. " 'Representation' in the labor context means, of course, something more extensive, more exclusive and more enduring than the simple 'representation' involved in standing up to speak on another's behalf." Id. at 244. 3 Although N.C.Gen.Stat. § 95-98 forbids North Carolina municipalities from entering into contracts or agreements with labor unions or associations, that prohibition does not extend to a union's advocacy of a particular point of view. Thus, North Carolina's policy prohibiting governmental bodies from negotiating with labor unions is not implicated in this case and therefore cannot serve as a compelling state interest allowing restriction of the Association's right to advocate its position on firefighters' wages in front of the city council.
The City's third rationale for prohibiting speech by the Association's representatives that, because the firefighters have access to an established grievance procedure for complaints about their employment, the city council's time should not be taken up with public employment matters also fails to rise to the level of a compelling governmental interest. First, we note that the grievance procedure serves a different purpose from that of speech by the Association before the city council: the grievance procedure is designed to address and resolve individual complaints, while the speech before the council commands an audience and presents collective concerns of the firefighters, without requiring that those concerns be addressed or resolved. See Henrico, at 244-245. Even if the grievance procedure served essentially the same purpose as speech before the council, however, the city council could not justify limiting the speech on that ground. " '(O)ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.' " Edwards v. Maryland State Fair and Agricultural Society, Inc., 628 F.2d 282, 286 (4th Cir. 1980) (quoting Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed.2d 155 (1939)).
The City having failed to advance a compelling governmental justification for limiting speech by the Association at city council meetings, the city council must, whenever it conducts its meetings as open forums, allow representatives of the Association an opportunity to air the Association's views on firefighters' employment concerns. See Henrico; National Socialist White People's Party v. Ringers, 473 F.2d 1010 (4th Cir. 1973) (en banc) ().
We now turn to our analysis of the public forum aspect of the case. The public forum concept does not require that city council meetings always be...
To continue reading
Request your trial
- Mountain Valley Pipeline, LLC v. Wender
-
Goldstein v. Moatz
... ... City of Chicago, 484 F.2d 602, 608 (7th Cir.1973)) ... exercise of his constitutional rights"); Hickory Fire Fighters Ass'n v. City of Hickory, 656 F.2d ... ...
-
Ribakoff v. City of Long Beach
...regarded as public forums, albeit limited ones. See [ Madison , supra ,] 429 U.S. [at p.] 175 ; Hickory Fire Fighters Ass'n, Local 2653 v. City of Hickory, 656 F.2d 917, 922 (4th Cir.1981)."On the other hand, a City Council meeting is still just that, a governmental process with a governmen......
-
Pesek v. City of Brunswick
... ... supervision over the Chief of the Brunswick Fire Department ... 5. Defendant ... Perry Local Educators' Association, 460 U.S. 37, 103 S.Ct ... mail system at issue in Perry Education Assn. " Id., 465 U.S. at 281, 104 S.Ct. at 1064. In ... Madison, supra ; Hickory Firefighters Association, Local 2653 v. City of ... ...