McNea v. Garey

• Decision Date: 30 September 1976
• Docket Number: No. C76-920.,C76-920.
• Citation: 434 F. Supp. 95
• Parties: William T. McNEA et al., Plaintiffs, v. Lloyd GAREY et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

434 F. Supp. 95

William T. McNEA et al., Plaintiffs, v. Lloyd GAREY et al., Defendants.

No. C76-920.

United States District Court, N. D. Ohio, E. D.

September 30, 1976.

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James L. Oakar, John R. Climaco, Paul S. Lefkowitz, Cleveland, Ohio, for plaintiffs.

Vincent C. Campanella, Director of Law, Howard H. Fishkin, Asst. Director of Law, Cleveland, Ohio, for defendants.

ORDER PARTIALLY GRANTING PLAINTIFFS' MOTION FOR A PERMANENT INJUNCTION

MANOS, District Judge.

This action for declaratory judgment and injunctive relief is initiated under the First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, and 28 U.S.C. § 2201. Jurisdiction is based on 28 U.S.C. § 1331. The matter in controversy exceeds $10,000.

On August 31, 1976 William T. McNea, Robert Nowakowski, and the Cleveland Police Patrolmen's Association C.P.P.A., on behalf of themselves and for all Cleveland policemen, filed a motion for a temporary restraining order to enjoin and restrain the defendants¹ from:

"1. Ordering any further reports in connection with any investigation concerning political activity based directly or indirectly on any of the Orders, Rules, Civil Service Rules, or Charter provisions mentioned in the Complaint.

"2. Filing any charges against any member of the Cleveland Police Department based in whole or in part on any of the Orders, Rules, Civil Service Rules, or Charter provisions mentioned in the Complaint.

"3. Causing any transfer, change of duty or assignment of plaintiffs McNea or Nowakowski or of the officers or trustees of the Cleveland Patrolmen's Association.

"4. Taking any form of detrimental action against plaintiffs in retaliation for the filing of this lawsuit."

A temporary restraining order was issued by this Court on September 3, 1976, enjoining the defendants from enforcing "rules of conduct and discipline for officers, members and employees, of the Division of Police in the Department of Public Safety," Numbers 47 and 75.² On September 9 and 10 a hearing on the motion for a permanent injunction was held.³

I. THE ALLEGATIONS

The plaintiffs argue that the City of Cleveland imposes an unconstitutional restraint on all Cleveland policemen's First Amendment rights of freedom of speech, and association through the City's promulgation of the following: "rules of conduct and discipline for the officers, members and employees of the Division of Police in the Department of Public Safety," Rules Numbers 47 and 75, Section 140 of the Charter of the City of Cleveland Section 140, Cleveland Civil Service Commission Rule 9.10-16 9.10-16, General Police Order 40-75 40-75, and General Police Rule 103 103.⁴ The plaintiffs contend that these provisions are unconstitutionally vague and overbroad on their face and as applied to plaintiffs McNea, Nowakowski and Faragher, and that the defendants knowingly, willfully and maliciously enforced the allegedly unconstitutional provision by taking disciplinary action predicated on those rules.

The plaintiffs specifically allege: that the City demoted Patrolman Robert Nowakowski under Rules 47 and 75, Section 140 and 9.10-16, for the alleged political activity of attending a meeting of policemen during his non-working hours; that Nowakowski, along with 60 other policemen were required, under duress, to answer 13 questions concerning their activity at the meeting in question; and that Nowakowski's personal life was investigated by order of defendants Garey and Carney in order to gather information to support the Department's decision to demote him.⁵ The plaintiffs further claim that Policeman William McNea has been notified that he may be deprived of 160 hours of accrued furlough time by the Department, under Rules 47 and 75, Section 140 and 9.10-16 for alleged political activity, and that McNea has been subject to continued harassment by the Department because of his association with the Cleveland Police Patrolmen's Association. The intervening plaintiffs allege that Richard Faragher has been threatened with departmental charges under 40-75 for visiting the offices of the President of Cleveland City Council and other public officials.

The provisions which plaintiffs attack read as follows:

Original Rule 47 reads as follows:

"Officers and members are forbidden to carry on political or religious discussions between themselves or with citizens; and shall exercise their right of suffrage quietly. They shall avoid any and all disparaging conversation detrimental to the Division of Police or its officers and members."

Rule 47 was amended on February 25, 1976 to read:

"The following rules contained therein are to be considered effective immediately, replacing Rule 47 of the present manual of rules—

"Personnel of the Division of Police shall not—

"3.14 ... Carry on political or religious discussions between themselves or with citizens, while on duty.

"3.15 ... Engage publicly in any disparaging conversation detrimental to the division of police or its personnel.

"Commanding officers shall familiarize themselves with these rules and shall cause them to be read at roll calls for the next three days.

"The issuance of this portion of the revised manual of rules, regulations and procedures has been requested by the Law Department in connection with a legal action pending in Federal Court and shall not be construed as having any political overtones."

See, Exhibit B attached to the Complaint.

Rule 38 pertinently reads:

"Officers and members of the Division of Police shall not engage in any other gainful occupation; and for purposes of discipline they shall be considered to be on duty at all times." See, Exhibit D attached to the Complaint.

Rule 75 pertinently reads:

"Officers and members .... shall be connected in no way, directly or indirectly, with any political organization." See, Exhibit C attached to the Complaint.

Section 140 reads:

"No person in the service of the City shall discharge, suspend, lay off, reduce in grade or in any manner change the official rank or compensation of any person in such service, or promise or threaten to do so, for withholding or neglecting to make any contribution of money or service or any valuable thing for any political purpose. No person in the service of the City shall use his official authority to influence or coerce the political action of any person or body, or to interfere with any nomination or election to public office. No person in the classified service of the City shall act as an officer of a political campaign, or serve as a member of a committee of any such organization, or circulate or seek signatures to any petition provided for by primary or election laws, or act as a worker in favor of or in opposition to any candidate for public office." See, Plaintiffs' Exhibit 2. (underscoring added)

9.10-16 pertinently reads:

"But any officer or employee in the classified service may be discharged, suspended or demoted for any one or more of the following:

. . .

"16. The use or attempt to use political influence or authority upon any person in the service, or engaging in any political activity, such as are prohibited by Civil Service Laws or the Rules of the Civil Service Commission." See, Plaintiffs' Exhibit 1.

40-75 pertinently reads:

"The Chief or designated Acting Chief, alone, may authorize the initiation of business or visits with the office of the Mayor, Director of Public Safety, or any other public office or at City Hall." See, Plaintiffs' Exhibit 3.

General Police Rule 103 reads:

"Officers or members of the Division of Police shall not visit the office of the Mayor or the Director of Public Safety, on behalf of themselves or others, without permission from the Chief of Police." See, Plaintiffs' Exhibit 13.

The Court, having heard the evidence of the witnesses, having examined the exhibits submitted by plaintiffs, and having heard the arguments of counsel, makes the following findings of fact and conclusions of law.

II. FINDINGS OF FACT

The plaintiffs, William McNea, Robert Nowakowski and Richard Faragher are police officers with the Cleveland Police Department. On May 15, 1976 Nowakowski was promoted to the rank of Sergeant in the Cleveland Police Department. On August 14, 1976, Nowakowski was demoted to Patrolman by James T. Carney, the Director of Public Safety. The reasons stated for his demotion were "because of unsatisfactory probationary report." See, Plaintiffs' Exhibit 10. Lloyd Garey, Chief of Police for the City of Cleveland, testified that he recommended Nowakowski's demotion because of Nowakowski's participation in "political activity." Garey was uncertain as to the rules or regulations that Nowakowski had allegedly violated, but thought they included Section 140 and 9.10-16. Garey also testified that William McNea was about to be charged for political activity under Section 140 and 9.10-16.

Richard Faragher testified that charges had been drafted against him under 40-75 and 103 because he had visited the offices of Cleveland City Council President George Forbes. Faragher stated that he visited with council members and the Mayor's staff in his official capacity as President of the F.O.P. on numerous occasions in regard to matters concerning the welfare of police officers. George Forbes and James Carney testified that they had held numerous discussions with Faragher concerning varied topics of importance to the members of the Fraternal Order of Police.

This Court finds that the plaintiff Robert Nowakowski has failed to introduce any evidence that Rules 47 and 75 were applied to him or that they were the basis for his demotion. Nowakowski has established that his demotion was based at least in part on 9.10-16 and Section 140. Likewise William McNea has failed to show that Rules 47 and 75 were applied to him but has established that Section 140 and 9.10-16 are the basis for charges to...