Thompson v. City of Minneapolis

• Decision Date: 12 December 1980
• Docket Number: No. 50374.,50374.
• Citation: 300 NW 2d 763
• Parties: Martin A. THOMPSON, Appellant, v. The CITY OF MINNEAPOLIS, et al., Respondents.
• Court: Minnesota Supreme Court

300 N.W.2d 763 (1980)

Martin A. THOMPSON, Appellant, v. The CITY OF MINNEAPOLIS, et al., Respondents.

No. 50374.

Supreme Court of Minnesota.

December 12, 1980.

John P. Fitzgerald, Jr., Richard G. Day, Minneapolis, for appellant.

Robert J. Alfton, City Atty., and Jerome R. Jallo, Asst. City Atty., Minneapolis, for respondents.

Considered and decided by the court en banc.

SHERAN, Chief Justice.

Plaintiff-appellant Martin A. Thompson brings this appeal, challenging the adverse decision of the Hennepin County District Court on cross-motions for a summary judgment.¹ Appellant had asked the district court for a judgment that a Minneapolis Civil Service Commission rule, under which he was disciplined for making three statements published in a newspaper, was unconstitutional under the First Amendment.

We affirm the judgment of the district court that the rule was not unconstitutional as applied to one of appellant's three statements. As to the other two statements, we reverse the judgment that the rule was constitutionally applied. We affirm the judgment that the rule is not unconstitutional on its face and we affirm the other rulings of the district court.

Appellant had been employed as a building inspector with the Minneapolis Department of Inspections since 1969. On May 10, 1978, his supervisor decided to permit a newspaper reporter to accompany him on his inspection of the Phillips neighborhood, an area bounded by East Franklin Avenue, East Lake Street, Nicollet Avenue and 17th Avenue South. During the course of his duties, appellant made a number of observations which were recorded by the reporter and, which appeared the next day in her article, "Inspectors lurking in city alleys for cleanup drive," Minneapolis Star, May 11, 1978, at 1A, col. 4.

The newspaper article contained the following passages which are in issue here:

(1) "There are all these ADCs (persons who receive Aid to Families with Dependent Children) and they could care less," he said. "You take them to court and the judge says what can you do?";

(2) Thompson referred to the area he inspects as "the hell hole of the city";

(3) He pointed at one house where someone had thrown garbage out the second-story window and the garbage had rolled down the roof into the yard. "They used to be able to crap all over everything and move the tepee but they can\'t do that anymore," he said.

The day following the newspaper story, appellant was notified that he would be discharged. He requested and was given a hearing before a panel of three civil service commissioners. The commissioners dismissed one of the charges against appellant. But they concluded that appellant had violated Mpls.Civ.Serv.Comm'n R. 12.02(j), which prohibits conduct or speech wantonly offensive to the public,² and suspended him for a period of 90 days without pay.

In its findings of fact, the commission wrote the following:

13. The Department has testified that the primary reason for choosing the course of discharge was that an employee who "manifests a type of bigoted, racist philosophy that Mr. Thompson exhibited certainly . . . be that type of person, cannot fairly and honestly deal with minorities or poor people."

* * * * * *

16. That the statements as published were wantonly offensive. In its memorandum, the commission noted, "There is no question but that the language used by employee Martin A. Thompson is offensive towards the public."

Appellant did not challenge the decision of the commission. Instead, appellant brought an independent action in the district court under Minn.Stat. § 15.0424, subd. 1 (1978)³ and 42 U.S.C. § 1983 (1976)⁴ and 42 U.S.C. § 1988 (1976),⁵ challenging the constitutionality of the rule under which he had been disciplined.

The record indicates that appellant asserted that rule 12.02(j) was unconstitutional as applied and unconstitutional on its face in his complaint and motion for summary judgment. The district court ruled on both issues. However, in oral argument, appellant indicated that he relied solely on a facial challenge. For the sake of clarity, we decide both issues.

1. The first question we examine is whether the First Amendment gives absolute protection from disciplinary action based on statements uttered by a public employee while in the course of his business. We find that it does not.

We fully recognize the unsurpassed value placed upon freedom of expression in our society and in our law. Public employees are not "relegated to a watered-down version of constitutional rights." Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967); see Leininger v. City of Bloomington, 299 N.W.2d 723 (Minn. 1980).

Nonetheless, government as an employer may be entitled to discipline an employee. The reason for discipline may stem from conduct and it may sometimes stem from words spoken or written by the employee. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). Many other courts have permitted public employers to regulate the speech of their employees,⁶ although this result is not uniformly reached.⁷

In order to determine whether the government employer may or may not regulate the speech of an employee, we must "arrive at a balance between the interests of the public employee, 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," Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968).

In Pickering, a public high school teacher was discharged from his position after writing a letter to a newspaper attacking the school board's handling of bond issue proposals and its subsequent allocation of funds between educational and athletic programs. The United States Supreme Court balanced Pickering's interests and the government employer's interests and concluded that, in Pickering's case, the school board had no significantly greater interest in regulating his speech than it had in regulating the speech of any member of the general public. Id. at 573, 88 S.Ct. at 1737. Treating Pickering not as an employee, but as a member of the general public, the Court went on to say that Pickering could be disciplined by the school board only if his speech consisted of "false statements knowingly or recklessly made by him," id. at 574, 88 S.Ct. at 1737, the constitutional standard for a defamation action.⁸ This was not proven in Pickering's case, and the Court found that his dismissal could not be upheld.

Because of the enormous variety of factual situations in which public employees may be disciplined as a result of their speech, the Supreme Court in Pickering did not create a single rule against which all situations must be measured, but instead set forth "some of the general lines along which an analysis of the controlling interests should run." Id. at 569, 88 S.Ct. at 1735. The school's interest was in rendering an effective public service. The school may have needed to maintain discipline and harmony among its employees in order to ensure a high quality of teaching. Accordingly, the school board may have needed to discourage conduct which may reasonably have been thought to prevent employees from carrying out their assigned duties. On the other side of the balance, employees had an interest in participating in free and open debate on issues of public concern, even if the issues nominally involved their employer. See id. at 569-72, 88 S.Ct. at 1735.

Unlike Pickering, when we balance interests in the case before us, we find that the government has a special interest as an employer which overrides the interest of the appellant. The city of Minneapolis has established the department of inspections to enforce the building code, the zoning code, the housing maintenance code, and other ordinances relating to construction and safety. See Mpls.Code of Ordinances ch. 28, § 28.50 (1978). As a government employer, the city of Minneapolis has an interest in seeing that inspections are properly carried out. Inspectors are required to enter property, homes, and other buildings in their search for unsanitary or unsafe conditions. See Mpls.Code of Ordinances ch. 244, art. II, § 244.130 (1976). In order to carry out their duties, inspectors must contact the residents or owners and obtain their consent, or they must go to court and obtain a search warrant. See id. The city of Minneapolis has a strong interest in ensuring a polite or cordial relationship between its inspectors and the residents they serve since that relationship might affect the ability of inspectors to carry out their duties.

Appellant most certainly has an interest in participating in free and open debate. There will be many occasions when an employee's interest in commenting on the effectiveness of the policies of his employer or the problems faced by the government in rendering services will override the government's interest in deterring the speech. Even in this case we would find that the government's interest did not override appellant's if his statements had been limited to the first two listed above, his statements that the residents "could care less" about their neighborhood and that the area was the "hell hole of the city." But appellant also made a reference to the residents' American Indian heritage in a derogatory manner, indicating that a lack of concern about sanitation and safety was derived from their cultural heritage. It cannot be maintained that the First Amendment shields appellant from disciplinary action based on this racist remark directed at the residents he served.⁹

In City of Minneapolis v. Richardson, 307 Minn. 80, 239 N.W.2d 197 (1976), this court encountered an analogous situation. While handling a disturbance on the street, two police officers dragged a 12-year-old child,...