LRIS: Public Safety Labor News 9/96 Excerpts

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Excerpts from
9/96 Issue

LRIS: Public Safety Labor News 9/96 Excerpts

Special Report

When And How Public Sector Unions Can Collect Dues From Non-Members

Analysis by Will Aitchison

Freedom of Speech Issues...

Fire Department Rule
Requiring Prior Permission to Speak Publicly
Held Unconstitutional by Will Aitchison, Labor Relations Information System

David Spain, an assistant fire chief with the City of Mansfield, Ohio, Fire Department, wished to speak publicly regarding a variety of concerns. Initially, he was informed by his superiors that he could not speak publicly about such matters; eventually, he was granted permission to speak as a citizen but not as an assistant fire chief.

There was a rule in the Fire Department that provided that "no member of the Department individually shall directly or indirectly send to or appear before the City Council, state legislature or other groups without first notifying as a matter of courtesy the Chief of the Fire Division." Subsequently, the rule was amended to require employees to obtain prior permission before speaking publicly.

Throughout 1989 and 1990, Spain sought approval to speak on certain issues concerning the Department and the safety of the community. All of his requests were denied.

In October, 1990, the Fire Chief posed eight questions to Spain regarding Department to members of the public and whether he had violated departmental rules. Spain refused to answer the questions and was suspended for three days.

In 1992, the Department notified Spain he was being charged with insubordination for his failure to obey direct orders from the Chief After an investigation, the Department notified Spain that the Chief was recommending his termination. Several days later, Spain retired. He then brought a lawsuit alleging that the Department had violated his freedom of speech rights.

The first issue for the court was whether the Department's regulations requiring prior permission before speaking publicly were constitutional. The court began its discussion by reciting a long-established case law that the regulation which places "unbridled discretion" in the hand of the government official to allow an individual to speak publicly is almost always an impermissible prior restraint of speech." Such regulation, the court found, must contain clear standards controlling the discretion to approve or disapprove of the opportunity to speak.

The court found that the Department's regulations failed these tests. The court commented that "there are no standards which govern the approval or disapproval of the City officials. The rules of prior restraints on the First Amendment guarantee a freedom of speech. Therefore, they are both facially unconstitutional."

After striking down the "prior approval" rules, the court turned to whether the rules were also unconstitutional as applied to Spain and his continuing requests to speak publicly. The court found that Spain wished to speak publicly about matters which were of public concern. The court rejected the Department's position that it had a right to forbid Spain from speaking on these matters because he was not the designated spokesperson for the Department. Further, the court "did not find any evidence in the record to support the Department's contention that Spain's viewpoints were disruptive to the operation of the Department. The content may have been unacceptable to the Chief and others because they disagreed with his opinions, but the City has failed to demonstrate any overriding interest which necessitated silencing Spain." Thus, the court concluded that the rules had been unconstitutionally applied to Spain.

Spain also contended that the Department's discipline was in retaliation for his protected speech. The court reserved judgment on the issue, finding that there were factual disputes which required the matter to go to trial.

The court concluded its opinion by striking down the Department's "prior approval" regulations.

Spain v. City of Mansfield, 915 F.Supp. 919 (N.D.Ohio 1996).

Job Opportunities Must Actually Be Lost In Order To File Challenge To Affirmative Action Plans

John Grahek, John Swenson, and Brent Nagle, all white males, applied to become police officers for the City of St. Paul, Minnesota in 1992. Under the City's civil service rules, all applicants were required to pass a civil service test. When the Police Department needed to fill vacancies, the Department was required to request a certified list of qualified candidates from the City personnel office.

When placing names on the certified list, the personnel office drew names of qualified applicants from three separate groups: current City employees who had passed the test, the highest ranked non-City employee candidates regardless of gender, race, or disability, and the highest ranked protected-class employees. Only the highest ranked persons in the three groups were placed on the list certified by the personnel office.

Grahek, Swanson, and Nagle argued that the selective certification of protected-class applicants violated their constitutional rights to equal protection under the Fourteenth Amendment to the United States Constitution. When a federal district court dismissed their complaint, they appealed to the 8th Circuit Court of Appeals.

The issue before the court was whether the three applicants had standing to challenge the affirmative action plan. In order to have standing under the law, an individual must show actual injury. The three applicants contended that they were injured because they were excluded from the protected-class group of applicants, one of the three ranked groups used to fill each certified list. The applicants argued that the City's hiring process required white male applicants to compete with all candidates, while members of protected classes competed only against other persons within their own class.

The court ruled that the applicants' arguments "missed the mark." The court noted that factually, none of the three applicants had a ranking high enough to be adversely affected by the protected-class group of applicants. The court also found that "the expanded opportunity for protected-class members did not reserve positions for that group of applicants. Fundamentally, the applicants were placed on a certified list as soon as they would have been placed on the list without expanded certification for protected-class applicants."

Grahek v. City of St. Paul, 70 FEP Cases 1442 (8th Cir. 1996).

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