De Bleecker v. Montgomery County

Murphy, C. J., delivered the opinion of the Court. The principal issue in this case is whether the trial court, in granting directed verdict motions against Rev. Michael P. De Bleecker, properly concluded as a matter of law that he had not been discharged from his public employment as a teacher in Montgomery County in violation of his constitutionally protected right of free speech under the first amendment to the United States Constitution. I De Bleecker filed a four-count declaration in the Circuit Court for Montgomery County, alleging a conspiracy to deprive and a deprivation of his civil rights under 42 U.S.C. §§ 1983 and 1985. 1 Joined as defendants were Montgomery ⁵⁰¹ County, Maryland, (the County), the County Board of Education (the Board), Gary Blake, Director of the Montgomery County Detention Center (the Center), Norma Day, Director of Adult Education of the County public school system, and Larry Sander, Director of the County Board of Corrections. The declaration alleged that De Bleecker, an ordained Roman Catholic diocesan priest, was a nontenured temporary teacher employed by the Board for the sole purpose of teaching inmates at the Detention Center; that on July 22, 1977, there was an altercation between inmates at the Center, which was quelled by the use of unnecessary force by a Center guard; that De Bleecker made statements to the inmates and filed a written report with Center authorities, indicating his disagreement with the violent action taken by the guard; and that as a result of his verbal statements and written report, he was discharged from his teaching position at the Center.

De Bleecker alleged in the declaration that in terminating his public employment each of the defendants had violated his constitutional right to free speech, that the natural defendants had conspired among themselves to deprive him of his civil rights, and that he was denied his right to an administrative hearing to determine the reason for his discharge. De Bleecker sought compensatory and punitive damages. The defendants filed general issue pleas, together with pleas of justification. ⁵⁰² At the trial, De Bleecker testified on his own behalf; he also introduced the depositions of Blake, Day and Sander as part of his case. The evidence so adduced by De Bleecker showed that on July 22, 1977, there was a fight between inmates at the Center, following which De Bleecker and several guards, none of whom had witnessed the fight, found Antonio Thomas lying on the floor in another inmate’s cell.

De Bleecker testified that he helped Thomas to his feet and was walking with him towards the dormitory when a correctional officer, Sergeant Barricklow, grabbed Thomas and accused him of fighting. According to De Bleecker’s testimony, Barricklow, assisted by two other guards, forced Thomas into another cell; that while he (De Bleecker) could not see into the cell, he heard sounds of a struggle; that the guards refused to permit him to enter the cell; and that when Thomas later emerged from the cell, his head was swollen and bloody. De Bleecker said that thereafter he returned to the classroom where some inmates were discussing the incident. De Bleecker admitted expressing to the inmates his disapproval of Sergeant Barricklow’s violent conduct and he acknowledged advising them to tell the truth about the incident and not to be afraid.

He also told Blake, according to Blake’s deposition that he had discussed with the inmates "that the officers were violent and brutal, and something should be done.” De Bleecker submitted a written report to Center officials later that day in which he recounted his observations of the incident and set forth his disapproval of Barricklow’s actions. In his report, De Bleecker stated that "as an educator I have to disagree with this violent procedure, since everything seemed to be under control and violence only generates violence.” De Bleecker’s written report stated that Thomas had "fought back which seems to be psychologically understandable because the man hadn’t done anything wrong.” The report concluded: "[T]hey had tied Thomas down on his bed but he seemed to be semi-unconscious. Sgt. Barricklow seemed all of a sudden scared and asked Thomas if ⁵⁰³ he would get him some pills.

Then he brought him out to bring him to the nurse and asked me if I had seen anything. I understood that he wanted to ask me if I had seen him hurting Thomas badly. I said 'no’ because I did not see him doing it, but I reiterate my statement, that they grabbed the wrong one and that Thomas had been unnecessarily irritated.” De Bleecker testified that three days after he filed his written report, Blake, the Director of the Center, informed him that he was investigating the incident and that De Bleecker was to take the day off because the guards would not permit him inside the Center. Shortly thereafter, Blake wrote to the Board, stating that De Bleecker had acted in an irresponsible and emotional manner and that his report "consists of supposition and false accusations which cannot be substantiated.” In his letter, Blake stated that his investigation revealed that Sergeant Barricklow had acted properly; that De Bleecker’s discussion with the inmates of the sergeant’s violence was a "serious security violation which could result in further incidents and could jeopardize the effectiveness of Sgt.

Barricklow”; and that "[i]nmates are quick to spread gossip and some will attempt to place the security and administration of the Detention Center in a compromising position by spreading rumors. Mr. De Bleecker was considered a staff member therefore, what he says has validity in the inmate population.” Blake advised the Board that De Bleecker’s services were no longer desired or permitted at the Center. He said in his letter that De Bleecker’s report accusing Sergeant Barricklow of violence had been "proven incorrect” and had created "an irreconcilable gap between himself and the correctional staff.” The continuance of De Bleecker’s employment, Blake said in his letter, would jeopardize the educational program at the Center. The evidence revealed that Blake had discussed his findings with both Day and Sander, each of whom agreed ⁵⁰⁴ with Blake’s decision to terminate De Bleecker’s employment.

De Bleecker was later advised by letter signed by Day that the Board had reviewed the information provided by the Center and as a result found it necessary to terminate his employment as a teacher at the institution. At the close of De Bleecker’s evidence, the trial judge granted the directed verdict motions of all the defendants on all counts. He ruled that "as a pure matter of contract law and employer/employee law [De Bleecker] was not entitled to a pre-termination hearing.” He observed that "[t]here was no contention made that he was under a specific term of employment,” it being conceded that De Bleecker was a temporary, at-will employee. The court also found that because of the difficulty in maintaining order and the need for a high level of discipline in a penal facility, De Bleecker’s verbal remarks to the inmates concerning the guard’s actions were not constitutionally protected.

The trial judge said that De Bleecker’s "subsequent discharge grounded upon that conduct is not a violation of any constitutional right.” He explained: "What [De Bleecker] put into that report to Gary Blake was, in my judgment from the evidence thus far, fully protected. "... It is my judgment at this stage of the case that if the evidence indicated the decision was made to bar him from access to the Detention Center solely upon that report, the case would probably have to proceed forward. But the evidence is just as strong that that was not the sole reason for his being barred from the Detention Center.. ..

"If one considers that Blake and Sander took into consideration the written report as well as the oral conduct in making their decision to terminate or bar his entrance, which would have had the effect to terminate, then perhaps one, under the cases, has to look at the protected conduct and determine ⁵⁰⁵ whether that was considered by the employer as well. If in fact it was, the protected conduct that was a significant reason for the dismissal, then again perhaps the case would have to go on and be a question for the jury. "But again, as a matter of law, it is clear from the evidence that he would have been discharged for his unprotected conduct [comments to the inmates] even in the absence of the report.” De Bleecker appealed to the Court of Special Appeals, which affirmed the judgment. De Bleecker v. Montgomery County, 48 Md. App. 455 , 427 A.2d 1075 (1981).

That court held that a temporary at-will employee who is terminated according to the terms of his contract does not have a constitutionally protected interest in the continuation of his employment. It further concluded that "De Bleecker was not entitled to a pre-termination hearing, and the Board’s action in terminating De Bleecker’s employment did not violate any of his constitutional rights.” 48 Md. App. at 464-65 . In a footnote to that comment, the court noted: "Even if his speech were protected, his job was not.” Id. at 465 fn. 5. The intermediate appellate court relied on Parker v. Board of Education of Prince George’s County, Md., 237 F. Supp. 222 (D.C. Md.), aff'd, 348 F.2d 464 (4th Cir. 1965), cert. denied, 382 U.S. 1030 , 86 S. Ct. 653 , 15 L. Ed. 2d 543 (1966).

That case involved a probationary public school teacher who sued the County Board of Education, alleging a denial of due process when his position was terminated without a hearing. Parker claimed that he was discharged in violation of the first amendment for using Aldous Huxley’s Brave New World in his classroom instruction. The trial court granted the defendant’s motion for summary judgment, stating: "Even if such allegations [denial of plaintiffs freedom of speech] were present, they would afford no ground for the relief sought in this case. The right of free speech or expression, like other First Amendment guarantees, is not absolute.

Where the abridgement of the abstract right of free speech ⁵⁰⁶ results from government action taken for the protection of other substantial public rights, no constitutional deprivation will be found to exist .... No unconstitutionality results where the right of free speech is reasonably curtailed as a prerequisite to continued government employment. . . .” Id. at 229 (citations omitted). The Fourth Circuit, in affirming the District Court, did not reach Parker’s constitutional claim but relied solely on the terms of his provisional employment contract. We granted certiorari to consider De Bleecker’s argument that as a public employee he could not, on the record in this case, be terminated for exercising his free speech rights, especially absent a due process hearing regarding the reason for his discharge.

II The common law rule, applicable in Maryland, is that an employment contract of indefinite duration, i.e., at will, can be legally terminated at the pleasure of either party at any time. Adler v. American Standard Corp., 291 Md. 31 , 432 A.2d 464 (1981). The rule is inapplicable, however, if the decision to terminate the public employment was made because of the employee’s exercise of constitutionally protected first amendment rights. Perry v. Sinderman, 408 U.S. 593 , 92 S. Ct. 2694 , 33 L. Ed. 2d 570 (1972); DiGrazia v. County Exec. for Mont.

Co., 288 Md. 437 , 418 A.2d 1191 (1980). Thus, while it was within the power of the defendants to remove De Bleecker from his position, their decision to discharge him "would not have been lawful if it was made because of [De Bleecker’s] exercise of constitutionally protected first amendment rights.” DiGrazia, 288 Md. at 447 , citing Perry . The threshold issue is whether De Bleecker’s verbal or written statements, or both, were constitutionally protected. DiGrazia dealt with the interpretation of a Maryland statute known as the Law Enforcement Officer’s Bill of Rights ⁵⁰⁷ and a section thereof which prohibited the discharge of a police officer for exercising his right of free speech.

DiGrazia, an at-will official of a county police department, was discharged for allegedly making public derogatory statements about the department’s performance. He claimed that his constitutional right of free speech had been transgressed as a result of his termination. We reversed a summary judgment entered against DiGrazia, stating: "Whether DiGrazia was removed from his position as a punitive measure for exercising his right of free speech — a right expressly protected by § 733 — is a mixed question of law and fact, not appropriate for resolution on summary judgment. Indeed, DiGrazia does not even admit making the statements attributed to him, and Gilchrist [the employing authority] concedes that had DiGrazia not made the statements he might not have removed him.” Id. at 452.

In deciding DiGrazia , we relied on guidelines established by the Supreme Court in Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274 , 97 S. Ct. 568 , 50 L. Ed. 2d 471 (1977), and in Pickering v. Board of Education, 391 U.S. 563 , 88 S. Ct.