Pruitt v. Howard County Sheriff's Department

BLOOM, Judge. In this case we are asked to determine whether certain “Nazi-like” comments and behavior of Major Donald Pruitt and Sergeant Dennis Pruitt, officers of the Howard County Sheriffs Department, were protected speech under the First Amendment. We are also asked to consider whether the officers were denied procedural due process and equal protection under the law when their punishment for misconduct resulted in the termination of their employment. We find no error in, and therefore affirm, the judgment of the Circuit Court for Howard County that affirmed the decision of the Sheriff of Howard County to fire appellants for misconduct.

Factual Background, On 12 April 1990, Major Donald Pruitt and Sergeant Dennis Pruitt each received notification from the Maryland State Police advising them that they were currently under investigation for misconduct as a result of allegations of Nazi-like conduct reported in the Baltimore Sunpapers between 31 March 1990 and 4 April 1990. 1 On 3 August 1990 the Pruitts ⁶⁵ were each charged with conduct unbecoming [officers], failure to obey an order of a supervisor, and willful disobedience of an order. Pursuant to the Law Enforcement Officers’ Bill of Rights (LEOBR), Md.Ann.Code Art. 27, § 727 (1957, 1992 Repl.Vol.), an administrative hearing board was scheduled to convene on 29 October 1990. On 5 October 1990 an amended charging document was served on the Pruitts, adding a fourth charge of conduct unbecoming. The administrative hearing board, with Sheriff Raymond Eight of Montgomery County presiding, heard testimony from 29 October to 9 November 1990 and ultimately rendered its decision on 12 December 1990.

At that time the board found each of the Pruitts guilty of the first charge of conduct unbecoming and not guilty of the other three counts. On 3 December Herbert Stonesifer was replaced by Michael Chiuchiolo as Sheriff of Howard County. During the hearing, Sheriff Stonesifer had testified as an eyewitness to the alleged conduct. On 3 January 1991 the administrative hearing board conducted an additional hearing to consider the past performance of the Pruitts preliminary to recommending punishment.

On 7 January 1991 the board recommended that each of the Pruitts be demoted in rank, fined two hundred dollars, and receive counseling. Sheriff Chiuchiolo, after conducting a show cause hearing to determine whether punishment should not be increased, issued an order on 5 February 1991 terminating the Pruitts’ employment effective 6 February 1991, An appeal to the Circuit Court for Howard County from the Sheriffs decision and a motion to stay were filed, and the case was transferred to the Circuit Court for Anne Arundel County. The motion for stay was denied after a hearing in April 1991, and it is from that order that this appeal was taken. Appellants present the following questions for our consideration: 1.

Did the lower court err when it found that the decision of the hearing board was legal because: a) the Pruitts’ behavior was not protected by the free speech guaran ⁶⁶ tees of the First Amendment of the United States Constitution and Md.Ann.Code Art. 27 section 733 (1992); b) the Pruitts were given adequate notice of the charges against them within the meaning of the Due Process Clause of the Fourteenth Amendment of the United States Constitution and Md.Ann.Code Art. 27 section 733 (1992); c) singling the Pruitts out from other participants in the conduct did not violate their rights to equal protection under the Fourteenth Amendment of the United States Constitution and Md.Ann.Code Art. 27 section 733 (1992); and d) charges against the Pruitts were timely filed within the requirements of Md.Ann. Code Art. 27 section 730(b) (1992)? 2. Did the lower court err when it found that the order of Sheriff Chiuchiolo was legal because it was within his authority to increase punishment and because it did not implicate the Pruitts’ First Amendment rights nor violate their Due Process or Equal Protection rights under the Fourteenth Amendment to the United States Constitution and Md.Ann.Code Art. 27 sections 731(c) and 733 (1992)? Protected Speech It is well established that a state may not discharge an employee if such discharge would infringe the employee’s constitutionally protected right of freedom of speech. Branti v. Finkel, 445 U.S. 507, 515-16 , 100 S.Ct. 1287, 1293 , 63 L.Ed.2d 574 (1980); Perry v. Sindermann, 408 U.S. 593, 597 , 92 S.Ct. 2694, 2697 , 33 L.Ed.2d 570 (1972); Pickering v. Board of Ed. of Township High School Dist. 205, 391 U.S. 563, 568 , 88 S.Ct. 1731, 1734 , 20 L.Ed.2d 811 (1968); Keyishian v. Board of Regents of University of State of N.Y., 385 U.S. 589, 605-06 , 87 S.Ct. 675, 685 , 17 L.Ed.2d 629 (1967).

The Maryland Legislature has made specific provision for the protection of the constitutional rights of Maryland law enforcement officers: A law-enforcement officer may not be discharged, disciplined, demoted, or denied promotion, transfer, or reassign ⁶⁷ ment, or otherwise discriminated against in regard to his employment or be threatened with any such treatment, by reason of his exercise of or demand for the rights granted in this subtitle, or by reason of the lawful exercise of his constitutional rights. Md.Ann.Code Art. 27, § 733 (1957, 1992 Repl.Vol.). The determination of whether a public employee has been improperly discharged for engaging in protected speech requires “a balance between the interests of the [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, 391 U.S. at 568 , 88 S.Ct. at 1735 . See also Connick v. Myers, 461 U.S. 138,140 , 103 S.Ct. 1684,1686 , 75 L.Ed.2d 708 (1983). “[D]ebate on public issues should be uninhibited, robust, and -wide-open, and .. .may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 , 84 S.Ct. 710, 721 , 11 L.Ed.2d 686 (1964).

Because debate on issues of public concern is imperative to the functioning of the American system of government, the Pickering test is designed to ensure that a governmental employer does not chill the public debate essential to this form of governance. Arvinger v. Mayor of Baltimore, 862 F.2d 75, 78-79 (4th Cir.1988). With respect to government employees, only speech that is within the scope of the First Amendment and addresses a matter of public concern is entitled to constitutional protection. Berger v. Battaglia, 779 F.2d 992, 998 (4th Cir.1985), cert. denied, 476 U.S. 1159 , 106 S.Ct. 2278 , 90 L.Ed.2d 720 (1986).

When an expression does not relate to “any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” Connick, 461 U.S. at 146 , 103 S.Ct. at 1690 . Thus if the expression “cannot be fairly characterized as constituting speech on a matter of public ⁶⁸ concern, it is unnecessary for us to scrutinize the reasons for ... discharge.” Connick, 461 U.S. at 146 , 103 S.Ct. at 1690 . If we do not find the speech to concern public issues, we do not reach the balancing test. As pointed out by Justice Marshall in Rankin v. McPherson, 483 U.S. 378, 384 , 107 S.Ct. 2891, 2896 , 97 L.Ed.2d 315 (1987), reh’g denied, 483 U.S. 1056 , 108 S.Ct. 31 , 97 L.Ed.2d 819 (1987), the threshold question for determining whether a dismissal is appropriate is whether the speech was “on a matter of public concern.” “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” 2 Connick, 461 U.S. at 147-48 , 103 S.Ct. at 1690 .

The Maryland Court of Appeals first applied this analysis in DiGrazia v. County Exec, for Mont. Co., 288 Md. 437 , 418 A.2d 1191 (1980), where the Court concluded that the test formulated in Pickering was applicable only if the employee demonstrated that his conduct was constitutionally protected. In De Bleeker v. Montgomery Co., 292 Md. 498 , 438 A.2d 1348 (1982), the Court of Appeals concluded that the evidence establishing that the employee had been dismissed because of his constitutionally protected conduct was in conflict and, therefore, summary judgment was inappropriate. The application of the Pickering balancing test, which requires a determination of whether the' alleged conduct was constitutionally protected, was later refined in O’Leary v. Shipley, 313 Md. 189 , 545 A.2d 17 (1988).

In our analysis of the competing claims for First Amendment protection and the need for an orderly administration of the Sheriffs Department, we shall examine the ⁶⁹ nature of the Pruitts’ statements and actions. Like Berger v. Battaglia, 779 F.2d 992 (4th Cir.1985), cert. denied, 476 U.S. 1159 , 106 S.Ct. 2278 , 90 L.Ed.2d 720 (1986), in which a Baltimore City police officer was ordered to stop performing Al Jolson songs in black-face, this case does not fit within the traditional employee speech pattern — ie., cases where the employee criticizes the employer’s policy, actions, or supervision. Berger, 779 F.2d at 997 . Although the Pruitts did not criticize the Sheriffs department, they did imitate or parody “Hogan’s Heroes” while in uniform.

Thus, “the employee speech was not criticism of or disagreement with governmental operations” but did affect the department’s internal operation and public image. The State’s interests as an employer in regulating the speech of its employees “differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Pickering, 391 U.S. at 568 , 88 S.Ct. at 1734 . In Hawkins v. Department of Public Safety & Correctional Services, 325 Md. 621 , 602 A.2d 712 (1992), the Court of Appeals held that dismissal of a prison guard for his use of ethnic epithets was reasonable based on the State’s apprehension of disruption and possible violence at the correctional institution. After an incident in which the bank refused to cash the guard’s payroll check the guard stated to the head cashier, “Hitler should have gotten rid of all you Jews” and later continued, “and all the Poles too.” The Court concluded that the speech was personal and not one concerning public issues: Clearly, Hawkins [the guard] was not attempting to stimulate a dialogue on the Holocaust.

He was giving vent to his anger, and, relying on his fallible ability to identify persons of Jewish heritage, he used speech as a weapon to abuse the teller who had inconvenienced him.... No balancing is required because the threshold requirement of speech on a matter of public concern has not been met. Hawkins, 325 Md. at 633 , 602 A.2d 712 . Upon review of the Pruitts’ actions in light of their content, form, and context, we are compelled to conclude that ⁷⁰ such conduct is not speech on a matter of public concern.

The Pruitts testified at the administrative hearing that their conduct was humorous in nature and intended as a joke — as a parody of Hogan’s Heroes. Appellants’ speech did not, by their own admission, contain any allegations of wrongdoing or present issues of public concern to the community. Instead, it was intended for amusement, bereft of any political content. In contrast to instances where the courts have found that the speech concerned public issues, this case concerns actions and statements not intended to provoke debate or made in reference to a public issue of the time.

Compare Rankin, 483 U.S. at 381 , 107 S.Ct. at 2895 (employee commenting on an attempt to assassinate President Reagan). In this case, the speech itself was made to other Sheriff department employees and employees of the Howard County courthouse. It was intended as a joke rather than a social commentary. The conduct occurred in a “private setting”— generally away from the public view — a fact that supports our conclusion that the speech is private.

Compare Berger, 779 F.2d at 999 (concluding that because the black-face performances were made to the public and admission was sometimes paid the performances “constituted speech upon a matter of obvious public interest to those considerable segments of the community who willingly attended”). 3 Here the speech and conduct remain unprotected because they did not concern a matter of public interest but instead indicated a personal bias. As the Supreme Court noted in Chaplinsky v. New Hampshire, 315 U.S. 568, 572 , 62 S.Ct. 766, 769 , 86 L.Ed. 1031, 1035 (1942), citing Cantwell v. Connecticut, 310 U.S. 296, 309-10 , 60 S.Ct. 900, 906 , 84 L.Ed. 1213 (1940): Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution.... ⁷¹ Because we find that the Pruitts’ speech did not concern a matter of public issue we do not reach the second prong of the analysis; we need not balance protected speech against the Sheriffs department’s interest in protecting its credibility. Adequate Notice Appellants contend that the trial court erred in finding that the Pruitts were given adequate notice of the charges against them within the meaning of the Due Process Clause. They further allege that Sheriff Stonesifer’s testimony that appellants’ Nazi-like conduct constituted behavior unbecoming an officer supported the first charge; Sheriff Stonesifer later stated that this same conduct constituted a failure to obey an order, thereby supporting the second and third charges.

In our view Sheriff Stonesifer’s apparent confusion does not constitute a lack of notice under the procedural due process requirements. Under the Law Enforcement Officers’ Bill Of Rights (LEOBR), any law enforcement agency contemplating punitive action against an officer “shall give notice to the law enforcement officer ... [of] the issues involved.” Md.Ann.Code Art. 27, § 730(a) (1957, 1992 Repl.Vol.). In Reed v. Mayor and City Council of Baltimore, 323 Md. 175, 184 , 592 A.2d 173 (1991), the Court of Appeals stated that the purpose of the notice requirement is to “apprise the officer of the charges warranting disciplinary action in sufficient detail to enable the officer to marshal evidence and arguments in defense of the assertions.” In the instant case both appellants were served with a departmental charging document and departmental findings of fact, the first paragraph of which states: During the course of your employment with the Howard County Sheriffs Department, you have engaged in a course of conduct by exhibiting Nazi-like behavior and uttering certain german words and phrases, throughout the courthouse complex within view of the public, that has been inappropriate, unbecoming and reflects unfavorably on the department. This conduct has continued even though it has ⁷² been brought to your attention that it was offensive and irritating to fellow employees.

Additionally, you were ordered on at least two occasions, to [sic] once by Ex-Sheriff Donnelly during her term of office and once by current Sheriff Stonesifer, approximately two years ago, to discontinue the Nazi behavior in the workplace. This order by a superior officer was disobeyed. On 5 October 1990 an amended charging document and departmental findings of fact, essentially the same in substance, were served on the Pruitts. In addition to the findings stated above the amended findings also included: By misusing the authority of your position, you have also engaged in a course of conduct that has adversely effected [sic] the morale of the department and undermined the good order, efficiency and discipline of the department.

Appellants claim that this Court must necessarily find that “where there exists a disagreement in the meaning of a charge between the charging supervisor and a prosecutor at a point later in time” the meaning of the charges must be explained prior to the hearing to meet the due process requirement. We believe that appellants have misconstrued the meaning of due process under the case law. We distinguish Reed from the case at bar based upon the nature of the charges. In Reed the police officer was charged with “reflecting] discredit upon the Baltimore Police Department and/or herself as a member thereof.” This charge failed to indicate what actions comprised either the incident or the conduct reflecting discredit upon the department.

In the instant case appellants were each charged with conduct specifically identified as “Nazi-like behavior” including the use of German words