Jurgensen v. Fairfax County

BUTZNER, Senior Circuit Judge,

dissenting:

The Fairfax County police department’s civilian-staffed Emergency Operations Center is officially described as “generally the first and often the only contact point between the Department and the public.” Robert E. Jurgensen, a civilian employee of the Center, is a whistle blower. Not surprisingly, he incurred the displeasure of the top officers of the department when he furnished a newsman a copy of a report exposing the Center’s inefficiency.1 Because of this conduct, he was charged with violating a general order of the department that prohibited him from furnishing any information to the press, and the chief of police told him to take what the county insists was a voluntary demotion.

Jurgensen did not release the report to the press when it first became available to the department’s employees. After eight months, however, he became concerned that little was being done to correct the serious deficiencies it disclosed. His concern increased when he realized that officials in the department were covering up by assuring the press that citizens were pleased with the department’s performance and that it had good, top-level management. He then told a newsman about the problems revealed in the report, but the paper would not publish a story until his account of the department’s difficulties *892was verified by the report. , Consequently, Jurgensen furnished the newsman a copy.

The police introduced no proof that the information Jurgensen orally gave the newsman and the report he subsequently furnished were false. A veteran employee, who had served since 1964 in the Center both as a uniformed officer and as a civilian, observed no drop in morale or efficiency after publication of the report. A ranking police officer conceded that he couldn’t say the employees' performance was worse after the report was published.

Jurgensen neither sought nor received compensation, public acclaim, or prestige for furnishing the information to the newspaper. Indeed, he realized that his action would likely displease his superiors, but he believed he had an obligation to the county’s citizens to make public the deficient service they were receiving. He testified:

.1 felt I had a moral obligation, as I said before; that I had to do something and I knew there was, in fact, a code of ethics that was published by the county and I felt like I had an obligation to let people know, the citizens of Fairfax County, that the service they were getting was not up to what it should be.
Common sense told me that it was a public document. The public had the right to know about the operations of their government. Taxes pay for the operation and I felt the public, paying that expense, had the right to know whether there was gross inefficiency in the system.

I

Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 1690 and n. 7, 75 L.Ed.2d 708 (1983), which was decided after Jurgen-sen’s trial, explains that 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.” This inquiry “is one of law not fact.” Consequently, an appellate court is not bound by the constraints of the clearly erroneous standard of Federal Rule of Civil Procedure 52(a). Fortunately, the district court anticipated Connick and resolved this issue as a matter of law.

Jurgensen’s common sense assessment of the nature of the report was confirmed by the district court. It recognized that the report dealt with a matter of public concern and characterized it as a public document. Its ruling is amply supported by both the law and the evidence. The report was not marked confidential. No police official or supervisor told Jurgensen that it was confidential. An expert witness, who had years of experience in law enforcement and administration, testified that making the report available to the press would not damage the police department; that it dealt largely with managerial problems; and that similar reports are frequently made available to the press. Referring to publication, the expert ventured the opinion: “As a matter of fact, it rather seems to me that it would have ultimately a beneficial effect for the police department.”

The trial judge, who for many years had been a distinguished member of the Virginia judiciary, was familiar with Virginia’s policy of public disclosure of the affairs of governmental agencies. His ruling about the public nature of the report is altogether consistent with the policy of the Commonwealth as declared by the General Assembly, and the county’s policy as declared by the general orders of the police department. 2 The district court’s ruling is also *893consistent with the opinion of the Attorney General of Virginia on the subject.

A police official’s refusal to let a newsman read the report does not establish that Jurgensen was put on notice that it was classified. Nor does this incident prove that the report did not address a matter of public interest. The police officials also denied the county budget office’s request for a copy, although the report dealt in part with budgetary matters. Moreover, for nearly ten months, the officials withheld the report from the board of supervisors and the county executive, the highest officials of the county. Even then, they did not voluntarily disclose it. They supplied it only after a request from a deputy county executive who had been alerted to its existence by Jurgensen’s disclosure to the press.

In light of this evidence, I cannot accept the officials’ argument that Jurgensen knew the report was confidential and that it did not address a matter of public concern. One can draw the reasonable inference that denial of the report to the press and to the budget office was simply part of the officials’ larger scheme to secrete the report from their superiors, the supervisors and the executive, who were clearly entitled to it.

Independently examining the record, I agree with the district court’s conclusion that the report addressed a matter of public concern. I base my judgment on the content of the report, its form, and the context of its dissemination after considering all of the facts, the opinion of an expert, the authoritative declarations of pub-lie policy, and the opinion of the Attorney General pertaining to it. In sum, the court’s ruling conformed to the requirements for determining this issue that are set forth in Connick, 103 S.Ct. at 1690-91.

II

In Jones v. Dodson, 727 F.2d 1329, 1334 and 1340 (4th Cir.1984), we read Connick, 103 S.Ct. at 1692 n. 10, as characterizing the balancing test prescribed by Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), to be a question of law for decision by a district court without submission to a jury. Pickering explained the test in these terms:

The problem in any case is to arrive at 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.

Without the benefit of Connick and Jones, the district court submitted the Pickering balancing test to the jury, and it rendered a verdict for Jurgensen. Notwithstanding this procedural error, an appellate court is not precluded from making an independent judgment, as required by Connick, 103 S.Ct. at 1692 n. 10, on this issue. Indeed, this is the course followed by Czurlanis v. Albanese, 721 F.2d 98 (3d Cir.1983), where, as here, the record was sufficient for appellate purposes. On this premise, therefore, I will proceed to make an independent judgment of the balance *894required by Pickering and Connick, without regard to the constraints usually placed upon an appellate court’s review of a verdict.

The county contends that Jurgensen was subject to disciplinary action because he violated a police department general order that prohibited him from giving information to the press.3 The county takes the position that this prohibition is absolute and that violation of the order is insubordination warranting discharge.

The district court rejected the county’s absolute interpretation of the order. It recognized that the order could not suppress the rights of public employees, as citizens, that are protected by the first and fourteenth amendments. Also, in a post-judgment order, the court stated: “The report addressed certain inadequacies and problems which plagued this important part of the Fairfax County Police Department. Both the public and the [Emergency Operations Center] employees have been and will continue to be served through the public release of this report.”

Upon consideration of the record, I conclude that Jurgensen’s interest as a citizen, in disclosing the report to the press, outweighed the interest of the county, as an employer, in promoting the efficiency of the communications center through its orders, including those restricting access to the press. Jurgensen disclosed a matter of public interest. He did not merely voice a personal opinion, colored by his own perceptions of the condition of the Center. On the contrary, his disclosure of the Center’s problems rested on an authoritative report that revealed in great detail the inefficiencies of the Center and recommended steps, including the expenditure of public funds, to remedy them. The report dealt with subjects that had no immediate impact on Jurgensen’s position as an assistant squad supervisor. Unlike the plaintiff in Con-nick, who was facing a distasteful transfer, Jurgensen was not exploiting a personal grievance.

The evidence clearly establishes that Jur-gensen’s action did not impede the efficient operation of the Center or lower the morale of its employees. Moreover, disclosure did not have the potential of disrupting the operation of the Center. Indeed, the proof showed just the opposite. In the opinion of the expert, which was not refuted, and according to the appraisal of the district judge, disclosure served the interests of the Center as well as the citizens of the county. My independent review of the record persuades me that the expert and the judge were plainly right. Public awareness of the Center’s needs with respect to equipment, personnel, training and funding objectively discussed in the report was likely to engender public response to these needs in view of the fact that the Center is the citizens’ principal link to the police department.

In agreement with the district court, I cannot accept the argument that through promulgation of a general order restricting release of information to the press, police officials in every instance can override the constitutional rights an employee possesses as a citizen. The county’s position is contrary to the Supreme Court’s carefully structured balance of individual and governmental interests explained in Pickering, 391 U.S. 563, 88 S.Ct. 1731, and Connick, 103 S.Ct. 1684. In short, the county wrongfully equates whistle blowing with insubordination. For this reason, I believe that the violation of the general order cannot conclusively establish that Jurgensen’s speech was unprotected, although his conduct is an element in the Pickering equation.

Nor can I accept the contention that enforcement, through disciplinary action, of the order restricting release of information to the press is essential to the efficient operation of the police department. Certainly enforcement of the order would be justified if the press were enlisted to support an employee’s grievance, or if information were leaked pertaining to a current criminal investigation. When, however, *895the information furnished the press involves a matter of public concern, an employee cannot be punished for violation of the order. Punishment under these circumstances would elevate the order above the first amendment by giving undue weight to the claim of efficient operation of the department. No one, I suggest, would have the temerity to justify retaliation against an employee because he violated the order by disclosing corruption within the department. Clearly, corruption would be a matter of public concern. Deficiencies in equipment, training, personnel, and adequate financing — though less culpable than corruption — also hamper service to the public. These, too, are matters of public concern, which an employee, as a citizen, has a protected right to disclose, despite the order, without fear of retaliation.

Under somewhat similar circumstances where an employee was disciplined for violating a government department’s “chain of command” policy by speaking at a public meeting of the county’s government board about deficiencies in the department, the Court of Appeals for the Third Circuit said in Czurlanis v. Albanese, 721 F.2d 98, 106 (3d Cir.1983):

A policy which would compel public employees to route complaints about poor departmental practices to the very officials responsible for those practices would impermissibly chill such speech____ It would deter “whistle blowing” by public employees on matters of public concern. It would deprive the public in general and its elected officials in particular of important information about the functioning of government departments. We do not read the “efficiency of public services” factor referred to in Pickering to extend to a chain-of-command policy as interpreted and applied by the defendants.

Moreover, with reference to the facts, an expert testified that publication of the report Jurgensen furnished the press would not damage the police department. Other witnesses testified that the department was not harmed or its efficiency impaired.

Thus, the county’s argument that enforcement of the order against Jurgensen is necessary to promote the efficient operation of the department is refuted by both the law and the facts.

Ill

The question whether Jurgensen took a voluntary demotion or acted under duress presented an issue for the jury. The record is replete with genuine issues of material fact and conflicting inferences that reasonably can be drawn from the evidence. Consequently, the district court did not err in denying a motion for summary judgment and submitting this issue to the jury. American Fidelity & Casualty Co. v. London & Edinburgh Ins. Co., 354 F.2d 214, 216 (4th Cir.1965). In view of the jury’s verdict and the court’s denial of a motion notwithstanding the verdict, we are obliged to review the evidence and the reasonable inferences drawn from it in the light most favorable to Jurgensen. Warner v. Billups Eastern Petroleum Co., 406 F.2d 1058, 1059-60 (4th Cir.1969).

My reasons for sustaining the jury’s verdict and the court’s judgment on the issue of duress can be stated briefly. Central to this issue, as the case was presented to the jury, was the dispute over who proposed the demotion. Police officials testified that Jurgensen initiated the request for a voluntary demotion because of personal problems and financial hardships that would become worse if he lost his job. The chief of police testified:

Q To try to clear up one issue with regard to your testimony, who, to the best of your recollection stated that he wanted to take a voluntary demotion? Who was the first individual in the room to bring up the issue of a voluntary demotion?
A Bob Jurgensen.

In contrast, Jurgensen testified:

Q Who first referred to a voluntary demotion?
A Colonel Buracker [the chief] made the statement he was not a vindictive man and he said, “You don’t go back to *896the Washington Post” — and this was a statement of what he was going to do, and he looked right at me and he had the folder on his desk, and, “You take a voluntary demotion and you don’t talk to the Washington Post,” and he took the folder and closed the file. I had the distinct impression that the file was the investigation.

The record also discloses that at the time the chief told Jurgensen to take a voluntary demotion he was charged with violating § 204.4 of the general order for furnishing the report to the press. Jurgensen had readily admitted to his superior what he had done, and from a conference with this official and the chief, he realized that he was confronted with the likelihood of discharge. Jurgensen then acceded to the chief’s terms — “take a voluntary demotion” and “don’t talk to the Washington Post.” A secretary immediately typed a formal request for a voluntary demotion which he signed and the chief approved.

A week later, Jurgensen wrote the chief that he revoked his request for a voluntary demotion because it was made under duress. He asked that he be allowed to follow administrative and civil service remedies with regard to any disciplinary action the chief would impose. The chief rejected Jurgensen’s plea.

The jury credited Jurgensen. After being fully and properly instructed on the question whether the demotion was voluntary or imposed by duress, the jury returned a verdict for Jurgensen.

IV

Contrary to the county’s argument, Jur-gensen’s proof of improper demotion satisfies the criteria of Mt. Healthy Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). The record establishes that his conduct in furnishing the report to the press was constitutionally protected as appraised by the balancing test of Pickering and Connick. The record also shows conclusively that his protected conduct motivated the police officials to punish him. His superiors do not suggest that his work was unsatisfactory, except for his disclosure to the press.

Other assignments of error presented by both parties do not warrant reversal or modification of the district court’s judgment. Dissenting, I would affirm.

. According to the 64-page report, its goal was: “Determine if the Emergency Operations Center is functioning efficiently and effectively." The objectives are outlines in the report as follows:

* Determine whether the equipment is adequate to accomplish the mission of the Emergency Operations Center.
* Determine whether the equipment is being utilized in the most efficient and effective manner.
* Determine whether the personnel are adequate to accomplish the mission of the Emergency Operations Center.
* Determine whether the personnel are being utilized in the most efficient and effective manner.
* Determine whether current policies, procedures, and regulations are adequate to accomplish the mission of the Emergency Operations Center.
* Determine whether current policies, procedures, and regulations are complied with.
* Determine the extent of the training given EOC personnel.
* Examine management practices.
The initial and concluding sentences of the three-page summary illustrate the significance of the report:
The Emergency Operations Center is currently in a posture where its ability to function effectively is in question.
* * * * * *
The vital role that the Emergency Operations Center plays with respect to both the community and the Department demands assiduous attention to the issues raised in this inspection report.

. Code of Virginia, § 2.1-340.1 provides:

It is the purpose of the General Assembly by providing this chapter to ensure to the people of this Commonwealth ready access to records in the custody of public officials and free entry to meetings of public bodies wherein the business of the people is being conducted. This chapter recognizes that the affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. To the end that the purposes of this chapter may be realized, it shall be liberally construed to promote *893an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exception or exemption from applicability shall be narrowly construed in order that no thing which should be public may be hidden from any person. (Emphasis added).

General order 401, in effect at the time, states in part:

[S]ince the department was created for and exists to serve and protect the public and is responsible to the public, the public has the right to be informed about police activities and operations.
The news media serve as important conduits of information to the public. A relationship of trust, cooperation and mutual respect between the police and the news media is essential to realization of their common objective of serving and informing the public. It is the policy of this department to make information on crimes and other incidents generally available to the news media, unless such information is legally privileged, would violate the constitutional rights of an accused or is otherwise specifically prohibited in this directive.

. The text of the order appears in the majority opinion at 880-881.