Deputy learns Mom was wrong, words can hurt you

Thursday, July 30, 2009

A Wisconsin sheriff who transferred a deputy to patrol a crime-ridden neighborhood on foot in retaliation for criticism in a newsletter did not violate the First Amendment, because the deputy’s speech was “on a matter of purely private concern,” a federal appeals court recently ruled. However, the appeals court criticized the sheriff’s response as “childish,” “potentially harmful” and “irresponsible.”

The controversy began in May 2005 after the Milwaukee County Deputy Sheriffs’ Association criticized Sheriff David A. Clarke Jr. for directing on-duty officers to escort him to and from the airport. The association called the escorts an improper use of the county’s resources.

A few weeks later Clarke posted the following message on the roll-call board of the sheriff’s department:

“If you are afraid or have lost your courage, you may go home, otherwise you will ruin the morale of others.”“
Deuteronomy, Chapter 20, Verse 8.”

Michael Schuh, an 18-year veteran of the department who worked as a bailiff, took offense at Clarke’s statement and responded two days later in the association’s newsletter, the Star. Schuh’s response published in the newsletter in July 2005, said:

“If you are afraid or you have lost your courage and need two deputies and a sergeant to escort you every time you fly in and out of the airport and patrol deputies to drive by your home when you’re out of the house when you’re out of town you should resign and go home! Then you would lift the morale of this whole department (a.k.a. office).”

In response, Clarke reassigned Schuh — whom he did not know previously — to patrol a very dangerous Milwaukee neighborhood on foot. He also required Schuh to take a bus to and from his new position. Schuh served in this capacity from July to September 2005, before receiving a transfer. He did not suffer a loss in pay or benefits from the retaliatory action.

Schuh and the Milwaukee Deputy Sheriffs’ Association sued, claiming that Clarke violated the First Amendment by retaliating against Schuh for his comment in the newsletter. They also challenged the department’s new confidentiality policy, which required employees to “keep official agency business confidential.” They also filed some state-law claims.

A federal district court granted Clarke summary judgment, which resulted in dismissal of the federal claims.

Schuh and the association appealed to the 7th U.S. Circuit Court of Appeals. On July 21, the 7th Circuit panel affirmed the lower court in Milwaukee Deputy Sheriffs’ Association v. Clarke, beginning its opinion with memorable language: “The dispute in this case is what one’s mother might have in mind when she imparts the classic phrase, ‘Sticks and stones may break my bones, but words will never hurt me.’”

First examining the retaliation claim, the panel easily determined that Clarke retaliated: “The record is crystal clear that Clarke responded to Schuh’s remarks by reassigning him to a dangerous neighborhood on a newly created mission of questionable public utility.” The panel further found that “Sheriff Clarke’s response was a childish and potentially harmful reprisal for a two-sentence statement, and we do not condone his conduct.”

However, the panel still ruled against Schuh and the association because it determined that Schuh’s expression did not address a matter of public concern or importance. Public employees have First Amendment protection for speech if they are speaking as citizens, if the speech addresses a matter of public importance and the employees’ free-speech rights outweigh the employer’s interests in a disruptive-free workplace.

The panel found that Schuh spoke as a citizen when he wrote the response because he wrote it off-duty and his job did not require him to write for the newsletter. However, the panel determined that Schuh’s statement did not meet the public-concern requirement, because the speech “was a purely personal response to Sheriff Clarke’s Deuteronomy quote.”

Schuh and the association contended that his comment addressed the waste of taxpayer dollars and the use of officers for illegitimate purposes. But the panel concluded that “in the end, Schuh cannot avoid that he wrote his short statement, which on its face merely questioned Sheriff Clarke’s courage, for purely personal reasons.”

The appeals court also rejected the challenge to the department’s policy of keeping official business confidential. The plaintiffs had argued that such a policy amounted to an unconstitutional prior restraint on expression because it shut down speech entirely. However, the panel interpreted the policy to apply only to speech not protected by the First Amendment — speech “grounded in the public employee’s professional duties.”

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