LCW Attorneys Suzanne Solomon and Kelsey Cropper successfully represented a city in a peace officer’s disciplinary appeal.
The officer issued a letter to his union’s members while he was the acting union president. The letter was critical of changes the department’s chief had implemented. The letter stated that the chief had circulated a memorandum, which allegedly indicated that the department’s Internal Affairs investigations needed “process improvements.” The letter also stated that the chief removed an Internal Affairs lieutenant and appointed a new lieutenant only two weeks after circulating the memorandum.
Following an investigation, the department issued the officer a 44-hour suspension. The suspension was based on a violation of department policy because the officer knew his letter included false or misleading statements that were reasonably calculated to harm the department or its members. The department concluded that the letter created a false impression that the chief removed the lieutenant from his assignment with Internal Affairs due to poor performance. In fact, the lieutenant voluntarily requested to rotate out of his Internal Affairs assignment. The department also alleged: the officer knew this fact before writing the letter, and the letter caused significant disruption because of its implication that the lieutenant was removed for poor performance.
The officer sued. He challenged his suspension on the grounds that the department violated his constitutional right to free speech. The officer argued that although false statements standing alone are not deserving of constitutional protection, erroneous statements are inevitable in free debate and must be protected. Further, the officer alleged that even if his statement about the lieutenant’s removal was false, his speech, when examined in its content, form, and context, was a matter of public concern and was therefore deserving of First Amendment protections.
The trial court disagreed. The administrative record showed that before the officer issued the letter, the City Manager had advised the officer that the lieutenant had voluntarily left the Internal Affairs assignment. The court noted that since the officer knew his statement about the lieutenant’s removal was false, the statement should not receive constitutional protection. The court also held the false statement was harmful to the reputation and authority of both the lieutenant and the department, given the punitive connotations of a lieutenant being “removed” from an internal affairs assignment. The court found the officer’s actions caused actual injury and harm to the legitimate interests of the department in maintaining and promoting the trust and integrity of its members. The court found the officer’s statements were not constitutionally protected and upheld the officer’s suspension.
Note:
The misconduct, in this case, threatened the integrity of the department’s internal affairs process but also drew complex First Amendment free speech and association defenses. This firm victory shows that agencies can count on LCW attorneys to be trusted advisors who protect their department’s good order and institutions.
