Police Department Inquiry Into Union Activity Violates First Amendment
A federal trial court in Georgia has ruled that the police department violated the First Amendment when its internal affairs division inquired the union’s alleged involvement in firing the current Chief, where such alleged off-duty activities had no relation to the alleged on-duty misconduct of a single officer’s “mutinous statements.” The Court also ruled in the case, Local 491, IBPO, v. Gwinnett County, Ga. (N.D. Ga May 7, 2007), that the Department’s ban on the off-duty sporting of uniforms by union officials at public meetings was not unconstitutional or otherwise illegal. [The decision initially was issued in May but it was only released to a legal database this week.]
In this case, a patrol officer was overheard talking to other patrol offers about his involvement in recruiting and interviewing potential candidates to replace the current Chief. His involvement was commissioned by county leaders. The Chief, once alerted to the officer’s plans in the efforts to oust him, ordered an investigation into whether the officer’s actions violated department rules regarding loyalty and support. In the course of the investigation, the Department also interviewed members of the police union’s executive board about whether the union advocated the Chief’s removal, and whether officials discussed this issue with county leaders. IAD sustained two charges of misconduct against the officer, but the Chief declined to prosecute or discipline the officer.
In a robust victory for the rights and abilities of police unions to organize, the Court ruled that the Department’s questions about the union violated the First Amendment’s guarantee of engaging in associational activity without government interference. The Court’s analysis balanced the interests of the Union and their members against the interests of the Department in morale and internal order. The tipping point appeared to be that the sheer irrelevance of the suspected union activity into the investigation’s stated purpose.
[B]y asking questions about whether the leaders of Local 491, in the course of their organizational participation, had expressed opinions concerning the replacement of the current police chief, and by asking whether they had engaged in communications with members of the Gwinnett County Board of Commissioners, Internal Affairs investigators intruded into quintessentially protected associational activity. Although the questions were asked in connection with a legitimate inquiry into Officer Fouchia’s on-duty conduct, it is not clear how, in determining whether disloyal statements were made on duty, it was relevant-much less necessary-for the Internal Affairs investigators to determine whether similar statements had been made off duty in connection with protected union activity.
Notably, the Court did not rule that Departments may never investigate union activity. Yet, the decision still serves as a cautionary tale to Departments contemplating a fishing expedition into union pursuits.
The Court also ruled that the Department’s ban on wearing uniforms off-duty at public meetings was not illegal, absence evidence of selective enforcement or exemptions based on the content of the meeting or speech at hand. “Inasmuch as it does so indiscriminately,” the Court ruled, “the First Amendment does not forbid a government from jealously protecting and zealously restricting the use of its uniforms for non-official purposes.”
Please note that this case’s interpretation of the U.S. Constitution and federal law have no force in Massachusetts. It still may be persuasive authority to a local court confronting a similar issue. Also, Massachusetts courts and agencies may provide better protections under state law.