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June 25, 1980

Gerald J. AZEFF

The opinion of the court was delivered by: POLLAK


On March 22, 1979, Gerald Azeff, an Institutional Parole Representative at the State Correctional Institution at Graterford, was suspended from his job for one day. The cause for the suspension, as explained to Azeff at the time of the imposition of discipline, was his "poor judgment in inflaming or aggravating an already serious situation" in that he had distributed copies of a letter critical of the prison administration's staffing policies to his co-workers. Three months after his suspension, Azeff filed this action pursuant to 42 U.S.C. s 1983, asserting that the suspension violated his rights under the First and Fourteenth Amendments, and seeking injunctive relief, compensatory and punitive damages. An evidentiary hearing produced the following history of the events which culminated in Azeff's suspension. *fn1"



 The Pennsylvania Board of Probation and Parole maintains an office at the State Correctional Institution at Graterford. At the time of the incidents in question here, the office was headed by Thomas J. Feeney, an Institutional Parole Supervisor. Mr. Feeney's staff consisted of Azeff and two other Institutional Parole Representatives. On matters of importance, Feeney reported to Herman Tartler, the Director of the Bureau of Pre-Parole Services of the Board of Probation and Parole. Tartler, located in Harrisburg, supervised a total of approximately ninety persons statewide. Although the Board of Probation and Parole occupies office space at Graterford, it is administratively independent of the Pennsylvania Bureau of Corrections, the agency which governs state prisons. Thus, Feeney and his staff operated at Graterford along lines of authority distinct from the control which Superintendent Julius T. Cuyler exercised over the staff of some five hundred corrections officers, psychologists, counselors, teachers, and others, who also worked at the institution. But, despite this formal separation, the supervisory staff of the Board of Probation and Parole perceived the maintenance of good relations between themselves and the prison's supervisory staff as critical to the Board's effective functioning: conformity to prison regulations was felt to be an essential component of the much desired good working relationship.


 On Tuesday, March 20, 1979, Captain Felix Mokychic, a correctional officer, was fatally injured by an inmate wielding a baseball bat. A state of emergency was declared: Inmates were locked in their cells. The entire institution was systematically searched. Guards were put on twelve-hour shifts. Vacations were cancelled. Housekeeping chores usually performed by the inmates janitorial work, food preparation and distribution, maintenance work were being performed by prison employees including both correctional officers and members of the treatment staff. *fn2"

 On March 21, Azeff, upset over Officer Mokychic's death, drafted a letter to Governor Thornburgh. When Azeff arrived at work on March 22, he asked a clerical member of the parole staff, as a personal favor, to type his draft on the stationery of the American Federation of State, County and Municipal Employees (A.F.S.C.M.E.) of which Azeff was a local officer. The letter *fn3" was very critical of the prison administration's ordering of priorities condemning the "tragic negligence" of the administration in providing "a full complement of high-salaried social workers, counselors and administrators," while failing to "properly man the walls or cell blocks with guards."

 Later that day, Larry Reid, the Director of Treatment (supervisor of treatment personnel) at Graterford removed a copy of the letter from the union bulletin board and brought it to Superintendent Cuyler. In light of the situation at the prison, both Cuyler and Reid were very disturbed by the letter. Cuyler called Feeney to his office to express his displeasure. Cuyler viewed the situation at the prison as tense; he saw the letter as inflammatory and divisive. In his view, anything which would create additional hazards during the emergency would have to be removed from the scene. Cuyler told Feeney that he intended to advise Chairman Jacobs of the Board of Probation and Parole of what had taken place, and of his desire that such incidents not recur. He also noted his hope that the working relationship established between the corrections department and the parole staff would continue on good terms.

 Feeney called Tartler to report that he had been called to the Superintendent's Office. He further reported that the Superintendent and the staff were very upset by Azeff's letter. Tartler called Chairman Jacobs and discussed the matter with him. Assistant Attorney General Robert Greevy, and Messrs. McCool and Yerger the Board's labor relations expert, and the Director of the Bureau of Administrative Services, respectively were also consulted. It was decided that the text of the letter should be at hand before any decision on the matter was made, and Feeney dictated the letter to the Chairman's secretary over the telephone. Tartler again discussed the letter with his colleagues and decided to suspend Azeff for one day, effective at that day's close of business. *fn4" Tartler phoned Feeney and told him precisely what to say to Azeff. At approximately 4:30 P.M., Feeney called Azeff to his office and informed him that he was being suspended, not for writing the letter to the Governor, but for distributing the letter at the institution and "for using poor judgment in inflaming or aggravating further an already serious situation." *fn5"

 Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), is the starting point in analyzing the rights of public employees who have been subjected to disciplinary action for expressing their opinions. In Pickering, the Court considered a teacher's claim that he had been dismissed, in violation of the First Amendment, for having sent a letter critical of the school board's handling of certain revenue bond proposals. The Court rejected the argument that as a condition of employment "teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work . . ." 391 U.S. at 568, 88 S. Ct. at 1734. But at the same time, the Court recognized that the requirements of the state qua employer may warrant restrictions on the speech of state employees that would be constitutionally impermissible in other contexts:

It cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those which it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the ...

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