type of statements collectively as "the statements possibly relied upon." There are four categories of these statements.
The first category of statements possibly relied upon by the borough in its decision to discharge Edmundson involved his criticism of McCarthy's actions as the president of the Kennett Square police association. These criticisms were made verbally, and were also contained in four documents: 1) a 1987 petition to McCarthy; 2) a June 1987 letter of resignation from the police association to Chief McCarthy, Mayor Robert F. Goddu, and the borough manager (who is not a defendant); 3) a December 1987 letter to Chief McCarthy, Mayor Goddu, and the borough manager; and, 4) the unfair labor practices charge filed with the Commonwealth of Pennsylvania on February 6, 1989, and served on Chief McCarthy, Mayor Goddu, Councilman Kenneth Roberts, and Councilman Herbert L. Waltz.
Specifically, Edmundson's 1987 petition demanded that the association elect its officers by secret ballot and that there be an accounting of association funds. In the other documents, Edmundson complained that association dues were being automatically deducted from the members' payroll without individual authorization, McCarthy had attempted to implement a quorum equalling fifty percent of members of the police association, and the police association did not file registration and tax statements with federal authorities.
The second category of statements possibly relied upon in the decision to discharge Edmundson involved his complaints about how the collective bargaining agreement was negotiated by Chief McCarthy and Lieutenant Zunnino on behalf of the police association in 1987.
Edmundson expressed dissatisfaction with the restructuring of the officer classification system that made McCarthy and Zunnino the only "Grade I" officers on the force. Edmundson also was disturbed that after they were promoted and in his mind became part of borough "management," McCarthy and Zunnino were present for a police association discussion of the collective bargaining agreement. Edmundson spoke about these concerns to Chief McCarthy and Mayor Goddu. He also included these complaints in his December 1987 letter, his unfair labor practice charge, and a grievance sent to the borough council and Chief McCarthy in December of 1988.
The third category of statements possibly relied upon in the decision to discharge Edmundson concerned his complaints about McCarthy's construction company being awarded a borough contract for the construction of a squad room. Edmundson maintained that although the initial cost estimate was $ 4,000, a sum that did not require competitive bidding, the actual cost of the contract exceeded $ 14,000 and, therefore, the contract should have been awarded on the basis of bids. Also, Edmundson asserted that McCarthy often worked on the construction during his night shifts. Edmundson brought these matters to the attention of the borough manager and also confronted McCarthy directly.
The final category of statements possibly relied upon in the decision to terminate Edmundson involve complaints by Edmundson to the mayor and the borough manager that full-time officers were in effect subcontracting their shifts out to part-time officers and pocketing the difference between the full-time and part-time salaries.
II. APPLICABLE LAW
Although there is no general test to assess whether a public employee's speech is constitutionally protected, there is a uniform approach to these cases. See, e.g., Pickering v. Board of Educ., 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968); Connick v. Myers, 461 U.S. 138, 154, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983). The court
must first determine whether a plaintiff alleging retaliatory discharge from government employment has established that his conduct is protected under the First Amendment. San Filippo v. Bongiovanni, 30 F.3d 424, 434 (3d Cir. 1994). If the public employee contends that he was discharged in retaliation for his speech (as opposed, for example, to his religious views), he must show that the speech dealt with a matter of public concern.
If the speech is of public concern, the court must then balance the government's interest in the effective and efficient fulfillment of its responsibilities against the employee's First Amendment right. Connick, 461 U.S. at 151.
In assessing whether particular speech involves a matter of public concern, the court should examine the content, form, and context of the statements. Id. at 147-48. The inappropriate or controversial character of a statement is irrelevant to the question of whether it deals with a matter of public concern. Rankin v. McPherson, 483 U.S. 378, 387, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987). The speaker's motivation is significant insofar as speech by a public employee, relating to his employment, is deemed to be of public concern, except when that speech merely deals with personal information. Swineford v. Snyder County, 15 F.3d 1258, 1271 (3d Cir. 1994).
The Third Circuit has declined to define precisely "a matter of public concern." See Howard Kleinhendler, Note, Protected Speech Under the First Amendment, 66 TEMP. L. REV. 1075 (1993) (analyzing Third Circuit public employee speech decisions). It has, however, considered the "public concern" threshold inquiry in a variety of settings.
Analysis of these decisions reveals that speech about the way a government office is serving the public or discharging its responsibilities is of public concern. See, e.g., Sanguigni v. Pittsburgh Bd. of Pub. Ed., 968 F.2d 393, 397-99 (3d Cir. 1992).
If the speech is related to matters of public concern, the court must then balance the government's interest in efficient public service against the speaker's First Amendment right. Rankin, 483 U.S. at 388. In conducting this balance, the court should consider the manner, time, and place of the employee's expression. Id. Other significant factors include whether the speech impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker's duties, and interferes with the regular operation of the enterprise. Id.
With this background in mind, I first consider the statements attributed to plaintiff and published in the Chester County Press. The paper reported that plaintiff said:
I was accused of [breaking into the police chief's office] at 11:00 pm at night, given a letter that I was going to be suspended and suspended that same night. So we have Judge, Jury, and Execution all in one shot.