The opinion of the court was delivered by: MUNSON
MEMORANDUM-DECISION AND ORDER
Plaintiff is a member of the New York State Police and has served as a Trooper for over twenty years. Following a hearing upon specified charges, plaintiff was found guilty of violating a departmental regulation and placed on probation for six months. In addition, a formal letter of censure was placed in his permanent file. The regulation at issue in the instant case provides:
In accord with Instructions, a Member shall not deliver a public address or speech, or participate in any public forum, or lecture or instruct any group of persons without the authorization of the Superintendent, and a Member shall not participate as a judge or as a sponsor of public contests or debates without the authorization of the Superintendent.
NYSP Administrative Manual, Regulation 8.27. See Appendix. In plaintiff's view, such disciplinary action violated his first amendment right to free speech. Accordingly, plaintiff commenced this civil rights action alleging a violation of 42 U.S.C. § 1983 (Supp. IV 1980). Jurisdiction is predicated upon 28 U.S.C. § 1343 (1976).
As noted above, plaintiff has served as a New York State Trooper for more than twenty years. Over the past several years, plaintiff has given speeches on the subject of drug and alcohol abuse to various community and civic organizations. Based upon his experience as a Trooper and his speechmaking activities, plaintiff had become somewhat of an authority on the subject of drug and alcohol abuse. Moreover, plaintiff's speeches were well received by the public and caused him to become frequently requested speaker. In this regard, it appears as though plaintiff gave 13 speeches on this topic during 1980 and 1981.
The problem giving rise to the instant litigation arose in October of 1981 when plaintiff was requested to give a speech on drug and alcohol abuse to the Village of Green Central School District P.T.A. Plaintiff did not follow the Instructions reprinted in the Appendix, but instead simply prepared for, and delivered, his speech on January 18, 1982. Plaintiff introduced himself as a concerned parent who has been a Trooper with nineteen years experience. During the course of the speech, which was presented during his off-duty hours, plaintiff generally discussed the laws applicable to the subject and displayed various articles and paraphernalia associated with drug and alcohol abuse. Plaintiff's speech was both truthful and accurate, and there is no issue in the present case as to the manner in which the speech was presented. Rather, plaintiff was disciplined for making a speech without permission.
As a result of the January 18, 1982 speech, plaintiff was formally charged with violating Regulation 8.27 of the NYSP Administrative Manual. In addition, plaintiff was charged with violating Regulation 8.41 for engaging in misconduct and acting in a manner tending to bring discredit upon the Division of the State Police. Following a formal hearing on the charges, plaintiff was found guilty of violating Regulation 8.27 and not guilty of violating Regulation 8.41.Plaintiff was issued a letter of censure and placed on probation for a period of six months. The terms of the probation required plaintiff to refrain from giving any speech on any subject relating to his employment without first obtaining Division approval.
This action was commenced by plaintiff on November 5, 1982 and seeks expungement of the reprimand and probation from plaintiff's service record and an injunction preventing enforcement of Regulation 8.27 against the plaintiff. In addition, plaintiff seeks a declaratory judgment that Regulation 8.27 is vague, overbroad, and a prior restraint on the exercise of plaintiff's first amendment rights. Presently before the Court are cross-motions for summary judgment by the parties pursuant to Rule 56 of the Federal Rules of Civil Procedure.
The law is well settled that "a state cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Connick v. Myers, 461 U.S. 138, , 103 S. Ct. 1684, 1687, 75 L. Ed. 2d 708 (1983) (citing Keyishian v. Board of Regents, 385 U.S. 589, 605-06, 87 S. Ct. 675, 684-685, 17 L. Ed. 2d 629 (1967); Pickering v. Board of Education, 391 U.S. 563, 568, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968)). Rather, as the Court established in the Pickering case, the state must "balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." 391 U.S. at 568.Accordingly, this Court's first inquiry must be whether the subject matter of plaintiff's speech was a matter of "public concern," or was simply an unauthorized expression or comment on internal State Police policy.See Connick v. Myers, U.S. , 103 S. Ct. at 1667-68.
The question of whether an employee's speech touches upon a matter of public concern "must be determined by the content, form, and context of a given statement, as revealed by the whole record." Id. at , 103 S. Ct. at 1690. A close reading of defendants' memorandum of law reveals that defendants believe plaintiff's speech to be covered by the Pickering analysis. Defendants do not argue that the subject of plaintiff's speech was outside of the realm of "public concern." Rather, defendants appear to argue that the subject of drug and alcohol abuse is a matter of grave public interest and that the Division of the State Police have been specifically charged with administering the laws in this area. Therefore, defendants assert that they must exercise special control over their employees who purport to speak on behalf of the State Police.
In this Court's view, plaintiff's speech concerned a subject that is at the forefront of the public interest.Thus, unlike the situation presented in Connick v. Myers where a disgruntled employee circulated a petition that largely challenged her employer's administration of the office, the facts of the present case indicate that plaintiff was disciplined for exercising his first amendment rights on a subject of "public concern" within the meaning of the Pickering decision. There can be little doubt that the public has a legitimate interest in controlling drug and alcohol abuse by the members of society. Thus, the Court will proceed to a discussion of the so-called "Pickering balance."
In Kelley v. Johnson, 425 U.S. 238, 47 L. Ed. 2d 708, 96 S. Ct. 1440 (1976), the Supreme Court upheld a county regulation limiting the length of a policeman's hair. In so doing, the Court recognized that it had already sustained "comprehensive and substantial restructions upon activities of both federal and state employees lying at the core of the First Amendment." Id. at 245 (citing United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 37 L. Ed. 2d 796, 93 S. Ct. 2880 (1973); Broadrick v. Oklahoma, 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973). Although the interest claimed to have been infringed in Kelly v. Johnson was a liberty interest under the fourteenth amendment, the Court referred to the familiar Pickering analysis which was originally formulated in the first amendment area.
The Kelly Court observed that the hair-length rule could not be examined in isolation, but instead must be viewed "in the context of the country's chosen mode of organization for its police force." 425 U.S. at 247. Uniform hair-length, like similarity in appearance and conduct, was believed by the police force to be an important factor in establishing a desired measure of discipline and esprit de corps. The Supreme Court held that such a consideration was permissible for a para-military organization like a police force and determined that the regulation was a reasonble exercise of administrative discretion.
In the present case, however, the regulation at issue cuts far more deeply into the constitutional liberties of the individual than does the hair-length regulation in Kelly v. Johnson. Here, the regulation prohibits the exercise of a claimed first amendment freedom.
Plaintiff relies principally on Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970), a case in which certain regulations of the Chicago Police Department were struck down as being violative of the first amendment. Muller is plainly distinguishable, however, because the regulations therein forbid any comments or speech "which [was] derogatory to the Department or any member or policy of the Department." Id. at 902.Here, plaintiff's speech did not concern the operation of the Division of State Police. Instead, plaintiff was disciplined for speaking out on a subject that concerned both the public and the State Police. Accordingly, Muller v. Conlisk is not controlling.
To the contrary, defendants rely on Vorbeck v. Schnicker, 660 F.2d 1260 (8th Cir. 1981), a case dealing with regulations promulgated by the St. Louis Police Department. In Vorbeck, the Eighth Circuit examined a host of regulations dealing with the conduct, both off and on-duty, of St. Louis police officers. The court reasoned that under the Supreme Court's decision in Kelly v. Johnson, the broad regulations survived constitutional attack.Of particular import to the instant case is the following quotation in Vorbeck from the Kelly case:
The promotion of safety of persons and property is unquestionably at the core of the State's police power, and virtually all state and local governments employ a uniformed police force to aid in the accomplishment of that purpose. Choice of organization, dress, and equipment for law enforcement personnel is a decision entitled to the same sort of presumption of legislative validity as are state choices designed to promote other aims within the cognizance of the State's police power. [citations omitted] Having recognized in other contexts the wide latitude accorded the government in the "dispatch of its own affairs," Cafeteria Workers v. McElroy, 367 U.S. 886, 896, 6 L. Ed. 2d 1230, 81 S. Ct. 1743 (1961), we think Suffolk County's police regulations involved here are entitled to similar weight.
Kelly v. Johnson, 425 U.S. at 247. Based upon the above language, defendants argue that their regulations are narrowly tailored to serve the purpose of promoting a unified and efficient law enforcement agency. Because "policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights,"Garrity v. New Jersey, 385 U.S. 493, 500, 17 L. Ed. 2d 562, 87 S. Ct. 616 (1967), this Court will carefully examine the proffered reasons behind Regulation 8.27 and determine whether they are in fact reasonable under the circumstances.
In support of defendants' motion for summary judgment, defendant William P. Connelle, Superintendent of the New York State Police, has submitted a lengthy affidavit which explains the purpose and policy behind Regulation 8.27. According to Connelle, Regulation 8.27 and its implementing Instructions are intended to regulate who makes public speeches and lectures on behalf of the State Police in order to preserve the public image of the State Police and the confidence of the public in the efficiency of the State Police and its ability to fairly administer the laws, without bias or favoritism, or the appearance of bias or favoritism.
Connelie Affidavit P9. This is particularly important, Superintendent Connelie states, due to the organization of the State Police as a para-military organization with a central command, disciplined rank and file, and uniform dress and appearance. Id. P11. Without some regulation as to which Members may make speeches or give lectures on subjects which directly impact on the duties and responsibilities of the State Police, Connelie claims that there would be "a sever detrimental impact on the discipline, efficiency and efficacy of the State Police." Id. P16.
With regard to the subject of plaintiff's speech, Connelie explains that the topic of drug and alchol abuse is of particular importance to the State Police. He points out that the public is also aware of this problem due to New York's stringent laws on the subject of driving while intoxicated. Id. P19. Moreover, a cursory examination of the NYSP Field Manual reveals the large role that the New York State Police play in combatting these problems. For example, an entire chapter in the Field Manual is devoted to DWI Enforcement, and discussions of these topics appear in other chapters throughout the Manual.
In furtherance of these policies, plaintiff's Troop Commander, Major Muthig, had instituted his own practice which based the assignment of speeches on both a Trooper's expertise and the geographical location of his patrol. Thus, knowledgeable Troopers would be assigned to give speeches within their own community whenever possible. Major Muthig had informed plaintiff that he would not be giving any more speeches until his attitude and productivity improved. It appears from a careful review of the record in this case that plaintiff was aware that, if he had submitted his speech request to Major Muthig in accordance with Regulation 8.27, the Major would not have assigned plaintiff to give the speech. Nevertheless, plaintiff asserts that he did not submit the speech request for approval because the request came for a time when plaintiff would be off-duty.
This Court has thoroughly examined the transcript of the hearing conducted by the Division of the State Police in the matter of plaintiff and the charges lodged against him. In addition, the Court has reviewed all of the submissions by the parties. After careful consideration, the Court finds that the plaintiff's speech-making activities could constitutionally be regulated.
Plaintiff was contacted by officials of the Greene Central School District and was requested to deliver a speech on the subject of drug and alcohol abuse. Although plaintiff was initially contacted at his residence by phone, the School District sent letters to plaintiff at his duty station addressed as "Trooper J. P. Micilcavage, 331 East Main Street, Endwell, New York." Plaintiff introduced himself as "Joseph P. Micilcavage, a concerned parent and citizen that [sic] had been a Trooper with 19 years experience." While plaintiff is indeed a parent of school-age children, it is interesting to note that the speech was given at a school in a district other than the one that his children attended.
In his own testimony at the hearing, plaintiff asserted that he did not believe Regulation 8.27 applied because the request was for a time when he was not "on-duty." This is not, however, dispositive of the issue before the Court. In his experience giving authorized speeches, plaintiff explained that he had given speeches both off and on-duty. Moreover, plaintiff testifed that on different occasions he requested and was given permission to give off-duty speeches while in uniform. In the present case, plaintiff's speech was delivered while he was off-duty and in civilian clothes.
As to the topic of the speech, plaintiff presented the law as it related to the enforcement of controlled substance, sales, and possession. In conjunction with his speech, plaintiff presented the law as it related to the enforcement of controlled substances, sales, and possession. In conjunction with his speech, plaintiff displayed a variety of articles and paraphernalia associated with drug and alcohol abuse, and identified various drugs by using simulated visual aids. Taken as a whole, the Court concludes that the presentation conveyed the view that plaintiff was representing the New York State Police when he spoke to the P.T.A. As such, plaintiff's conduct constituted a violation of Regulation 8.27. While this Court makes no finding on the propriety of sanctioning plaintiff for doing a public service and placing the Division of the State Police in a better light within the community, plaintiff did commit a technical violation of Regulation 8.27 and was, therefore, subject to sanctions.
The Sureme Court in Pickering v. Board of Education, and more recently in Connick v. Myers, instructed courts to balance between the interests of the employee as a citizen and the employer as a provider of public services when faced with first amendment issues. In the present case, the Court concludes that this balance cuts in favor of the defendants.
Plaintiff's speech was not simply only made by a citizen concerning a problem facing society. Rather, the speech was one describing the law as it relates to the enforcement of drug and alcohol abuse laws. This is a topic of major concern to the New York State Police, and the public is fully aware of the role that the State Police play in the enforcement of these laws. Had plaintiff merely given a presentation on the evils of drug and alcohol abuse, the considerations before this Court would have been different. See Connick v. Myers, U.S. at 103 S. Ct. at 1691-92. However, plaintiff did not do this. He chose to speak on the enforcement of the law, a subject directly related to plaintiff's work as a Trooper. Thus, in this Court's view, it is irrelevant that the speech took place during plaintiff's off-duty hours.
Defendants assert that they have a genuine need to regulate those persons who speak on behalf of the State Police. While the facts of the present case do not suggest tht any harm came to the reputation of the State Police, or that its ability to properly enforce the laws was in any way hampered, defendants also claim that Regulation 8.27 serves to promote discipline. Based upon the Supreme Court's decision in Kelly v. Johnson, this claim is entitled to great weight by this Court. 425 U.S. at 247 (citing Cafeteria Workers v. McElroy, 367 U.S. 886, 896, 6 L. Ed. 2d 1230, 81 S. Ct. 1743 (1961)).
Under the facts of the present case, the Court finds that the reasons advanced by defendants in support of Regulation 8.27 are reasonably related to the promotion of employee discipline and protection of the reputation of the New York State Police. In their present form, however, the Regulation and its accompanying Instructions cannot withstand constitutional scrutiny.
"Vagueness and overbreadth are matters of degree and context." Vorbeck v. Schnicker, 660 F.2d at 1262 (citing Broadrick v. Oklahoma, 413 U.S. 601, 615-16, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973)). The general rule in this area is that "a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court." New York v. Ferber, 458 U.S. 747, , 102 S. Ct. 3348, 3360, 73 L. Ed. 2d 1113 (1982) (citations omitted). However, when the statute sub judice is drafted in such a manner that it may not be constitutionally applied to that person, a challenge of facial unconstitutionality should be ...