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HARMAN v. CITY OF NEW YORK

November 26, 1996

ROSALIE HARMAN and DIANE LAMPERT STADLER, Plaintiffs,
v.
THE CITY OF NEW YORK, THE HUMAN RESOURCES ADMINISTRATION CHILD WELFARE ADMINISTRATION, MARVA HAMMONS, Commissioner, and KATHRYN CROFT, Executive Deputy Commissioner, Defendants.



The opinion of the court was delivered by: COTE

 DENISE COTE, District Judge:

 This case presents the issue of whether a policy of certain New York City agencies restricting the contacts between agency employees and the press is constitutional. The Complaint challenges under the First and Fourteenth Amendments to the Constitution a policy governing child welfare agencies, which requires that employees refer to the Media Relations Office all contacts with the media regarding agency policies and activities.

 Harman has moved for partial summary judgment, arguing that the media contacts policy is unconstitutional as a prior restraint of speech in violation of the First and Fourteenth Amendments. The City has cross-moved for partial summary judgment, arguing that the policy is constitutional.

 I. Facts

 A. The City Child Welfare Agencies and the Media Contacts Policies

 On February 12, 1996, the City reorganized its child welfare agencies, and CWA's functions were transferred to the newly-created ACS. ACS performs all of the functions of the former CWA, as well as supervises the City's Office of Child Support Enforcement and its Head Start program. ACS's child welfare responsibilities are wide-ranging and include investigating possible child abuse and neglect, providing prevention services to maintain the welfare of children, and administering foster care and adoption programs. ACS has more than 6,500 employees, which includes approximately 900 caseworkers. There are thirteen field offices within the City. ACS has a substantial caseload. Every year ACS investigates approximately 50,000 reports of child abuse and neglect, provides protective services to around 27,000 families, and deals with approximately 45,000 foster care cases.

 At issue in this case are the executive orders promulgated by the City which govern contacts between the media and employees of the City's child welfare agencies. The first incarnation of this policy was Executive Order 634 ("HRA 634"), which was issued on March 1, 1995. On March 18, 1996, ACS issued Executive Order 101 ("ACS 101"), which replaced HRA 634, and currently governs ACS employees, including Stadler. On July 12, 1996, HRA issued Executive Order 641 ("HRA 641"), which replaced HRA 634 within HRA, and thus currently governs HRA employees, including Harman. ACS 101 and HRA 641 contain essentially the same terms. ACS 101 provides, in pertinent part, that:

 
Given the importance of the functions performed by ACS, the legal mandates protecting the confidentiality of its clients, and the sensitivity of its activities, the operations of the Agency are particularly vulnerable to disruptions which might occur as the result of inappropriate dissemination of information concerning its policies and activities. Therefore, communications with the media must be coordinated to assure that the Agency is able to fulfill its mission effectively, and within the legally imposed requirements of confidentiality. For this purpose, the ACS Media Relations Office has been designated ACS's principal avenue of communication with the press.
 
All contacts with the media -- whether such contacts are initiated by media representatives or by an agency employee -- regarding any policies or activities of the Agency must be referred to the ACS Media Relations Office before any information is conveyed by an employee or before any commitments are made by an employee to convey information. The ACS Media Relations Office will determine the appropriate manner in which to handle media contacts regarding Agency policies or activities, including the appropriate person or persons to make such contacts, consistent with the efficient and effective operation of the Agency and the achievement of its objectives.
 
Referrals of all potential media contacts and inquires and requests for information received by employees should be made to [the Public Information Officer] . . . . Such referrals should identify the potential media contact or the source of a request or inquiry by name, phone number, and media affiliation and describe the nature of the contact and the desired information relating to the Agency.
 
No employee may divulge to the media any information regarding any Agency policy or activity which is confidential pursuant to the Social Services Law, or any other law.
 
No employee, except an employee designated to do so by the Agency, may hold himself or herself out to the media as expressing the views of the Agency.

 (Emphasis added).

 Also on March 18, 1996, Nicholas Scoppetta, the Commissioner of ACS, distributed a memorandum to all employees, including Harman. The memorandum instructed employees that pursuant to ACS 101, "all referrals of all potential media contacts and inquiries and requests for information received by employees should be made to [the public information officer]." Moreover, the memorandum stated that "all media requests for ACS documents . . . must be in writing and addressed to the ACS Freedom of Information Law (FOIL) Officer . . . ."

 State law requires that certain information related to the children who are under the care of the agency be kept confidential. In its brief, the City cites two New York State statutes and one administrative regulation. Section 422 of the Social Services Law requires that reports of child abuse and all other information collected by the department concerning such reports including photographs remain confidential. N.Y. Soc. Serv. Law § 422 (4)(A) (McKinney Supp. 1996). *fn1" The regulations which implement this law impose on the commissioner of social services in each district the duty to insure the confidentiality of the information protected by law. N.Y. Comp. Codes R. & Regs. tit. 18, § 432.7 (1996). *fn2" Finally, Section 372 of the Social Services Law requires that foster care records and reports containing information which identifies the children in foster care and certain demographic information about the children for whom the agencies have responsibility remain confidential. N.Y. Soc. Serv. Law § 372(3). *fn3"

 B. Harman's Alleged Violation of the Media Contacts Policy

 Harman has been employed by the City for twenty-eight years. Harman began her career in the HRA, and after five years moved within HRA to the CWA. She worked briefly for ACS after it replaced CWA, and has recently been transferred back to HRA. In November 1995, Harman agreed to be interviewed for ABC News's World News Tonight in connection with a report about the much-publicized death of a six-year-old girl, Elisa Izquierdo, who allegedly died from physical abuse by her mother. *fn4" On November 29, 1995, World News Tonight broadcast a report which did not identify Harman by name, but included footage of Harman stating (1) "the workers who are considered the best workers are the ones who seem to be able to move cases out quickly"; and (2) "there are lots of fatalities the press doesn't know anything about."

 Six weeks later, on January 11, 1996, Anna Ellis ("Ellis"), deputy borough director of CWA, instructed Harman to report to CWA's central personnel office in Manhattan. That same day, Harman reported to the personnel office and was told that she was being suspended without pay for thirty days because of the statements she had made on World News Tonight. She was given a memorandum to this effect. On January 22, 1996, the suspension was confirmed by a letter from Jean Matthews, Executive Deputy Administrator of the Office of Personnel Administration of HRA, which stated that Harman was suspended "pending the disposition of the disciplinary proceeding regarding the charges" against her. The letter also informed Harman that "the charges will contain specification and you will be advised with respect to your right to submit a reply and to be represented by counsel." Finally, the letter instructed Harman to report to the Office of Personnel Services on February 13, 1996, after the expiration of the thirty day suspension, "for assignment."

 Harman claims that she was told on January 11, 1996 that she was being suspended for violating state confidentiality laws and HRA policy, but that she was not informed of the specific HRA policy she was accused of violating until the City identified HRA 634 at a hearing before this Court on February 5, 1996. *fn5" On February 11, 1996, pursuant to a stipulation between the parties, Harman was retroactively reinstated to her position with full back pay and benefits, her records were cleared of any discussion of the disciplinary action, all pending charges were dropped, and the agency agreed to take no retaliatory action against her.

 Harman argues that her statements on World News Tonight did not disrupt her workplace. Adrienne Kirkland, the child protective manager to whom Harman reported at the time of the incident, testified in her deposition that after Harman's appearance on television the unit continued to operate in its normal manner between November, when Harman appeared on World News Tonight, and January, when Harman was suspended. Ellis, who was Kirkland's supervisor, testified in her deposition that upon learning of Harman's appearance on television, she was concerned. She also testified that she noticed no difference in the nature and quality of Harman's work between her television appearance and suspension. *fn6"

 In her affidavit, Harman claims that she would be able to contribute to the public debate about child welfare -- which she argues is a public issue. She also contends that her desire to speak to the press about child welfare services is being chilled by the regulations at issue in this case. Harman states that she would speak out again, but is afraid that she will lose her job with the City.

 Subsequent to the filing of this motion for partial summary judgment, both Harman and Stadler requested expedited consideration by this Court. In connection with this request, on September 27, 1996, Harman and Stadler filed affidavits which reiterated their desire to speak out on public issues relating to the furnishing of child welfare services by the City. Harman's affidavit stated that she had spoken with a reporter from the New York Post and had referred the reporter to Stadler because Stadler is still employed by ACS. Stadler's affidavit stated that she informed the ACS Ombudsman that she was interested in speaking with the press on child welfare issues, but was told that she was to have no contact with the press to discuss any matters relating to ACS. Thereafter, a reporter from the New York Post sent a letter to the ACS press secretary indicating that she wished to speak with Stadler about child welfare issues, and stating that she would not ask Stadler to violate any confidentiality rules. The request was apparently denied.

 II. Discussion

 A. Summary Judgment Standard

 Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed. R. Civ. P. In making this judgment, the burden is on the moving party, and all facts must be viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). When the moving party has asserted facts which demonstrate that the non-moving party's claim cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Rule 56(e), Fed. R. Civ. P.; accord Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). Thus, in determining whether to grant summary judgment, this Court must (1) determine whether a genuine factual dispute exists based on evidence in the record; and (2) determine, based on the substantive law at issue, whether the fact in dispute is material.

 B. The Executive Orders At Issue

 A threshold issue that this Court must address is which executive order is being challenged. HRA 634 was the executive order that applied to Harman at the time of her suspension. Subsequently, after the reorganization of the City's child welfare agencies, ACS promulgated ACS 101, which applied to both Harman and Stadler because they were both transferred to the newly-created ACS. Accordingly, at the time this motion was filed, both plaintiffs and defendants addressed their arguments to the constitutionality of ACS 101. After the filing of this motion, however, Harman was transferred back to HRA, thus becoming subject once again to HRA 634. HRA 634 has now been replaced with HRA 641, which is almost identical to ACS 101. *fn7" Therefore, currently Harman is subject to HRA 641, and Stadler is subject to ACS 101. Because these two executive orders are not materially different, and because HRA 634 *fn8" no longer applies to either plaintiff, further briefing is unnecessary, and I will consider the constitutionality of both ACS 101 and HRA 641.

 C. Interpreting the Executive Orders

 I must construe ACS 101 and HRA 641 in order properly to evaluate their constitutionality. The plaintiffs contend that the policies should be construed by this Court as giving the City unbridled discretion in deciding whether its employees may speak. Commissioner Scoppetta has submitted an affidavit in which he presents the City's construction of the executive orders. He states that ACS 101 requires all employees to

 
refer potential media contacts to the media relations office, thus providing the agency with the opportunity to consider the nature of the potential contact and the likely effect thereof on the effective and efficient operation of the agency before any information is conveyed to the media representative. If necessary, the agency can also impart any relevant information to the employee before contact is made with the press representative. Ultimately, the employee may be permitted to handle the contact or may be informed that such contact is regarded as disruptive of the operation of the agency.

 The key provisions of the executive orders at issue here provide that "all contacts with the media regarding any policies or activities of the Agency" must be submitted to the media relations office prior to the communication being made. The media relations office will then "determine the appropriate manner in which to handle media contacts . . . including the appropriate person or persons to make such contacts." This determination is to be made "consistent with the efficient and effective operation of the Agency and the achievement of its objectives."

 In the context of a city ordinance, the Court should "presume any narrowing construction or practices to which the law is 'fairly susceptible.'" City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 770 n.11, 100 L. Ed. 2d 771, 108 S. Ct. 2138 (1988) (citation omitted). For purposes of this motion for summary judgment, I will accept the City's interpretation of the executive orders. Accordingly, I will assume that if a potential contact is submitted to the media relations office, that office's actions will be governed by consideration for the effective and efficient operation of the agency, and that the employee may be allowed ...


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