A federal appeals court recently held that an off-duty police officer could be disciplined for consistently blowing a truck air horn during the inauguration of the city's mayor after picketing had concluded.

The incident

An off-duty police officer participated in an informational picket conducted by the police and firefighter unions during the inauguration of the mayor of the city of Woburn, Massachusetts. As the demonstrators began to leave city hall, the officer went to his father-in-law's fuel oil company and borrowed an oil truck. He then drove three times around city hall, stopping each time underneath the windows of the room where the mayor's inauguration was being conducted. All the while, he was sounding the truck's air horn, which was loud enough to be heard by those attending the ceremony.

The following day, the mayor asked the police chief to investigate the horn-blowing incident. Six witnesses, including the chief, had observed the officer blowing the air horn. When advised of the culprit, the mayor promptly removed the officer's father-in-law from the city's list of snowplow contractors. When the officer learned of the mayor's action, he contacted the chief and during the telephone conversation admitted that he wanted to "piss off" the mayor, who had previously denied him a 30-day leave of absence.

Subsequently, the chief suspended the officer for two days for contributing to the disturbance of the peace for personal reasons.

The suspension was upheld by a hearing officer but overturned by the Massachusetts Civil Service Commission, which held that there wasn't just cause to suspend the officer because no one called the police to complain about the horn-blowing and the action was a constitutionally protected union activity.

Subsequently, the officer and his wife filed a lawsuit against the mayor, the police chief, and the city of Woburn alleging, among other things, that the suspension was in retaliation for exercising his First Amendment free-speech rights as a union member. A federal district court judge agreed with that claim and awarded him $7,500. The mayor, police chief, and city appealed that decision.

Appellate court disagrees

The appellate court, following guidance from previously decided U.S. Supreme Court cases, noted that there's a difference between the officer's conduct and conduct that's intended to convey a particular message that's likely to be understood by the intended audience. Examples of such conduct are picketing, boycotting, canvassing, and distributing pamphlets.

In this instance, the unilateral action of blowing an air horn beneath city hall windows after the picketing had ended – primarily to "piss off" the mayor – wasn't a matter of public concern entitled to constitutional protection. Conduct intended to inform the public about government operations, disclose public misconduct, or inspire public debate on matters of significant public interest involves matters of public concern. The court viewed the officer's conduct, however, as a display of personal animosity rather than something done to enlighten the public. Therefore, the appellate court overruled the district court and ordered that it rule in favor of the mayor and police chief on the retaliation claim.

Conclusion

This decision recognizes that public employees can't always hide behind the "union activity" shield when the conduct at issue is personally motivated and done solely to anger a supervisor. Reprinted with permission of publisher. First appeared in Connecticut Employment Law Letter (June 2003). For subscription information, call (800)274-6774.