Daniel Investigation Raises First Amendment Issues

Analysis Could Come Down To Circumstances Of Critical Remarks, Legal Experts Say

April 25, 1997|By Kate Shatzkin | Kate Shatzkin,SUN STAFF

Does Police Commissioner Thomas C. Frazier's investigation of his top deputy for critical remarks in a meeting violate that person's First Amendment right to free speech?

It depends on exactly what Col. Ronald L. Daniel said, how he said it and how he represented himself when he made the remarks, legal experts said.

On Wednesday, Frazier suspended Daniel -- second in command of the department -- for insubordination. He rescinded the suspension after Mayor Kurt L. Schmoke intervened, but said he was still considering disciplinary action.

Sources said Frazier took the action for remarks Daniel made during a meeting of black police officers and commanders who are members of the Vanguard Justice Society.

Daniel allegedly questioned the chief's commitment to ending racial disparity.

Charles Billups, president of the Grand Council of Guardians of New York, a consortium of black law enforcement associations, said the purpose of such meetings is to allow members to speak freely so the organization as a whole can act -- while protecting individuals.

"It's a way of letting out our anger instead of criticizing people in public," Billups said. "The key thing in the organization is to alleviate the idea of anyone being singled out. It's the idea of telling the truth."

The U.S. Constitution forbids Congress from making any law that abridges free speech. The Maryland Constitution dictates that "every citizen of the State ought to be allowed to speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege."

That does not mean employees can say whatever they like about their workplaces.

In the 1968 case Pickering vs. Board of Education, the U.S. Supreme Court found that the speech of public employees is protected to the extent that it does not cause undue disruption in the workplace. To Frazier, that is exactly what's wrong with Daniel's comments.

Doug Colbert, a professor who teaches constitutional law at the University of Maryland Law School, said an analysis of whether Daniel's speech is protected could come down to such details as whether he was wearing his uniform at the time, whether he spoke only for himself and how widely he believed his remarks would be disseminated.

"It's clear that the First Amendment is going to apply when employees are speaking about matters of public concern," Colbert said.

"Where the speech has an effect on the other employees' loyalty and confidence, that's where government officials are going to enjoy greater latitude" in limiting speech.

Said Susan Goering, executive director of the American Civil Liberties Union of Maryland: "It really means that every particular case of punishing an employee for speech turns on the particular facts."

Last month, Frazier brought up Officer Gary McLhinney, head of the Baltimore chapter of the Fraternal Order of Police, on misconduct charges after McLhinney allegedly was overheard calling a City Council member a "bitch." McLhinney has denied making the remark.

In Daniel's case, further tension comes from his rank as a top police commander. "The chief can complain [Daniel] is affecting morale," Goering said.

Billups said high-ranking members of New York law enforcement departments often attend Guardian meetings, and "they criticize a lot," he said.

"A lot of it probably does get back," Billups said.

But he could not remember any time a commander had been disciplined for making comments in such a meeting.

Pub Date: 4/25/97

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