Department of Corrections v. Derry

Pope, Presiding Judge. Wayne Correctional Institution Officer Ernest Roberson filed a disciplinary report against inmate Troy Bostic for failing to wear a belt to a meal, as required by prison regulations, and for cursing when Officer Roberson confronted him about the belt. After the report was filed, inmate Bostic asked Corrections Officer Gregory Derry, who had seen the incident regarding the belt, whether he thought Officer Roberson was harassing Bostic. Officer Derry told Bostic that he did believe that Officer Roberson was harassing him. Based on his statements to the inmate, Derry was terminated from his position as a correctional officer for violating Department of Corrections (DOC) and Wayne prison rules prohibiting officers from engaging in personal conversations with inmates and from criticizing other officers in front of inmates. Derry appealed his termination to the State Personnel Board, which upheld the termination. Derry next appealed to superior court. The court reversed the board’s ruling, finding that the inmate’s due process rights to defend himself against the disciplinary report filed by Officer Roberson authorized Derry’s comments to the inmate. We granted the DOC’s application for discretionary review and reverse the superior court’s decision. 1. The court based its decision on OCGA § 45-20-9 (m) (1), which provides that a court may reverse the decision of the board if substantial rights of the petitioner have been prejudiced because the board’s decision violates constitutional or statutory provisions. The court’s rationale under this Code section was erroneous. The court reasoned that the board’s decision to dismiss Derry violated the inmate’s due process rights to defend himself in the disciplinary action taken against him. As the words emphasized above indicate, the court may only reverse the board’s decision if the rights of the petitioner, in this case the rights of Derry, have been prejudiced. The Code section does not authorize the court to reverse the board’s decision based on the rights of a third-party inmate. Moreover, we disagree with the court’s finding that the DOC prohibitions against an officer engaging in personal conversations — 623 — with an inmate and criticizing another officer in front of an inmate somehow abridge the inmate’s ability to defend himself in a prison disciplinary action. There is evidence in the record of the procedures to be followed in a disciplinary action, and those procedures allow an inmate to call an officer as a witness at the disciplinary hearing. In fact, the inmate involved in the instant case named Derry as a witness and Derry testified on the inmate’s behalf at the disciplinary hearing. Thus, the enforcement of the DOC regulations, which help ensure the security of both prison officials and inmates, did not prejudice the inmate’s rights. Nevertheless, even if the inmate’s due process rights were violated by the dismissal of Derry for breaching DOC regulations against having a personal conversation with an inmate, that violation would not provide a legal basis under OCGA § 45-20-9 (m) (1) for reversing the board’s decision. The court could have reversed the board’s decision under that Code section only if it found that the decision prejudiced Derry’s rights. Because the court made no such finding and instead based its ruling on the erroneous legal analysis that the due process rights of an inmate warranted the reversal of the board’s decision to dismiss Derry, the court’s ruling cannot stand. See generally Dept. of Corrections v. Shaw, 217 Ga. App. 33, 35-36 (2) (456 SE2d 628) (1995); Dept. of Transp. v. Nobles, 187 Ga. App. 244 (370 SE2d 11) (1988). 2. The dissent contends that Derry’s improper comments to inmate Bostic cannot be condemned because there are no DOC or Wayne Correctional Institution rules prohibiting a prison guard from engaging in a private conversation with a prison inmate in which the guard criticizes another prison officer’s job performance. While the rules in question do not specifically state that an officer shall not criticize another officer in front of an inmate,1 the general conduct prohibited by the rules covers such inappropriate criticism of an officer in the presence of an inmate. The DOC Rules, Chapter 125-2-1-.07 (d), provide: “Employees shall not, without the express written approval of the appropriate Deputy Commissioner, maintain personal association with, engage in personal business or trade with, or engage in non-job related correspondence with, or correspond in behalf of or for, known inmates. . . — 624 — Additionally, the Wayne Correctional Institution General Post Orders instruct officers: “Do not establish personal friendships with any inmate. . . . Never become engaged in conversations with inmates that involve the low rating of the Administration or any communications that might be regarded as relating security information to inmates. Act as an authority figure, not a friend. If you are ever in doubt as to the validity of an inmate’s statement, check it out with your supervisor.” Moreover, the back of Derry’s officer identification card expressly provides: “THERE SHALL BE NO PERSONAL OR BUSINESS DEALING WITH INMATES, PROBATIONERS, OR PAROLEES.” Contrary to the dissent’s contention, Derry’s criticism of Officer Roberson’s job performance during a private conversation with inmate Bostic is a personal communication that compromised the security of the prison by appearing to pit one officer against another. As the charge against Derry asserted: “In involving yourself in a personal conversation with an inmate in which you revealed information involving a fellow officer you violated the Department’s prohibition against interpersonal dealings with an inmate and, thereby, breached the security of Wayne C.I., compromised your ability to supervise inmates effectively, and jeopardized the safety and welfare of yourself as well as other employees and inmates.” We cannot join in the dissent’s attempt to substitute its judgment for that of the prison and DOC officials, who determined that under their own policies Derry’s criticism of Officer Roberson was an improper personal association with an inmate. 3. In the alternative, the dissent concludes that even if Derry violated DOC and prison policy, his private conversation with the inmate about another prison guard’s job performance is protected speech under the First Amendment.2 We disagree and believe that the dissent’s conclusion and the First Amendment analysis supporting it are incorrect. In relying on the First Amendment to uphold the trial court’s ruling, the dissent ignores the fact that the trial court made no mention of the First Amendment in its ruling. As noted in Division 1 of this opinion, the sole basis for the court’s reversal of the board’s decision was the purported violation of the inmate’s due process rights. The court made absolutely no finding concerning Derry’s free speech rights. Thus, contrary to the dissent’s claims, the First Amendment provides no basis for finding that the court’s conclusions of law were — 625 — correct. Instead, as discussed in Division 1, the court’s conclusions that the inmate’s due process rights were violated and that such violation allows for a reversal of the board’s decision under OCGA § 45-20-9 (m) (1) are incorrect as a matter of law. (a) Even if we could say that the trial court concluded, like the dissent, that the state violated Derry’s free speech rights by discharging him, such a conclusion would be erroneous. “Although the law is well-established that the state may not demote or discharge a public employee in retaliation for speech protected under the first amendment, a public employee’s right to freedom of speech is not absolute. In Pickering,3 the landmark case concerning a public employee’s first amendment rights, the Supreme Court held that a public employee’s interests are limited by the state’s need to preserve efficient governmental functions. The state has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a 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.” (Citations and punctuation omitted; footnote supplied.) Bryson v. City of Waycross, 888 F2d 1562, 1565 (V) (11th Cir. 1989). “[A] four-stage analysis has evolved. First, the court must determine if the employee’s speech may be fairly characterized as constituting speech on a matter of public concern. Second, if the speech addresses a matter of public concern, the court must then conduct a balancing test in which it weighs the First Amendment interests of the employee against the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. Third, if the employee’s claim survives the balancing test, the fact-finder must determine whether the employee’s speech played a substantial part in the government’s decision to discharge the employee. Finally, if the fact-finder determines that the employee’s speech played a substantial part in the employee’s discharge, the state must prove by a preponderance of the evidence that it would have discharged the employee even in the absence of the speech.” (Citations and punctuation omitted.) Smith v. Upson County, Ga., 859 FSupp. 1504, 1510-1511 (M.D. Ga. 1994), aff’d, 56 F3d 1392 (11th Cir. 1995). In the instant case, any free speech claim by Derry does not survive the first two stages of the analysis and therefore we do not reach stages three and four. (b) In determining the threshold issue, whether the employee’s — 626 — speech may be fairly characterized as constituting speech on a matter of public concern, the court examines the content, form and context of the employee’s speech. Bryson v. City of Waycross, 888 F2d at 1565. The dissent, in making such an examination, claims that “[hjarassing an inmate is wrongdoing by a correctional officer and thus a matter of public concern.” Three of the cases cited by the dissent reveal the error in the dissent’s claim. The content and context of the challenged speech in each of the three cases are factually distinguishable from the content and context of Derry’s speech. In Cooper v. Smith, 89 F3d 761 (11th Cir. 1996), the court found that a Camden County deputy sheriff’s statements to the Georgia Bureau of Investigation, which was investigating corruption in the Camden County Sheriff’s Department, involved a matter of public concern. In Fikes v. City of Daphne, 79 F3d 1079 (11th Cir. 1996), the court held that a police officer’s reports to the Alabama Bureau of Investigation of alleged police misconduct (i.e., failure to terminate a dangerous, high-speed chase, and improper use of a confiscated vehicle) involved a matter of public concern. In Tindal v. Montgomery County Comm., 32 F3d 1535 (11th Cir. 1994), the court found that the testimony of a sheriff’s employee about the working environment in the sheriff’s office, given under subpoena at a sexual harassment trial, involved a matter of public concern. In the three cited cases, the content of the public employees’ speech involved facts; the employees reported actions and described events they had observed. The content of Derry’s speech, however, does not involve facts; Derry did not describe events to the inmate, but instead expressed his personal opinion about another officer’s job performance. See Hansen v. Soldenwagner, 19 F3d 573, 577-578 (11th Cir. 1994). Furthermore, in Cooper and Fikes the speech was made in the context of reports to state investigative authorities, and in Tindal the context of the speech was testimony made under subpoena in a federal jury trial. Unlike those cases, Derry did not speak in any such official context; rather, he spoke in a private conversation with a prison inmate, giving his critical opinion of another officer to the inmate. Given the content and context of Derry’s speech, the cases relied on by the dissent do not support the finding that Derry spoke on a matter of public concern, and in fact support the opposite finding that Derry’s personal opinion was not a matter of public concern. While we agree with the dissent that harassment of prison inmates is a matter of societal interest, “the mere fact that the topic of the employee’s speech was one in which the public might or would have had a great interest is of little moment.” (Citations and punctuation omitted.) Morgan v. Ford, 6 F3d at 754. Instead, “[a] court must . . . discern the purpose of the employee’s speech — that is, whether — 627 — [he] spoke on behalf of the public as a citizen, or whether the employee spoke for [himself] as an employee. ... A court may consider the employee’s attempts to make the concerns public, along with the employee’s motivation in speaking.” (Citations, punctuation and footnote omitted.) Id. In the instant case, Derry was not attempting to make his opinion about another officer public by giving that opinion to an inmate in a private conversation. Based on the context and content of Derry’s speech, it is apparent that his purpose was not to speak on behalf of the public, but was to speak for himself by giving his personal opinion. (c) Nevertheless, even if Derry’s opinion could be considered a matter of public concern, his interest in expressing that opinion does not survive the Pickering balancing test. “Since Pickering the balance has been struck more often than not in favor of the employer’s interests in efficiency, and the employee[’]s interest has been reduced to a particularly narrow interpretation of‘public concern.’ [Cit.] The magnitude of the State’s interest has been given [special] emphasis in the context of dismissals from police, fire departments and other emergency-related positions. In particular, the importance of a close working relationship in such situations, and the possible destruction of that relationship by the employee[’]s speech, has been seen as grounds for upholding termination regardless of the ‘public concern’ quality of the employee[’]s speech.” Abernathy v. City of Cartersville, 642 FSupp. 529, 533 (N.D. Ga. 1986). “We must consider several factors in balancing the state’s interest in efficient provision of public services against [Derry’s] speech interest, including: (1) whether the speech at issue impedes the government’s ability to perform its duties efficiently, (2) the manner, time and place of the speech, and (3) the context within which the speech was made. [Cits.]” (Punctuation omitted; emphasis in original.) Bryson v. City of Way cross, 888 F2d at 1567. In determining whether Derry’s speech impeded the DOC’s ability to perform its duties in running a prison efficiently, we must examine “whether the statement impairs discipline by superiors or harmony among coworkers, or has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary. [Cit.]” (Punctuation omitted.) Id. Personal loyalty and confidence between prison officers are certainly necessary for the safe and efficient running of a prison, where a relatively small number of officers must try to control a larger population of prisoners. “It is well established that states have a compelling interest in security and order within their prisons. [Cits.]” Lawson v. Singletary, 85 F3d 502, 512 (11th Cir. 1996). “There are few cases in which the State’s interest in combating the danger posed by a person to both himself and others is greater than in a prison envi — 628 — ronment, which, by definition, is made up of persons with a demonstrated proclivity for antisocial,] criminal, and often violent, conduct. . . . Prison administrators have not only an interest in ensuring the safety of prison staffs and administrative personnel, but also the duty to take reasonable measures for the prisoners’ own safety.” (Citations and punctuation omitted.) Washington v. Harper, 494 U. S. 210, 225 (110 SC 1028, 108 LE2d 178) (1990). “Order and morale are critical to successful police work: a police department is a paramilitary organization, with a need to secure discipline, mutual respect, trust and particular efficiency among the ranks . . . different from other public employers. More so than the typical government employer, the [Department of Corrections] has a significant government interest in regulating the speech activities of its officers in order to promote efficiency, foster loyalty and obedience to superior officers, maintain morale, and instill public confidence in the law enforcement institution.” (Citations and punctuation omitted.) Hansen v. Soldenwagner, 19 F3d at 577. In the current case, the DOC’s significant interest in prohibiting prison officers from criticizing each other in front of inmates in order to promote safety and efficiency, foster loyalty to other officers, and maintain morale was greatly compromised by Derry’s conduct. As the warden of the Wayne Correctional Institution testified, a prison officer should not give a critical opinion about another officer to an inmate because it “could compromise the safety and security of the institution.” He explained: “It could — inmates could manipulate staff, and they have done so in the past, into introducing contraband into the institution, or it could very well pit staff against staff, and another staff member could be viewed as an ally, and that’s always inappropriate.” A correctional sergeant at the Wayne prison also testified that a prison is a very dangerous environment and that Derry’s comments to the inmate could have led to violence against another officer by making the inmate think that Derry was on his side and against the other officer. “It is not difficult to see how [Derry’s] behavior ... could cause serious disciplinary problems, undermine employee morale, and impair harmony among co-workers. Indeed, it is difficult to imagine how it could do anything else.” Morris v. Crow, 117 F3d 449, 458 (11th Cir. 1997). “Prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” (Citation and punctuation omitted.) Ruble v. King, 911 FSupp. 1544, 1554 (N.D. Ga. 1995). “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.” (Citation and punctuation omitted.) Zimmer — 629 — man v. Cherokee County, 925 FSupp. 777, 782 (N.D. Ga. 1995). Here, the DOC’s decision to discharge Derry for violating regulations against officers engaging in personal conversations with inmates and criticizing other officers in front of inmates must be accorded wide-ranging deference because that decision and those regulations help maintain the officers’ close working relationships and the security in the prison. See Hodnett v. City of Atlanta, 145 Ga. App. 285 (243 SE2d 605) (1978) (police regulation prohibiting officers from communicating official information to anyone who is not a member of the police bureau held to be reasonable in order to maintain police discipline and efficiency); Aycock v. Police Committee, 133 Ga. App. 883 (212 SE2d 456) (1975) (police regulation forbidding officers from criticizing the official acts of superior officers found to be reasonable in order to maintain good order, discipline and efficiency within police department). Giving such deference to the decision and considering all the circumstances of this case, we conclude that the DOC’s interest in the safe and efficient running of the prison greatly outweighs Derry’s interest in expressing his personal and critical opinion about another officer in front of a prison inmate. See Morris v. Crow, 117 F3d 449 (sheriff’s interest in promoting efficiency of his administration outweighs employee’s interest in criticizing one of her superiors at a polling place); Bryson v. City of Waycross, 888 F2d 1562 (city’s interest in assuring efficient police protection outweighs officer’s interest in reporting misconduct by police chief); Smith v. Upson County, 859 FSupp. 1504 (sheriff department’s interest in providing efficient public services outweighs officer’s interest in reporting superior’s conduct to outside investigators). Because the state’s interest in the efficient running of its prisons outweighs Derry’s speech interest, the discharge of Derry did not violate his First Amendment rights. Judgment reversed. Andrews, C. J, McMurray, P. J., Ruffin and Eldridge, JJ, concur. Beasley, J., dissents. Blackburn, J., not participating. Footnotes [1] When Derry joined the Wayne Correctional Institution staff he signed the DOC Code of Ethics, which did expressly prevent an officer from criticizing another officer in front of an inmate. Section 25 of that Code provided: “Institution business affairs, security policy and procedures, and other staff performance shall not be criticized, condemned or otherwise discussed with an inmate.” Apparently this Code was replaced by the prison’s Standards of Conduct and General Post Orders. [2] “The First Amendment provides that ‘Congress shall make no law . . . abridging the freedom of speech....’ U.S. Const, amend. I. This right was made applicable to the states by the Fourteenth Amendment. Everson v. Board of Educ., 330 U.S. 1, 8, 67 S.Ct. 504, 507-508, 91 L.Ed. 711 (1947).” Morgan v. Ford, 6 F3d 750, 753, n. 4 (11th Cir. 1993). [3] Pickering v. Bd. of Ed., 391 U. S. 563 (88 SC 1731, 20 LE2d 811) (1968).