William E. Hughes v. Alan S. Whitmer , 714 F.2d 1407 ( 1983 )

FLOYD R. GIBSON, Senior Circuit Judge.

The Superintendent of the Missouri Highway Patrol (Superintendent)¹ appeals from a final judgment entered in the District Court for the Western District of Missouri permanently enjoining the Missouri Highway Patrol (Patrol) from transferring appellee Trooper William E. Hughes without first providing him with a due process name-clearing hearing. For reversal, the Superintendent argues that Trooper Hughes’ transfer from a rural troop to an urban troop did not violate Hughes’ fourteenth amendment rights because Hughes has no property or liberty interest in a particular geographic assignment within the Patrol. Although the district court did not specifically address Hughes’ first amendment claim, Hughes urges on appeal that his first amendment rights were violated because the transfer was ordered to retaliate against him for his protected speech-related activities. For the reasons discussed below, we reverse the district court’s judgment. 537 F.Supp. 93.

I. Factual Background

Trooper Hughes has been a member of the Patrol since 1970 and has spent almost all of his career assigned to Troop “G.” Troop “G” is headquartered in Willow Springs, Missouri, and its members patrol the highways in the surrounding nine counties of south central Missouri. Hughes and his family have lived in Willow Springs during Hughes’ ten-year tenure in Troop “G.”

On Friday afternoon, October 16, 1981, Hughes was summoned to Troop “G” headquarters. When he arrived, Hughes was ushered into Captain McKee’s office and told by Major Hoffman of Patrol headquarters that he was being transferred to Troop “C,” at state expense, effective Monday, October 19,1981. Troop “C” is a relatively urban assignment encompassing the counties surrounding the City of St. Louis. Its headquarters are in Kirkwood, Missouri, which is some 200 miles from Willow Springs.

Hughes reported for duty at Troop “C” on Monday, October 19, 1981, as ordered. Hughes was never notified officially of any complaint against him prior to the Superintendent’s decision to order the transfer. Nor was Hughes given an opportunity to meet any of the charges against him or refute any of the factors which entered into the Superintendent’s decision to transfer him. Hughes still has not received written reasons for his transfer. His transfer order merely states that he is being transferred at state expense from Troop “G” to Troop “C” effective October 19, 1981.

Superintendent Whitmer, the ultimate transferring authority, Major Hoffman, whom the Superintendent ultimately relied upon in making the transfer decision, and Captain McKee of Troop “G” testified that the transfer was made to resolve a debilitating troop morale problem resulting from an intense personality dispute between Hughes and Lt. Elmore. Lt. Elmore was in charge of staff functions at Troop “G” headquarters but was not in the chain of command over Hughes.

Major Hoffman, who conducted interviews with a number of Troop “G” patrolmen, concluded that the major source of the friction between Hughes and Elmore was Hughes’ investigation of Elmore’s twenty-four-year-old son. Hughes suspected that Elmore’s son was involved in illicit drug trafficking. Hughes reported these suspicions to Captain McKee, who in turn told Hughes to continue the investigation. As Hughes continued his investigation, he suspected that Lt. Elmore was leaking information about the investigation to his son. Hughes apparently told other Troop “G” officers about his suspicions regarding Lt. Elmore and made accusations regarding Elmore’s son’s involvement in drug activities. Hughes also told a Willow Springs neighbor that the neighbor’s sixteen-year-old daughter had been seen at Lt. Elmore’s house with Elmore’s son. Elmore’s son was married to another woman at the time. During their interviews with Hoffman, various Troop “G” officers expressed the view that Hughes had become too personally involved in Elmore’s family affairs, hindering his own job performance and causing disharmony within the Troop. After learning about Hughes’ various investigations and accusations, Lt. Elmore reciprocated by conducting his own investigation of Hughes and by indicating his intention to file a defamation of character suit against Hughes.

At trial Hughes testified that he was transferred in retaliation for the Elmore investigation and his various other investigations. One of these other investigations involved the Mountain View Airport. Hughes was approached by three Mountain View citizens with information about suspicious late night airplane landings and takeoffs on a remote segment of the airport’s runway. Hughes testified that he received information that a pilot had been offered a large sum of money to fly drugs in and out of the Mountain View Airport. Hughes passed this information to Captain McKee, who encouraged Hughes to conduct a surveillance at the airport. Later, a state representative whose plane was housed at the Mountain View Airport complained about Hughes’ surveillance to Superintendent Whitmer. Despite this complaint, Captain McKee encouraged Hughes to continue the investigation and, at Hughes’ request, placed a call to Jefferson City for special night surveillance equipment to aid in identifying the airplanes making night flights. Hughes testified that soon after he made the request for surveillance equipment, the suspicious night flights ceased. Hughes never again requested or received the night surveillance equipment. Hughes testified that he spent an entire year on his airport surveillance without finding any tangible evidence of impropriety.

Hughes also testified that he had received information that Captain McKee was involved in a ticket-fixing incident some six years ago. Captain McKee denied having ever fixed any traffic ticket. Hughes also testified that he had received information that Captain McKee and Lt. Hickman were involved in a cover-up of a prisoner abuse incident. Hughes referred to a report written by Trooper Mitchell and Sergeant Zorsch indicating that an officer had allegedly struck an arrestee. Captain McKee allegedly concealed this report and, after interviewing the officer involved in the alleged beating, collaborated with Lt. Hickman in writing another report discrediting the arrestee’s allegations. Sergeant Zorsch testified that while he believed some of the arrestee’s allegations were true, Captain McKee could have reasonably reached a different conclusion and was not trying to coverup something.

Hughes testified that he told his wealthy industrialist friend, Claud Trieman, a member of the Governor’s Crime Commission, about the alleged ticket fixing and prisoner abuse incidents.² Hughes did so in the hope that his friend could intercede with the higher echelon at Patrol headquarters to initiate some reform in Troop “G.” Superintendent Whitmer and Major Hoffman testified that they were completely unaware of Hughes’ suspicions of improprieties in Troop “G.” Hughes testified that he never told Hoffman or anybody else within the Patrol’s command staff about his suspicions.

Over the past few years Hughes also became involved in other incidents of some concern to the community and to his fellow officers. In 1977, while patrolling a wooded area, Hughes discovered two teachers engaged in a “compromising assignation.” Hughes, while off-duty, reported this encounter to the school board. In 1979, Hughes was reprimanded for openly accusing a local postal employee of slashing the tires of Hughes’ car without sufficient evidence to support his accusations. These accusations were made while Hughes was off-duty. Hughes was also criticized by some of his fellow officers for spending too much time patrolling the Mountain View area so that he could associate with his wealthy industrialist friend, Claud Trieman, while on duty and for filing baseless written reports accusing radio operators of dereliction of duty. Finally, some officers, including Lt. Hickman and Captain McKee, suspected that Hughes furnished a local sheriff with a copy of a Patrol investigation of the sheriff’s alleged involvement in a timber theft.

On October 3, 1981, Lt. Elmore met with Superintendent Whitmer and suggested that Hughes be transferred to Troop “C.” Superintendent Whitmer testified, however, that no decision concerning Hughes was reached at this meeting. It is unclear from the record when the decision to transfer Hughes was actually reached. Superintendent Whitmer was uncertain about the exact date, but surmised it was Thursday, October 15, 1981. Major Hoffman testified that the decision was made the morning of October 16, 1981, the day Hughes was told of the decision.

In any event, on October 4, Elmore returned to Troop “G” and told several troopers that he was having Hughes transferred to Troop “C.” Dissension then began to mount in Troop “G” as troopers took sides over the rumored transfer of Hughes. Around October 7, Captain McKee testified that he reported this dissension to Major Hoffman. Major Hoffman then investigated the matter, interviewed a number of Troop “G” officers, and wrote a report, dated October 13,1981, in which he concluded that there was a serious morale problem in Troop “G” because of the conflict between Lt. Elmore and Trooper Hughes. Major Hoffman recommended that both Elmore and Hughes be transferred to correct the situation.

Almost simultaneously with Major Hoffman’s investigation, Lt. Elmore wrote his own memorandum entitled “Disciplinary Action — Trooper W.E. Hughes.” In this memorandum Elmore stated that Hughes had caused Troop “G” to lose its effectiveness because of Hughes’ “seemingly uncontrollable actions” and recommended that Hughes be transferred. These “uncontrollable actions” included Hughes’ investigation of Elmore’s son, Hughes’ close relationship with Claud Trieman, and Hughes’ “actions toward other public and private individuals.”

Lt. Hickman added his own remarks to Lt. Elmore’s memorandum and also recommended Hughes’ transfer. Hickman noted that Hughes never consulted him regarding the investigation of Elmore’s son and that Hughes was spending too much of his time patrolling the Mountain View area, where an officer was already stationed. Hickman added his suspicion that Hughes had given a local sheriff a copy of a Patrol investigation report concerning the sheriff.

Captain McKee also attached his remarks to this memorandum, suggesting that because the intense bitterness between Hughes and Elmore was disrupting the entire troop, Hughes should be transferred at state expense to another troop. McKee also noted Hughes’ various “controversial actions,” including his report about the two school teachers, his foundless accusations that a fellow resident had slashed Hughes’ car tires, and his on-the-job association with Claud Trieman in the Mountain View area who allegedly was to help Hughes in his bid to become Superintendent. McKee also wrote another report in which he recommended that Lt. Elmore also be transferred because he had contributed to dissension in Troop “G.”

Superintendent Whitmer endorsed the reports written by Major Hoffman and Captain McKee. "Whitmer also signed the memorandum that included the recommendations of Lt. Elmore, Lt. Hickman, and Captain McKee. Whitmer, believing that both Hughes and Elmore had contributed to dissension in the troop, transferred Hughes to Troop “C,” effective October 19, 1981, and transferred Lt. Elmore to Troop “D,” effective November 1, 1981. Hughes was offered moving expenses and was provided the same job status and pay in Troop “C” as he had enjoyed in Troop “G.”

Two weeks after the transfer decision, Hughes filed this § 1983 suit in federal district court claiming that the state’s failure to provide him with a name-clearing hearing violated his substantive and procedural fourteenth amendment due process rights as well as his right to equal protection. U.S. Const. Amend. XIV. Hughes also alleged that he was transferred in retaliation for exercising his first amendment rights. The district court held that Hughes’ transfer was disciplinary and, therefore, under Missouri law, Hughes was entitled to a due process hearing before he could be transferred. The district court enjoined the Patrol’s order transferring Hughes to Troop “C” until the Patrol provides Hughes with a hearing. This appeal ensued.

II. Due Process

The district court below believed that the dispositive issue in this case was whether or not Hughes’ transfer was disciplinary. For if it was disciplinary, the district court reasoned, Mo.Rev.Stat. § 43.-120, .150 (1978) and Patrol General Order V-16-104 require that a hearing be held before the disciplinary action can be carried out. This analysis would have been correct if the district court had been sitting in a diversity case governed by Missouri law. But Hughes brought suit under 42 U.S.C. § 1983 (1976) alleging that he was deprived of his fourteenth amendment right to due process under color of state law. The necessary predicate to such a suit is establishing that the plaintiff had a legitimate claim of entitlement to an identifiable property or liberty interest.³ Board of Regents v. Roth, 408 U.S. 564, 571, 577, 92 S.Ct. 2701, 2706, 2709 33 L.Ed.2d 548 (1972); Brockell v. Norton, 688 F.2d 588, 590-91 (8th Cir.1982). Hughes’ brief on appeal and the district court’s opinion below, however, do not identify any liberty or property interest to which Hughes was legitimately entitled under state law.

A. Property

For Hughes to have a due process property interest in his assignment to Troop “G,” he must identify some rule or mutually explicit understanding that supports his claim of entitlement to a Troop “G” assignment, and that he may invoke at a hearing. Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). A clause in a written contract guaranteeing a trooper’s preferred assignment would be the classical way of showing a mutually explicit understanding. Id. But Hughes offered no evidence that he has a contract with the Patrol. A statute or agency regulation may also provide the basis of a mutually explicit understanding. Bishop v. Wood, 426 U.S. 341, 344-45, 96 S.Ct. 2074, 2077-2078, 48 L.Ed.2d 684 (1976). The pertinent Missouri statutes, however, only guarantee that a trooper will not be dismissed from the Patrol absent “cause.” While this language may support Hughes’ claim of entitlement to continued employment with the Patrol, see Bishop v. Wood, 426 U.S. at 345 & n. 8, 96 S.Ct. at 2078 & n. 8, it does not guarantee Hughes the indefeasible right to remain in a particular troop within the Patrol. Arnett v. Kennedy, 416 U.S. 134, 151-52, 94 S.Ct. 1633, 1642-1643, 40 L.Ed.2d 15 (1974). To the contrary, Mo.Rev.Stat. § 43.120(1) (1978) empowers the Superintendent of the Patrol to “assign members of the patrol to such districts in the manner he deems proper .... He shall have authority in his discretion to call members of the patrol from one district to another.” In reviewing a similar statutory scheme, the Seventh Circuit concluded that a Chicago.police officer had no property interest in a particular geographic assignment because the applicable Illinois statute protecting police officers from adverse action without cause was limited by its own terms to discharges and suspensions. Confederation of Police v. Chicago, 547 F.2d 375, 376 (7th Cir.1977). Similarly, Mo.Rev.Stat. § 43.150 is limited by its own terms to dismissals. Therefore, we hold that applicable Missouri statutes and Patrol general orders do not support Hughes’ claim that he has a property interest in his assignment to Troop “G.” ⁴

A property interest also may be manifested by an employer’s historical practices and conduct which rise to the level of a “common law” of the employment relationship that both parties recognize as establishing their respective rights and responsibilities. Perry v. Sindermann, 408 U.S. at 602, 92 S.Ct. at 2700. An employee’s unilateral expectations spawned by the regularized practices of his employer will not do. Roth, 408 U.S. at 577, 92 S.Ct. at 2709. Here, a Missouri statute specifically gives the Superintendent the power to transfer troopers at his discretion. Additionally, Hughes was told at the Patrol Academy that he was subject to transfer anywhere in the state, with or without cause. The Missouri statute, coupled with the Patrol’s practice of telling all new troopers that they can be transferred at will, negates a finding that there is a mutually explicit understanding between the Patrol and its members that a trooper is entitled to a permanent assignment that is indefeasible except for cause. Perry v. Sindermann, 408 U.S. at 602 & n. 7, 92 S.Ct. at 2700 & n. 7. Hughes, therefore, has no due process property interest in his assignment to Troop “G.” At best, he has exhibited an unilateral hope of permanent residence in Willow Springs.

B. Stigma, Liberty and the Right to a Name-Clearing Hearing

Hughes does not contend, and the district court did not find, that Hughes has a liberty interest in being assigned to Troop “G.” Rather, what the district court decided and what Hughes argues on appeal is that, under Missouri law, the Patrol must give him a hearing before any disciplinary action can be taken against him. Therefore, the Patrol’s failure to provide him with a hearing violated his constitutional rights as protected by § 1983. Hughes v. Whitmer, 537 F.Supp. 93, 97 (WD.Mo.1982). We disagree both with the premises and the conclusions inherent in Hughes’ argument.

1. Right to a Pre-Disciplinary Transfer Hearing Under Missouri Law

The district court below ruled that, as Mo.Rev.Stat. § 43.120, .150 and Missouri Highway Patrol General Order V-16-104 “make manifest, any member of the Patrol who is confronted with the threat of disciplinary action is entitled to written notification of the charges against him, a hearing before a disciplinary board, and an appeal to the Superintendent of any disciplinary action taken by the board.” Hughes v. Whitmer, 537 F.Supp. at 95. There are no Missouri cases interpreting Mo.Rev.Stat. § 43.120, .150 or Patrol General Order V— 16-104 that are on point.⁵

Section 43.120 of the Missouri Revised Statutes gives the Superintendent of the Patrol broad authority and discretion to prescribe rules for disciplining Patrol members. Where the Superintendent seeks to dismiss a trooper, however, his discretion is limited by Mo.Rev.Stat. § 43.150. Section 43.150 provides that after a one-year probationary period, members of the Patrol are

subject to removal only for cause after a formal charge has been filed in writing before or by the superintendent and upon a finding by a majority of a board of five members.... Within thirty days after the petition is filed, the board shall conduct a hearing and report to the superintendent the finding by the majority of the board, whether the charges are true and if sufficiently serious to warrant removal .... [Mjembers of the patrol ... shall be subject to dismissal as provided or such lighter punishment as suspension . .. fine, reduction in rank, forfeiture of pay, or otherwise as the superintendent may adjudge.

Section 43.150, by its own terms, requires a showing of cause after a formal hearing only when a trooper’s removal is sought. Under Missouri rules of statutory construction, the express mention of one thing (removal for cause in this case) implies the exclusion of all other things (in this case disciplinary transfers). Harrison v. MFA Mutual Insurance Co., 607 S.W.2d 137, 146 (Mo.1980) (banc); Giloti v. Hamm-Singer Corp., 396 S.W.2d 711, 713 (Mo.1965). If the Missouri legislature had intended to require the Superintendent to show cause before taking any other type, or all other types, of disciplinary action, it would have been a simple matter to have done so by stating that non-probationary troopers “are subject to disciplinary action for cause.” De Poortere v. Commercial Credit Corp., 500 S.W.2d 724, 727 (Mo.App.1973). The Statute, however, only mentions one type of disciplinary action — “removal.”

This interpretation is butressed by the Patrol’s General Order V-16-104 issued on February 20, 1975. It is divided into seven major sections. The first quotes relevant statutory authority, including § 43.-120, .150. Section II provides procedures for processing general complaints against Patrol members.⁶ Section III deals with a supervisory officer's responsibility and authority to discipline subordinates.⁷ Section IV gives the disciplined trooper the right to appeal the disciplinary action to the superintendent.

None of these sections grants a trooper a due process hearing before disciplinary action short of dismissal may be assessed against him. The only section which does afford a trooper a pre-disciplinary hearing is Section V. Section V requires a pre-disciplinary hearing whenever formal charges are brought against a member of the Patrol. Formal charges are prepared, however, only “when a violation is of such a nature that dismissal may be the outcome.” General Order V-16-104, § V(A). Therefore, under the disciplinary procedures outlined in the General Order, a trooper may demand a formal hearing only when the Patrol recommends removal. • In fact, in enforcing § 43.120, .150, the Patrol has never given a trooper a predisciplinary transfer hearing when the trooper’s dismissal was not sought. Absent a prior judicial construction of the statute, this interpretation of the statue by the administrative agency charged with the responsibility of enforcing it, will be given considerable weight. Smith Beverage Co. v. Reiss, 568 S.W.2d 61, 67-68 (Mo.1978) (banc); Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193, 197 (1972) (Mo. banc). See also Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 796-797, 63 L.Ed.2d 22 (1980); Dymond v. United States Postal Service, 670 F.2d 93, 96 (8th Cir.1982). Accordingly, we conclude that under Missouri law, a member of the Patrol has no protect-able interest in a predisciplinary hearing unless the member’s removal is recommended or the member is accused of a violation that is of such a nature that dismissal may be the outcome. Thus, because the fourteenth amendment does not create due process property or liberty interests apart from those protected under state law, Hughes has not proven a violation of his fourteenth amendment rights. Roth, 408 U.S. at 578-79, 92 S.Ct. at 2709-2710.

2. Stigma and Liberty

At trial, Hughes presented evidence that his transfer stigmatized him in the eyes of both his peers in the Patrol and his neighbors in the Willow Springs community. In effect, Hughes argues that this stigma adversely affected his liberty interest in his reputation and also his ability to gain promotion within the Patrol. Therefore, Hughes claims that his transfer without a hearing deprived him of liberty without due process of law in violation of the fourteenth amendment.

To prevail, Hughes must show more than an injury to his reputation caused “by what the government is doing to him.” See Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971). Under the Supreme Court’s decision in Paul v. Davis, 424 U.S. 693, 708, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976), the offending state action must deprive the stigmatized person of a right to a benefit previously held under state law. Even if we assume for the sake of argument that Hughes’ transfer publically communicated the impression that Hughes had committed a serious infraction, we conclude that Hughes has failed to show some change of legal status that occurred in conjunction with the release of the stigmatizing information.

The theoretical foundations of Paul v. Davis’s “change in legal status” requirement are unclear. But whether legal status serves as a tangible benchmark of a liberty deprivation serious enough to merit federal due process protection, or it is a reflection of a state’s protection of some interest beyond a common law tort cause of action for damages, the Supreme Court has ruled that without a change of legal status, a stigmatized public employee’s cause of action is simply one for defamation under state law and is for the state courts to entertain.⁸ See Meachum v. Fano, 427 U.S. 215, 226, 228-29, 96 S.Ct. 2532, 2539, 2540-2541, 49 L.Ed.2d 451 (1976). Thus, the Court has made it clear that the constitution does not require the government to give to its stigmatized employee a hearing if the public employee remains a public employee. See Paul v. Davis, 424 U.S. at 710, 96 S.Ct. at 1164-1165. Several Courts of Appeals have held that a public employee’s failure to be promoted⁹ or internal transfer does not implicate a due process liberty interest as envisioned by Paul v. Davis. See, e.g., Blevins v. Plummer, 613 F.2d 767, 768 (9th Cir.1980) (promotion); Moore v. Otero, 557 F.2d 435, 438 (5th Cir.1977) (transfer); Sullivan v. Brown, 544 F.2d 279, 283 (6th Cir.1976) (transfer). We agree and hold that the “internal transfer of an employee, unless it constitutes such a change of status as to be regarded essentially as a loss of employment, does not provide the additional loss of a tangible interest necessary to give rise to a liberty interest meriting protection under the due process clause of the fourteenth amendment.” Moore v. Otero, 557 F.2d at 438.

III. First Amendment

Having granted the injunction on due process grounds, the district court did not explore Hughes’ claim that his transfer was an unconstitutional reprisal against him for the exercise of his first amendment rights. Even though the fourteenth amendment does not create any protectable interests, it does protect interests derived from independent sources — such as the first amendment. Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972); Brockell v. Norton, 688 F.2d 588, 592 & n. 7 (8th Cir.1982). The first amendment restrains the government from retaliating against a public employee on the basis of the employee’s speech or associations. Perry v. Sindermann, 408 U.S. at 593, 92 S.Ct. at 2694; see Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 574-575, 50 L.Ed.2d 471 (1977). In this case, the record before us is sufficient to dispose of Hughes’ claim that he was retaliated against for exercising his first amendment rights.

First, the evidence clearly shows that the transfer was designed to resolve a substantial and debilitating morale problem in Troop “G.” The Superintendent’s determination that Hughes’ conduct contributed to the morale problem was rational and, even though the transfer may have been indirectly traceable to Hughes’ arguably speech-related investigation of Elmore’s son, we nevertheless view the transfer as a reasonable nonpunitive and nondiscriminatory means of achieving the Patrol’s significant interest in maintaining discipline and harmony. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-1735, 20 L.Ed.2d 811 (1968); Kelley v. Johnson, 425 U.S. 238, 246-47, 96 S.Ct. 1440, 1445-1446, 47 L.Ed.2d 708 (1976). The Superintendent has the statutory authority to transfer personnel and is also charged with the overall operation of the Patrol, which is basically a paramilitary organization. The courts under our constitutional tripartite division of powers lack the right to transfer personnel in administrative or executive functions. The courts are not only ill-equipped to administer governmental functions that properly belong to the executive branch but were not set up for that purpose; neither should the courts attempt collaterally to influence executive functions by specifying when, where, and why certain individuals should or should not be transferred.¹⁰

Second, the record clearly shows that the transfer was not attributable to Hughes’ legitimate whistle-blowing activities concerning alleged corruption in Troop “G,” his surveillance of the Mountain View Airport, or his “political” association with Claud Trieman.

A. The Pickering Balance

While government employees do not relinquish their first amendment rights when they enter public service, those rights, unlike the rights of the citizenry-at-large, are subject to the state’s paramount interest in promoting the efficiency of the public services it performs through its employees. Rosado v. Santiago, 562 F.2d 114, 117 (1st Cir.1977); Santos v. Miami Region, U.S. Customs Service, 642 F.2d 21, 25 (1st Cir. 1981). As the Supreme Court emphasized in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-1735, 20 L.Ed.2d 811 (1968), “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.” Accordingly, public employers may legitimately curtail the speech activities of their employees to promote efficiency, loyalty, and departmental morale, provided these interests outweigh the employees’ speech interest. Id. Therefore, in determining whether the transfer here infringed Hughes’ first amendment rights, our duty as enunciated by the Court in Pickering is to weigh Hughes’ interests in speaking and gathering information against the Patrol’s interest in promoting efficiency, discipline and morale.¹¹ In weighing these interests, we are to consider both the nature of the employment relationship and the nature of the speech activity involved. Pickering v. Board of Education, 391 U.S. 563, 569-73, 88 S.Ct. 1731, 1735-1737, 20 L.Ed.2d 811. With this in mind, we are convinced that the evidence in this case tilts the balance so heavily in favor of the Patrol’s interest that Hughes’ first amendment claim borders on the frivolous.

B. The Patrol’s Substantial Interest in Maintaining Morale v. Hughes’ Dissension Causing Speech-Related Activity

More so than the typical government employer, the Patrol 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.” Gasparinetti v. Kerr, 568 F.2d 311, 315-16 (3rd Cir.1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2232, 56 L.Ed.2d 401 (1977); also see Note, Free Speech and Impermissible Motive in Dismissal of Public Employees, 89 Yale L.J. 376, 381, 381 n. 14 (1979). As the Supreme Court recognized in Kelley v. Johnson, 425 U.S. 238, 246-47, 96 S.Ct. 1440, 1445-1446, 47 L.Ed.2d 708 (1976), a police department has a substantial interest in developing “discipline, esprit de corps, and uniformity” within its ranks so as to insure the safety of persons and property. See Waters v. Chaffin, 684 F.2d 833, 839 (11th Cir.1982); Kannisto v. City and County of San Francisco, 541 F.2d 841, 843 (9th Cir.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1552, 51 L.Ed.2d 775 (1978); cf. Janusaitus v. Middlebury Volunteer Fire Department, 607 F.2d 17, 26 (2nd Cir.1979) (fire department, like police department, has greater than normal government interest in maintaining morale and discipline).

Pursuant to this substantial interest, the Patrol, as a paramilitary force, should be accorded much wider latitude than the normal government employer in dealing with dissension within its ranks. Wilson v. Taylor, 658 F.2d 1021, 1027 (5th Cir.1981); Gasparinetti, 568 F.2d 311, 321-22 (3rd Cir.1977) (Rosenn, J., concurring in part and dissenting in part); cf. Chappel v. Wallace, - U.S. -, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983).¹² This requires judicial deference on two levels in this case. First, the Patrol’s determination that an officer’s speech-related conduct has contributed to dissension within the ranks is entitled to considerable deference. Kannisto, 541 F.2d at 844, citing Kelley, 425 U.S. at 246, 96 S.Ct. at 1445. Second, the Patrol’s discretionary decision to reassign or discipline an officer whose speech-related conduct has contributed to dissension is similarly entitled to considerable deference. Waters, 684 F.2d at 839. As the Supreme Court has recently expressed in Connick v. Meyers, -U.S. -, -, 103 S.Ct. 1684, 1692, 75 L.Ed.2d 708, 723 (1983), “[w]hen close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.”¹³

Despite the district court’s failure to so find, the evidence in the record clearly shows that there was a substantial morale problem in Troop “G” due to a personality dispute between Lt. Elmore and Hughes. Superintendent Whitmer, the ultimate transferring authority, Major Hoffman, whom the Superintendent ultimately relied upon in making the transfer decision, and Captain McKee all testified that an intense personality conflict existed between Elmore and Hughes. Major Hoffman, who conducted interviews with a number of Troop “G” patrolmen, including Elmore and Hughes, concluded that because of this conflict, Hughes and Elmore had lost their effectiveness and were disrupting the effectiveness of the entire troop. Major Hoffman determined that the major source of the friction between Hughes and Elmore was Hughes’ various investigations and allegations regarding Elmore’s son’s drug-related activities. Hughes had also apparently become involved in a problem between the Elmore family and the parents of a 16-year-old girl who had been dating Elmore’s son. Elmore reciprocated by conducting his own investigation of Hughes and by indicating his intention to file a defamation of character suit against Hughes. During their interviews with Hoffman, both Hughes and Elmore expressed their personal dislike for each other.¹⁴

While this battle between Hughes and Elmore was raging, several patrol officers speculated that either Hughes or Elmore would be transferred, depending on the relative weight the Superintendent would accord to Elmore’s and Hughes’ political connections. Several officers expressed the view that Major Hoffman could not “win” no matter what suggestion he made to resolve the dispute. Hoffman also found that many of the officers had taken sides in the dispute. Some officers expressed negative feelings about Elmore because of his son’s possible involvement in drugs, and others disapproved of Elmore’s retaliatory investigation of Hughes. On the other hand, some officers were critical of Hughes’ obsession with Elmore’s family affairs. Officers were also critical of various actions Hughes had taken in the past, wholly apart from his investigation of Elmore’s son. Specifically, Hughes was criticized for: (1) filing baseless written reports criticizing Troop “G” radio operators for dereliction of duty;¹⁵ (2) spending too much time patrolling the Mountain View area so that he could associate with his wealthy industrialist friend; and (3) reporting to a local school board that two teachers were engaged in a “compromising assignation.”

Based on the foregoing evidence, we believe the Superintendent reasonably concluded that both Hughes 'and Elmore contributed to the morale problem in Troop “G,” leading the Superintendent to exercise his statutory discretion and reassign both officers to other troops. Our review of this highly discretionary transfer decision is constitutionally limited to the extent that it was traceable, either directly or indirectly, to Hughes’ speech-related activities. Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 283-85, 97 S.Ct. 568, 574-575, 50 L.Ed.2d 471 (1977); See Bowen v. Watkins, 669 F.2d 979, 985-86 (5th Cir. 1982). In this case, although Hughes’ transfer was directly traceable to dissension within Troop “G,” it was at least indirectly traceable to Hughes’ various speech-related accusations and investigations regarding Elmore’s son, and to a lesser extent his reports criticizing fellow officers, his report to the school board regarding two teachers, and his alleged on-the-job association with a wealthy industrialist. Even so, applying the factors enunciated in Pickering, 391 U.S. 570-73, 88 S.Ct. at 1735-1737, the Patrol has clearly demonstrated that these speech-related activities had the ultimate effect of (1) interfering with the Patrol’s maintenance of harmony among its employees; (2) impeding Hughes’ proper performance of his duties; and (3) interfering with the regular operation of the troop. We therefore conclude that the Patrol has clearly demonstrated its significant interest in dealing with the disruptive effects of Hughes’ speech-related conduct.

Furthermore, the transfer decision here was an entirely appropriate and reasonable means of achieving the Patrol’s significant interest in maintaining discipline and harmony. Admittedly, a transfer traceable to speech-related activity is properly the subject of first amendment challenge, even though the transfer resulted in no loss of pay, seniority, or other benefit. Egger v. Phillips, 669 F.2d 497, 501 (7th Cir.1982), McGill v. Board of Education of Perkins Elementary School, 602 F.2d 774, 780 (7th Cir.1979). However, because the officers in Troop “G” had divided their loyalties between Hughes and Elmore, the Superintendent was required to devise a solution that would appear completely impartial and, at the same time, improve the morale and efficiency of the troop. With this in mind, the Superintendent viewed a transfer of both Elmore and Hughes as an effective, nondiscriminatory and nonpunitive¹⁶ solution to the morale problem. To foreclose that solution in this case would entail a serious encroachment on the Superintendent’s discretionary decision to reassign personnel in the interest of promoting public safety. We therefore follow the dicta in Waters, 684 F.2d 839, that the “reasonable possibility of adverse harm will generally be enough to invoke the full force of judicial solicitude for a police department’s internal morale and discipline.” See also Connick v. Myers, - U.S. at -, 103 S.Ct. at 1692, 75 L.Ed.2d at 723.

We do not view Hughes’ various dissension causing, speech-related activities as being of such public and social importance as to override the Patrol’s substantial interest in maintaining troop morale. In Connick v. Myers, - U.S. at - 103 S.Ct. at 1690, 75 L.Ed.2d at 720, the Supreme Court held that where an employee’s speech does not involve a matter of public concern (considering the context, form and content of the speech), “a federal court is not the appropriate forum in which to review the personnel decision taken by a public agency allegedly in reaction to the employee’s [speech activity].” However, even if the speech activity may be fairly characterized as involving a matter of public concern, the state’s burden in justifying its personnel decision depends upon the nature of the employee’s expression. Id.U.S. at -, 103 S.Ct. at 1691-1692, 75 L.Ed.2d at 722. Particularly relevant in this inquiry is the manner, time, and place in which the speech-related activity occurred. Id. - U.S. at-, 103 S.Ct. at 1692, 75 L.Ed.2d at 723. As the court noted in Givhan v. Western Line Consolidated School District, 439 U.S. 410, 414 n. 4, 99 S.Ct. 693, 696 n. 4, 58 L.Ed.2d 619 (1979), “an employing agency’s institutional efficiency may be threatened not only by the context of the employee’s message but also by the manner, time, and place in which it is delivered.” Accord, Nathanson v. United States, 702 F.2d 162, 165-66 (8th Cir.1983) (where manner in which employee expressed his view hindered his ability to perform his job and threatened the overall operations of his employer, termination of employee did not violate his first amendment rights).

The most significant of Hughes’ dissension causing, speech-related activity concerned his investigation and accusation regarding Elmore’s son. While Hughes’ investigation and accusation of illegal drug activities may be fairly characterized as involving a matter of public concern, it was the highly antagonistic manner in which he conducted his investigation and expressed his views regarding this investigation that forced the Superintendent to make the transfer decision. Troop “6” officers, referring to Hughes’ accusations regarding Elmore and his son, concluded that Hughes had become too personally involved in Elmore’s family affairs, hindering his own job performance and disrupting troop morale. However, far from taking sides with Elmore in this dispute, the Superintendent decided to transfer both officers to other troops for the good of troop morale. Thus, we are not dealing here with a heavy handed measure, clearly designed to punish or chill the content of expressions on matters of public concern. Rather, the Patrol’s remedy here was narrowly tailored to deal with the disruptive effects of Hughes’ antagonistic manner of exercising his first amendment rights.

Furthermore, as has been recognized by other courts, where an officer’s speech-related activity has the effect of materially disrupting his working environment, such activity is not immunized by constitutional guarantees of freedom of speech. Kannisto, 641 F.2d at 844; Santos v. Miami Region, United States Customs Service, 642 F.2d 21, 25 (1st Cir.1981); Sprague v. Fitzpatrick, 546 F.2d 560, 564 (3d Cir.1976), cert. denied, 431 U.S. 937, 97 S.Ct. 2649, 53 L.Ed.2d 255. In Connick v. Myers, - U.S. -, 103 S.Ct. 1684, 75 L.Ed.2d 708, the Supreme Court indicated that a government employer can take action against an employee for potentially disruptive expression even though the government employer cannot “clearly demonstrate” that the expression “substantially interfered” with the institutional efficiency and morale. Id. - U.S. at -, 103 S.Ct. at 1691, 75 L.Ed.2d at 722.¹⁷ The court concluded that where an employee’s speech merely touched, rather than “substantially involved” matters of public concern¹⁸ and where “close working relationships were essential to fulfilling public responsibilities,” an employer can take action against the employee for expression “which [the employer] reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships.” Id. U.S. at -, -, 103 S.Ct. at 1692-1693, 75 L.Ed.2d at 723, 724. (Emphasis added.) As the Court explained:

When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate. Furthermore, we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.

Id. - U.S. at -, 103 S.Ct. at 1692, 75 L.Ed.2d at 723.

Fortunately, whether this lesser showing of interference with governmental operations applies here is of academic interest because even assuming Hughes’ speech “substantially involved” matters of public concern, the Patrol has met the stronger showing of “clearly demonstrating” that Hughes’ expression “materially and substantially interfered” with the maintenance of discipline and harmony in Troop “G.”

C. Hughes’ Purported Whistle-Blowing Activities

We recognize that the first amendment balancing test cannot be controlled by a finding that disruption has occurred where such disruption occurs because a public employee blows the whistle on the corruption of public officials. Porter v. Califano, 592 F.2d 770, 773-74 (5th Cir.1979); Atcherson v. Siebenmann, 605 F.2d 1058, 1063 (8th Cir.1979); Janusaitis v. Middlebury Volunteer Fire Dept., 607 F.2d 17, 25 (2nd Cir.1979). As the Fifth Circuit has aptly stated “it would be absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates who blow the whistle simply because their speech somewhat disrupted the office.” Porter, 592 F.2d 773-74. Thus, an employee’s first amendment interest is entitled to more weight where he is acting as a whistle-blower exposing government corruption. Brockell v. Norton, 688 F.2d 588, 593 (8th Cir.1982); Foster v. Ripley, 645 F.2d 1142, 1149 (D.C.Cir.1981). However, we do not view this case as a “whistle-blower” type case because Hughes’ transfer was wholly unrelated to his purported corruption exposing activities.

At trial, Hughes testified that he believed Captain McKee was involved in a ticket-fixing incident some five or six years ago, but that he had no personal knowledge regarding the incident. Captain McKee denied having ever fixed any traffic ticket. There was no other testimony regarding this alleged occurrence. Hughes also testified that Captain McKee and Lt. Hickman were involved in a cover-up of a prisoner abuse incident. Though having no personal knowledge of the incident, Hughes referred to a report written by Trooper Mitchell and Sergeant Zorsch indicating that an officer had allegedly handcuffed and struck an arrestee. Captain McKee allegedly concealed this report and, after interviewing the two officers purportedly involved in the beating, collaborated with Lt. Hickman in writing another report discrediting the arrestee’s allegations. Sergeant Zorsch testified that while he believed some of the arrestee’s allegations were true, Captain McKee could have reasonably reached a different conclusion and was not trying to cover up some-thing. Lt. Mitchell was unavailable to testify regarding the incident and Captain McKee and Lt. Hickman firmly denied any cover-up of the incident.

Hughes claims that his transfer was made in retaliation for his investigations and allegations regarding the ticket-fixing incident and the cover-up of the police brutality incident. Were this true, a different case would be presented. See Atcherson, 605 F.2d 1058. However, the evidence clearly shows neither Superintendent Whitmer nor Major Hoffman ever knew about, let alone disapproved of or attempted to interfere with, Hughes’ investigations and expressions regarding the alleged ticket-fixing or police brutality. Furthermore, there is no evidence that the dissension that existed within Troop “G” was even remotely related to Hughes’ investigations and expressions regarding these alleged improprieties. Superintendent Whitmer testified that he was completely unaware of Hughes’ allegations of improprieties until Hughes testified about them at trial. Major Hoffman testified that the alleged improprieties were never mentioned by any of the troopers he interviewed, not even by Hughes. Hughes testified that despite having the opportunity, he never told Hoffman or anybody else within the Patrol’s command staff about his investigations concerning these alleged improprieties; nor did Hughes ever file any report regarding these incidents. Under the circumstances, we do not believe Hughes has shown or indeed can ever show that his reputed whistle-blowing investigations were what caused his transfer. See Mount Healthy City School District v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977).

Finally, there is no. support for Hughes’ claim that he was transferred because the Patrol disapproved of or sought to interfere with his legitimate surveillance of the Mountain View Airport for possible drug importation. Quite to the contrary, Hughes admitted that Captain McKee actively encouraged Hughes’ surveillance, even though a state representative had filed a complaint regarding the surveillance. Hughes also testified that Captain McKee placed a call to Jefferson City requesting surveillance equipment for Hughes. Later, when the surveillance equipment was not forthcoming, Hughes never asked Captain McKee to renew the request. We can find no indication that the Patrol ever interfered with Hughes’ surveillance,¹⁹ even though Hughes had spent an entire year on this project without ever finding any tangible evidence of impropriety.

Furthermore, Superintendent Whitmer testified that the transfer decision had nothing to do with the state representative’s criticism of the airport surveillance. This testimony was corroborated by Major Hoffman’s internal report and recommendation regarding the morale problem in Troop “G.”

D. Hughes' “Political" Association with Claud Trieman

Despite the dissent’s suggestion, there is no support for Hughes’ claim that his off-duty first amendment protected association with Claud Trieman was a “motivating factor” behind the transfer decision, let alone the “but for” cause of the transfer decision. See Mount Healthy, 429 U.S. at 287, 97 S.Ct. at 576. The record does show that other troopers complained that Hughes’ on-the-job association with Trieman was interfering with the performance of his duties. Troopers also expressed the belief that Hughes was currying favors in order to elicit Trieman’s support in his bid for the Superintendent’s position. However, even the dissent is not so bold as to suggest Hughes’ associational rights permit him to associate with whomever he likes and whenever he likes while he is on duty.²⁰ And, even assuming this criticism of Hughes’ on-duty association with Trieman is interpreted as an implied criticism of Hughes’ legitimate off-duty association with Trieman, we believe the record clearly shows that the transfer decision would have been made regardless of such association. The primary source of the dissension in Troop “G” concerned Hughes’ and Elmore’s battle over Elmore’s son’s possible involvement in drug-related activity. Hughes’ association with Trieman was peripheral to this dissension and, hence, was not at the center of the Superintendent’s effort to remedy the dissension by transferring both Hughes and Elmore out of Troop “G.”

E. Conclusion

We therefore conclude that it is unnecessary and would be a waste of judicial resources to remand this case to the district court for a determination of whether the transfer was designed to discipline Hughes for his legitimate investigation of improprieties in Troop “G,” his surveillance of the Mountain View Airport, or his association with Claud Trieman.

The dissent, choosing to rely entirely on Hughes’ uncorroborated claims that he was disciplined for his legitimate whistle-blowing activities, concludes that we should not accord any deference to the Patrol’s determination to transfer Hughes because of his dissension causing activities. The dissent cites no case support for this novel proposition.²¹ Indeed, as we have mentioned above, the case authority clearly indicates that we should accord considerable deference to the Patrol’s determination that an employee’s activities have disrupted efficiency and morale. See Connick v. Myers, - U.S. at -, 103 S.Ct. at 1692, 75 L.Ed.2d at 723; Kannisto, 541 F.2d at 844, citing Kelley, 425 U.S. at 246, 96 S.Ct. at 1445; Waters, 684 F.2d at 839. In any event, despite the dissent’s suggestion, the district court did not find and the record clearly does not suggest that Hughes was transferred to punish him for his legitimate whistle-blowing investigations and his legitimate off-duty political associations.

The dissent also suggests that the district court’s findings are contrary to our conclusion that the transfer was designed to resolve dissension within Troop “G.” The district court made no finding concerning whether the transfer decision was designed to resolve a dissension problem within Troop “G”; nor did the district court discredit Superintendent Whitmer’s and Major Hoffman’s testimony regarding the gravity or source of the dissension problem within Troop “G.” The dissent however points out that the district court found that Hughes’ transfer was disciplinary in nature. This district court finding was the basis for its conclusion that Hughes was entitled to a “name-clearing” hearing. Certainly a finding that the transfer was sufficiently disciplinary in nature so as to trigger “name-clearing” hearing is not inconsistent with our conclusion that the transfer was also designed to remedy a dissension problem. Indeed, as we have indicated above, the transfer here may be characterized as disciplinary in the sense that it was indirectly traceable to Hughes’ dissension causing activities (as distinguished from his legitimate whistle-blowing activities). However, having carefully weighed the substantial interests of the Patrol and Hughes’ speech interest, we have concluded that the transfer decision here was an entirely reasonable measure and not violative of Hughes’ first amendment rights.

In striking the Pickering balance in this case, we are compelled to emphasize that free speech claims are not to be considered in a vacuum but must be viewed in light of the circumstances and in the context of all relevant conditions existing at the time of the asserted free speech activities. Nor should free speech rights be utilized to provide immunity to other actions that merit condemnation, discipline or sanctions assessed in the public interest. See Mt. Healthy, 429 U.S. at 285-86, 97 S.Ct. at 575-576. The public weal demands that public officials carry out their duties and responsibilities so that their offices are run efficiently, harmoniously and responsive to the administration of the public service they are employed to perform. In particular, paramilitary units have a need to uphold morale, an esprit de corps and an affirmative public image.

Judgment reversed.

1 . During the relevant events leading to this lawsuit, Alan Whitmer was the Superintendent of the Missouri Highway Patrol. After the district court issued its opinion, Howard Hoffman became the Superintendent.

2 . Hughes also enlisted the aid of this friend in Hughes’ unsuccessful bid to become Superintendent of the Patrol. Major Hoffman became and is now the Superintendent of the Patrol.

3 . Both parties stipulated that Superintendent Whitmer acted under color of state law in ordering Hughes’ transfer.

4 . See discussion infra at 1414-1416.

5 . Where there is no state court precedent, ordinarily we will give substantial weight to the interpretation of the district court judge who sits in the lex loci state. Bishop v. Wood, 426 U.S. 341, 345-46, 96 S.Ct. 2074, 2077-78, 48 L.Ed.2d 684 (1976). But, because the parties have an equal right to have questions of state law reviewed on appeal, we are not bound by the district court’s interpretation, or to a clearly erroneous standard of review. Luke v. American Family Mut. Ins. Co., 476 F.2d 1015, 1019 & n. 6 (8th Cir.1973).

6 . Whenever a troop commander receives an accusation that someone under his command has violated a law, rule, regulation, or order, Section II requires him to appoint an investigator. The investigator has the responsibility of contacting the complainant in person and forwarding a complete written report through channels to the superintendent. The report must classify the complaint as either: Unfounded, Exonerated, Not Substantiated, or Substantiated. The superintendent then determines what disciplinary action, if any, will be taken. The accused trooper is to be advised of the complaint against him and may be directed to give his written version of the facts. After the trooper is advised of the nature of the disciplinary action, he may appeal under Section IV of the General Order.

7 . Section IIIA gives supervisory personnel the responsibility of disciplining subordinates within the supervisor’s direct line of command. If, after investigating the incident, the supervising officer feels that the penalty to be recommended or assessed is more serious than an oral reprimand, he must make a report through channels. Under Section IIIB, if the supervisory officer is a corporal or above, he may make an oral reprimand or impose an emergency suspension for the remainder of the accused trooper’s tour of duty. If the supervisory officer is a sergeant or above he may assess a fine up to $50.00 or recommend a disciplinary transfer, suspension up to 30 days, or dismissal. If the supervisory officer is troop commander or above, he may accept the trooper’s written resignation and “take immediate steps toward terminating an employee if the employee desires to tender his resignation rather than submit to further investigation and a hearing,” or file formal charges. Short of dismissal, or filing of formal charges, a troop commander or above need only inform the effected trooper of the nature of the disciplinary action before imposing it.

8 . The district court below was of the opinion that 42 U.S.C. § 1983 gave it jurisdiction to enforce state law personnel procedures, citing Doe v. Hampton, 566 F.2d 265, 271-72 (D.C. Cir.1977) and Villareal v. EEOC, No. 80-0992 CVW2, Adopted Magistrate’s Report and Recommendation Denying Plaintiffs Motion for Preliminary Injunction at 8-9 (W.D.Mo. July 20, 1981). The district court’s reliance on these two cases is misplaced. Both Hampton and Villareal were cases brought under the court’s general federal question jurisdiction, 28 U.S.C. § 1331 to adjudicate the plaintiffs rights under federal civil service laws. See, e.g., 5 U.S.C. §§ 706(2)(E), 7502-03, 7510, 7512-13, 2302; 5 C.F.R. § 771.307(b) (1977). Without an identifiable fourteenth amendment liberty or property interest, a federal court has no jurisdiction under 42 U.S.C. § 1983 to enforce state employee procedural rights that are created by state law.

9 . Evidence was adduced at trial that at least one other trooper who had received a disciplinary transfer had been promoted after he was transferred.

10 . As noted by the Supreme Court in Bishop v. Wood, 426 U.S. 341, 349, 96 S.Ct. 2074, 2079-2080, 48 L.Ed.2d 684 (1975) “[t]he federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies.”

11 . As the Court recently expressed in Connick v. Myers, - U.S. -, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), “the courts must reach the most appropriate possible balance of the competing interests.” Id. - U.S. at -, 103 S.Ct. at 1691, 75 L.Ed.2d at 722. Furthermore, this inquiry is treated as a legal determination which appellate courts are qualified to make. Id. - U.S. at -, 103 S.Ct. at 1690 n. 7 at 720, fn. 7 (“The inquiry into the protected status of speech is one of law not fact.”). See also Bickel v. Burkhart, 632 F.2d 1251, 1256 (5th Cir.1980); Tygrett v. Barry, 627 F.2d 1279, 1287 (D.C.Cir.1980).

12 . In Chappel v. Wallace, the Supreme Court recently articulated the very limited role the judicial branch has in reviewing military decisions that have an effect on soldier’s constitutional rights. In unanimously holding that military personnel may not maintain suits to recover damages for alleged constitutional rights, the court stated:

... The special nature of military life, the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel, would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they are charged to command. Here, ... we must be “concem[ed] with the disruption of *[t]he peculiar and special relationship of the soldier to his superiors’ that might result if the soldier were allowed to hale his superior into court.” Id.-U.S. at -, -, 103 S.Ct. at 2367. (Citations omitted.)

While the military is distinguishable from the Patrol, we believe the same factors necessitating judicial deference to military decision — the compelling need for decisive action, discipline and harmony in the ranks — counsel in favor of according deference to the Patrol’s decision here.

13 . The dissent urges that this court should not accord any deference to the Patrol’s determination as to the source of and remedy to dissension within its ranks. However, the dissent offers no cases directly supporting this questionable proposition. The dissent does point to cases saying we should view the government employer’s self serving, after the fact justifications with studied scepticism. However, here there was nothing “after the fact” or pretextual about the justification for the transfer.

14 . The dissent’s suggestion that the dissension in Troop G occurred only after Elmore’s visit to Superintendent Whitmer in early October is a distortion of the record. According- to the troopers interviewed by Hoffman, the dissension had existed for some time prior to the Hoffman report to Superintendent Whitmer in early October. It was only after receiving Hoffman’s report in early October that Superintendent Whitmer first learned about the gravity of the problem. It is absurd to suggest that because Whitmer and Hoffman first learned about the serious nature of the problem in early October the dissension problem could not have arisen at some earlier time.

15 . As the dissent points out, Hughes testified that one of these reports was entirely justified. Other troopers apparently disagreed. The trial court did not make any finding on whether the reports were well-founded or baseless.

16 . Hughes was offered moving expenses and was provided the same job status and pay in Troop “C” as he had enjoyed in Troop “G.” If the transfer had been punitive, Hughes could have been denied moving expenses. The view shared by a few rural troopers that Troop “C” was an undesirable assignment is not particularly probative as to whether the transfer was punitive. Major Hoffman, who recommended the transfer to Troop “C,” testified that the decision was made based upon the personnel needs of other troop commanders.

17 . In Tinker v. Des Moines School Dist, 393 U.S. 503, 513, 89 S.Ct. 733, 740, 21 L.Ed.2d 731 (1968) the Supreme Court first applied the material disruption standard in the context of the academic environment. The Court noted that where a student’s expression “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school,” such expression was not protected by the first amendment. In applying this standard, the Court emphasized the deeply rooted tradition of encouraging the free and robust exchange of ideas in the academic setting. Id. at 512, 89 S.Ct. at 739-740. In Pickering, the Supreme Court gave no indication whether a lesser showing of disruption or interference would be necessary to curtail the speech-related activities of public employees outside the context of the academic environment.

18 . In Connick, the employee’s expression entailed a questionnaire to other employees basically criticizing her supervisor’s internal office policies, with only one question addressing whether the employees felt pressured to work in particular political campaigns.

19 . In an internal memorandum, Lt. Hickman expressed his opinion that it was not necessary for Hughes to spend all of his time patrolling the Mountain View area. We do not interpret this suggestion as either disapproving of or interfering with Hughes’ surveillance of the Mountain View Airport. Instead, Lt. Hickman’s suggestion was made because an officer was already stationed in the Mountain View area.

20 . The dissent points to the Disciplinary Report of Captain McKee as evidence that officers were critical of Hughes “off-duty” association with Trieman. However, far from supporting the dissent’s position, the Report actually reveals that McKee, like other troopers in “Troop G,” believed that Hughes’ own personal political ambitions were determining where he would decide to spend his time while on duty. And while the trial testimony does contain references to Hughes’ political association with Trieman, nothing about those references can be interpreted as a criticism of Hughes’ legitimate off-duty association with Trieman.

21 . See supra, note 13.