West v. Congemi

REVISED MARCH 23, 2000
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30258
WESTLY WEST; DENNIS LYNCH; ROBERT POLITO;
HENRY JAUME; BRUCE VERRETTE,
Plaintiffs-Appellants,
versus
NICK A. CONGEMI, Chief of Police; CITY OF KENNER,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
Lower Court No. 98-CV-1654-T
March 21, 2000
Before JONES, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:*
Having carefully considered this appeal in light of the
briefs, oral arguments, and pertinent portions of the record, we
agree with the district court’s analysis of the issues and affirm
largely for the reasons stated in its opinion entered November
23, 1998.
The issue is whether the concededly constitutional
“Little Hatch Act” of Louisiana, LA. R. S. 33:2504, may be enforced
against police officers who, acting as representatives of a police
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except for the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
officers’ association in Kenner, communicated the association’s
endorsement of and support for a political candidate. Police Chief
Congemi fired the appellants according to the direct command of the
statute.
On appeal, counsel for appellants has been less than
forthright in distinguishing between his individual clients’
interest and that of the association, which was not permitted to
intervene in the district court.1 Notwithstanding the confusion,
we construe appellants’ complaint to be that although they were
legitimately forbidden by the Little Hatch Act from personally
engaging in political activities covered by that statute while
employed as civil servants, the statute may not constitutionally be
applied to them when they act as officers of the association. To
do so, appellants claim, violates their First Amendment speech and
associational rights.
Acting as officers of their association and through it,
the appellants caused a political contribution to, and an
1
Appellants’ brief states: “The issue involved here is rather whether
associations and unions of civil service employees may be made a target for
attack and prevented from making political endorsements in their own name by the
strategy of terminating union officers who carry out the official acts of the
organization in private and without identifying themselves publicly in any way
as civil servants.” One might think that the association, rather than the police
officers is the appellant.
But the association could -- and did -- notice an appeal only from
the denial of intervention, a point which was not briefed and is therefore
waived.
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endorsement of, Candidate Stagni’s campaign to be made. Such
activities, undertaken “directly or indirectly,” violate the plain
language of Section 2504. Appellants contend, however, that when
they act as association officers, their conduct is shielded from
the prohibitions of the Little Hatch Act. We disagree. Like the
district court, we conclude that this court’s decision in Wachsman
v. City of Dallas, 704 F.2d 160, 172 (5th Cir. 1983) is
controlling:
One further problem deserves our attention
before we address the restrictions on
contributions. The district court’s
invalidation of section 16(b)(1) regarding
endorsements presented at nonpolitical
gatherings applied only to individual
employees, and not to their organizations.
The Committee asserts that this ruling ignores
its first amendment rights. These rights are
derived from the individual members’
associational and speech rights, see Citizens
Against Rent Control, and from the public’s
right to free and uninhibited comment on
political issues. See Bellotti. Although the
district court failed to state why it reached
different conclusions regarding Wachsman and
the Committee, we perceive an appropriate
distinction that justifies its order.
[3] The Committee must act through a
spokesman. Regarding individual employees,
the court was obviously concerned with
limiting an employee’s right to endorse a
candidate at a private and/or nonpolitical
gathering (e.g., a Kiwanis Club meeting or a
neighborhood barbecue). Such a setting
suggests a public employee acting as a private
citizen. This suggestion, however, does not
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fit a situation in which an official spokesman
for an organization of city employees
announces in that capacity the organization’s
endorsement of a particular city council
candidate. The latter carries with it all the
pernicious possibilities inherent in allowing
individual employees to so address political
gatherings. The arrival of an official
spokesman bearing such an endorsement largely
imbues a gathering with a political flavor.
Indeed, the appellant Committee here is the
avowedly political arm of the city employee
police and firefighters organizations. Thus,
the City’s interests in prohibiting
endorsements will be present in any situation
in which an organization *173 of city
employees desires to make an endorsement.
Therefore, the trial court’s order in this
regard is affirmed. (footnote omitted/emphasis
added).
Wachsman and the district court also relied on the
Supreme Court’s decision in U.S. Civil Service Comm’n v. Nat’l
Ass’n of Letter Carriers, 413 U.S. 548, 93 S. Ct. 2880 (1973),
upholding similar restrictions on political activity by civil
servants.
Because Chief Congemi’s enforcement of the Little Hatch
Act’s ban on “direct or indirect” political activity by these
appellants was constitutional, we need not reach the other issues
raised on appeal. The judgement of the district court in favor of
appellees is affirmed.
AFFIRMED.
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