employees of their superiors. In fact, because of the enormous variety of fact situations in which critical statements by public employees might be thought to be grounds for dismissal by their superiors, the Court refused to lay down any general standard against which such criticism might be judged. 391 U.S. at 569.
The Court rather attempted to balance the teacher's interest as a citizen in speaking about matters of public concern against the State's interest in promoting the efficiency of its public services. Without intimating how it would rule if certain elements had been present in Pickering's relationship with the Board of Education, the Court, in balancing the conflicting interests, pointed out that such elements were not present in that case:
1. Pickering's statements were not directed towards a person with whom he would normally be in contact in the course of his daily work as a teacher. 391 U.S. at 569-570, 88 S. Ct. at 1735;
2. Thus there was not present any question of maintaining discipline by immediate superiors and harmony among co-workers. Id. at 570, 88 S. Ct. at 1735;
3. Pickering's relationship with the Board of Education was not the kind of close working relationship for which it could be claimed that personal loyalty and confidence are essential. Id., 88 S. Ct. at 1735;
4. Pickering's letter did not damage the professional reputation of the Board of Education and did not foment controversy and conflict among Pickering's co-workers. Id., 88 S. Ct. at 1736.
Although Pickering, as was stated above, lays down no rule where such elements are present, the absence of those elements in that case clearly influenced the Court in its holding that Pickering should not have been dismissed from his position. Elements which were absent in Pickering are, however, clearly present in the instant case. Plaintiff's interest in stating that he would falsely report himself sick and organize and lead such a "sick-out" if that were the "general consensus" of the other officers has to be balanced against the Police Department's interests in maintaining: (1) discipline by immediate superiors; (2) harmony and morale among its officers; (3) personal loyalty of its officers to the department and to the community; and (4) the professional reputation of the department in the community. In the circumstances of this case, plaintiff's interest as a citizen in making such statements whether in public or in an interview with his superiors is outweighed by the interests of the police department where the department is judging the conduct and capacity of a probationary officer.
Plaintiff cites several recent cases which have applied the balancing of interests test set forth in Pickering to situations involving the disciplining or dismissal of police officers. Plaintiff concedes that none of those cases presents facts identical to those in the case at bar. Having examined those cases, the Court finds that they do not call for a reversal of the decision of the police department to dismiss plaintiff under D.C. Code § 4-105, supra. The issue here is not the constitutionality of an overly broad statute or regulation prohibiting controversial or disparaging statements to the public about police department operations or personnel, Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970); Flynn v. Giarrusso, 321 F. Supp. 1295 (E.D. La. 1971); Brukiewa v. Police Commissioner of Baltimore, 257 Md. 36, 263 A. 2d 210 (1970); In re Gioglio, 104 N.J. Super. 88, 248 A. 2d 570 (1968). Nor does this case involve the discharge of a police officer on the basis of private conduct which bears no relationship to his official duties, Battle v. Mulholland, 439 F.2d 321 (5th Cir. 1971); Bruns v. Pomerleau, 319 F. Supp. 58 (D. Md. 1970).
Plaintiff nevertheless contends that Battle, Brukiewa and In re Gioglio, supra, place the burden on the police department to make a factual showing that the employee's statements resulted in: (1) reduced efficiency or usefulness of the employee as a police officer; or (2) reduced efficiency, discipline or harmony in the operation of the police department. But such a burden would be placed on the police department only if plaintiff first made a sufficient showing that his dismissal resulted solely in reprisal for his exercise of First Amendment rights. See Perry v. Sinderman and Battle v. Mulholland, supra.
In Battle, the Court could not determine whether the officer had voluntarily resigned or had been discharged solely because of constitutionally protected conduct unrelated to police activities. The Court of Appeals, therefore, reversed and remanded the case to the District Court for further proceedings in light of its opinion. In Brukiewa, supra, the Court found that the only basis for the disciplining of the officer in that case was his criticism of the police department administration in a televised interview. And in the case of In re Gioglio, supra, the Court found that one of the two charges formally preferred against the officer in intra-departmental proceedings was based upon statements made in an interview with a newspaper reporter. In Brukiewa and Gioglio, therefore, the Court found that the disciplined officers had shown sufficiently that the actions taken against them resulted solely from their exercise of First Amendment rights. Consequently, the burden was placed on the police department in those cases to show the harm to the efficiency of the officer or the department's operations resulting from the officer's statements.
In the instant case, plaintiff has not shown that his dismissal resulted from the exercise of his First Amendment right of free speech. He was dismissed pursuant to D.C. Code § 4-105, supra, after his supervisors determined that his conduct or capacity for permanent appointment was unsatisfactory. In making such determinations, the officials of the department need not be deaf to avowed statements of a probationary officer which evidence an attitude inimical to the discipline and efficiency of the department and its obligations to the community.
In light of the foregoing, defendants' motion for summary judgment is granted, and plaintiff's motion for preliminary injunction is denied as moot. An appropriate order is being entered with this opinion.