The opinion of the court was delivered by: PARKER
In this proceeding, declaratory and injunctive relief are sought by two employees of the District of Columbia Government who claim a violation of their First Amendment rights. The defendants are the District of Columbia, the Mayor, Director of Personnel and several other officials. Jurisdiction is conferred pursuant to 28 U.S.C. §§ 1331, 1332, 2201 and 2202.
Plaintiff Phillip Matthews, a parole officer employed by the District of Columbia Department of Corrections, and plaintiff Kenneth M. Cox, an employee of the District of Columbia Fire Department, bring this action against the District of Columbia and certain named officials who in their status as officers of the D.C. Government are alleged to have the authority to promulgate and enforce regulations governing plaintiffs' conduct as employees of the District of Columbia.
Matthews and Cox challenge as violative of their First Amendment rights, Chapter 10(b)(2) of the District of Columbia Personnel Manual,
a D.C. Government-wide regulation prohibiting employees from making public "any disagreement with, or criticism of the official policies and operating practices of the D.C. Government." They also challenge agency regulations which implement that policy, including (1) Department of Corrections Employee Regulation 1.11, forbidding without a supervisor's prior approval, "release of information concerning any phase of the Department's affairs," and (2) Article III, Section 15 of the Fire Department Order Book, similarly prohibiting employees from disseminating information outside the Department. Each plaintiff sought relief for himself with respect to disciplinary actions taken or threatened against him for violation of the said regulations. Plaintiff Matthews was suspended for one day without pay on January 19, 1976, following an administrative hearing in which the Department of Corrections determined that he had violated Regulation 1.11 by discussing with a Washington Post reporter certain general aspects of the Department's programs. Plaintiff Cox was subject to a special investigation by his superiors in the Fire Department following certain statements he made to a WMAL radio reporter concerning that Department's policy in allocating its fire-fighting resources.
Plaintiffs allege in their complaint that Section 10(b)(2) was designed to and did suppress criticism of the policies and practices of the D.C. Government. They further allege that the Department of Corrections and the Fire Department implemented Section 10(b)(2) through the regulations referred to above. Finally, plaintiffs argue that each of the regulations was unconstitutional on its face and as applied.
Section B-2, Internal Disagreements, of Chapter 10 is being DELETED in its entirety. Persons maintaining that Manual should line out this entire paragraph. Paragraphs 3 through 8 in this Section should be renumbered 2 through 7 respectively.
Accordingly, any agency directives containing similar prohibitions against public criticism of official policies or operating practices must be rescinded immediately.
Later, the defendant Delbert C. Jackson, Director of the Department of Corrections, sent the following memorandum to the Corporation Counsel:
This is in reference to your memorandum dated August 12, 1976, in the subject area of Mr. Phillip M. Matthews' suspension under Basic Regulation 1.11 which you advise is in violation of the First Amendment, U.S. Constitution.
In accordance with your advice, I have rescinded Mr. Matthews' suspension and ordered him paid for January 19, 1976. I have also placed a stop on Basic Regulation 1.11 Release of Information and issued orders for the expungement of this Regulation from the directives, manuals and training material of this Department.
At the same time, and by separate memorandum, defendant Jackson directed that plaintiff Matthews' one-day suspension be rescinded and that Regulation 1.11 be removed from the Department's regulations. Thereafter, on September 13, 1976, defendant Burton Johnson, the D.C. Fire Chief, similarly issued a directive expunging Article III, Section 15, from the Fire Department's Order Book.
Based upon the actions taken by and the representations made to the Court by the Corporation Counsel, there is no dispute that former Section 10(b)(2) of the Personnel Manual and the implementing regulations and orders of the Department of Corrections and the Fire Department were violative of the First Amendment. They imposed unduly broad ...