FOR PUBLICATION                                           FILED
                                                       Mar 16 2012, 9:19 am


                                                              CLERK
                                                            of the supreme court,
                                                            court of appeals and
                                                                   tax court




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

BART M. BETTEAU                               BRANDON W. SMITH
Betteau Law Office, LLC                       STANLEY O. FAITH
New Albany, Indiana                           Faith Ingle Smith LLC
                                              New Albany, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

JACK MESSER,                                  )
                                              )
      Appellant-Petitioner,                   )
                                              )
             vs.                              )      No. 22A05-1104-MI-179
                                              )
NEW ALBANY POLICE DEPARTMENT,                 )
                                              )
      Appellee-Respondent.                    )


                    APPEAL FROM THE FLOYD SUPERIOR COURT
                         The Honorable Roger L. Duvall, Judge
                           Cause No. 22D02-1010-MI-2014

                                    March 16, 2012

                              OPINION – FOR PUBLICATION



May, Judge
       Jack Messer was a New Albany police officer who made a racially-charged

remark while talking with other officers after roll call. The comment was leaked to the

press. The New Albany Police Merit Commission found Messer‟s statement was conduct

unbecoming an officer and suspended him. On judicial review, the trial court granted the

New Albany Police Department‟s motion for summary judgment, finding there was no

issue of fact as to whether Messer‟s conduct was unbecoming an officer and provided a

basis for his discipline.

       We affirm.1

                         FACTS AND PROCEDURAL HISTORY

       The facts most favorable to Messer, the non-moving party, are that Messer worked

for the New Albany Police Department for twenty-seven years.                       The Department

conducts roll call in an area where the public is not permitted, and matters discussed at

roll call are not disseminated to the public. After formal roll call it was typical for small

groups of officers to engage in private conversations and discuss matters they believed

would never become public.2



1
  We heard oral argument February 8, 2012, at Silver Creek High School in Sellersburg. We thank the
School for its hospitality and commend counsel on the quality of their advocacy.
2
   The Department includes in its statement of facts a number of citations to evidence favorable to the
Department, and does not acknowledge much of the evidence favorable to Messer. For example, it cites
testimony that things said at roll call were expected to be spread and repeated by officers, and Messer
would not have reason to think his comment would remain private. On review of a summary judgment,
we construe the pleadings, affidavits, and designated materials in a light most favorable to the non-
movant, here, Messer. Where there are disputed material facts, or if undisputed facts give rise to
conflicting reasonable inferences that affect the outcome, we resolve them in favor of the non-movant.
Deuitch v. Fleming, 746 N.E.2d 993, 997 (Ind. Ct. App. 2001), reh’g denied, trans. denied.
                                                  2
       After roll call in January 2010, Messer joined in a conversation with some other

officers about public housing. During the conversation Messer said, “the biggest mistake

that government made was giving those people civil rights.” (App. at 126.) Other

officers challenged Messer‟s statement, and Messer explained that he misspoke and did

not mean what he said. No officer filed a complaint, and Messer‟s supervising officer did

not believe a violation had occurred so he took no action.

       Several days later the comment was leaked to the public. The Police Department

conducted an internal investigation and cleared Messer of wrongdoing, but the Police

Merit Commission issued a complaint. It found Messer‟s statement caused offense to

members of the community, raised suspicions of racism in the Department, and was

conduct unbecoming an officer. The Merit Commission suspended Messer for thirty

days. Messer petitioned for judicial review, and the trial court granted the Department‟s

motion for summary judgment.

                            DISCUSSION AND DECISION

       The purpose of summary judgment is to terminate litigation about which there can

be no factual dispute and which may be determined as a matter of law. Deuitch v.

Fleming, 746 N.E.2d 993, 997 (Ind. Ct. App. 2001), reh’g denied, trans. denied. When

reviewing a summary judgment, we apply the same standard as the trial court. Id.

Summary judgment should be granted only if the designated evidentiary material

establishes there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Id. On review, we construe the pleadings, affidavits, and
                                         3
designated materials in a light most favorable to the non-movant. Id. Where there are

material disputed facts, or if undisputed facts give rise to conflicting reasonable

inferences that affect the outcome, they must be resolved in favor of the non-movant. Id.

We give careful scrutiny to assure that the losing party is not improperly prevented from

having its day in court. Id.

       Messer argues his statement was speech protected by the First Amendment, so the

Department should not have subjected him to discipline for making it. The parties agree

the First Amendment question before us3 is governed by the analysis in Pickering v.

Board of Education, 391 U.S. 563, 566 (1968). In Pickering, the United States Supreme

Court held the First Amendment protected a public school teacher who wrote a letter to a

newspaper in which he criticized the allocation of school funds and the manner by which

the school board raised such funds. Pickering did not establish a general constitutional

standard applicable to all government-employee-speech cases, but held the government‟s

interest as employer must be balanced on a case-by-case basis against the individual and

societal First Amendment interests. Love v. Rehfus, 946 N.E.2d 1, 9 (Ind. 2011), reh’g

denied.

       Pickering provides a two-step analysis for determining whether the First

3
   Much of Messer‟s argument on appeal is based on the premise his remark was protected by the First
Amendment, which premise the Department does not explicitly challenge. However, the Department
argues Messer did not preserve the First Amendment issue for the trial court‟s review because he did not
raise it before the Merit Commission.
  Claims of a constitutional nature need not necessarily be presented to an agency as a precondition to
judicial review. Ind. Dep’t. of Highways v. Dixon, 541 N.E.2d 877, 882 (Ind. 1989). We decline to find
waiver and choose to decide this appeal on the merits.

                                                   4
Amendment protects an employee‟s speech.            First, the employee must have been

speaking as a citizen on a matter of public concern. Id. The Department concedes

Messer was speaking as a citizen on a matter of public concern. If the employee satisfies

this threshold, a balancing test must be applied to determine if the government was

justified in treating the employee differently from any other member of the general

public. Id.

       Even if an employee speaks as a citizen on a matter of public concern, the

government employer can restrict the speech if it can prove the First Amendment

interests of the employee and society are outweighed by the employer‟s interest in

operational effectiveness and efficiency. Id. at 10. Government employees who speak as

citizens on matters of public concern are subject only to speech restrictions that are

necessary for their employers to operate efficiently and effectively. Id. Therefore, to

justify a retaliatory action, the government must show the speech had the potential to

disrupt the efficiency and effectiveness of its operations. Id.

       Factors to consider in a Pickering balancing include (1) whether the speech would

create problems in maintaining discipline or harmony among co-workers; (2) whether the

employment relationship is one in which personal loyalty and confidence are necessary;

(3) whether the speech impeded the employee‟s ability to perform his responsibilities; (4)

the time, place and manner of the speech; (5) the context in which the underlying dispute

arose; (6) whether the matter was one on which debate was vital to informed decision

making; and (7) whether the speaker should be regarded as a member of the general
                                        5
public. Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir. 2000), reh’g denied, cert. denied

531 U.S. 1012 (2000) (cited in Love, 946 N.E.2d at 13).

         The government employer must establish potential disruptiveness or harmful

effects of the speech, but is not required to produce actual evidence of disruption. Id.

“Substantial weight is given to the government‟s reasonable predictions of disruption

when it acts as an employer.” Id. at 11. The government employer does not need to wait

for the actual disruption of the office and the destruction of working relationships to

manifest before taking action. Id. Still, there must be evidence supporting the threat of

harm to the government entity -- the government‟s concerns are not to be taken at face

value.    Id.   Thus, mere allegations of disruption are not sufficient to sustain the

government‟s burden of showing that the speech threatened the efficiency and

effectiveness of its operations. Id.

         Applying the Pickering balance “is not an exercise in judicial speculation.” Id.

(quoting Gustafson v. Jones, 290 F.3d 895, 909 (7th Cir. 2002)). Rather, courts must

examine the ordinary or foreseeable effect of the conduct to determine whether it would

be reasonably calculated to create division or to have impaired discipline. Id. The

government must therefore provide sufficient evidence that the employee‟s speech had

the potential to disrupt or harm its operations had the retaliatory action not been taken.

Id.

         If the government carries that burden, the nature and extent of the potential

disruption must be weighed against the First Amendment value of the speech. Id. The
                                           6
government‟s burden under Pickering varies depending on the nature of the employee‟s

expression. Id. The stronger the First Amendment value of the speech, the stronger

showing of harm the government must make to justify its action. Id.

       In Love, a fire chief, Rehfus, terminated Love, a firefighter, for sending to a small

group of citizens a private email supporting a candidate for township trustee. The

candidate pledged that, if elected, he would hire a new fire chief. The chief believed

Love‟s email contained false statements of fact regarding different issues involving the

fire department and a public park. Chief Rehfus terminated Love‟s employment for

“conduct unbecoming a firefighter and failure to be truthful.” 946 N.E.2d at 7. Our

Indiana Supreme Court found the email was constitutionally protected speech under the

Pickering test.

       The Court noted competing interests:

       The government . . . has broader discretion to regulate the speech of its
       employees, because there are different interests at stake when it acts as
       employer than when it acts as sovereign. When the government acts as an
       employer, its interest “in achieving its goals as effectively and efficiently as
       possible” is given greater value. Similar to a private employer, the
       government must exercise some control over its employees‟ words and
       actions to fulfill its public duties. Thus, citizens who become government
       employees must accept certain limitations on their freedom.
              Nevertheless, citizens who work for the government remain citizens
       and do not completely forfeit their fundamental liberties by virtue of their
       public employment. Moreover, there is a strong societal interest in
       allowing public employees to contribute their well-informed ideas and
       opinions to public debate.

Id. at 9 (citations omitted).

       Messer‟s statement was more like that addressed in City of Indianapolis v. Heath,
                                          7
686 N.E.2d 940 (Ind. Ct. App. 1997), trans. denied, and it was therefore permissible to

discipline him for it. Heath, a police officer and leader of a militia group, was addressing

a public meeting while dressed in a police uniform as a representative of the Indianapolis

Police Department. He intentionally referred to Indianapolis Mayor Stephen Goldsmith

as “Goldstein” while commenting on the Mayor‟s fiscal policies. The police chief told

Heath his comments violated police rules and regulations because he had made anti-

Semitic remarks about the Mayor, and Heath was demoted and suspended for thirty days.

       The Merit Board affirmed. Heath then appealed to the Marion Superior Court. It

reversed, finding the statement was protected speech, there was no evidence to support

the Merit Board‟s finding Heath‟s conduct was detrimental to the efficient operation and

the general discipline of the police department, the Merit Board did not show a

compelling reason for the disciplinary action against Officer Heath when balanced

against his free speech guarantees, and the decision was arbitrary and capricious. Id. at

942.

       We reversed the trial court and reinstated the Merit Board‟s decision:

       [W]hile we concede Officer Heath‟s right to make the remarks in question,
       the likely effect of the remarks on the Indianapolis Jewish community were,
       or should have been, obvious. Heath himself evinced knowledge of the
       potentially inflammatory nature of the remark by prefacing it with the
       comment, “I better not say it, ah well . . . .” Record at 9. This occurred
       while Heath was delivering, in his words, “an official talk . . . as a police
       officer,” Merit Board Transcript at 68, in a public place while dressed in his
       police uniform. In view of the difficult and critical role played by the
       Indianapolis Police Department in the local community, and the importance
       of fostering confidence in and trust of that agency among members of the
       community, we conclude that the interest of the City of Indianapolis,
                                              8
        specifically the IPD, outweighed the interests of Officer Heath under the
        Connick [v. Myers, 461 U.S. 138, 145 (1983)] balancing test.

Id. at 945-46 (footnote omitted).4

        Police departments are entitled to special deference under the Pickering analysis:

        Deference to the employer‟s judgment regarding the disruptive nature of an
        employee‟s speech is especially important in the context of law
        enforcement. “[T]here is a particularly urgent need for close teamwork
        among those involved in the „high stakes‟ field of law enforcement.
        Speech that might not interfere with work in an environment less dependent
        on order, discipline, and esprit de corps could be debilitating to a police
        force. Such considerations are permissible in weighing constitutional
        violations.”

Kokkinis v. Ivkovich, 185 F.3d 840, 845 (7th Cir. 1999) (quoting Breuer v. Hart, 909 F.2d

1035, 1040 (7th Cir. 1990)).

        In Kokkinis, unlike in the case before us, the statements did not address a matter of

public concern – they simply “expressed the plaintiff‟s personal opinion as to the Chief‟s

vindictiveness.” Id. at 844. Kokkinis appeared on a television news report on another

officer‟s allegation of sex discrimination in the police department. Kokkinis, wearing a

ski mask and with his voice electronically modified, said, “Everybody is so afraid of the

Chief‟s vindictiveness. If you even dare to question any decision he makes, basically

your life will be made miserable.” Id. at 842. However, Kokkinis indicated in his

interview did not know why the other officer had been treated differently when the Chief

4
  The Connick test is (1) the employee must be speaking on a matter of public concern about which free
and open debate is vital to the decision making of the community; (2) the reviewing court must balance
the interests of the employee, as a citizen, in commenting on matters of public concern and the State‟s
interest, as an employer, in running an efficient operation; and (3) the employee‟s protected conduct must
be a motivating factor in the State‟s decision to discipline the employee. 461 U.S. at 946 n.4.

                                                    9
ordered her to take an assignment that other officers had been allowed to decline. The

Chief thought Kokkinis‟ comments were untrue and reflected negatively on the

department.   He viewed the broadcast as an embarrassment to himself and to the

department as a whole and worried that the broadcast would adversely affect morale

among the officers by undermining his efforts to build the department‟s esteem. Id.

      Even if Kokkinis‟ speech had addressed a matter of public concern, the court

found, his claim could not survive the Pickering analysis. Id. at 845. The speech at issue

adversely affected harmony and loyalty among co-workers.            Kokkinis‟ television

appearance damaged his superiors‟ and fellow officers‟ confidence in him and potentially

endangered their working relationships. The statements caused embarrassment to his

superiors and co-workers and his relationships with them deteriorated after the broadcast.

They believed his appearance cast a negative light on the department and made the

department look like a “bunch of clowns” in the eyes of the surrounding communities.

Id. at 846. “In sum, Mr. Kokkinis‟ superiors and co-workers thought that his television

appearance was inappropriate and damaged the department‟s collective efforts to portray

professionalism.” Id.

      Messer‟s speech similarly caused disruption to the Department. Messer was on

duty and in uniform when he made the statement, and he was a member of the city

council. He was not “anonymous or in the privacy of his own home,” (Br. of Appellee at

12), and other officers heard the statement. The value of the speech was low – Messer

later characterized it as “stupid” and acknowledged it offended some of the African-
                                          10
American community. (App. at 314.) The statement brought a “potential to disrupt the

efficiency and effectiveness of [the Department‟s] operations,” Love, 946 N.E.2d at 10,

and after it was disseminated in the media, it caused public outcry and damaged the

relationship of the department with the African-American community and the general

public.

          Messer argues the Department did not meet its burden to show its interests in

operational efficiency outweighed his First Amendment rights, as he “simply misspoke”

in a private place where he had “every expectation the conversation would not go

farther.” (Br. of Appellant at 8.) He distinguishes Heath, where the offending comments

were made in a public speech. In Dixon, our Indiana Supreme Court said “we think that

it is important to note that Dixon‟s statements were made off-duty, in a private

conversation. „A purely private statement on a matter of public concern will rarely, if

ever, justify discharge of a public employee.‟” 541 N.E.2d at 881 (quoting Rankin v.

McPherson 483 U.S. 378, 388 n.13 (1987), reh’g denied).

          It does not appear, however, that Dixon‟s statements ever became public as did

Messer‟s. The Dixon court accordingly found the Department of Highways did not show

it was actually harmed by Dixon‟s statements. “The State has the burden of justifying the

discharge on legitimate grounds. . . . The State cannot base a discharge on possible bad

effects or potential harm. To justify its actions, it must make a stronger showing of harm

or disruption.” Id. at 881. While “the time, place and manner of the speech” is a factor

to be considered in the Pickering analysis, Greer, 212 F.3d at 371, we decline Messer‟s
                                            11
invitation to find determinative an employee‟s subjective belief the public would never

become aware of his statement.

       As there is no genuine issue of material fact as to whether Messer‟s statement had

the potential to disrupt the efficiency and effectiveness of the Department‟s operations,

Love, 946 N.E.2d at 10, we affirm the trial court.

       Affirmed.

NAJAM, J., concurs.

BAKER, J., dissents with separate opinion.




                                             12
                              IN THE
                    COURT OF APPEALS OF INDIANA

JACK MESSER,                                      )
                                                  )
       Appellant-petitioner,                      )
                                                  )
              vs.                                 )     No. 22A05-1104-MI-179
                                                  )
NEW ALBANY POLICE DEPARTMENT,                     )
                                                  )
       Appellee-respondent.                       )


BAKER, Judge, dissenting.

       I respectfully dissent and part ways with the majority‟s decision to affirm the trial

court‟s grant of summary judgment in favor of the New Albany Police Department

(Department) as to Messer‟s thirty-day suspension.

       As the majority acknowledges, the court in Greer v. Amesqua, 212 F.3d 358, 371

(7th Cir. 2000), applied the rationale espoused in Pickering v. Board of Education, 391

U.S. 563 (1968), and determined that the government must provide sufficient evidence

that the employee‟s speech had the potential to disrupt or harm its operations had the

retaliatory action not been taken. Slip op. at 5-6.

       The cases that the majority cites and discusses upholding disciplinary or

termination actions involved statements by the employees that were made public. See

City of Indianapolis v. Heath, 686 N.E.2d 940, 945 (Ind. Ct. App. 1997) (holding that

                                             13
discipline was warranted when the police officer, and leader of a militia group, was

addressing the public while dressed in a police uniform as a representative of the

Indianapolis Police Department and referred to Mayor Goldsmith as “Goldstein” while

commenting on the mayor‟s fiscal policies).

       In light of the circumstances here, I cannot agree that the Department met its

burden of establishing that its interests in operational efficiency outweighed Officer

Messer‟s First Amendment rights. Moreover, I agree with Officer Messer‟s contention

that he had every expectation that his remarks would go no further.            Unlike the

circumstances in Heath, Officer Messer made these comments during a private

conversation with the expectation that his comments would not be made public. Indeed,

the fact that the comment became public was because it was leaked to the public. Officer

Messer was speaking as a citizen about issues of public concern and when questioned by

other officers regarding the civil rights of blacks, Officer Messer consistently maintained

that he “misspoke,” admitted that his statement was “stupid,” and did not mean what he

actually said. Tr. p. 165.

       In sum, I do not believe that the Department successfully established that Officer

Messer‟s comments had the potential to disrupt the efficiency and effectiveness of its

operations. As a result, it is my view that Officer Messer‟s comment was protected by

the First Amendment, and the trial court erred in granting the Department‟s motion for

summary judgment.


                                            14
