                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-2-1995

Watters v Phila
Precedential or Non-Precedential:

Docket 94-1711




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      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                             No. 94-1711


                       RICHARD C. WATTERS,
                                         Appellant
                               v.

                       CITY OF PHILADELPHIA;
       W. WILSON GOODE, HONORABLE, Individually, and in his
          capacity as Mayor of the City of Philadelphia;
     WILLIE L. WILLIAMS, HONORABLE, Individually, and in his
              capacity as Police Commissioner of the
                  Philadelphia Police Department;
      DAVID H. PINGREE, HONORABLE, Individually, and in his
    capacity as Managing Director of the City of Philadelphia



         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                  (D.C. Civil No. 91-cv-00177)


                   Argued:     February 28, 1995

                Before: SLOVITER, Chief Judge,
                NYGAARD and McKEE, Circuit Judges

                     (Filed     June 2, l995 )



Geoffrey R. Johnson (Argued)
Richard A. Sprague
Joseph R. Podraza, Jr.
Sprague & Sprague
Philadelphia, PA 19103

          Attorneys for Appellant
Alan C. Ostrow (Argued)
Deputy City Solicitor
Lek Domni
Michael F. Eichert
Chief Deputy City Solicitor, Appeals
City of Philadelphia
Law Department
Philadelphia, PA 19107-2996

          Attorneys for Appellees


                        ___________________

                        OPINION OF THE COURT
                        ____________________


SLOVITER, Chief Judge


          Richard C. Watters appeals the district court's order

under Rule 50(a) dismissing his action under 42 U.S.C. § 1983

against the City of Philadelphia, Police Commissioner Willie L.

Williams and Managing Director David Pingree (hereafter

collectively referred to as "the City") for denial of his First

Amendment right to freedom of speech.    Watters' claim arose out

of his termination from employment as Manager of the Employee

Assistance Program (EAP) for the Philadelphia Police Department

following the publication of a newspaper article in which he was

quoted criticizing aspects of the EAP.
                                 I.

                  FACTS AND PROCEDURAL HISTORY

          In 1987 then-Police Commissioner Kevin Tucker solicited

Watters to leave his employment with the Princeton Medical Center

and to accept a position as Manager of the Employee Assistance
Program for the Philadelphia Police Department.    The idea for a

coordinated EAP grew out of a study conducted by the Philadelphia

Police Study Task Force which Tucker had convened "to review all

aspects of the Philadelphia Police Department and to make

recommendations . . . for improvement in the way this vital

service is provided to the citizens of Philadelphia."    App. at

30.

          The Task Force's report, Philadelphia and Its Police:

Toward a New Partnership, issued in 1987, emphasized the

importance of providing stress management and psychological, drug

and alcohol counseling services to officers.    The Task Force

found "significant barriers and limitations" in the existing

counseling programs and noted the lack of a "clear commitment" by

the Department to an employee assistance program, "the lack of a

comprehensive program for assisting employees with alcohol, drug

or psychological problems, and police employees' suspicions of

treatment programs, including fear of being dismissed,

disciplined or stigmatized."   App. at 44.   The Task Force

concluded that "procedures must be established that allow an

officer to be referred to treatment before the problem gets out

of hand [and that a] key to convincing employees that they can

get help is for the Department to ensure the confidentiality of

the program. . . ."   App. at 44.   The Task Force specifically

recommended hiring a "program coordinator with psychological
counseling training" and developing a formal employee assistance

policy.     App. at 45.

             Watters was charged in his appointment letter with

managing the EAP "as outlined in the recommendations of the

Philadelphia Police Study Task Force Report."     App. at 123.    The

defendants do not deny that pursuant to that charge Watters

upgraded and consolidated existing services, added educational

programs, and supervised the professional training of the

counselors.     Again following the Task Force's recommendations, he

oversaw the formation of internal and external advisory

committees to draft an employee assistance policy.     One draft

policy statement addressed issues of confidentiality and

specified the services the EAP would provide.     App. at 51-52.

Another outlined a Traumatic Incident Management Program.      App.

at 53-55.

             The genesis of Watters' employment problems apparently

lay in his attempts to get formal and public acceptance of those

policy statements by the Police Commissioner.     Watters submitted

the draft policy statements to Commissioner Tucker in 1988 for

his approval.    Tucker told Watters orally to implement the

services.     He testified that he approved the goals Watters had

set but that in light of his forthcoming retirement he deferred

decisions on a formal policy to his successor.     Tucker resigned

in June 1988 and was succeeded by Commissioner W. Willie

Williams.
             Watters then sought formal approval of the draft

policies from Williams but was again disappointed.       Williams

testified that he told Watters that it might take up to eighteen

months to get consensus on the policy issues but that Watters had

the authority to do whatever was necessary in the meantime to run

the EAP.     App. at 605-06.

             According to Watters, the lack of official policies

caused problems in at least two areas -- one dealing with

maintaining confidentiality as to the identity of police officers

who sought counseling and the other dealing with reimbursement

for certain services referred to providers by the EAP rather than

by the City's workers' compensation program.       Explaining the

reason for his concern about confidentiality, Watters testified,

"[O]ne of the counselors . . . made it clear that if a police

officer were to have revealed to him that he had a chemical

dependency problem, that he would Mirandize him, he would arrest

him."   App. at 189.    Defendants maintain that confidentiality was

protected unless an officer posed a danger to himself or others.

There is evidence in the record that existing departmental policy

required reporting any police officer who was using drugs.       App.

at 181-82.

             Watters also described difficulties with reimbursement

for an outside referral.       He stated: "I received a letter from

the police department safety officer telling me that the police

department would not reimburse this employee for those services
because the employee assistance program did not have a mandate to

act in that capacity."    App. at 214.    According to Watters, some

officers viewed the EAP with mistrust and challenged him every

day with questions about its legitimacy.      They told him that the

EAP was a "bogus program" because "without the authority

authorization [sic] of the policy statement, it was meaningless."

App. at 220.

          Watters' dissatisfaction with managing the EAP without

the policy statements grew.    He was concerned "[t]hat we were

operating in an unethical way.    That we were viewed as having

some service that didn't exist.      That I would be responsible or

liable for supervising or directing a program that wasn't

authorized to exist."    App. at 219.    In August 1989, Watters

wrote to Chief Deputy Solicitor Ralph J. Teti seeking guidance

about the legal and ethical difficulties he perceived in

providing the EAP services without a signed policy statement.

App. at 220-22.

          In November 1989, because of his concerns over the lack

of formal Departmental policies, Watters decided to scale back

the EAP services to the level they were prior to his becoming the

EAP manager.   App. at 228-29, 234-35.     Watters testified that he

informed Commissioner Williams and Deputy Commissioner James

Clark of his decision.   Clark instructed Watters to continue

providing the services but Watters responded that he could not

ethically do so.   App. at 230-32.    Shortly thereafter Watters
refused to provide referrals for outside counseling for the

family of a slain officer because he believed that, without a

clear policy mandate, the referral could interfere with the

family's receipt of workers' compensation benefits.   App. at 232-

34.   He was not disciplined for this refusal to provide referral

services.   App. at 234.

            In April 1990, a reporter for The Philadelphia Inquirer

approached Watters with questions about the EAP.1   On April 19,

1990 an article appeared in that newspaper under the headline

"Dispute puts counseling program for police in limbo."    The

article states that "[the EAP] has ground to a virtual standstill

in the services it offers, stymied by an internal dispute over

the scope of its effort."    The article continues, "According to

Dick Watters, the head of the Employee Assistance Program, the

turmoil has its roots in the way the program was set up--the

department, he said, never formally authorized counseling for

anything but alcohol problems" and "What has frustrated program

counselors, Watters said, is that authorization is crucial to

effective service.    Without it, he said, there have been problems

of liability, difficulties in worker's compensation cases and

snafus in reimbursement for care referrals, all of which have

undercut the coordinated system of service envisioned by the task

1
 . This was actually the second newspaper article for which
Watters was interviewed. On December 13, 1989 The Northeast
Times published an article in which Watters discussed the lack of
a policy statement. No discipline resulted from this interview.
force."    The article continues, (quoting Watters): "'It's been a

charade from the start.'--so he decided to pull the plug to make

a point.    'I'm taking a risk.   We're creating a crisis.   The

program's not here.    Somebody's got to make a decision.'"     App.

at 56.    Watters agreed at trial that in general the reporter

accurately paraphrased him, but noted that he did not say that he

"pulled the plug to make a point."

            As soon as the article was published, Williams summoned

Watters to his office.    Watters claims that Williams told him

that he should not have talked to the reporter and that he was an

abomination and unfit for public service.     App. at 242-44.    On

April 26, 1990, Watters was again summoned, and this time was

informed of his termination.

            Williams testified that the April 19 article was his

first knowledge that the EAP services had been cut back, and that

at his meeting with Watters immediately thereafter he asked

whether and why he had reduced services and who had given him the

authority to do so.    He testified that Watters admitted that he

had made the statement that he "pulled the plug" and said that he

had stopped providing crisis counseling and the morning

information meetings because he felt he lacked authority.       It was

Williams' view that "[Watters] was obligated as a city employee

to provide those services."    App. at 627.

            Williams also discussed the article with Managing

Director David Pingree, who testified that Williams was concerned
that Watters had taken actions to hinder the operation of the EAP

but "I don't recall the Commissioner being concerned relative to

Mr. Watters speaking to the press."      App. at 719.   Pingree

suggested that Williams should look into whether services had

been reduced.    Williams verified that some services had been

stopped and recommended firing Watters, which Pingree authorized.

Six months later, Williams issued two written policy statements.

One was entitled "Employee Assistance Program for Sworn Personnel

And Their Families," and was substantially similar to that

proposed by Watters.    The other which mandated counseling for any

officer involved in a police shooting, also addressed issues

Watters had raised.    App. at 633-35.

          Watters filed his section 1983 suit against the City of

Philadelphia, Mayor W. Wilson Goode, Police Commissioner

Williams, and Managing Director Pingree claiming violations of

the due process and freedom of speech clauses of the United

States Constitution.    The district court granted defendants'

motion for judgment as a matter of law after the close of

evidence at trial,2 holding that Watters' speech was not on a

matter of public concern and that the "speech activity

interfer[ed] with the Police Department's interests in promoting

the efficiency of the public services it performs through its

employees."     App. at 756-58.

2
 . On April 25, 1991 the district court had granted defendants'
motion to dismiss the due process claim and all claims against
Mayor Goode. Watters does not appeal those rulings.
          We exercise plenary review of the district court's

grant of a motion for judgment as a matter of law.    Walter v.

Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993).    Such a

motion should be granted only if "viewing all the evidence which

has been tendered and should have been admitted in the light most

favorable to the party opposing the motion, no jury could decide

in that party's favor."   Id. (citation and quotation omitted).

This court has an obligation to make an "'independent

constitutional judgment on the facts of the case'" as to whether

the speech involved is constitutionally protected.    Connick v.

Myers, 461 U.S. 138, 150 n.10 (1983) (quoting Jacobellis v. Ohio,

378 U.S. 184, 190 (1964) (opinion of Brennan, J.)).
                               II.

                            DISCUSSION

          The Supreme Court has remarked that it is essential

that public employees be able to speak out freely on questions of

public concern without fear of retaliatory dismissal.    See

Pickering v. Board of Educ., 391 U.S. 563, 572 (1968).    Judicial

vigilance is required to ensure that public employers do not use

their authority to silence discourse on matters of public concern

simply because they disagree with the content of the employee's

speech.   See Rankin v. McPherson, 483 U.S. 378, 384 (1987).
Nonetheless, our precedents counsel that "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."

Pickering, 391 U.S. at 568.       Therefore, in determining whether

the speech of an employee deserves constitutional protection,

this court must strike "a balance between the interests of the

[employee], as a citizen, in commenting upon matters of public

concern and the interest of the State, as an employer, in

promoting the efficiency of the public services it performs

through its employees."     Id.

             We analyze a public employee's claim of retaliation for

engaging in protected activity under a three-step process.

First, plaintiff must show that the activity in question was

protected.    Holder v. City of Allentown, 987 F.2d 188, 194 (3d

Cir. 1993); Czurlanis v. Albanese, 721 F.2d 98, 103 (3d Cir.

1983).    To be protected the speech must be on a matter of public

concern, and the employee's interest in expression on this matter

must not be outweighed by any injury the speech could cause to

the interest of the state as an employer in promoting the

efficiency of the public services it performs through its

employees.    Waters v. Churchill, 114 S. Ct. 1878, 1884 (1994)

(plurality opinion) (citing Connick, 461 U.S. at 142, and
Pickering, 391 U.S. at 568).

             Second, plaintiff must show that the protected activity

was a substantial or motivating factor in the alleged retaliatory

action.    Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 287 (1977).    Finally, defendant may defeat plaintiff's
claim by demonstrating by a preponderance of the evidence that

the same action would have been taken even in the absence of the

protected conduct.   Id.

          In this case we need not reach the latter two steps.

The district court found that Watters had made a sufficient

showing that the speech was a substantial factor motivating the

termination to submit the question of the actual reason for

Watters' termination to the jury.   App. at 754.   The only

question before this court is the legal one of whether the

district court erred in its determination that Watters' speech

was not a matter of public concern and that it interfered with

the Police Department's efficient delivery of services.       By

arguing that the speech was of no public interest or that it was

of "low public interest" and was outweighed by the City's

countervailing interest in requiring loyalty of Watters, the City

appears to concede, at least for purposes of this appeal, that

the speech was a motivating factor in Watters' termination.3
                               A.

                     Matter of Public Concern


3
 . Whether the speech was a substantial factor in the
retaliatory action and whether Watters would have been fired
anyway remain issues in contention between the parties. See
Johnson v. Lincoln University, 776 F.2d 443, 454 (3d Cir. 1985)
("second and third questions . . . should be submitted to the
jury"); see also Zamboni v. Stamler, 847 F.2d 73, 79 n.6, 80 (3d
Cir.) ("these inquiries [whether a substantial or motivating
factor and whether same actions would have been taken regardless]
. . . are for the jury"), cert. denied, 488 U.S. 899 (1988).
          The threshold issue is whether Watters' speech was on a

matter of public concern.    Swineford v. Snyder County, 15 F.3d

1258, 1270 (3d Cir. 1994).    An employee's speech addresses a

matter of public concern when it can be "fairly considered as

relating to any matter of political, social, or other concern to

the community."   Holder, 987 F.2d at 195 (citing Connick, 461

U.S. at 146).   Speech by a public employee "as a citizen upon

matters of public concern" is distinguished from speech by "an

employee upon matters of only personal interest" for which,

"absent the most unusual circumstances, a federal court is not

the appropriate forum in which to review the wisdom of a

personnel decision taken by a public agency allegedly in reaction

to the employee's behavior."    Connick, 461 U.S. at 147.   The

public concern inquiry is a legal one, to be determined by the

"content, form, and context of a given statement, as revealed by

the whole record."   Id. at 147-48 & n.7.

          Watters spoke to a reporter with The Philadelphia

Inquirer about the grave problems he perceived in operating the

EAP without a written policy statement.     The content of Watters'

speech on its face appears to address a matter of significant

public concern.   There is ample evidence in the record that the

existence of an effective EAP had been a matter of public

interest for some time.     Former Commissioner Tucker testified

that he held a press conference to announce the release of the

Task Force's Report.   App. at 586.    Tucker also testified that an
effective EAP would be of economic benefit by decreasing

absenteeism and improving the quality of law enforcement.     App.

at 448-49.    Commissioner Williams concurred in the importance of

an effective EAP to the smooth functioning of the Police

Department.

             Watters described the stress faced by police officers

and the role of an EAP:
          Police officers were considered extremely important to
          the city. They offered a very valuable service. They
          were people who carry guns. They were people who had
          an enormous responsibility. They were employees who
          were under an enormous amount of stress, and the
          discharge of their responsibilities required them to
          have appropriate kinds of programs available to mediate
          the stress and to help them deal with whatever problems
          or personal problems they might have, given certainly
          their status and their significance within the city
          structure.


App. at 352.

             It follows that the availability and provision of

counseling to a troubled police officer for addiction, stress and

related disorders, or traumatic incidents is precisely the kind

of issue that a citizen of Philadelphia is likely to find of the
utmost importance.     Indeed, shortly after Watters assumed his

duties managing the EAP, he was interviewed by a representative

of a "community concern action group" who presented citizen fears

that police officers under stress and carrying guns were likely

to have some "serious accidents."     Watters sought to allay those

fears by explaining the availability of counseling services for

officers.    App. at 201.
           Defendants do not deny that the existence of the EAP

itself is an issue of public concern.    Instead, they seek to

distinguish that basic issue from the particular matter Watters

protested -- the absence of an official written policy statement

on certain troublesome and, in his view, unresolved aspects of

the EAP.   However, because Watters' speech raised issues which

arguably went to the fundamental existence and efficacy of the

EAP, that speech cannot be narrowly characterized as only

concerning the "minute details" of program administration.

Watters sought to inform the public of his belief that "[t]he

policy statement would have provided some trust, a certain degree

of comfort, a different understanding of what the organization

was proposed to do to enable people to access the EAP without

fears of recrimination, without fear of having records used

against them in an investigation of some kind."    App. at 192.      If

officers did not use the services available, the stated purpose

of the program -- to improve the effective delivery of law

enforcement to the public -- would be undermined.

           Watters' view as to the nexus between written policies

and the effectiveness of the EAP has support in the record.      A

peer counselor for the Philadelphia Police Department, Sergeant

William Brennan, testified that formal policies are essential

within the Police Department because without them "[y]ou have no

real basis for acting."   App. at 417.   Counsel for the City

agreed at oral argument that it was unresolved whether written
policy authorization was required in order for outside referrals

by the EAP to be reimbursed.

            We need not decide and do not take a position on the

question of whether a written policy statement was, in fact,

necessary to the effective operation of the EAP, as Watters

believed.    For this purpose, it is sufficient for us to conclude,

that the content of the speech was related to the fundamental

existence of the EAP, a matter of public concern.

            As such, Watters' speech differs from that at issue in

the two cases from other circuits relied on by defendants.4

Instead, it is comparable as a matter of law to speech by other

public employees criticizing their employers' policies or

practices which the Supreme Court or this court have found to

touch upon matters of public concern.    See, e.g., Pickering, 391

U.S. at 566 (letter to the editor criticizing Board of

4
 . In Gomez v. Texas Dep't of Mental Health & Mental
Retardation, 794 F.2d 1018 (5th Cir. 1986), the speech was that
of an employee at a state facility for the mentally ill who
informed an employee at a coordinate county facility of proposed
administrative changes which would have affected their jobs. The
court held that the speech was not of public concern because the
proposed reallocation of administrative burdens was not a matter
of interest in the community and the speech did not alert the
public to wrongdoing or credibly touch upon the adequacy of
patient care. Id. at 1021-22. In Phares v. Gustafsson, 856 F.2d
1003 (7th Cir. 1988), a medical records technician disagreed with
instructions from her supervisors on coding of medical records.
The court found that her speech was not on a matter of public
concern because its context and form indicated that it was speech
on a purely personal disagreement over the operation of her unit,
and the plaintiff was not trying to expose any wrongdoing or to
inform the public of any problems within the College of
Veterinary Medicine. Id. at 1008.
Education's allocation of school funds); Mt. Healthy, 429 U.S. at

282 (telephone call to a local radio station about memorandum on

teacher dress codes); Zamboni v. Stamler, 847 F.2d 73, 75 (3d

Cir.) (public criticism of proposed reorganization of

prosecutor's office), cert. denied, 488 U.S. 899 (1988); Johnson

v. Lincoln University, 776 F.2d 443, 452 (3d Cir. 1985) (letters

by university professor to accreditation body alleging low

academic standards in university); Czurlanis, 721 F.2d at 100-01

(speeches at Board of Chosen Freeholders meetings criticizing

practices of Division of Motor Vehicles); Monsanto v. Quinn, 674

F.2d 990, 996-97 (3d Cir. 1982) (letters to tax commissioner

criticizing management of tax division).

           The defendants deny that Watters spoke on a matter of

public concern and argue that Watters is a disgruntled employee

seeking to turn internal office grievances into a cause celebre.

They contend that he spoke merely "as an employee dissatisfied

with the scope and timing of one aspect of a voluntary police

department program because his superiors would not agree with him

initially, and did not agree with him as soon as he wanted them

to."   Appellees' Brief at 17.   They rely on the Supreme Court's

cautionary statement that the "First Amendment does not require a

public office to be run as a roundtable for employees complaints

over internal office affairs."   Connick, 461 U.S. at 149.
           In Connick, the speech in question was that of an

Assistant District Attorney who circulated a questionnaire
soliciting the views of her coworkers on office transfer

policies, office morale, the need for a grievance committee,

their level of confidence in their supervisors, and whether they

felt pressured to work in political campaigns.     The Court held

that only the last question spoke to a matter of public concern,

and that the others were merely extensions of the employee's

dispute with her superiors over her opposition to being

transferred.    Id. at 140-49.   The questionnaire, "if released to

the public, would [have] convey[ed] no information at all other

than the fact that a single employee is upset with the status

quo."   Id. at 148.   Myers did not "seek to inform the public that

the District Attorney's Office was not discharging its

governmental responsibilities" or "seek to bring to light actual

or potential wrongdoing or breach of the public trust."    Id. at

148.    Cf. Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410

(1979) (holding that even private communication to supervisors of

complaints alleging discriminatory policies and practices

entitled to constitutional protection).

            The content, form and context of Watters' speech differ

greatly.    Watters' speech was not confined to the day-to-day

minutiae of administering a bureaucratic program, as defendants

allege.    Rather Watters' speech linked his concerns over the lack

of a formal policy to fundamental problems going to the heart of

the administration of counseling services for police officers.
          Although Watters also may have had some personal

motivation for speaking, his speech was not merely an extension

of his individual grievances.   It had been solicited by a

newspaper reporter presumably because the problems it alleged

about Police Department administration touched upon issues of

"political, social, or other" concern to the community.    See Rode

v. Dellarciprete, 845 F.2d 1195, 1201-02 (3d Cir. 1988) (clerk-

typist who spoke to newspaper reporter about racial animus and

retaliation in state police department was "disgruntled employee"

but speech was nonetheless on matter of public concern); Zamboni,

847 F.2d at 77-78 (detective who was motivated to criticize

reorganization of prosecutor's office in part because it was

adverse to him still spoke on matter of public concern).     But see

Versarge v. Clinton, 984 F.2d 1359, 1365 (3d Cir. 1993) (fact

that expelled member of volunteer fire department was motivated

by "personal grudge" weighed against finding that he spoke on

matter of public concern).

          We also attribute some relevance to publication of the

interview in a newspaper of general circulation.   See Rode, 845

F.2d at 1202; see also Monsanto, 674 F.2d at 997 (holding that
speech was matter of public concern supported by fact that issues

deemed important enough to be subject of two radio broadcasts).

The focus of the article went beyond the personal gripe of one

employee, instead putting Watters' statements within the context

of reporting on other problems facing the Department.     Its lead
was: "As if the Police Department didn't have enough problems,

crisis has come to its crisis counselors."   App. at 56.   It ties

Watters' tenure as the EAP Manager to the program itself: "The

program's director--hired with much fanfare at the urging of the

Philadelphia Police Study Task Force in 1987--has been told by

the police commissioner that there is no money to continue

funding his job.    And the Police Department wants to revamp the

program, possibly by farming out services to a private counseling

agency."   It referred as well to interviews with Commissioner

Williams and president of Lodge 5, Fraternal Order of Police,

Richard Costello.

           The district court too narrowly defined the scope of

the public concern doctrine.   Surely the citizens of Philadelphia

have an interest in knowing if a program set up to provide

counseling services to police officers is beset with problems of

the magnitude of which Watters, the manager of that program,

described.   We conclude that the public had a significant

interest in learning about problems which may have impaired the

effective functioning of the EAP and which, in turn, could have

affected the delivery of police services, and that therefore the

speech was on a matter of public concern.
                                  B.

                     Balancing of Interests

          Our conclusion that Watters' speech was on a matter of

public concern does not alone determine that the speech was

protected by the First Amendment.      We must weigh the interests on

behalf of the speech against the interest of the City as an

employer "in promoting the efficiency of the public services it

performs through its employees."       Rankin, 483 U.S. at 388

(quoting Pickering, 391 U.S. at 568).       The Government bears the

burden to justify a discharge, and that burden "varies depending

upon the nature of the employee's expression."       Connick, 461 U.S.

at 150; see also United States v. National Treasury Employees'

Union, 115 S. Ct. 1003, 1021 (1995) (O'Connor, J., concurring in

the judgment and dissenting in part) ("As the magnitude of

intrusion on employees' interests rises, so does the Government's

burden of justification.").   "[T]he balancing test articulated in

Pickering is truly a balancing test, with office disruption or

breached confidences being only weights on the scales."      Zamboni,

847 F.2d at 79 (citation and quotation omitted).

          On Watters' side of the balance is his interest in

engaging in the speech as well as the public's interest in "free

and unhindered debate" on an issue of public importance, see
Versarge, 984 F.2d at 1366, a "core value of the Free Speech

Clause of the First Amendment."     See Pickering, 391 U.S. at 573.

As previously recognized, "[t]he public has a significant
interest in encouraging legitimate whistleblowing so that it may

receive and evaluate information concerning the alleged abuses of

. . . public officials."   O'Donnell v. Yanchulis, 875 F.2d 1059,

1062 (3d Cir. 1989).

          Weighed on the other side is the government employer's

interest in "the effective and efficient fulfillment of its

responsibilities to the public."    Connick, 461 U.S. at 150.   As

explained recently in the plurality opinion of the Supreme Court

in Waters v. Churchill, 114 S. Ct. 1878, 1886 (1994), the

government "has a freer hand in regulating the speech of its

employees than it has in regulating the speech of the public at

large[,]" but that hand is not uncontrolled.

          In Waters, the Supreme Court's most recent discussion

of this issue, the Court considered whether the Connick test

should be applied on the basis of what the government employer

reasonably thought the employee said or what the trier of fact

ultimately determines was said.    In that case, unlike here, there

was a factual dispute as to what was said5 in a conversation

5
 . Only a few phrases in The Philadelphia Inquirer article may
have been incorrectly attributed to Watters. For example, the
article describes how "[f]or more than three months, the program
has stopped the informal counseling it offered routinely to
officers involved in shootings--and has cut back counseling in
virtually every area but alcohol abuse." App. at 56. Watters
denied having said exactly these words but testified at trial "I
told him that the service were cut back to the ones that I had
proposed and that had never been authorized and to the services
that existed before I inherited the counseling unit, and that the
alcohol counseling unit continued to exist." App. at 353.
Watters does not deny saying most of what was in the article.
between two nurses during a dinner break.     The employer acted on

the basis of information that the disciplined employee had said

"unkind and inappropriate negative things" about her supervisor;

the employee contended she had merely criticized certain hospital

policies because she believed they were impeding nursing care.

Id. at 1882-83.

          In an opinion authored by Justice O'Connor, the Waters

plurality, speaking on this issue for a majority of the Court,

id. at 1893 (Souter, J., concurring), held that the courts should

"look to the facts as the employer reasonably found them to be."

Id. at 1889.   The Court then applied the Pickering balance and

decided that, in either event, the speech was unprotected because

whatever First Amendment value it might have had was outweighed

by the disruption factor.   Id. at 1890-91.

          We must consider the effect of Waters on our prior

standard for evaluating the disruption factor relevant in the

Pickering balance.6   In earlier cases, we required the government

employer to show "actual disruption."   See Zamboni, 847 F.2d at

78 (citing American Postal Workers Union v. United States Postal
Service, 830 F.2d 294, 303 & n.12 (D.C. Cir. 1987)).    In doing

so, we relied on the language in Pickering that the speech in

question was "neither shown nor can be presumed to have in any

6
 . In Feldman v. Philadelphia Hous. Auth., 43 F.3d 823 (3d Cir.
1994), decided after Waters, although there was evidence of some
actual disruption, we held it did not justify plaintiff's firing
because it was outweighed by the public interest in retaining
someone whose job was to expose corruption. Id. at 830-31.
way either impeded the teacher's proper performance or to have

interfered with the regular operation of the schools generally."

See Zamboni, 847 F.2d at 79 (quoting Pickering, 391 U.S. at 572-

73).

          In Waters, however, the Court decided that "the

potential disruptiveness of the speech as reported was enough to

outweigh whatever First Amendment value it might have had."      114

S. Ct. at 1890.   Justice O'Connor explained that because a

government employee, like any citizen, may have a strong,

legitimate interest in speaking out on public matters, the

government employer may have to "make a substantial showing that

the speech is, in fact, likely to be disruptive before it may be

punished."   Id. at 1887 (emphasis added).   We believe that after

Waters, it is no longer essential to show actual disruption,

although such evidence would obviously be highly relevant.      See

Jeffries v. Harleston, No. 93-7876, 1995 U.S. App. LEXIS 7639, at

*10 (2d Cir. April 4, 1995) (Waters overturns strict actual

interference test).

          The Court's finding of likely disruptiveness in Waters

was based on the employer's evidence that a potential employee

may have been discouraged in working for a department in the

hospital, the disciplined employee's complaints threatened to

undermine management's authority, and the employee's own

statement that it "wasn't possible" to "wipe the slate clean"

between her and her supervisor.   114 S. Ct. at 1890-91.   In
Rankin, the Supreme Court listed as factors relevant to

evaluating the disruption contention "whether the statement

impairs discipline by superiors or harmony among co-workers, has

a detrimental impact on close working relationships for which

personal loyalty and confidence are necessary, or impedes the

performance of the speaker's duties or interferes with the

regular operation of the enterprise."    483 U.S. at 388 (citing

Pickering, 391 U.S. at 570-73).

          The district court in this case did not review or

analyze any of these factors.     Instead, in its brief discussion

of this side of the Pickering balance7 the court concluded that

7
 . The court's entire discussion of disruptiveness in its oral
opinion is as follows:

          Mr. Watters' statements in the press describe
          a crisis, and Mr. Watters has testified that
          at least there was a crisis within the Police
          Department administration.

          The crisis described by Mr. Watters here in court, and
          in the article, would clearly support a finding and
          does clearly support the Court's finding that the
          speech activity interferes with the Police Department's
          interests in promoting the efficiency of the public
          services it performs through its employees.

          Certainly it is established that there is a crisis.
          Mr. Watters set out to describe that crisis. And
          certainly so that all prongs of the requirements to be
          protected, First Amendment activity cannot be met.

          It is my view that there is no First Amendment
          protection in the context of -- for the activity in
          this case.

          To create a crisis, then to report it for the purpose
          of taking the issue public in order to get certain
the speech was disruptive by focusing on Watters' use of the word

"crisis" in the article and in his testimony.8   However, the

crisis to which Watters referred was one in the EAP, not one

resulting from his speaking out.

          Disruption caused by actions independent of the speech

at issue cannot be equated with disruption caused by the speech

itself.   In Monsanto, reviewing a record similarly lacking

evidence of disruption caused by the speech activities of an

employee who sent letters critical of the management of the Tax

Division of the Virgin Islands Department of Finance, we found it

significant that "[w]hile there was ample testimony establishing

disharmony and discontent among the employees . . . there is only

meager evidence establishing that this disharmony and discontent

was specifically caused by [the] letter writing activities. . . .

[M]uch of the discontent appears to have been the result of the

very problems in the Tax Division to which [the] letters were
(..continued)
          administrative orders and procedures is not protected
          conduct as I understand protected conduct.

App. at 757-58.
8
 . Similarly, although the City also contends that Watters
admitted his policy proposals created a "crisis," nothing in the
Watters' testimony cited by the City can be construed as
attributing any crisis to The Philadelphia Inquirer article.
See, e.g., App. at 361 ("The reasons for my not wanting to report
to the first deputy commissioner created very much of a crisis
trying to interface the employee assistance program connected
with other departments within the organization and outside of the
organization, with the city health service.").
directed."   674 F.2d at 999.    To the extent there might have been

"disharmony or discontent" in the Police Department over the

functioning of the EAP there is no evidence in the record

suggesting that it was a result of Watters' speech rather than of

the very problems to which Watters' speech was directed.

           The City now seeks to justify the termination of

Watters on a basis not relied on by the district court.      It

contends that Watters was a "policymaker" and, as such, enjoyed a

necessarily close working relationship with the Commissioner who

had the right to expect personal loyalty and confidence in

return.   Certainly there are some positions in public employment

"in which the need for confidentiality is so great that even

completely correct public statements might furnish a permissible

ground for dismissal" or "in which the relationship between

superior and subordinate is of such a personal and intimate

nature that certain forms of public criticism of the superior by

the subordinate would seriously undermine the effectiveness of

the working relationship."      Pickering, 391 U.S. at 570 n.3.   On

the other hand, merely saying that the relationship will be

undermined does not make it so.

           The paradigmatic case in which this court concluded

that the close working relationship between employee and

supervisor made public criticism by the employee disruptive as a

matter of law is Sprague v. Fitzpatrick, 546 F.2d 560 (3d Cir.
1976), cert. denied, 431 U.S. 937 (1977).      In that case, we
upheld the dismissal of an action based on the firing of the

First Assistant District Attorney following an article in The

Philadelphia Inquirer in which he sharply disputed the veracity

of public statements made by the District Attorney.      We reasoned

that the comments had been an "irreparable breach of confidence,"

and noted that "we could not expect a district attorney to run an

efficient office if his first assistant were free to impugn his

integrity in public."     Id. at 565.   However, we reached that

conclusion based on evidence that the First Assistant District

Attorney functioned as a virtual alter ego to the District

Attorney.    He assisted the District Attorney in formulating

policy, administered the office on a daily basis, kept the

District Attorney informed about the performance of various

units, and acted as the District Attorney when the latter was

unavailable.    Id. at 562.   See also Propst v. Bitzer, 39 F.3d

148, 153 (7th Cir. 1994) (ample corroboration in record of

defendant's claim that speech highly disruptive of close working

relationships requiring loyalty and confidence), cert. denied,

115 S. Ct. 1400 (1995).

            There was no evidence submitted by the City that

Watters' relationship with Commissioner Williams was comparable

to the "close working relationship" between the District Attorney

and his First Assistant.      The City does not contend that Watters

and Williams interacted on setting policy on the wide range of

issues faced by the Department, and indeed the EAP appears to
have been a relatively discrete operation within the Police

Department.   See Swineford, 15 F.3d at 1272-73 ("Proximity within

an organizational hierarchy is a significant factor in the

employer's demonstration that a public employee's speech had a

detrimental impact on a necessarily close working

relationship."); Zamboni, 847 F.2d at 79 (court must determine

"whether [plaintiff's] functional role in the prosecutor's office

was of such proximity to [his employer] that his speech destroyed

'a needed close working relationship'").

          Watters enjoyed neither the level of authority nor the

degree of responsibility exercised by the First Assistant

District Attorney in Sprague, and he was further removed in the

chain of command, subordinate both to the Police Commissioner and

to the First Deputy Commissioner.   Watters was required to abide

by the orders of his superiors.   He needed their approval to

operate the EAP and, according to his own testimony, was unable

to make independent policy judgments.   See Rankin, 483 U.S. at

390 ("The burden of caution employees bear with respect to the

words they speak will vary with the extent of authority and

public accountability the employee's role entails.").

          Furthermore, nothing Watters was reported to have said

"impugn[ed] the integrity" of his superiors.   See Roseman v.
Indiana Univ. of Pa., 520 F.2d 1364, 1368 (3d Cir. 1975), cert.

denied, 424 U.S. 921 (1976) (significant if speaker "called into

question the integrity of the person immediately in charge of
running a department").   The Philadelphia Inquirer article

conveys a straightforward difference of opinion over

implementation of an important Police Department program.     The

City has never claimed any disruption from the appearance of

similar comments by Watters in the earlier article in The

Northeast Times.    Nor is there evidence that Watters engaged in

the type of complaining and negative criticism of his superiors

within the workplace that the Supreme Court found likely to

disrupt working relationships in Waters.    114 S. Ct. at 1890-91.9

          Finally, defendants argue that because of its public

safety role, a Police Department has a significantly greater

interest in regulating the speech of its employees than do other

public employers.    See Shands v. City of Kennett, 993 F.2d 1337,
1344 (8th Cir. 1993), cert. denied, 114 S. Ct. 880 (1994);

Gasparinetti v. Kerr, 568 F.2d 311, 315-16 (3d Cir. 1977), cert.

denied, 436 U.S. 903 (1978).   However, Watters was a civilian

employee and defendants have not shown why his speech was likely

to interfere materially with Department morale or public

confidence.   See Rankin, 483 U.S. at 388-92 (civilian clerical

employee's comment about assassination attempt on President held

protected conduct); Zamboni, 847 F.2d at 78-79 (applying

9
 . We note that there are no allegations that Watters' speech
was knowingly or recklessly false or that his speech was
motivated by animus. Different considerations obtain in such a
case. See Pickering v. Board of Educ., 391 U.S. 563, 574 (1968);
Swineford v. Snyder County, 15 F.3d 1258, 1272 (3d Cir. 1994);
Czurlanis v. Albanese, 721 F.2d 98, 106 (3d Cir. 1983).
identical disruption standard for evaluating speech of detective

in prosecutor's office as any other public employee); Rode, 845

F.2d at 1202 (comments in newspaper interview by civilian

clerical employee of state police department describing racial

animus held protected conduct).

           In any event, "policemen, like teachers and lawyers,

are not relegated to a watered-down version of constitutional

rights."   Garrity v. New Jersey, 385 U.S. 493, 500 (1967).     This

court and others have recognized that "freedom of speech is not

traded for an officer's badge."   Biggs v. Village of Dupo, 892

F.2d 1298, 1303 (7th Cir. 1990); see also O'Donnell, 875 F.2d at

1062.   Thus we hold that the City did not make the requisite

substantial showing that Watters' speech was "in fact, likely to

be disruptive," Waters, 114 S. Ct. at 1887, and therefore there

was no basis for the district court to hold that Watters' speech

disrupted the proper functioning of the Police Department.

           In our opinion in O'Donnell, we set forth the

appropriate procedure for this court to follow when the facts on

record relevant to the application of the Pickering balancing

test are undisputed. We stated there,
          when considering the protected status of speech, an
          appellate court must, in any event, make an independent
          constitutional judgment on the facts of the case.
          Connick, 461 U.S. at 150 n. 10, 103 S. Ct. at 1692 n.
          10, 75 L. Ed. 2d 708 (1983); Czurlanis, 721 F.2d at
          102. Because the undisputed facts in this record
          dictate only one result, viz., that, on balance,
          O'Donnell's speech here was protected by the first
          amendment, we feel obligated to make that
          determination. We emphasize, however, that our ruling
          is based on the undisputed record before us on the
          issues resolved.

875 F.2d at 1062.


          In light of our conclusions that Watters' speech was on

a matter of public concern, and that the City has not met its

burden to show that the interest in the speech was outweighed by

the interests of the City, the outcome of the Pickering balance
is clear, and the district court erred in holding that the speech

was not protected by the First Amendment.

          It does not follow that this mandates a holding that

Watters is entitled to judgment.   There remain disputed issues as

to the reason for his termination.   Although the City did not

contest on appeal that Watters was fired for his speech, there

was some testimony that might allow a jury to find that he was

terminated for insubordination because of his actions in

unilaterally cutting back certain services provided by the EAP.10

See Mt. Healthy, 429 U.S. at 287 (1977).    Therefore, we rest our

decision on the protected status of the speech, the only issue

decided by the district court, and express no opinion as to any

issue remaining in the district court.
                              III.

                           CONCLUSION

10
 . At trial Commissioner Williams testified, "I felt that his
employment as a -- continued employment in the City of
Philadelphia was not appropriate at this time because of the
gross negligence he had now indicated by stopping doing those
programs." App. at 629.
          For the foregoing reasons, we will reverse the district

court's order granting judgment in favor of defendants pursuant

to Rule 50(a) and remand to the district court for proceedings

consistent with this opinion.
