Ricky Minton PO Box 759 Palestine, Texas 75803 Telephone: (903) 373-4947 Fax: (888) 724-0174 Email: rickyminton@me.com March 18, 2014 Chief Robert Herbert Palestine Police Department 504 N. Queen Street Palestine, Texas 75801 Delivered by fax to (903) 729-0548 Re: Investigation of officers regarding anonymous note Dear Chief Herbert: It has recently been revealed that a Palestine Police Department officer submitted an anonymous note with a ballot for nominations for the upcoming “Policeman’s Ball” event. It is possible that the note contained verbiage that you disagreed with and subsequently instructed Lieutenant Jeffrey Powell to disseminate an email communication to all department staff demanding that the person(s) responsible for the note admit to their involvement or an investigation would be initiated on all officers.1 While I do not know what the contents of the anonymous note may be, I am quick to point out the rights of any citizen to exercise constitutionally protected free speech. Police officers in your department do not relinquish their status as a citizen by virtue of their employment. In fact, their speech is of the utmost importance as they have first hand knowledge of the behavior and happenings within the department. In determining if the speech contained within the anonymous note is protected free speech, it must pass two tests:

1. The statements must deal with matters of public concern.

2. Then, even if the matter is of public concern, does that public concern and interest outweigh the interest of your employer in maintaining morale, efficiency, and discipline?

The morale of police officers is a matter of public concern. Low morale directly impacts the efficiency of departmental staff, which has an adverse effect on the public, and the public’s perception of the department.

1 Public Information Request for the anonymous note and Lieutenant Powell’s email to department staff has been submitted.

Chief Robert Herbert March 19, 2014 Page 2 of 3 The public concern and interest of the anonymous note outweigh the interest of the department in maintaining morale, efficiency and discipline. First, low morale is what prompted the writing of the anonymous note, therefore, the note could not have possibly interfered with the departments ability to maintain morale. Second, efficiency and discipline only became an issue with the note due to the public email disseminated by Lieutenant Powell. Had it not been for this public email, other departmental staff may have never been made aware of the note. The note was a private, but anonymous, communication from a police officer to his/her commanding officer and was most likely intended to convey the officers dissatisfaction with the current direction of the police department. Chico Police Officers' Association v. City of Chico, 283 Cal Rptr. (1991)

The Chico Police Officers' Association is the recognized exclusive bargaining representative for the law enforcement employees of the City of Chico, California. They publish an association newsletter, the "Centurion," which is written to voice the thoughts and concerns of the association's members. A copy of the "Centurion" was posted on a bulletin board within the Chico Police Department that by agreement was reserved for posting association materials. The newsletter was also mailed to local newspapers. In the newsletter was an article by the Association's President, Officer Moore, which was critical of the department's management. That same day, the Chief of Police revoked the association's right to use the bulletin board and, after an internal investigation, placed a written reprimand in Moore's personnel file, charging Moore with violating departmental policy. The association filed suit, claiming that the City and the Chief of Police had violated Moore's and the Association's lawful exercise of free speech. The association requested that the court order the removal of the written reprimand from Officer Moore's personnel file and that the parties cease interfering with the rights of Moore and the Association. The court granted the Association's motion and the appeals court affirmed the decision. The court stated in analyzing the case that whether a public employer has rightfully disciplined an employee for the employee's speech requires that the court look at the balance between the employee, as a citizen, being able to comment upon matters of public concern and the interests of the state, as the employer, in promoting efficiency and discipline. In this case, Moore's comments addressed issues of public concern--the benefits of unionization and the lack of confidence in the management of the police department. The court stated that the city had failed to demonstrate that the newsletter had done any harm to internal discipline or efficiency. Without evidence of actual harm, the city's interest did not outweigh Moore's and the Association's interests in being able to speak freely on such matters.

Chief Robert Herbert March 19, 2014 Page 3 of 3 In the “Chico” case, the identity of the author was known and the speech was on a public bulletin board and yet the department’s attempts to discipline him were overturned in a subsequent lawsuit. In this case, the author is unknown and the note was sent anonymously to police administration. The sole purpose for identifying the author of the anonymous note is to subject the author to disciplinary action, if possible. Since it is most likely that the note contained constitutionally protected free speech, the possibility of disciplining the author of the note becomes difficult and then would only subject the author to possible targeting for future unrelated disciplinary and unfavorable employment actions. The next issue involves city and department resources being wasted to not only determine the author of the note, but to take any action against its author. It goes without saying that the author of the note will most likely never voluntarily identify himself or herself nor will any other officer reveal the identity of the author of the note. In fact, it’s most likely that the only individual with knowledge of the note is the author. To spend time, resources and ultimately tax paying dollars to identify the author of what amounts to a mostly harmless note solely because it offended you is outrageous. I encourage you to disseminate an email to all department staff withdrawing the demand that the note’s author identify themself and the threat of investigation of all officers if the note’s author does not come forward. With department morale already low, it is unproductive to spend any time or resources on such a trivial matter. It may benefit the department better to take the time to learn why an officer would write the note and address the issues that led to the situation the department currently finds itself in. Sincerely,

Ricky Minton cc: Honorable Therrell Thomas, Mayor Mrs. Wendy Ellis, City Manager