Westmoreland v. Sutherland

By DAVID C. COMSTOCK JR.

Budget concerns for the City of Bay Village, Ohio, in the spring of 2008 led the city to adopt changes that substantially reduced overtime for its firefighters. In addition, Bay Village Fire Department (BVFD) Chief James Sammon, a 30-plus-year firefighter, recommended that the department’s dive team be eliminated. His recommendation was adopted by Mayor Deborah Sutherland and approved by the city council. Sammon explained that the dive team had been used on an average of less than once per year; had never actually rescued anyone; and cost between $10,000 and $12,000 in overtime annually. In addition, he determined that during the prior eight-year period, Bay Village had purchased a total of more than $26,000 in diving gear and equipment.

When the dive team was officially disbanded in June 2008, Sammon distributed a memorandum to all firefighting personnel outlining new procedures for the use of mutual-aid dive teams from the Cleveland (OH) Metro Park rangers and the adjacent cities of Rocky River and Avon Lake. Following the team’s disbandment, a 12-year-old boy drowned in August and a seven-year-old boy drowned in September.

Two weeks after the second drowning, 16-year fire department veteran Ron Westmoreland spoke during the public comments segment of a city council meeting. Westmoreland, off duty and not in uniform, identified himself as a member of the BVFD, a former member of its disbanded dive team, an international public safety diving trainer, and an expert in public safety diving. He had also been the instructor for the fire department dive team and instructed firefighters from other communities. The thrust of Westmoreland’s eight-minute speech was directed at the city’s decision to cut funding for certain safety services and the outcomes resulting from those decisions. Throughout his speech, Westmoreland mentioned not only the dive team but cuts to training for safety personnel and difficulties resulting from the “shuffling of ambulances.”

Westmoreland also spoke pointedly about the second drowning, which had taken place within city limits, and rhetorically asked, “How many children have to die before council and the administration understand?” Westmoreland claimed that council members were warned it would be “not if, but when” there would be a loss of life because of the city’s budget cuts. He added

Westmoreland ended his address by saying that the city’s residents need to be kept better informed and that firefighters were doing what they could, but that the firefighters could not do the job necessary because they did not have their tools or staffing. Following Westmoreland’s statement, the city council president stated that as an elected official, he would defend Westmoreland’s right to express his opinion, although that did not mean that he agreed with him.

Approximately three weeks later, Sutherland, who was a candidate in a contested election for county commissioner, ordered Westmoreland to serve a three-tour unpaid suspension on the grounds that his statements at the city council meeting constituted insubordination, malfeasance, misfeasance, and dishonesty; failure of good behavior; and conduct unbecoming an officer. The Notice of Disciplinary Action explained that Westmoreland made numerous statements that were “misstatements, fabrications, insulting and insightful” and none of which were “supported by the facts.” The suspension was imposed pursuant to the Progressive Discipline Policy because Westmoreland had previously received a letter of reprimand for making inappropriate comments to a group of juveniles at a community diversion program.

After a grievance hearing, the mayor affirmed Westmoreland’s suspension in a written decision. Westmoreland’s claim that his speech was protected by the First Amendment was rejected on grounds that his “statements contained many falsehoods about the operation of the department and the circumstances surrounding the September [drowning] tragedy.” The mayor also found that Westmoreland was aware that his statements were false “[d]ue to internal communications from Chief Sammon regarding the backup for the dive team.”

Westmoreland then filed a two-count complaint against the City of Bay Village and the mayor in the United States Federal District Court while waiting for the decision on his grievance. The first count alleged a violation of procedural Due Process while the second claim asserted a First Amendment cause of action. He also requested binding arbitration once the grievance was denied. An arbitrator upheld the suspension, finding that the speech was not constitutionally protected. The two defendants then successfully moved to dismiss Westmoreland’s procedural Due Process claim. Thereafter, the defendants moved to dismiss the remaining claim relating to the alleged violation of his First Amendment rights. The District Court found that Westmoreland’s speech was not protected by the First Amendment because, although he had spoken as a private citizen regarding matters of public concern, his comments included intentionally or recklessly false statements attributing the drowning of the seven-year-old boy to the elimination of the dive/rescue team. The district court also found that the mayor was entitled to qualified immunity because it was at least reasonable to believe that the statements were intentionally or recklessly false. On the dismissal of his final cause of action, Westmoreland appealed to the United States Sixth Circuit Court of Appeals.

In its review, the Appellate Court noted that in a Section 1983 action, the plaintiff must demonstrate a deprivation of a right secured by the Constitution or the laws of the United States caused by a person acting under color of state law. To establish a First Amendment retaliation claim, a plaintiff must show that he engaged in constitutionally protected speech, that he suffered an adverse action likely to discourage a person from continuing to engage in protected speech, and that the protected speech was a substantial or motivating factor in the government’s decision to take the adverse action. The court noted that in the appeal before it, the only issue was whether Westmoreland, a public employee, engaged in speech that was protected by the First Amendment or whether a reasonable official would have believed that plaintiff had not.

To establish that his speech was constitutionally protected, a public employee must show that he was speaking as a private citizen, rather than pursuant to his official duty; that his speech involved a matter of public concern; and, if so, that his interest as a citizen in commenting on the matter outweighed the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. Garcetti, supra, at 417 [quoting Pickering v. Board of Education of Twp. High Sch. Dist. 2005, 391 U.S. 564, 568 (1986).]

The defendants argued that Westmoreland did not speak “as a citizen nor on a ‘matter of public concern.'” The appellate court pointed out that although Westmoreland identified himself as a public employee, he appeared off duty, out of uniform, and at a public meeting to address the mayor and city council during the public comment segment of the meeting. Nothing in the record supported the claim that Westmoreland’s expression was made pursuant to a task that was within the scope of his official duties.

The defendants also argued that, although Westmoreland’s speech was couched in terms of concern about the drowning death, it was motivated by his own financial loss of overtime and business, and communicated “nothing more than ‘the quintessential employee beef: management has acted incompetently.'” The appellate court acknowledged that in addition to his being a member of the dive team, the city had purchased a total of more than $26,000 in diving gear and equipment from Westmoreland’s for-profit dive business. Westmoreland denied that his speech was motivated by his own financial and personal interests, claiming that he “never advocated for overtime or equipment for himself as a priority over safety and security of the citizens [of Bay Village].” Westmoreland stated that his business earned only $600 to $700 in profits annually from sales to Bay Village, although neither party indicated how much Westmoreland may have lost in overtime pay.

The Appellate Court ruled that although Westmoreland’s comments were highly critical of both the mayor and city council, the communicative purpose of his speech was to express his opinion, as an expert in public safety diving, that the cuts to the fire department, especially the elimination of the dive team, had jeopardized public safety and had hamstrung the rescue efforts relating to the second drowning victim. The court noted that Westmoreland’s speech could not be said to address “matters only of personal interest.” That the comments were made publicly to the city council, rather than in a memo sent solely to his superior, also supported this conclusion. The court noted that in viewing all of these issues, the plaintiff’s speech clearly involved matters of public concern which would bring it under the umbrella of the First Amendment.

The Appellate Court then reviewed whether or not false or reckless statements are entitled to First Amendment protection. In reviewing prior United States Supreme Court cases on this issue, the court wrote that, “Absent proof of false statements knowingly or recklessly made by him, a [public employee’s] exercise of his right to speak on issues of public importance may not furnish the basis of his dismissal from public employment.” (See Pickering, supra, at 574). In Westmoreland’s case, the District Court found that the Pickering balancing test was inapplicable when an employee makes knowingly or recklessly false statements, and as specifically related to Westmoreland, his statements were knowingly or recklessly false.

The Appellate Court acknowledged that other courts are divided over whether intentionally or recklessly false statements fall outside the protection of the First Amendment or whether such falsity is to be weighed as part of the Pickering balancing test. The Appellate Court noted that because it had not previously addressed this issue, the District Court looked at prior First Amendment cases in the Circuit Court and determined that where an employee intentionally or recklessly makes false statements, the speech is not a matter of public concern and, therefore, the Pickering balancing test is inapplicable. [See Westmoreland, 718 F. Supp. 2d at 893 and See v. City of Elyria, 502 F. 3d 484, 492-493 (Sixth Cir. 2007)].

In See, the Sixth Circuit of Appeals outlined the proof required for a public employee to state a First Amendment retaliation claim, explaining that “it does not matter if the employee’s suspicions were subsequently shown to be correct, as long as the statements were of public concern and not false statements deliberately or recklessly made” (See, 502 F. 3d at 492). After discussing the factors to be analyzed in performing the Pickering balancing, the See Appellate Court explained that

On appeal, Westmoreland asserted that See should be disregarded or distinguished as a qualified immunity case. Instead, the court determined that the only reasonable implication of the language found in See is that the balancing test found in Pickering is not required if it is determined that the employee made statements with knowledge of or reckless indifference to their falsity. In addition, the Appellate Court noted that it had previously held that

Westmoreland argued that the District Court overlooked or ignored his evidence that contradicted Sammon’s assertion that he made intentionally or recklessly false statements.

Westmoreland disputed the city’s and the mayor’s claim that the primary function of the dive team was not rescue but recovery, emphasizing that the dive vehicle was marked “Dive/Rescue Unit” and that its stated purpose was “underwater search and rescue or body recovery of drowning victims.” The efforts made to revive the child, once found, as well as airlifting the child to a hospital for further treatment, supported Westmoreland’s claim that it was a rescue effort. The District Court found that, “even if a question of fact exists as to the nature of the dive team, this does not alter the fact that in this particular case, divers were available but not utilized.” (See Westmoreland, 718 F. Supp. 2d at 894.) The Appellate Court pointed out that the District Court, obviously relying on Sammon’s affidavit, concluded that, “Plaintiff, at a minimum, was reckless in attributing the death of a child to lack of a dive team.” In particular, the District Court emphasized that Westmoreland was present and aware of the details of the rescue efforts; that approximately 12 divers responded but none were deployed because the child was found in three feet of water using the “human chain” approach; that the dive team had never rescued anyone; and that, because it took 30 minutes to establish control of the scene, it would not have been possible for the Bay Village Dive Team (BVDT) to “save a child within ’20 minutes.'” (Id.) The District Court characterized these facts as undisputed and found the plaintiff had “offered no evidence or argument as to how the existence of a Bay Village Dive Team would have had any impact whatsoever in saving a child’s life.” (Id. at 893.)

The Appellate Court found, however, that the record demonstrated that Westmoreland did offer evidence to support his belief that the lack of a dive team meant the child did not have a chance of being rescued. Westmoreland explained that, although there were 12 divers on the scene, those divers did not arrive until more than one hour after the 911 call, “making them ineffective for rescue.” Also, Westmoreland stated that the BVFD responded to the scene within three minutes after being dispatched and that its response included two former rescue divers (Westmoreland being one of them). Westmoreland disputed the assertion that it took 30 minutes to establish command, stating instead it took 30 minutes for a captain to arrive and take over command from him, as Westmoreland was the incident commander since he was the highest ranking fire official on the scene. Westmoreland stated that he could have had a dive team in the water within 20 minutes since he had done so previously in training, and that the “human chain” explanation offered by the defendants was misleading because the child was found in three feet of water 1½ hours into the incident. Westmoreland argued the child had washed in significantly after the rescue effort commenced because of five-foot waves. Finally, Westmoreland explained that his statement about the child being found in about 20 minutes meant “she would have been found earlier and therefore had a chance.”

In its final analysis, the Appellate Court held that Westmoreland was not required to prove that his statements were true but instead the defendants had to prove that Westmoreland’s statements were not only false but were made with intentional or reckless disregard for the truth. Therefore, it was an error for the District Court to conclude on the record alone that Westmoreland had made intentionally or recklessly false statements. Westmoreland had presented sufficient evidence that he had reason to believe that if the BVDT was not disbanded, it would have responded sooner, it could have found the child in the water sooner, and the child might have had a chance of surviving. In addition, the court found that an intentional or reckless disregard for the truth was not shown by the fact that the divers who arrived later could not be deployed before the child was found. Finally, the court held that, despite Westmoreland’s inflammatory rhetoric that the budget cuts were “partly responsible for condemning that child to death,” the defendants had not shown it was intentionally or recklessly false for Westmoreland to claim that the rescue effort was hamstrung because Bay Village no longer had a dive team.

The court therefore remanded the case back to the trial court to determine whether the challenged statements were, in fact, false; whether any of Westmoreland’s statements were knowingly or recklessly made; whether a reasonable official would have believed any false statements were knowingly or recklessly made; and, if necessary, whether-considering any falsity-the plaintiff’s interest in speaking as a citizen on a matter of public concern outweighed the defendants’ interest in promoting the efficiency of the public services it performs through its employees.

Public employees, as citizens, have the right to speak out on matters of public concern, in a variety of forums, including private or public meetings, written letters, and interviews with the media. However, fire department administrators must also maintain discipline and working relationships between employees and between the department and the public. As a result, a fire department is entitled to discipline employees who violate through their speech department work rules or policies, whether they are on or off duty.

Fire department administrators cannot anticipate every scenario involving employee speech, but the following guidelines can help determine when speech may or may not be protected:

• An employee of the department, while speaking as a private citizen on a matter of public concern, should be able to speak freely without interference by the employer, unless the employer can prove that actual harm to the department occurred or its operations were disrupted.
• Employees may be required to address matters of public concern through the department’s chain of command before information is released to governing members of the political subdivision, the media, or the public. If employees do not use the chain of command and cause actual harm or disruption to department operations, they may be disciplined.

Employees who speak as part of their official job duties or responsibilities may be disciplined for improper comments or violation of department work rules or policies since they are considered to be speaking as employees and not as citizens on a matter of public concern.

Employees are not protected when the employee speaks on matters which are not a matter of public concern. Examples would include matters that relate to internal disciplinary actions, labor grievances, or matters relating to work place wages or hours. An exception may exist, however, when the speech is directed at fellow employees and involves a concerted effort to improve workplace conditions, wages, or hours of work in a collective bargaining or similar setting.

An employee of the department is not protected against disciplinary action when he or she provides false or deceptive information to the department or members of the public. Additional unprotected speech may include speech that constitutes harassment, hate speech, or the dissemination of protected or confidential information as well as speech that contains libelous, slanderous, inflammatory, or misleading statements. In the Westmoreland case, the issue centered on whether or not the speech was false or misleading so as to not receive the protection provided by the First Amendment. However, the Court of Appeals suggested that it was improper for a court to summarily decide the issue and dismiss the case. Instead, the court found sufficient evidence to submit the issue to a jury to determine whether or not the statements were recklessly false. If the jury sides with the firefighter, the city could be held liable for violating the firefighter’s civil rights.

Speaking out against an employer brings significant risk to the employee, and attempts to discipline the employee brings significant risk to the employer. Because of these risks, employees and employers should tread lightly and not act hastily. When in doubt, consult your legal counsel.

DAVID C. COMSTOCK JR. is a 32-year fire service veteran and chief of the Western Reserve Joint Fire District in Poland, Ohio. He is a chief fire officer designee and lectures and writes on fire service topics relating to chief and company officer operations, liability, and personnel issues. Comstock is also an attorney in the firm of Comstock, Springer & Wilson Co., L.P.A. in Youngstown, Ohio.

David C. Comstock Jr. will present “Firefighter Free Speech” on Thursday, April 10, 1:30 p.m.-3:15 p.m., at FDIC 2014 in Indianapolis.