Six former firefighters-James Schnabel, Kamrin Dooley, Mike Carlson, Randall Nyberg, Jeff Campbell, and Oscar Lopez-of the Hulapai Valley Fire District in Kingman, Arizona, claimed that the fire district and its fire chief, Wayne Eder, fired them in retaliation for exercising their First Amendment right to free speech and association. All of the firefighters belonged to the United Professional Firefighters of Kingman, International Association of Firefighters (IAFF) Local 4191. At the time of the terminations, morale was low at the fire district. This condition was based in part on certain firefighters’ unhappiness with the chief. The terminated firefighters were members of the group that was dissatisfied with the chief and the environment at the fire district.
Chronology August 2006
Firefighters Schnabel and Dooley began compiling, in e-mail form, a list of concerns departmental employees raised regarding the fire district and its leadership. According to the firefighters, the concerns addressed issues of public safety, firefighter safety, departmental mismanagement, staffing, pay, and misuse of departmental and district funds.
Schnabel and Dooley circulated the list of concerns to other department employees to solicit additions. Captain Jason Scott received the list by e-mail and printed a copy for the chief. Scott believed that all six of the terminated firefighters were involved in preparing the list. In late August 2006, Nyberg discussed with Scott the possibility of having a departmental meeting to address the list of concerns. Nyberg alleged that Scott stated that any attempt to organize such a meeting would only lead to Schnabel’s termination and the termination of anyone who spoke up at such a meeting. Scott denied that he told Nyberg that anyone speaking up would be terminated.
After receiving a copy of the list from Scott, Eder scheduled a mandatory meeting for all departmental personnel. At the meeting, the chief addressed the list of concerns and stated why he felt the concerns were misplaced. Schnabel and Dooley attempted to speak at the meeting, but Eder ignored them. Seven days after the meeting, the chief terminated Dooley without prior notice. The termination papers indicated Dooley was fired for failure to successfully complete his promotional probation. The papers did not give any more details. Because Dooley was on promotional probation, he could be discharged without cause and without a right of appeal.
Three days later, Eder terminated Schnabel. Schnabel’s termination papers stated he was also discharged for failure to successfully complete his promotional probation. When Schnabel inquired further into the grounds for his discharge, the chief told him that he was being terminated “because of what’s happened” and because “too much stuff has gone down.”
September 15, 2006
The same day Schnabel was fired, plaintiff Campbell received a verbal reprimand. The reprimand did not concern a specific allegation. It was more of a global warning:
Based on the events that have transpired within the last 30 days concerning rumors and gossip within the organization, you are reminded that any action which causes discord or disharmony within this organization will not be tolerated … you are reminded that issues concerning this organization that you are privy to and are not public record are not to be discussed with outside organizations, fire departments, or the general public.
Eder indicated that Campbell would be terminated if he did not sign the reprimand form.
November 5, 2006
The president of the union advised the union members of upcoming news articles and radio interviews involving the union, Kingman School District, and the fire district. According to Nyberg, Scott confronted him on that same day and repeatedly asked what had been said at a recent union meeting. Scott admitted asking Nyberg about the meeting but denied telling him that all members of the union would be called in and terminated. Nyberg alleged that on the next day Scott confronted him with a personnel action form indicating that Nyberg would be terminated if he did not explain what took place at the union meeting. After Nyberg denied knowing anything about the meeting, Scott shredded the termination papers. Scott did not deny that this confrontation took place but denied that he acted on Eder’s behalf.
November 8, 2006
An article entitled “Union Officers Say Fire Chief ‘Hosed’ District; Allege Wayne Eder Abused Position” appeared in the local newspaper. As a result of this article, district board members Edward Schrum and Patricia Lewis investigated the accusations made against Eder. In the course of this investigation, Schrum and Lewis either “interrogated” (according to the firefighters) or “interviewed” (according to the defendants) Nyberg, Carlson, Campbell, and Lopez at some point in late 2006. In the interview/interrogation of Nyberg, Schrum and Lewis discussed high turnover at the fire district, firefighters being on constant probation, and the incident with Scott. They also asked Nyberg if union members like Mike Stapleton or Ed Eads had given any information to the union.
During the interview/interrogation of plaintiff Carlson, the discussion involved staffing issues. Defendants Lewis and Schrum assured Carlson that he had nothing to worry about. Notes from the interview made by Lewis and Schrum contained the following statement: “Mike will always be a follower. His words came straight from [Union President] Robert Borker’s mouth.”
Schrum and Lewis interviewed/interrogated Campbell. That discussion addressed Eder’s management style and abusive language; proper staffing levels; high turnover; poor departmental operation communications; automatic-aid agreements with other fire departments; and the list of concerns prepared by Dooley, Schnabel, and others. Schrum and Lewis did not dispute that Campbell discussed those topics. The terminated firefighters alleged that during the interview, Schrum and Lewis accused Campbell of lying and stated that the union did not exist and that it was a waste of money to join. Defendants allege that Schrum accused Campbell of lying after Campbell stated the union had a contract with the fire district. The defendants also claimed that Lewis specifically told Campbell that the investigation was not to discuss the union but was targeted toward the chief.
Schrum and Lewis also interviewed/interrogated Lopez. The duo asked Lopez about the union and what information he might have provided to the union. The firefighters alleged that Lewis and Schrum told Lopez that the union was not real and that it was powerless to help Lopez in any way. Schrum allegedly told Lopez that paying dues to an organization that gives nothing in return is like throwing money down the drain.
Lopez further alleged that during the meeting, he stated his concerns about Scott’s threatening to fire employees and interrogating employees about their affiliation with the union and the substance of the union meetings. Lopez further alleged that he expressed concerns about departmental morale, staffing and safety issues, the hostile work environment for union employees, the overall management of the department, and his job security. The defendants claimed that Lopez never spoke about adequate staffing during his interview with Schrum. Schrum also denied telling Lopez that the union was “not real.”
January 4, 2007
The chief informed plaintiff Campbell that if he did not resign from the fire district, Eder would fire him. Eder offered Campbell a severance package if he agreed to resign and sign a waiver of liability releasing the fire district, as well as its officers, directors, employees, and agents from any liability relating to any violations or law. The paperwork provided to Campbell regarding his termination identified three complaints against him. One of the incidents involved Firefighter Noah Glaza’s verbal complaints to Scott in early November 2006. According to the defendants, Glaza advised Scott of a serious safety violation-the issuance of a turnout coat with a tear in it by Lopez and Campbell’s subsequent failure to procure a different turnout coat. At some point later, Eder instructed Glaza to prepare a complaint regarding the incident. After receiving a first draft, Eder instructed Glaza that he needed to do a more formal complaint. Glaza resubmitted the complaint, which raised the “turnout coat tear” issue in a general “harassment” complaint. Glaza complained that Campbell constantly treated him unfairly. Glaza later retracted his complaints about the unfair treatment. The two other incidents involved alleged complaints of harassment by Firefighters Mike Lowe and Miguel Buelna against Campbell. Lowe and Buelna later said they had never complained about Campbell to Eder.
January 6, 2007
Eder terminated Nyberg. The termination papers provided that Nyberg was being discharged for failure to successfully complete his probation. When Nyberg asked for more information, Eder stated he did not have to provide any reason for the termination.
January 7, 2007
Eder fired Carlson. Again, the termination papers indicated Carlson had failed to successfully complete his probation. During his deposition, Eder stated that he had overheard a conversation between Nyberg and Carlson regarding union membership more than one year earlier. Eder testified:
… at that point, I started thinking, I’m going-wait a minute! If [Nyberg] is at this point and [Carlson] was associated with this, if they’re being aggressive to the point on union membership to other employees, then we have a problem. And I think on that day I pretty much made up my mind that both of those boys were gonna be terminated on their probation.
Eder explained this comment by stating that after the union had called for his termination, Nyberg and Carlson had harassed another firefighter about union issues.
Lopez alleged that the allegations against him had not been previously disclosed and that the information provided no substantive details. Lopez requested to see any specific allegations against him, but Eder allegedly refused that request. He believed that his letter to Lopez did an adequate job of documenting the charges against him. Eder offered Lopez what the firefighters characterized as a “buyout” or severance package and what defendants characterized as a “mutual nondisparagement agreement.” The buyout/nondisparagement agreement called for a waiver of liability of all claims against the fire district and its officers, directors, employees, and agents. Schrum told Lopez that any negative information regarding Lopez would be destroyed if he signed a waiver of liability.
January 9, 2007
In front of Schrum, Eder told Lopez that if Lopez did not resign from the fire district, Eder would fire him. Eder provided paperwork to Lopez that alleged Lopez had harassed a firefighter. A harassment complaint was made two months earlier [November 2006] and updated in December 2006. The paperwork also alleged that Lopez was “creating an environment of discord and disharmony” within the fire district.
January 10, 2007
Campbell informed Eder that he would not voluntarily resign. Eder refused to speak to him further and terminated him one day later. Campbell’s termination papers stated he failed to rebut the charges previously outlined, even though Eder refused to speak with him and refused to provide him with documentation regarding the allegations against him.
Campbell appealed his termination to the personnel appeals board because he was not on probation. The appeals board recommended that the fire district reverse Campbell’s termination. However, the board upheld Campbell’s termination.
January 16, 2007
Lopez informed Eder that he would not voluntarily retire. Eder immediately terminated Lopez. The termination papers cited Lopez’s failure to rebut the previously outlined charges against him despite Eder’s refusal to provide Lopez with documentation of the allegations. Lopez also appealed his termination to the appeals board. Both the appeals board and the fire district denied the appeal.
The fire district historically evaluated all employees annually. The firefighters alleged that in the fall of 2006, the fire district lost all of the employees’ performance evaluations for 2005 and 2006. The defendants alleged that a former fire district firefighter stole the documents during the fall of 2006. The defendants did not specifically allege which documents were stolen.
Firefighters Sue
All terminated firefighters then sued the district, the chief, and board members Schrum and Lewis in the Arizona Federal District Court [Schnabel, et al. v. Hualapai Valley Fire District, et al., 2009 WL 322948 (D.Ariz.)]. In filing their lawsuit, the terminated firefighters claimed that the defendants fired them in retaliation for exercising their right to free speech. To establish a prima facie case for a First Amendment retaliation claim, public employees must prove that (1) they suffered an adverse employment action; (2) they engaged in protected speech; and that (3) their speech was a substantial motivating factor behind the adverse employment action. Because Eder terminated all six of the plaintiffs, the defendants conceded that an adverse employment action had taken place.
Were the Employees Engaged in Protected Speech?
The court then addressed the second issue-whether the public employees were engaged in protected speech. Under this analysis, the court applied the law of Pickering v. Bd. of Educ. of Township High School Dist., 205, Will County, 391 U.S. 563, 88 Sup. Ct. 1731 (1968). The Pickering analysis involves a two-part test: (1) whether the speech that led to the adverse employment action relates to a matter of “public concern” and (2) whether under the balancing test, the employer can demonstrate that its legitimate interests outweigh the public employee’s First Amendment rights.
The court noted that the First Amendment protects the speech of public employees when the speech addresses a matter of legitimate public concern. Speech that concerns matters about which information is needed or appropriate to help members of society make informed decisions about the operation of the government merits the highest level of First Amendment protection. Conversely, speech by public employees that does not address matters of public concern-speech that deals with individual personnel disputes and grievances-would be irrelevant to the public’s evaluation of the performance of the government. If employees’ speech does not address a matter of public concern, government officials are given wide latitude to manage their offices without intrusive oversight by the courts.
Historically, the courts have determined whether speech is a matter of public concern as a question of law. In making these determinations, prior courts have also noted that a public employee who chooses to communicate privately with his or her employer, rather than providing his or her views to the public, is still provided protection under the First Amendment. Speech that is alleged to be reckless does not automatically lose its right of protection either.
The Court of Appeals, in reviewing whether the terminated employees’ list and other statements made in private related to matters of public concern, noted that opinions about the preparedness of a vital public safety institution, such as a fire department, go to the core of what constitutes speech and matters of public concern. [Citing Gilbrook v. City of Westminster, 177 F. 3d 839, 866 (9th Cir. 1999).] Reports of low morale, inadequate training, and discipline of firefighters were previously determined to be matters of public concern. See Hyland v. Wonder, 972 F. 2d 1129, 1139 (9th Cir. 1992) and Janusaitis v. Middlebury Volunteer Fire Dept., 607 F. 2d 17, 18 (2nd Cir. 1979).
Once a court determines that an employee’s speech involves a matter of public concern, the court must then determine if the employer’s legitimate administrative interests outweigh the First Amendment protection ordinarily granted to the employee. The balancing test set forth in Pickering strikes a balance between the interest of the employee, as a citizen, to comment on matters of public concern and the interest of the government, as an employer, in promoting the efficiency of the public service it performs. [Gilbrook v. City of Westminster, 177 F. 3d 839, 866 (9th Cir. 1999).]
The court noted that there are several factors that may be considered in performing the Pickering analysis. These factors include whether the speech
- impairs discipline or control by superiors,
- disrupts co-worker relations,
- erodes a close working relationship premised on personal loyalty or confidentiality,
- interferes with the employee’s performance of his or her duties, or
- obstructs the routine operation of the government office.
The nature of the government employer’s burden to show disruption and efficiencies varies according to the content of the speech: “The more tightly the First Amendment embraces the speech, the more vigorous the showing of disruption must be made.” Id.
The third element to establish a First Amendment retaliation claim involves the issue of causation. The terminated firefighters had to demonstrate that their speech was a substantial or motivating factor behind the termination. To prove this element, a plaintiff may introduce evidence of the proximity in time between the protected action and the adverse employment action; the plaintiff can demonstrate that his employer expressed opposition to his speech, either to him or to others; or the plaintiff can introduce evidence that his employer’s stated reasons for the adverse employment action were false and pre-textual. [See Coszalter v. City of Salem, 320 F. 3d 973, 977 (9th Circ. 2003).] Once a plaintiff has met his burden on the retaliation claim, the burden shifts to the employer, who must demonstrate by a preponderance of the evidence that it would have taken the same employment action even in the absence of protected conduct.
Plaintiffs’ Claims Dooley and Schnabel
The federal district court in Schnabel then addressed the claims of the individual plaintiffs. The court began by addressing the claims of Dooley and Schnabel, who were responsible for circulating and compiling the list of concerns that spurred the subsequent department meeting. The court noted that a fire department’s ability to respond effectively to an emergency is of the utmost public concern and that this issue goes to the core of what constitutes speech on matters of public concern.
The defendants argued that the list did not address matters of public concern because it included personal grievances, was not given to the chief or to members of the public, and contained inflammatory and inaccurate statements.
In deciding this issue, the court ruled that the inclusion on the list of personal grievances is not relevant. Statements, including a list such as that compiled by the two firefighters that include both private and public concerns, still fall within the protection of the First Amendment. The court noted that the plaintiffs circulated the list around the department to collect additional concerns when the list was intercepted by Eder. The court ruled that Dooley’s and Schnabel’s failure to share the list of concerns outside of the fire district before Eder obtained his copy did not deprive the firefighters of their First Amendment protection.
Finally, the court ruled that the inflammatory nature of some of the statements contained on the list and their alleged inaccuracy did not deprive the firefighters of First Amendment protection. The Ninth Circuit Court of Appeals had previously stated that some inaccuracy in the content of speech must be tolerated. As a result, the court held that the e-mail list circulated and compiled by Dooley and Schnabel addressed matters of public concern.
The court then determined whether the fire district’s legitimate administrative interests outweighed Dooley and Schnabel’s First Amendment rights. In addressing this issue, the defendants argued that the fire department depends on discipline and esprit de corps to properly function and that the plaintiffs’ actions impaired discipline and control by their superiors. The defendants also argued that the e-mail list hindered the operation of the fire district because Eder had to call a departmentwide meeting to address the issues. Finally, the defendants argued that the morale of the fire district was low and the efforts of those who wanted Eder terminated contributed to the low morale.
The Court did not agree with the argument that the circulation of the list hindered and disrupted fire district operations. Eder, not the firefighters, called the meeting. The defendants did not offer any evidence that the meeting resulted in any problems with district operations, and the Court further noted that Dooley and Schnabel were not high-level policy makers. The defendants offered no evidence that the discussion of problems with the fire district hindered the performance of their jobs or that the circulation of the list impacted any other firefighters on job performance. Although Dooley and Schnabel did not share the list with the media, they did circulate it throughout the department to encourage discussion to expand their list.
The Court agreed with the defendants that the morale at the fire district was low but added that Dooley and Schnabel’s actions could not have had more than a “marginal impact” on the firefighters’ already low morale. The court agreed with the defendants that esprit de corps is important for the functioning of a fire department but given the magnitude of the speech rights at issue, the defendants needed to more definitively demonstrate that the list disrupted or really threatened to disrupt operations of the fire district. The Court, therefore, found the Pickering balancing test favored Dooley and Schnabel.
The court also found that Dooley and Schnabel presented sufficient evidence as to whether their circulation and discussion of the list of concerns played a substantial motivating role in their terminations, given the time period between the circulation of the list, the meeting with firefighters, and their termination seven days following the meeting. Eder’s expressed disapproval of the opinions of these firefighters also played a role in permitting Dooley and Schnabel’s First Amendment claims against Eder to be presented to a jury.
Nyberg
With respect to plaintiff Nyberg, the court acknowledged that the firefighters had discussed the high turnover rate at the fire district, the firefighters were constantly on probation, and the incident with Scott. The Court found that the high turnover rate at the fire district addressed a matter of public concern, as there is a general interest in fire departments attracting and retaining qualified firefighters. This discussion took place in a private interview-the context and form of which generally weighed against a finding of public concern. However, the court found that Nyberg’s speech addressed a matter of public concern, given the context, content, and form as revealed by the entire record before the court. In conducting the balancing test, the court again found that the defendants did not show that Nyberg’s conduct caused disruption, impaired discipline, or interfered with his duties or that Nyberg was a high-level policy maker.
Like plaintiffs Dooley and Schnabel, Eder terminated Nyberg. However, with respect to Nyberg, the court also found that two of the fire district board members played individual roles in his termination:
Section 1983 liability attaches to anyone who ‘causes any citizen to be subjected to a constitutional deprivation …. The requisite causal connection for a retaliation claim can be established if a defendant sets into motion a series of acts, which the actor knows or reasonably should know would cause others to retaliate.’ Gilbrook v. City of Westminster, 177 F. 3d 839-854.
The court held that Lewis and Schrum should have known that their interview of Nyberg might lead to his termination. Based on the firefighters’ version of the disputed facts, Lewis and Schrum used these “interrogations” as a method of ferreting out firefighters who were not loyal to the chief. Eder received copies of the notes of these interviews. Soon after the interview, Eder terminated Nyberg. Lewis and Schrum were, therefore, determined to be in the line of causation for Nyberg’s claims. Therefore, the court permitted Nyberg’s case to go to a jury to determine whether retaliation was a substantial and motivating factor for Nyberg’s termination and whether Eder would have terminated Nyberg regardless of Nyberg’s speech/actions.
Plaintiff Carlson also discussed some of his own and the union’s concerns regarding staffing issues during his session with Lewis and Schrum. Using the same analysis, the court found in favor of Carlson and against Eder, Lewis, and Schrum, permitting the case again to go to the jury as to whether or not Carlson’s actions/speech were substantial and motivating factors for his termination and whether or not Eder would have terminated Carlson regardless of any protected conduct.
With respect to Campbell, the court noted that the plaintiff had a more in-depth conversation with Lewis and Schrum regarding his concerns about the fire district. The discussion included Eder’s management style and abusive language, improper staff levels, high turnover, poor departmental operational communications, automatic mutual-aid agreements, and the actual list circulated by Dooley and Schnabel. The court ruled that Campbell’s speech addressed numerous matters of public concern and that the timing of Campbell’s termination and the other surrounding circumstances raised the possibility that retaliation was a motivating factor in Eder’s decision to terminate Campbell. Again, the court decided that it would permit the case to go to a jury on Campbell’s claims against Lewis, Schrum, and Eder.
Lopez
The court addressed the claims of Lopez. Lopez’s session with Lewis and Schrum involved discussions of the union and his apprehensiveness about his job security. Lopez alleged that he talked about department morale, staffing, safety issues, and the overall management of the fire district. Defendants denied that staffing was discussed. Again, the court found that adequacy of staffing in the fire department would be of interest to the general public and that firefighters are in the best position to address those issues. This speech falls within the realm of the First Amendment. The Court found that Lopez met his burden of establishing a prima facie case against defendants Eder, Lewis, and Schrum so as to permit the case to go to a jury.
Qualified Immunity
Eder, Lewis, and Schrum all asked the court to dismiss the firefighters’ claims against them based on qualified immunity. The defense of qualified immunity protects government officials who have performed discretionary functions from liability for civil damages where their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Even where a constitutional violation may have occurred, an official may receive immunity if the right asserted by the plaintiff was not “clearly established” at the time of the alleged violation.
To determine whether qualified immunity attaches in cases involving protected speech by public employees, a court must determine, as a matter of law, whether the outcome of the Pickering balancing test so clearly favored the employee that it would have been patently unreasonable for the defendants to think that the First Amendment would not protect the employee’s speech. If the Pickering balancing test clearly favored a particular fire district employee, then Eder, Lewis, and Schrum were not entitled to qualified immunity. If the balancing test did not clearly favor the employee, then the defendants would have qualified immunity.
In reviewing the facts, the court found that the Pickering balancing test only slightly favored Nyberg, Carlson, and Lopez. Because the balancing test did not clearly favor those employees, Eder, Lewis, and Schrum were entitled to qualified immunity on those claims. However, the qualified immunity decision with respect to Campbell’s claims was not as easy. Because the content of Campbell’s speech more deeply addressed matters of public concern, the Pickering balancing test tipped more in his favor than it did for Nyberg, Carlson, and Lopez. Nonetheless, given the content and form of the speech/conduct, the court did not find that the balance “so clearly” favored Campbell that it would have been patently unreasonable for Eder, Lewis, and Schrum to conclude that the First Amendment did not protect the speech. Thus, the court also granted immunity to the three defendants on Campbell’s First Amendment claims.
However, the court reached a different result on Dooley’s and Schnabel’s claims. Dooley and Schnabel contacted firefighters to solicit concerns of matters of utmost public interest. They attempted to speak about these concerns at the departmental meeting, but they were ignored. The court concluded that it was patently unreasonable for Eder to conclude that the First Amendment did not protect Dooley and Schnabel’s speech. Prior decisions, including Gilbook, should have put Eder on notice that the list of concerns generated by Schnabel and Dooley were topics of public concern entitled to protection. Because the balancing test clearly favored Dooley and Schnabel, the court denied qualified immunity to Eder on their First Amendment claims.
Liability
The court also found that the fire district itself could be liable for Eder’s actions if either Eder or the fire district board was the final policy maker. Eder terminated all of the plaintiffs. If Eder was the final policy maker in personnel matters, then the fire district could be held responsible for the terminations. If the fire district board was the final policy maker, then the fire district could be held liable if the board ratified the terminations. Because it appeared that, in practice, Eder exercised the final authority, the Court found that Eder was the final policy maker for the fire district when it came to terminating firefighters. Because he was the final policy maker, the fire district could be held liable for the termination of the plaintiffs. The Court found that the fire district did not escape liability from the claims of Nyberg, Carlson, Campbell, and Lopez just because Eder had immunity for those claims, as municipalities do not enjoy the benefit of qualified immunity against Section 1983 claims. The court, therefore, agreed to submit the claims of Nyberg, Carlson, Campbell, and Lopez to a jury to determine whether the fire district could be liable for Eder’s alleged impermissible termination of the plaintiffs.
Discretion Needed
Friction between fire department administrators and employees is nothing new. Unions were created, in part, to address issues related to workplace conditions and safety issues. The greater the concerns, the more vocal some unions will be. When employees raise issues affecting the efficiency of the fire service, union officials will often address those concerns in the newspapers, on television, or on the Web.
Fire chiefs are paid to administrate fire departments. Chiefs do not appreciate those who negatively affect the smooth operation of a department and naturally disdain those who oppose them. It is difficult enough to deal with the public or superiors. Fire service administrators certainly do not need “troublemakers” as employees.
However, fire chiefs must be very careful in dealing with vocal employees. Chiefs must determine whether the employee is simply complaining about internal work issues or whether the concerns are aimed at those issues that affect others besides employees-the general public. When the issues are related to matters of public concern, like staffing, fire service administrators should focus their time and energy on addressing these issues directly and not addressing “personnel” or “union” issues. Detailed responses with facts and reasoning should be drafted and disseminated to all. Certainly, fire administrators and unions do not have to agree on all issues, but each side should recognize and respect opposing viewpoints. Chiefs cannot, and must not, take criticisms personally. They must never address union issues or concerns under the guise of discipline.
There are, of course, those situations where employees, including union members, must be disciplined for violating department rules or regulations. Fire chiefs will be faced with difficult situations where the employee has potentially violated a department rule and has been vocal about matters of public concern. In those situations, the fire chief should ensure complete due process for the firefighter. This includes a fair and neutral investigation conducted by individuals outside of the department if necessary. If warranted, charges should be specific and detailed and should provide sufficient notice to the employee as to the alleged violation. Board members (members of the public body deciding the charges) should not have any prior involvement with the disciplinary case.
Ultimately, the best situation for avoiding all of these legal issues can be accomplished by nonlegal means. Administrators and employees must be willing to listen to each other, to address all issues, and to recognize and respect each other’s opinions. This is easier said than done, but it can be accomplished with commitment. If all parties commit to improving communications, they will prevent or reduce the likelihood of future litigation, poor publicity, and a lack of public support, which ultimately jeopardizes funding for fire department operations.
DAVID “CHIP” COMSTOCK JR. is a 30-year veteran of the fire service and chief of the Western Reserve Joint Fire District in Poland, Ohio. He is a Chief Fire Officer designee and lectures extensively on fire service topics related to company officer operations, liability, and personnel issues. His articles have appeared in many fire service magazines including Fire Engineering. He is an attorney in the firm of Comstock, Springer & Wilson Co., L.P.A. in Youngstown, Ohio. His law practice is focused on insurance defense litigation, including governmental liability and insurance fraud/arson cases.
David Comstock will present ”Firefighter Free Speech” on Wednesday, April 20, 10:30 a.m.-12:15 p.m., at FDIC International 2016 in Indianapolis.
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