Archives for first-amendment
No Discipline for Miami Dade Captain in Helicopter LZ Yelling Match
The Miami-Dade fire captain who attempted to stop a photographer from filming at a med flight helicopter landing will not face disciplinary action for his behavior.
Captain Greg Smart yelled at and later pushed photographer/blogger Taylor Hardy in an attempt to get him to stop filming the transfer of a patient from an ambulance to a helicopter. The March 21, 2013 altercation was recorded by Hardy and became somewhat of an Internet sensation when posted on YouTube.
Hardy filed a complaint with MDFR over Captain Smart’s behavior and the matter was investigated. The investigation concluded that disciplinary charges were “not sustained”.
Today, CBSLocal.com in Miami was unusually critical of the investigation characterizing it as a “cover up”. The news outlet cited the fact that the investigation neglected to even consider Captain Smart’s requesting police assistance “Code 3” and mischaracterizing Hardy’s behavior as “combative”, something that is clearly refuted by the video. They also interviewed Hardy, who said he was never informed that his complaint had been dismissed, nor had he received an apology.
The investigation did conclude that Captain Smart acted unprofessionally, but found that “He was under a great deal of stress on this call and acted in an aggressive nature when challenged by the bystander. … Capt Smart agrees that he overreacted and caused embarrassment not only to himself but to the department. I feel that in the future he will have a different perspective as to how we need to act regardless of the severity of the call.”
Incidentally, CBSLocal.com’s news outlet’s sympathies are understandable given the obvious First Amendment issues that are such a huge concern to those in the media. From a Fire Law perspective, I am concerned that by not taking a clearer stand on what (IMHO) was a pretty obvious First Amendment violation MDFR may in fact provoke a totally unnecessary federal lawsuit.
The reality is many in the media feel so passionately about the First Amendment that they are highly motivated to teach governmental actors (such fire departments and firefighters) a lesson… a very expensive lesson that in this case seems to have been missed by MDFR.
Often after a possible liability causing event attorneys take a conservative approach: admit nothing, deny everything and force the bastards to prove their case. Many enlightened leaders are realizing that a simple and sincere apology is often a better solution… one that in the long run can even be cheaper!!!! This case would seen to be a prime candidate for such an approach.
The ball is now in Taylor Hardy’s court. I’d be surprised if First Amendment groups do not rally around Hardy and help bankroll his cause.
Boston Fire Chief Threatens to Sue His Deputy Chiefs
Boston Fire Chief Steve E. Abraira has threatened to file suit against the 13 deputy chiefs who criticized him in a letter to Mayor Thomas M. Menino following the Boston Marathon bombing.
The threats were contained in a letter was sent last week by Attorney Louis M. Ciavarra to the deputies. Among the quoted parts of the letter:
- “Your conduct is nothing more than a transparent effort to hide the inadequacies of your own performance and to interfere with my client’s efforts to improve the Boston Fire Department”
- The “timing of your letter, and in particular linking it to the tragedy of April 15th, is reprehensible”
- It “was a misplaced and frankly outrageous attack intended to strengthen your ability to reject and obstruct Chief Abraira’s efforts to bring the BFD in line with modern fire fighting practices.”
Ciavarra’s letter characterized the letter sent by the deputy chiefs to Mayor Menino on April 26, 2013 as defamatory and threatened to file suit “should any further such conduct occur.”
The letter sparked a strong rebuke by the attorney for the deputy chiefs, Joseph G. Donnellan, who today characterized Ciavarra’s letter as an effort to prevent them from testifying at a Boston City Council hearing scheduled for June 18, 2013.
According to Donnellan, “Each and every one of them saw it that way… They saw it as a direct attempt to make sure [the deputy chiefs] don’t go to that hearing and don’t speak their mind.”
Donnellan issued a threat of his own: “Most assuredly, if the chief’s lawyer follows through on his threat to sue the deputy chiefs of the Boston Fire Department, we will react very strongly and very swiftly.”
Note: If any of my friends from Boston can supply a copy of the letters, I’d be much obliged.
Facebook Post Prompts Discipline for Five DC Firefighters
Five DC firefighters are in hot water over some controversial comments they posted on Facebook.
The controversy began when a firefighter posted a photo of a DC police officer who had just issued the firefighter a traffic ticket. Along with the photo the firefighter included a comment to the effect "This is why we should be careful and take our time getting to incident scenes."
The comment was understood to refer to a March, 2013 incident where an injured DC motorcycle police officer had to wait 20 minutes for an ambulance. Following the initial post, four other firefighters added their thoughts.
Due to the inflammatory nature of the posts, Fire Chief Kenneth Ellerbe transferred the five members to desk jobs while the matter is investigated.
View more videos at: http://nbcwashington.com.
This will be an interesting case to follow as both the First Amendment and the right of unionized employees to engage in “concerted activities” in social media, are implicated. We will have to await more detail to be able to fully analyze both aspects.
The following is taken from the NLRB’s August 18, 2011 memo on social media, outlining the approach it applies when looking at whether employee speech in social media is protected under either of two tests it applies in such cases: Atlantic Steel and Jefferson Standard. The case involved a car salesman who posted photos and comments about his dealership that his employer took offense to.
Although the employee posted the photographs on Facebook and wrote the comments himself, we concluded that this type of activity was clearly concerted. We found that he was vocalizing the sentiments of his coworkers and continuing the course of concerted activity that began when [coworkers] raised their concerns at the staff meeting. Further, we concluded that this concerted activity clearly was related to the employees’ terms and conditions of employment. …
Atlantic Steel is generally applied to an employee who has made public outbursts against a supervisor, while Jefferson Standard is usually applied where an employee has made allegedly disparaging comments about an employer or its product in the context of appeals to outside or third parties.
Applying Atlantic Steel, we found that the employee’s Facebook postings … were not so opprobrious as to lose the Act’s protection. The activity concerned a subject matter protected under Section 7. Further, although the activity was not provoked by any unfair labor practice committed by the Employer, the nature of the outburst was much less offensive than other behavior found protected by the Board. …
Under Jefferson Standard, the inquiry is whether the communication is related to an ongoing labor dispute and whether it is not so disloyal, reckless, or maliciously untrue as to lose the Act’s protection. Here, the employee’s postings were neither disparaging of the Employer’s product nor disloyal. The postings merely expressed frustration with the Employer’s choice of food at the sales event. They did not refer to the quality of the cars or the performance of the dealership and did not criticize the Employer’s management. We found it irrelevant that the postings did not clearly indicate that they were related to a labor dispute given that they were neither disparaging nor disloyal.
UPDATE: May 15, 2013
First Amendment, Fire Scene Photos and Road Closures
Today’s burning question: I live in a rural area where it is common practice at vehicle accidents and fire scenes for the road leading to the scene to be shut down by fire police (members of the fire department who are peace officers). Because this is a rural area the road may be shut down a mile or more away from the incident so that traffic may be diverted onto an alternative routes.
Do fire police (or anyone for that matter) have the authority to stop someone from passing them for the purpose of photographing the incident in cases like this (they do not let the public through typically)? Would this be considered a legitimate exclusionary zone, considering the distance from the incident or would it violate the photographer’s First Amendment Rights?
Answer: Great question in light of our recent First Amendment discussions.
If the road is closed and traffic is diverted a mile from the scene, but local traffic is allowed to proceed past the fire police, then it would probably violate the photographer’s First Amendment Rights to exclude him/her from being allowed to proceed closer to the scene.
If the road is closed to ALL traffic (even local traffic) due to safety concerns – or even due to operational work zone concerns such as congestion, hose lines, tanker shuttle operations, etc., then photographers could be prevented from proceeding by vehicle. The fire police would not be able to stop them from parking outside the traffic exclusion zone and proceeding on foot, unless there is a safety issue or work zone concern.
Where a department could get themselves in trouble is if they use safety or the work zone exception as a pretext to exclude photographers, reporters, or even members of the public from covering a newsworthy event. The First Amendment’s protections to extends to everyone, not just photographers or the media.
Posted in Burning Question, Constitutional Rights, First Amendment, Volunteers
Arbitrator Overturns Demotion in Miami Dade Facebook Rant Case
Miami Dade’s Brian Beckmann is once again a captain, courtesy of a long awaited arbitrators ruling handed down today.
Just about a year ago, the case made news when Captain Beckmann posted some remarks about the Trayvon Martin shooting case that many took to be racist. The remarks themselves did not reference race but in the context of the thread were understood by some to be offensive. For the record those remarks were:
"I and my co-workers could rewrite the book on whether our urban youths are victims of racist profiling or products of their failed, (expletive), ignorant, pathetic, welfare dependent excuses for parents."
While the remarks were initially shared with a limited number of his Facebook friends, an “offended” co-worker of Captain Beckmann’s forwarded the post to others causing the statement to go viral.
Riding a wave of public anger over the posting, Miami Dade Mayor Carlos Gimenez directed Fire Chief William W. Bryson to terminate Captain Beckmann. Chief Bryson felt a 14 day suspension was more in order but relented to the demotion when he realized his own job was on the line.
The arbitrator’s ruling issued today reversed the demotion and imposed a 14 day suspension concluding that the Mayor exceeded his authority in dictating the punishment which by law was delegated to the Fire Chief.
The Mayor made the decision to demote Mr. Beckmann, and Chief Bryson carried out the Mayor’s decision by signing the demotion letter. Chief Bryson did so only because he believed that he had no discretion to do otherwise. …
The Arbitrator deems it self-evident that the [city’s personnel] directives – that [dictate that] the demotion decision must be made by a Department Director – refers to who must make the decision and not to who must sign the paperwork. The latter without the former would be an empty clerical gesture, unworthy of memorialization in the CBA. …
Under CBA Article 4.8, Chief Bryson alone was to have made the decision to demote…
[T]he Arbitrator finds that Chief Bryson believed that if he did not fire or demote Captain Beckmann, he would be discharged. That constraint upon Chief Bryson’s independent judgment constituted a violation of the parties’ CBA contractual intent….
In reinstating Captain Beckmann the arbitrator also awarded him back pay for the nearly eleven months he was paid at firefighter’s rate.
Here is a copy of the ruling: Arbitrator's Decision – Beckmann Facebook Posting Demotion
I have to admit, I am somewhat disappointed that the case focused solely on the role of the mayor in overreaching the fire chief, and not on what is a more important issue: the First Amendment rights of an off duty firefighter to discuss a non-work related matter of public concern as a private citizen.
Perhaps that will have to await a civil suit.
Illinois Sexual Harassment Suit Removed to Federal Court
An Illinois sexual harassment case originally filed in state court, is now headed to federal court along with some nasty allegations.
Lieutenant Terri Simone Lorenz of the Orland Fire Protection District claims that her sexual harassment problems began shortly after Fire Chief Bryant Krizik and Deputy Chief Joe Madden were placed on administrative leave in May, 2011. She alleges that the newly appointed acting fire chief, Raymond Kay, and Battalion Chief Nicholas Cinquepalmi embarked on a malicious campaign to drive her from the department.
Quoting from the complaint:
Defendants subjected Simone Lorenz to a long standing pattern of discrimination based on her sex (female), retaliation because she complained, and created and perpetuated a hostile work environment, including but not limited to the following:
a.Maintaining pornographic, sexually graphic, and other inappropriate material in the women’s bathroom and in other places in the fire house;
b.Making derogatory comments about women, including about Simone Lorenz, other women firefighters, and other women generally;
c.Singling Simone Lorenz out on drills;
d.Shunning and ostracizing Simone Lorenz and encouraging other firefighters to do the same, which for a firefighter can be a safety issue on fire calls, which are inherently dangerous;
e.Spreading malicious and sexually based rumors about Simone Lorenz;
f.Subjecting Simone Lorenz to unwarranted scrutiny, criticism, and false allegations;
g.Subjecting Simone Lorenz to a notice of interrogation based on false and malicious accusations and without cause, when other employees were not subject to interrogation for similar or more egregious allegations against them;
h.Subjecting Simone Lorenz to unwarranted disciplinary action, and discipline for which male employees were not subjected to for far more egregious allegations made against the male employees; and
i.Denying Simone Lorenz assignments and special projects that she had previously done.
The six-count, 46 page complaint includes some 199 paragraphs, alleging gender discrimination under state and federal law, hostile work environment, retaliation under the Illinois Human Rights Act, discrimination on the basis of union affiliation, and Constitutional violations (42 USC 1983) of the Equal Protection Clause and the First Amendment.
Included in the specifics of the claims:
- Chief Kay initiated an unwarranted investigation into whether Simone Lorenz cheated on her promotional exam even though she was promoted in 2009, two years before he became the acting chief. The investigation did not result in charges and Simone Lorenz insists the allegations were fabricated.
- Simone Lorenz received a one day suspension for “giving the finger” to another lieutenant while both were off duty at a union function. The charge was later reversed by an arbitrator who heard testimony that included:
- [Chief Kay] admitted that he had never recommended or issued discipline for that kind of conduct – except for against Simone Lorenz.
- Defendant [BC] Cinquepalmi gave “the finger” to Simone Lorenz’s entire crew during roll call, and was never disciplined
- Defendant [BC] Cinquepalmi instructed [the other lieutenant] to document the incident, so that Defendants could then charge Simone Lorenz with misconduct and discipline, demote her, or fire her from the District
- Management admitted that giving “the finger” to one another commonly occurs “on duty” in the firehouse
- Simone Lorenz was suspended for 1 day for sending an email to “all users” (subsequently reversed by an arbitrator after it was revealed there was no rule that prohibited it and that others who did the same thing were not disciplined).
- Repeated requests for help from human resources went largely ignored.
The case was originally filed in Cook County Circuit Court, and was removed to federal court at the request of the Fire Protection District.
Here is a copy of the complaint. Complaint
While there are a number of troubling aspects to the allegations in the compliant, there is one issue that stands out to me that is worth discussing from a leadership perspective: Lt. Simone Lorenz made repeated allegations that male subordinates were rude and disrespectful towards her, and that Chief Kay and Cinquepalmi did nothing to address the insubordination when told.
Who bears the responsibility for this, Lt. Simone Lorenz or the chiefs? Is it enough for a lieutenant in this situation to claim that “they” know about it?
Washington Firefighters Victorious In Retaliation Suit
Seven firefighters from Pullman, Washington have been awarded $1 million in damages in a mind-boggling case worthy of a novel, if not a movie. The case included allegations of a workplace affair, vindictive retaliation, sexual harassment, an officer asking subordinates to provide naked photos of their wives, and counter allegations of a vengeful witch hunt by city officials against union officials.
The lawsuit was brought by Captain Eric Reiber, president of Pullman Firefighters IAFF Local 1892, and six other members who claim they were wrongly disciplined for standing up for Captain Reiber. The suit alleges due process violations, First Amendment violations, conspiracy, defamation, false light privacy violations, intentional infliction of severe emotional distress (outrage), and a state law retaliation claim.
Captain Reiber alleges that one of his subordinates, a female, was having an affair with a married firefighter and that the relationship was creating turmoil in the workplace. When he reported the affair, the pair fabricated allegations of misconduct by Captain Reiber. The fire chief and the city allegedly seized on the allegations as an opportunity to weaken the union’s bargaining position and retaliate against Captain Reiber for his past union activities.
The 28 page complaint can be downloaded here – in two parts. It is a very interesting read.
Part I Reiber v Pullman -1.pl
Part 2 Reiber v Pullman -2.pl
Between the allegations and counter allegations, we will never know where the truth lies. However, the case points out the importance of conducting a thorough and impartial investigation when firefighters are accused of misconduct.
Among the mistakes made by the Pullman Fire Department in investigating the allegations and imposing discipline – at least according to the complaint:
- The fire chief instructed a member to prepare a written statement implicating Captain Reiber. When it did not provide “sufficiently negative” information, the chief directed the member to redo the statement incorporating negative comments the chief supplied.
- The fire chief and the city’s investigator developed a list of “highly inflammatory and suggestive” questions that were given to a large number of employees about the Captain Reiber “making sexual comments and leering overtures to women”. The questions together with his suspension created the impression “that City officials already held evidence of serious wrongdoing”. One question in particular "Have you or anyone you know ever been requested to provide Captain Eric Reiber with sexually suggestive photos?" allegedly defamed Captain Reiber. The questioning of the employees coincided with contentious contract negotiations.
- When Captain Reiber’s accusers made their claims the investigators did not require them “to provide any specifics as to what was said, or when” and the city “exercised no diligence whatsoever in ascertaining the context or assessing the truthfulness of these charges. Their failure to properly investigate was willful and malicious.’
- At Captain Reiber’s disciplinary hearing on the original charges the city “refused to allow testimony from the many Local 1892 members present and announced that they would accept only written submissions in support of Reiber.”
- Following the hearing the city sent the union a letter threatening “members with discipline should they question the allegations” by submitting written statements in support of Captain Reiber’s version of the events.
- During the grievance arbitration that followed Captain Reiber’s demotion and discipline it was disclosed that the city “willfully withheld … a document seminal to the investigation …. The City's willful concealment of evidence constitute[d a] deprivation of Reiber's due process rights”
- After disciplining Captain Reiber for his original alleged misconduct, the city then took disciplinary action against him and six firefighters who submitted written statements on his behalf alleging that Captain Reiber’s defense – which contradicted the allegations of his accusers – constituted unlawful retaliation against the accusers.
The six day jury trial in US District Court ended with a verdict in favor of Captain Reiber for $325,800 and $135,000 each to Rudy Fisher, Christopher Volk, John Gollnick, Jason Wilkins and Christopher Wehrung. The jury delivered the verdict on April 2, 2013.
The city of Pullman and the estate of Fire Chief Pat Wilkins were held liable. Chief Wilkins passed away last year while the case was pending. Other city officials, including the city’s HR director who served as the primary investigator, were not held personally liable.
For those who have been through the Fire Department Administrative Investigations and Enforcing Discipline Program, this case is certainly one to study for your ongoing professional development. Many of the best practices we discuss in class were not followed and the consequences are evident in the verdict.
First Amendment and the Press’s Right to Take Photos
I received a question that was posted as a comment to one of the stories on firefighters interfering with the public’s right to cover news worthy events. I have paraphrased what was asked… and turned it into today’s burning question:
Is safety a legitimate reason to exclude the press from parts of an emergency scene? Excluding the public, yes, but I don't think safety should be grounds for excluding the press. According to all of the PIO classes I have attended safety cannot be used as a reason to exclude press. PIO's are being told that the only exclusions allowed for the press (leaving out the question of "who is the press") are (1) private property (trespass), (2) interference (reasonable work zone) and (3) exclusion from a crime scene.
Not that I don’t believe you, but is there a statutory provision or case law that you are using when you tell us we can exclude the press because of safety concerns?
Answer: It sounds to me like members of the press may have been involved in teaching your PIO classes, which is entirely understandable. They have an invaluable perspective to share with the fire service – and we need to listen. However, along with that perspective comes a certain bias in favor of the media that the law does not share.
So let me get this straight: according to these “instructors” we cannot deny the press access to a location based on safety concerns? Seriously? That means I could be advancing a hose line into a structure and have a news camera team along side of me? I cannot order them to stay outside? Or entering a hazmat hotzone in level A we might find a cameraman sauntering in? And we’d have to rely on the crime scene or work zone exclusion? I’m not even sure we can enforce the trespass exclusion – that is up to the property owner. What if the property owner gives the news team permission to trespass? Seriously? Your instructors told you we cannot stop the press over safety concerns?
Let’s assume your “instructors” are correct (they are not but play along). The Supreme Court has made it abundantly clear – the right to film and cover the news is not limited to the media – it extends to everyone … EVERYONE… so if we have to allow the media to go somewhere that is unsafe… then the public has the same right… an 18 year old with an iPhone camera has the exact same rights to cover the news as a fully credentialed NBC news team.
OK… enough of the fun stuff… let’s get to the law. The issue is really cut and dried. We can establish and enforce a safety zone for both the public and the press. In Branzburg v. Hayes, 408 U.S. 665 (1972) the US Supreme Court said “the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.” In other words, the press’s right of access is no greater that the public’s right of access. That means if we can deny the public access to a certain area out of concern for the public safety, we can deny it to the press as well.
If you are following this discussion… you will notice another interesting question is raised: if we give the press access to a scene (think the TV show COPS), then can any 18 year old with an iPhone demand the same access??? …. The answer to that is going to have to wait til next time.
Another First Amendment Issue
I wanted to follow up on Dave Statter’s post about the Miami Dade helicopter video and the possible violation of the photographer’s First Amendment Rights.
From a legal perspective – everyone – all of us – have a Constitutional Right to cover the news. The right is not limited to members of the press, but extends to everyone.
Included in that right is the right to photo and video things that happen in public, and particularly the right to film government employees doing their jobs.
When a government employee interferes with the exercise of that right, it violates the First Amendment rights of the photographer. Anyone who violates a photographer’s First Amendment rights could be facing a costly lawsuit in federal court.
Having said that, there are some things we as emergency responders are allowed to do with regard to photographers. We are allowed to create safety zones to protect members of the public. We are also allowed to establish reasonable work zones so that members of the public are not interfering with our operations.
These safety and work zones cannot be established just for photographers. They have to be zones that all members of the public are excluded from. Once they are established we can require that photographers remain on the side of the line where the public is allowed.
The video certainly shows how things can become ugly when the establishment of those zones is not made clear. I am not going to speculate on who was right or who was wrong in this case. Take away number one is – we need to avoid getting in this kind of situation in the first place!!!!
Take away number two is once we find ourselves in this situation we need to have some prepared language to use to explain what we are doing and why… such as “Sir, I need you to step back for your own safety… that prop wash could harm you. We need to move everyone back. This is for your own safety”.
Most professional photographers and many amateur photographers are well versed on their First Amendment rights – and know once you mention safety… and enforce the safety zone to everyone… they have to comply. Anything short of that is likely to result in some pushback as was the case here. “Because I said so”… is probably not a satisfactory response when someone’s Constitutional Rights are involved.
Posted in Constitutional Rights, First Amendment
NJ Police Union President In Hot Water Over Rap Video
So it is not a fire story… but the issues are all too familiar: Do public employees have any First Amendment Rights… and if so do they include the right to artistically express oneself?
View more videos at: http://nbcnewyork.com.
Facebook Arbitration Begins for Miami Dade Captain
It has been a long wait, but Miami Dade Fire Captain Brian Beckmann finally had his day in court… or more correctly his day before an arbitrator… to review his Facebook related demotion.
Last spring, Captain Beckmann posted a comment that sparked outrage in the community still raw from the tragic shooting incident of a young African American, Trevon Martin, in Sanford, Florida. Amidst demands for his termination, Captain Beckmann was demoted back to firefighter.
The arbitration began on January 14, 2013 and is expected to continue on February 5, 2103. Some interesting facts came out at the first hearing, raising some pretty tough questions.
First of all, Captain Beckmann’s comments were posted on his personal Facebook page while he was off duty using his home computer. At the time he was not identifiable as a member of the department. Can/should a firefighter be disciplined for comments posted in such a manner?
Second, the comments, while offensive, do not specifically reference or denigrate any minority group. Here is the text of his comments: ”I and my co-workers could rewrite the book on whether our urban youths are victims of racist profiling or products of their failed, (expletive), ignorant, pathetic, welfare dependent excuses for parents.” The lack of a direct reference to any minority group directly contradicts much that has been written about the case that refers to the remarks as blatantly racist.
Third, the comments were posted in such a way that they were only visible to roughly 300 of Captain Beckmann’s friends. The comments only became widely known after another firefighter took a screen shot of them and forwarded them on to a blogger who then publicizing them in an inflammatory way.
One would think based on these facts, that the firefighter who caused the posting to go viral should at least bear some responsibility for what happened. Captain Beckmann’s attorney, Matthew J. Mierzwa, Jr., made that very point to the arbitrator, laying the blame at the foot Captain Faye Davis. “We believe that the issue really arose here because of other employees, Faye Davis in particular, taking that herself in violation of county policy to publish it throughout the community. This is Faye Davis’ manipulation.” Captain Davis has not been disciplined for her role in the event.
The First Amendment aspects of this case are of enormous importance. To date, the US Supreme Court’s analysis of public employees’ right to free speech has been anything but coherent.
On the one hand are the numerous Court pronouncements that public employees do not surrender their basic First Amendment Rights by virtue of their employment, nor are they subject to a “watered down” version of protection. But all too often the end result of the cases belies the rhetoric.
Some of the First Amendment issues that are in play in Captain Beckmann’s case:
Was his speech work related or non-work related. Generally a public employee’s First Amendment Rights are the broadest when discussing matters unrelated to work. Arguments can be made both ways in Captain Beckmann’s case. There are cases that say that public employees do not have the right to “insult those they are hired to serve and protect.” Locurto v. Giuliani, 447 F.3d 159, 183 (2d Cir. 2006). Insulting the people you work for can take a case that would otherwise be non-work related and place it back under the realm of being work related.
There are also cases that say that the reason we have a First Amendment is to protect people who say things that will offend people (ie. we don’t need a First Amendment to protect people from saying things everyone agrees with). Consider this: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Isn’t punishing Brian Beckmann for saying what he said essentially telling him what is orthodox? …. Hard questions….
Then there is the question of whether his comments pertained to a matter of public concern. Some will argue yes, the cause of the shooting, problems with urban youth, racial profiling, etc. all are matters of public concern even if you disagree with his conclusion. Others will say no, racism or racial insensitivity has no place in public discourse… and should not be given protection under the First Amendment.
Next is the issue of whether Captain Beckmann made the comments as a private citizen. No doubt the captain believes he spoke as a private citizen when he posted his comments, but we have seen other cases where courts have found grounds to conclude otherwise on even less. See San Diego v. John Roe, 543 U.S. 77 (2004), and Locurto.
And then… if we get that far… we have the test of all tests… the Pickering Balancing Test. Stated as succinctly as humanly possible, that test states: If an employee is (1) speaking on a matter of public concern (2) as a private citizen, he must prove his interest “in commenting upon matters of public concern” outweighs the “interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees”. Got that? Clear as… mud…
And then there is the role of Captain Davis. Is an employee who is offended by a private comment made by a co-worker, who proceeds to make that comment widely known (in this case to millions of people), entitled to protection by the First Amendment? If so, how can Captain Beckmann be denied that same protection?
Are you starting see the problem we are facing with public employees and the First Amendment? Given the emerging role of social media and the internet – this First Amendment quagmire needs to be addressed. We are not living in the 1800s where someone needs to take out a newspaper ad in order to reach hundreds to thousands of people… nor the mid 1900s where someone would have to take out a television ad to reach thousands to millions. This is the age of the internet and anyone can instantly reach millions just by clicking “send”… or pressing “enter” on a keyboard. The law needs to catch up with the technology.
Captain Beckmann’s case may the be one to help us get some closure from the courts on some of these open questions… It almost makes me hope the arbitrator rules against him so the case can move forward through the courts…. but that would not be fair to Captain Beckmann.
Retired Pittsburgh Captain Settles First Amendment Case
The strange case involving retired Pittsburgh fire captain David Cerminara appears to have come to a close.
Captain Cerminara filed a lawsuit in Federal Court last summer alleging that the city wrongfully withheld his severance check in retaliation for his exercise of his First Amendment Rights. See the original post from July 6, 2012.
The crazy story began back on May 30, 2012, Captain Cerminara’s last official work day before he retired on June 1, 2012 at 08:00 hours. While on duty the captain observed a city crew paint lines on the roadway in front of his station. An hour later, a second crew came by and tore up the freshly painted surface in preparation for resurfacing.
Shortly thereafter a news crew in the area covering the story happened by and asked Captain Cerminara what he had seen. He told them, including referring to the work as a waste of taxpayer funds. The news station then ran a humorous story about line painting – repaving incident.
Apparently city officials didn’t think the story was as funny as everyone else did. In fact, Public Safety Director Michael Huss was so upset that he personally went to Captain Cerminara’s house on June 1, 2012 at about 2:30 pm to deliver an order rescinding his retirement and directing him to remain on duty until June 21, 2012 so he could be disciplined. According to the complaint: “When it was pointed out to Defendant Huss that he could not order a person who no longer worked for either him or the City of Pittsburgh to remain on duty, to attend a hearing, or indeed to not speak as a private citizen on a matter of public concern, he became enraged.”
According to the suit, the city and Director Huss refused to give Captain Cerminara his severance check, estimated to be approximately $20,000. In the settlement announced on Monday, the city agreed to release the captain’s severance check in the amount of $16,255.57, plus pay $7,500 for Captain’s Cerminara’s attorney fees.
Attack Ads Lead to Defamation Suit in Oklahoma
An Oklahoma fire chief who opted to retire in the face of relentless personal attacks by a self-appointed public interest group has filed a defamation action against the men he believes are responsible.
Fire Chief Dale Parrish retired last summer from the Skiatook Fire Department after being subjected to withering criticism by the group Skiatook Citizens for a Better Government. The attacks included newspaper ads proclaiming “The Fire Chief takes our Gold and gives us the Shaft. The Fire Chief Takes Much but Gives Little. The Fire Chief is known as the ‘Bully’. His Employees are Silent and Afraid to Speak. Heart attacks can Wait. The Fire Chief has more Important Matters. Mercy Ambulance Is Available.”
In his retirement letter Chief Parrish stated he was leaving due to the “toxic environment that has been established over the past several months, from influences outside the department… I had hoped to complete another ten years with the Town but feel this is not possible due to the current environment.”
Chief Parrish filed the action in Osage County District Court. The four defendants in the case, Victor Waters, Horace Paslay, Evert Hendrix and Billy Barnes, are also defendants in another case filed by former Skiatook town coordinator, Martin Tucker. Tucker was himself subjected to the group’s scorn and attack ads and sued for defamation.
The case raises several troubling questions in my mind: to what extent does the First Amendment require a public official to accept personal attacks without recourse? To some extent those in the public’s eye have to develop thick skin… but just how thick?
Skiatook’s Mayor Josh Brown referred to the folks who launched the ad campaign as an “impossible group.” I think we can all relate. Do fire chiefs have to put up with malicious lies, sneaky half-truths, and vicious character assassinations as part of the job? Was that what the framers of the Constitution intended or envisioned when the wrote they First Amendment?
The next question: why would any sane person willingly subject themselves and their family to this type of non-sense – where any imbecile can with impunity allege virtually anything … assassinate your character and impugn your integrity just for the demented sport of it. I go back to my good friend Dennis Rubin who continues to be attacked by folks who apparently have little better to do with their lives than viciously defame him… all the while claiming to be the victim – and doing the public good.
Dennis Rubin and Dale Parrish are not alone by any stretch. There are fire chiefs from departments large and small, career and volunteer, who find themselves the victims of such attacks. Whether the attackers believe they are fighting some noble battle against the forces of evil, are avenging some perceived wrong, or are mentally ill, these sorts of people are out there.
If the first two questions do not concern you, this one should: who will lead our public agencies… and our government in the future…. if these kinds of attacks can take place under the cover of the First Amendment without any recourse? The digital age offers the attackers an inexpensive forum and a near unlimited audience for their non-sense. If a sane person would be dissuaded from seeking such positions because of the ruthless attacks… well, the question begs the answer. What motivation could possibly be enough for the abuse they have to endure? It can’t be money… is it power, ego… that would make the job worth the cost of the abuse??? A sad commentary…
That leaves us with the question… who would willing put up with the abuse that Chief Parrish had to deal with in order to be a fire chief… be it Washington DC, or Skiatook, Oklahoma.
Minneapolis Captain Prevails in First Amendment Demotion Suit
A Minneapolis deputy chief who was demoted to captain for criticizing the department’s former fire chief, gained vindication yesterday when a Federal court jury awarded her $420,000.
Former Deputy Chief (now Captain) Jean Kidd, 53, claimed that her 2009 demotion was because of the responses she gave to a 360 degree leadership survey that she was asked to complete about then-Fire Chief Alex Jackson.
According to Chief Kidd’s attorney, John Klassen “She honestly answered that he had strengths and honestly criticized his weaknesses, which were lack of vision, lack of business knowledge, failure to plan.” Chief Jackson allegedly received the results of the survey on June 19, 2009 and demoted Chief Kidd on June 30.
Chief Jackson’s publicly stated reason for the demotion was that Chief Kidd “was detrimental to the chemistry of his team,” and that he did not want team members who were unhappy and unable to get along with others. Chief Kidd sued claiming the demotion was in retaliation for the exercise of her First Amendment rights.
What appears to have been a pretty insurmountable obstacle in the case for Chief Jackson was explaining how on June 18, 2009, just one day before he received the results of the survey and twelve days before her demoted her, he signed off on a “glowing” job review of Chief Kidd that citing her for her interpersonal skills and ability to get along with co-workers.
That opened the door for Klassen to argue to the jury “what happened during the 12 days after that review to get the chief to do a 180 on his assessment?”
Apparently the jury did not buy Chief Jackson’s explanation, and returned a $420,000 verdict for Chief Kidd. The verdict included $90,000 for economic losses associated with the demotion, $30,000 for emotional distress and $300,000 in punitive damages.
Minneapolis City Attorney Susan Segal was quoted by the Minneapolis Star Tribune that she was “disappointed” by the jury’s decision. “We continue to believe that our former chief acted in good faith.”
Good faith or not, those who have been following recent First Amendment case law know that employees such as Chief Kidd have not fared well in cases such as this when they are not clearly speaking as a “private citizen” about a matter of public concern. No doubt, that issue will figure prominently in the city’s appeal plans. It is probably what Segal was referring to when she told reporters “There are some legal issues with the verdict that we are reviewing and we may decide to bring before court some post trial motions.”
Incidentally, Chief Kidd was a runner up for the fire chief’s job in 2007 when Chief Jackson was appointed. Chief Jackson retired last February amidst a great deal of criticism from the city council.
No word on whether Chief Kidd will get her rank back. She has said she plans to retire next year. More on the story.
Also – here is an order entered last August in the case that discusses the facts and the First Amendment issues. I have to admit that my understanding of the First Amendment rights of public employees is a lot closer to that of the trial judge, Susan Richard Nelson, than what we have been seeing from the US Supreme Court or many of the circuits in recent years. Kidd v Jackson
Eight Fresno County Firefighters File FLSA Suit
Eight part-time paid on call Fresno County firefighters who were terminated for refusing to sign a form stating that they were volunteers have filed suit in Federal Court alleging violations of the Fair Labor Standards Act, retaliatory termination, and violation of their First Amendment rights.
Rather than rewrite what is already a very good overview of the case, attorney Gary Goyette has graciously allowed me to quote from his blog post on the case.
GOYETTE & ASSOCIATES FILES SUIT AGAINST THE FRESNO COUNTY FIRE PROTECTION DISTRICT FOR EIGHT FIREFIGHTERS TERMINATED FOR NOT SIGNING A QUESTIONABLE FORM
After five months of early settlement efforts failed, Goyette & Associates has now filed a federal lawsuit against the Fresno County Fire Protection District for the District’s termination of eight Paid-Call Firefighters (or “PCFs”) for – – believe it or not – – these firefighters’ refusal to sign a letter declaring their (alleged) legal status as “volunteers” to the District. The lawsuit contains causes of action for retaliatory dismissal, for suppression of free speech, and for associated claims for minimum wages and overtime pay.
Joseph P. Goodman, James B. Mason, Gregory Conley, Nicholas Russell, Cameron Donnahoo, William Sander III, Sergio Valdez and Terry Valdez were all PCFs who had worked hard for the District as part-time firefighters for between three and twenty-three years, responding to emergency calls as part of the PCF staff which supplements the full-time Cal-Fire firefighter staff serving the District. All were surprised when the District’s Fire Chief, Keith Larkin, issued a letter in February demanding that all PCFs sign an attached form – – the ‘Volunteer Status Form’. All were surprised that the letter threatened termination if it was not signed. All were even more surprised that the attached form was a ‘declaration’ stating that the signatory understood they were serving as a “Volunteer” to the District. They were surprised because the District had never in the past told PCFs they were volunteers, and had never treated PCFs as volunteers.
When these eight PCFs questioned their supervisors and other commanders within the District, including Chief Larkin, about the basis for this ‘alleged’ volunteer status, they were not provided any information, factual or legal, supporting the idea that PCFs were “volunteers”. After obtaining advice from legal counsel that the District PCFs did not appear to satisfy the ‘legal test’ for volunteers, based on the pay received and on the numerous ‘controls’ exercised by the District over the PCFs, and after having a Department of Labor (DOL) investigator tell them the same, these eight PCFs decided they could not sign a letter definitively stating that they “understood” they served as “Volunteers” to the District. Due to this good faith concern, the District terminated each of these individuals on April 26, 2012.
Each of these PCFs then appealed their terminations. On June 19, 2012, the District rejected the appeals and upheld the terminations.
Goyette & Associates’ lead wage and hour attorney Gary G. Goyette was extremely surprised by the District’s actions: “It’s hard to believe the District really took these steps against these dedicated firefighters. Not only do the facts show that District PCFs are employees instead of volunteers, but even if there was any debate on this classification, the demand to sign the declaratory letter, and the subsequent terminations have nothing to do with such debate. An employee’s (or volunteer’s) opinion or declaration as to whether they are (or are not) a ‘volunteer’ plays no part in the ‘legal test’ for volunteers. Individuals are allowed to ‘volunteer’ to public agencies only if they are not paid for their services above a ‘nominal fee’, and/or if the work is truly voluntary – – meaning they cannot be required to perform the services or follow mandates from the employer. The District’s decision to demand the Volunteer Status Form be signed, and their decision to terminate the eight PCFs who believed signing this declaration was dishonest served no purpose, and were entirely unnecessary. The fact that these acts are prohibited under the law is why we have sued the District, hopefully to get these eight firefighters reinstated to their part-time employment with the District.”
In the meantime Mr. Goodman, Mr. Mason, Mr. Conley, Mr. Russell, Mr. Donnahoo, Mr. Sander III, Mr. Valdez and Mrs.Valdez continue to deal with the emotional toll of going from hard-working, part-time firefighters for the District, serving the Fresno County residents, to individuals prohibited from such work, labeled in an adverse manner which has affected, and continues to affect both their careers and home lives going forward.
Here is a copy of the complaint. Complaint-FINAL-11-29-12
No word on what possible justification the district could have had for seeking to change the employees’ status from employee to volunteer, or in the alternative asking them to execute a false document.
Obama Toilet Paper Stunt Leads to Termination
The Pompano Beach, Florida firefighter who caused a stir in October by installing Barack Obama toilet paper in his fire station, has been terminated.
Firefighter Clint Pierce, who has been described as an outspoken Republican, and who has been disciplined in the past for his political commentary in the workplace, was terminated last week. Pierce was a 20 year veteran.
In November, 2011 Pierce allegedly posted an anti-Obama bumper sticker in the workplace. Earlier this year he was investigated for drinking from a coffee mug that depicted Obama as a clown. The final straw was the Obama toilet paper that occurred just 3 weeks before the election.
The Examiner.com is reporting that Pierce was terminated for “extreme insubordination”.
Massachusetts Facebook Case Settled
The convoluted disciplinary case of a Bourne, Massachusetts firefighter that included grievances, unfair labor practices, civil service proceedings, state court proceedings, and even a Federal lawsuit has been resolved.
In February, 2011 firefighter Richard Doherty was terminated over a number of Facebook rants that he posted that maligned… well …. virtually everyone – from fire department ranking officers, local elected officials, police officers and the public.
Doherty claimed that his speech was protected under the First Amendment and that some of the speech was also protected under labor relations law. The state Civil Service Commission upheld the right of the department to discipline Doherty, but reduced the penalty from termination to a 15 months suspension. Doherty has since retired from the department.
The terms of the settlement have not been disclosed, but are reported to wrap up all of the various outstanding suits and proceedings in the case.
Illinois Firefighter Will Not be Disciplined for Facebook Posting
“I don’t agree with what he put, but I can’t discipline someone because of something that they said.” With those words, Fire Chief John McGuire last night announced he would not be disciplining Swansea firefighter Kody Koudelka over a Facebook posting he made that elected officials complained was “vulgar” and “offensive”. [See prior posting].
Mayor Jim Rauckman along with Village Trustees Susan Schultz and Susan O’Malley complained about the post during a meeting on November 5, 2012. Upon being asked to remove the post by Chief McGuire, Koudelka immediately complied. However, the elected officials felt that Koudelka needed to be punished.
Trustee Shultz said “I think it was very offensive, and I think it lacked good judgment on behalf of an employee working for the village, and I agree that discipline is necessary. …This is a severe image of what our employees are saying about this board.”
Chief McGuire stood his ground and in the face of hostilities from elected officials told them that in the absence of a village policy that Koudelka clearly violated he would not impose any discipline. The chief did note, however, that Koudelka took “a lot of heat” from other firefighters about the post, and “He’s definitely learned his lesson. … I’m confident it won’t happen again.”
Incidentally, Swansea recently reduced the fire department budget, and forced Chief McGuire to take a pay cut. Well…you know how difficult these times can be. After all, with the economics being what they are… Firefighters have to be reasonable… They have to understand. Elected officials have a hard job to do… with deficits and all.
Oh… and by the way, the elected officials gave the police chief a raise roughly equivalent to what they cut from the fire department.
Now I wonder if that might have played a role in Koudelka’s comments? If I was a firefighter in that community I might have some choice words to say about elected officials who use tough economic times as a convenient excuse to play their dirty political games.
… “lying, thieving bastards”… I might go a bit further than that – and I would definitely be more colorful.
Facebook Post by Illinois Firefighter Prompts Outcry from Elected Officials
Elected officials in the Village of Swansea, Illinois are not happy about a Facebook post by a volunteer firefighter. FF Kody Koudelka is accused of making the obscene post about the village board. Following a request by Fire Chief John McGuire, the post was removed.
Village trustee Susan Schultz said “I think it was very offensive, and I think it lacked good judgment on behalf of an employee working for the village, and I agree that discipline is necessary… This is a severe image of what our employees are saying about this board.”
Schultz claims Koudelka has done this before and needs to be punished. Mayor Jim Rauckman said “I thought it was a very poor reflection and embarrassing for our village the way it was stated.”
Trustee Brian Wells said “It’s not flattering, but I think he has the right to say it and there’s probably a bunch of people who agree with him. … I don’t think we should do anything. I don’t want to create any more rift with the fire department.”
Chief McGuire said “I don’t know what policy he violated. … I think it was a bad post. He should have had a lot more tact. It made him look bad plus it made the fire department look bad. … I agree it was offensive, but offensive isn’t against the law. He didn’t break a village policy. He didn’t break any law. … I know it’s wrong. He knows it’s wrong. Everybody knows it’s wrong.”
By the way… have we discussed the need for fire departments to have social media policies?
Arbitrator Rules DCFEMS Unlawfully Retaliated Against Union President
An arbitrator has concluded that DCFEMS and Fire Chief Kenneth Ellerbe wrongfully transferred IAFF Local 36 Union President Edward Smith last year in retaliation for his union activities. Arbitrator Leonard M. Wagman handed down his decision on October 19, 2012 ordering Captain Smith to be returned to his position at Rescue 1, Platoon 1.
Captain Smith had been involuntarily transferred on July 8, 2011.
Rather than start a “he said she said” with my chief officer friends and colleagues from the DCFEMS (or DCFD as you prefer), let me quote from the decision so readers can view the arbitrator’s actual words not my interpretation of what the arbitrator said. The entire decision is provided below for download for those interested in reading all 29 pages. What appears below is from the arbitrator – unless in double brackets like this [[ which is my comments]].
- I find from Chief Ellerbe’s testimony that he made the decision to transfer Captain Smith. … Smith had no prior knowledge of this transfer. Nor had he requested a transfer. Smith was shocked. He felt it was retaliatory….
- Captain Smith sought an explanation, “as to why I am being transferred,” invoking the terms of the CBA’s Article 19, which he quoted as follows: …When an employee is transferred or reassigned other than at his or her request, and the employee believes that the transfer or reassignment may be illegal under the terms of this Article, the employee shall upon written request, be informed by a superior of the reason for the transfer or reassignment. …
- Assistant Fire Chief of Operations, Timothy H. Gerhart [[provided a response that said]] “Captain Smith’s reassignment falls within the terms listed in Article 19 of the [CBA]“. …
- On August 26, Local 36 submitted a written grievance to Chief Ellerbe complaining about Captain Smith’s involuntary transfer and FEMS “failure to provide an explanation …. “
- Deputy Fire Chief-Executive Officer, Labor Relations Liaison Edward M. Pearson, on behalf of FEMS, gave the following response to Local 36 regarding Captain Smith involuntary transfer: The Department exercised the right to transfer Captain Smith in accordance with the District of Columbia Official Code, specifically, Subchapter XVII. Labor-Management Relations, Management rights; 1-617.08(a) “The respective personnel authorities (management) shall retain the sole right, in accordance with applicable laws and rules and regulations; (2) To hire, promote, transfer, assign, and retain employees in positions within the agency and to suspend, demote, discharge, or take other disciplinary action against employees for cause….”
- Local 36 received Chief Pearson’s response, and quickly rejected it as not responsive to its request, as reflected in an e-mail from Eric Bowers, Chairman of its Grievance Committee, to Chief Pearson, which stated, in pertinent part: Perhaps you misunderstood: we asked for the explanation required under Article 19, Section B (2) of the Collective Bargaining Agreement (CBA). Neither the CBA nor the law permits management to transfer/reassign arbitrarily capriciously, or illegally. …
- On September 12, Local 36, by letter to Chief Ellerbe and the District of Columbia’s Office of Labor Relations and Collective Bargaining, announced that it was submitting the grievance arising from Captain Smith’s involuntary transfer to arbitration as provided for in the CBA. …
- In January [[2011]], Chief Ellerbe … proposed a new logo for the Department, changing from the old DCFD logo to a new FEMS logo. Local 36 objected publicly to the proposal on the grounds that Chief Ellerbie had neglected to invite the Union to join the committee in drawing up the proposed FEMS logo, and that the proposed change would require members to spend their own money on uniform articles reflecting the new logo. …
- The Washington Times of April 12 reported that out-of-service ladder trucks had impaired the Department’s response to a fire on April 8 in the Deanwood Section of the District of Columbia…. Included in The Washington Times of April 12, were comments by Local 36′s Second Vice President Dabney Hudson, and President Edward Smith. The latter conceded that it was “unclear whether anything would have turned out differently at the Deanwood fire … but it highlights the burden created by absent trucks.” Smith added: “It’s a huge safety problem for our members and [D.C.] citizens and visitors.” The article also reported Smith’s and Dabney’s complaints that D.C.’s “aging ladder trucks go out of service, while limited reserve trucks are often in disrepair or tied up on other calls”. …
- In its press release, a flier, issued on May 31, Local 36 called attention to 7 of 25 basic life support ambulances that were out- of- service for mechanical repairs. The press release’s content received exposure on local television channels 4 (NBC), 7(ABC), and 9(WUSA); in print, and possibly on radio. The flier invited readers to contact “President Ed Smith,” who serves as the local’s spokesperson for media contacts. …
- On June 9, Local 36 joined with National Nurses United and District of Columbia Nurses Association in addressing a letter, on behalf of “front-line paramedics, emergency medical technicians, fire fighters and registered nurses in [the] city’s acute care hospitals,” to Mayor Gray complaining that during the city’s first heat wave of the summer, “the city’s fleet of emergency vehicles was found wanting.” … Further, the letter suggested the areas of the EMS that needed improvement and reminded the Mayor that the Department’s leadership and the city’s leaders dating back to Mayor Fenty’s administration had committed to the improvement of the District’s EMS delivery service. Local36 and the nurses’ organizations encouraged the Mayor to correct the matters complained of in their letter. …
- In a letter to the Mayor, dated June 15, with “cc.” to Chief Ellerbe and the entire D.C. City Council, Edward Smith, writing as president, under the letterhead of Local 36, addressed issues “involving the delivery of Emergency Medical Service in the Nation’s Capitol.” … Smith advised the Mayor that EMS providers were “required to operate under a licensed physician.” According to Captain Smith’s letter, a lapse between Dr. Mountvamer’s departure and Dr. Miramontes’ arrival would render the District of Columbia vulnerable to “legal action as well as adverse media attention for your administration. In the interest of protecting the Mayor’s administration and Local 36′s members, Smith asked Mayor Gray for Dr. Mountvamer’s departure date, the arrival date of the latter’s successor, and the name of the interim EMS medical director. …
- On June 20, Local 36 issued a press release headlined: “Female Firefighters Take Issue with Fire/EMS Chiefs Pregnancy Policy.” In the upper left hand margin of the press release, readers saw: “Contact: President Ed Smith” together with a phone number and a fax number. …
- On June 26, following a ceremony dedicating a telephone box at Engine Company 16, Chief Ellerbe approached Captain Smith and began talking about the press coverage of the pregnancy policy. The chief said he was displeased with Smith’s press coverage of that policy. Ellerbe expressed his thought that Smith issued the press release on purpose, knowing that the chief was out of town and that Smith was going to have to pay for it. After a brief conversation about making choices in life, Chief Ellerbe and Captain Smith parted. Smith understood that the chief was threatening retaliation. …
- At 10:20 pm, on June 30, the website of The Washington Times carried Chief Ellerbe’s announcement of the new dispensation for pregnant female firefighters…. At the end of the article, The Times reported that Chief Ellerbe said that the Department would not retaliate against any members seeking light duty, “or those who have spoken out about the issue in recent weeks.[["]] Finally, The Washington Times quoted the Chief as having added: “If we did something like that it would be readily obvious to the naked eye.” and “We won’t treat people that way.” …
- On Sunday, July 3, during the July 4th holiday weekend, Chief Ellerbe made an unscheduled midmorning visit to Captain Smith’s firehouse, wearing civilian clothes. Chief Ellerbe asked for Rescue Squad 1 ‘s journal, which logs the unit’s activities. Ellerbe took the journal upstairs to Deputy Chief Willis’s office, who was the on-duty operations chief. …Later in the day, Chief Willis approached Captain Smith and, on direct order from Chief Ellerbe, asked him to change some entrees in the journal including those pertaining to an incident involving Squad 1, 4th platoon, and an accident. Smith made the requested entrees in the log. During his employment with FEMS, Smith had never witnessed or heard of a fire chief visiting a firehouse in civilian clothes…
[[Captain Smith’s transfer was announced on July 8.]]
- The Department ‘s stated reason for transferring Captain Smith from Rescue Squad 1 to Engine 7, in July 2011 was the policy authored by then-Interim Fire/EMS Chief Kenneth B. Ellerbe in Special Order #57, Series 2000…[which stated] It is the goal of the Department to have its members posses as varied a background in fire service activities as organizationally possible. To this end, uniform fire officers can expect changes in their assignments after approximately three years. …
- Local 36 contends that the Department involuntarily transferred Captain Edward Smith from Rescue Squad 1 to Engine 7 because he engaged in union activity, and thereby violated Article 19, Section A, and Article 2, Section A of the CBA. …
- I find that Chief Ellerbe’s and the Department’s responses to Captain Smith’s request for an explanation were evasive, amounting to a statement that “we did it because we can.” …
- In its effort to escape a finding that its decision to transfer Captain Smith was motivated by his protected union activity the Department has gone from evasion to shifting reasons for its conduct. This resort to a variety of responses, including the Chiefs change of focus, strongly suggests that the proffered explanation, Special Order #57, Series 2000 is a pretext contrived to shroud the real reason for Chief Ellerbe’s decision to transfer Captain Smith from Rescue Squad 1 to Engine 7. …
- I find that the real reason was to retaliate against Captain Smith for engaging in union activity as president of Local 36, the exclusive collective bargaining representative of the Department’s employees. I find, therefore that by thus discriminating against Captain Edward Smith the Department violated Section 8(a)(3) and (1) of the Act, and D.C. Official Code§ 1-617.01(a)(l) and (3). Consequently, I also find that FEMS’ discriminatory involuntary transfer of Captain Edward C. Smith violated Article 19 Section A of the CBA. I further find that by this same unlawful conduct the Department also violated Article 2, Section A by interfering with his right to assist the Union….
- The District of Columbia Fire & Emergency Medical Services Department shall rescind the involuntary transfer of Captain Edward C. Smith to Engine 7 and reinstate him to his former position as captain in Rescue Squad 1, Platoon 1.
Here is the full decision. Smith Arbitration Award (10-19-12) (1)
Florida Captain Opts to Retire Rather than Serve Suspension for Plantation Signs
An African American captain who was given a 20-day suspension for posting “Welcome to the Plantation” signs in the Jacksonville Fire and Rescue’s fire prevention office last August has opted to retire.
Captain Alvin Floyd, a 24-year JFR veteran, had been charged with unbecoming conduct and misuse of a computer after the signs were discovered on August 27, 2012. The signs were posted on each of three entry doors to the fire prevention office, where Captain Floyd was assigned. An investigation pointed toward Captain Floyd as the perpetrator, and he later confessed.
The penalty imposed, a 20 day suspension, had been stayed pending a Civil Service appeal. Captain’s Floyd’s retirement was effective Monday, meaning he will not have to serve the suspension.
Florida Union VP Gets 2 Day Suspension For Facebook Posts
The case of Hialeah Firefighters IAFF Local 1102 vice president Eric Johnson is back in the news with word of his discipline on charges related to his social media activities.
Johnson got into hot water over some photos he posted on Facebook showing his minor children posing with alcoholic beverages. Those photos, a post that joked that Johnson communicates with Hialeah’s heavily Hispanic population by adding an “o” to the end of any word, and a few other off-color posts triggered an investigation by both the fire department and the police. The police in turn requested that the Florida Department of Children and Families initiate an investigation into the photos. The agency declined citing insufficient evidence to warrant an investigation.
The Miami Herald reports that Hialeah Mayor Carlos Hernandez sent Johnson a letter informing him of a two-day suspension for “conduct unbecoming,” “insubordination or disgraceful conduct” and “criticizing rules, orders and policies”. The Mayor has previously expressed concerns that Johnson’s posts show a lack of sensitivity toward Hispanics.
Among the post that Johnson is alleged to have made are:
- A photo of a man riding a motor bike with a goat on his back, to which Johnson commented “only in Hialeah, LOL”.
- “I have a system. Just add an ‘o’ to any English word and bam! It works. For example, how ya doin ‘o’ You wanna go to the hospital ‘o’ I just learned that you can’t do that when you say is this your home though. Ha Ha.”
- “Ha Ha Ha… Jew forgot dat I hab da Medicare… Jew must talk me.”
Johnson alleges that the investigations and the discipline are pure retaliation for his criticism of the mayor, and violate his First Amendment Rights. He claims his strongest proof that he is not biased against the Hispanics in Hialeah is irrefutable: he is married to a Cuban.
Pennsylvania Fire Chief Settles Defamation Suit
A defamation suit filed against Wilkes-Barre Township Fire Chief John Yuknavich for statements he had at a council meeting in 2009 has been settled.
Joseph Naperkowski claimed that Chief Yuknavich defamed him on June 1, 2009. He claims that Chief Yuknavich told others that Naperkowski said “I’ll kill you, I’ll kill your mother, I’ll kill your family and I’ll even kill the mayor if he don’t straighten you out.” Naperkowski filed suit seeking $50,000 in damages alleging the statements were “false and defamatory”.
Chief Yuknavich contended that Naperowski’s claim should be barred because it was made during a public meeting and as fire chief he is immune from the lawsuit. A jury trial began earlier this week but was abruptly terminated yesterday when the parties reached a settlement. There is no word on the terms of the settlement.
As for Chief Yuknavich’s immunity defense, most jurisdictions recognize a number of absolute and qualified privileges against claims of defamation. Legislators enjoy absolutely immunity for statements made during their sessions. The exact scope of that immunity varies from jurisdiction to jurisdiction, but it is generally limited to the legislators, not fire chiefs or department heads.
However, many jurisdictions recognize a privilege for executives. Here is a brief summary from the Center for First Amendment Studies:
There is also an absolute privilege afforded to top rank, “cabinet” or department head level, or other top-level policy-making officials in the executive branches of government, both federal and state. The privilege can be lost, however, if, as in the courts, the statements have no reasonable relevancy to the public official’s duties or the scope of his office.
Here is the link to the Center’s web site.
Posted in Civil Suit, First Amendment, Immunity
Cyberbullying – The Ugly Side of Social Media
We have all seen the comical photos of Walmart shoppers in various modes of dress and undress. One performer has even made several humorous music videos depicting the weirdos and crazies.
Facebook itself had its origins by showing photos of college students and allowing people to rate them as “hot or not”. It’s all in good fun, right? No harm, no foul.
So what is going on in Emmitsburg, Maryland, home of the US Fire Administration and the National Fire Academy, where a mother has declared war on cyberbullying after a firefighter posted photos of her daughter on line accompanied by unflattering comments.
Sherry Myers is furious about photos of her daughter Jayden that were posted online by a Pennsylvania firefighter that mocks her shoes, and asks people to guess whether Jayden is a boy or a girl.
It’s the other side of the laughter… the painful side… the ugly side of social media.
Here is a link to Sherry’s Facebook page, which she has aptly named Justice for Jayden. Spend some time there and read some of the comments from those who have been hurt by cyberbullies.
Here is more on the story itself.
While all the facts have yet to be sorted out in the Myers case – let me make a few points about where we are law wise on cyberbullying.
Here in the US, the laws are way behind the times. While some states have enacted laws to address cyberbullying, most states rely upon tort privacy laws developed in the 1800s and 1900s. These laws did a decent job until fairly recently. Today they are being asked to address an entirely new problem… and it may be a task they are not up to.
Is it really an entirely new problem? Bullying has always been around and always will be – but when it comes to spreading hurtful information on a massive scale – I say what we are facing is an entirely new problem.
In the late 1800s, how would one go about spreading embarrassing rumors, malicious falsehoods, or even breach a person’s right to privacy on a massive scale? The options were pretty limited and usually required large sums of money to take out newspaper ads, or influence reporters and editors in order to spread a story very far. The spreading of the story would be relatively slow compared with today – and the courts did offer some remedies that could address those mean spirited activities. Newspapers also had to be concerned about such suits and thus had an incentive to do some self-policing of what was published.
The 1900s brought us new means of mass communications through radio and later television. Still these methods of communication were beyond the financial means of most people and the law offered realistic remedies to address any wrongdoing that did occur. Like the newspapers, radio and television stations themselves had good reason to watch what was said out of fear of becoming the target of such a suit.
But what about spreading malicious information in the Internet Age – where virtually anyone can communicate with thousands, even millions, for free and virtually instantly? What about the fact that people who have no financial footprint to speak of can spread malicious information to an unprecedented degree with little to no risk of legal consequences? No self-policing… they are judgment-proof… or close enough to make the cost of a civil suit unrealistic for most people.
How exactly does the law – developed originally to address problems back in the Pony Express days, give Sherry and Jayden Myers some measure of comfort, some justice?
And just as importantly, how do we, as members of the Internet community, draw our own lines about what is and is not fair game when it comes to humor, satire and parody?
The two issues are linked… or at least they should be.
Can we protect Jayden and still have our funny Walmart photos? Is there a line that can be drawn that makes one OK and the other not?
The law should reflect the ethical choices we as a society believe in.
Posted in Ethics, First Amendment, Humor, Municipal Liability, Social Media, You Can't Make This Stuff Up
Tagged digital imagery, Justice for Jayden, malicious comments, privacy, Sherry Myers