First Amendment Protects Firefighter’s Criticism Of Dive Rescue Cutbacks in Ohio

The United States 6^th Circuit Court of Appeals handed down one of the more important fire service decisions of 2011 yesterday in the case of Westmoreland v. Sutherland.

The Ohio case involved the Bay Village Fire Department’s effort to discipline a firefighter, Ron Westmoreland, for criticizing the city’s decision to eliminate the dive rescue team in 2008. The team was eliminated to save money, but shortly thereafter two children drown in separate incidents.

Westmoreland attended a city council meeting following the deaths, and lambasted the elected officials for putting money before lives. The court quoted a portion of his comments:

“You keep rolling the dice, hoping everything will be alright. You cut our manning, you cut our training, and you cut money in various places, which is not my responsibility. But my responsibility lies with the citizens of Bay Village. . . . They pay the taxes that pay all of our salaries. Now a seven year old kid is dead, that last year would have been found in about twenty minutes by the Bay Village Dive Team.”

Following the meeting, Mayor Deborah Sutherland suspended Westmoreland for three 24 hours shifts without pay, citing him for “insubordination, malfeasance, misfeasance, dishonesty, failure of good behavior, and conduct unbecoming of an officer.” The disciplinary notice stated that he made “misstatements, fabrications, insulting and inciteful,” that were not “supported by the facts.”

Westmoreland grieved the discipline, but it was upheld by an arbitrator. Westmoreland filed suit in Federal court against the Mayor and the city claiming that the discipline was an unconstitutional retaliation for the exercise of his First Amendment Rights. The trial court granted summary judgment to the mayor and city, concluding that because Westmoreland’s statements were “knowingly or recklessly false”, he was ineligible for First Amendment protection.

On appeal the 6^th Circuit reversed. The court provided an excellent review of what has become the standard 1^st Amendment analysis for public employees (which incidentally all firefighters should read and understand – you can download the decision below). In order to have protection under the 1^st Amendment, a public employee must be speaking as a private citizen about a matter of public concern.

The court concluded that Westmoreland was speaking as a private citizen at the council meeting because although he did identify himself as a city firefighter, he was off duty, not in uniform, and did not make the presentation as an official task that was within the scope of his duties. The court also made note of the fact that the forum in which the comments were made (a public hearing where it was appropriate to address the mayor and council during a public comment period) was an appropriate one to address the concerns Westmoreland was raising.

The court further concluded that Westmoreland’s comments were clearly matters of public concern, not private or petty grievances. The fact that Westmoreland may have received additional overtime compensation if the dive rescue team was reinstated does not change the public nature of the concerns that he raised.

Next the court considered whether any misstatements that Westmoreland may have made, arose to the level of being “knowingly or recklessly false statements”. Quoting from an earlier fire service case, Chappel v. Montgomery County Fire Prot., 131 F.3d 564, 576 (6th Cir. 1997), the court said: “[a] public employee is not required to prove the truth of his speech in order to secure the protections of the First Amendment.” Rather, the burden is on the city to prove that any statements made were false, and that the employee knew they were false when he made them (or at least was reckless with regard to the truth or falsity of them).

The appellate court then reversed the trial court’s determination that the statements were recklessly false as a matter of law, finding evidence in the record tending to support Westmoreland’s factual contentions. The unanimous three judge panel remanded the case back for a factual determination of the truth or falsity of the statements. If it is proven at trial that Westmoreland’s statements were false, then the court must determine whether the city has met its burden of proving that he knew they were false when he made them, or that he was reckless.

Here is a copy of the decision. Westmoreland OH drowning case

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