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Another DC Demotion and the Allegations Are Flying
Things are heating up again in DC, this time over the demotion of an outspoken lieutenant who has been critical of Fire Chief Kenneth Ellerbe.
Lt. Robert Alvarado was demoted this week over a television interview he did with WTTG-TV last January. Dave Statter is all over this one so I won’t recite the details here. The legal questions that the case raises are many and complicated:
- Does Lt. Alvarado have a 1st Amendment claim against Chief Ellerbe and DCFD… ok… DCFEMS … for retaliation?
- Did Lt. Alvarado have a legal duty to stop the film crew from covering the EMS incident?
- Was there really a HIPAA violation (or perhaps a violation of a DC medical confidentiality statute)?
- Would he have violated the 1st Amendment if he tried to stop the TV crew from filming?
- Has the entire disciplinary process in DCFD … I mean DCFEMS … become so corrupted by virtue of Chief Ellerbe’s punishment of hearing officers, that Lt. Alvarado has a due process claim over the lack of an impartial fact-finder?
It is like a fire law smorgasbord of issues…
The ACLU has now entered the fray… Let’s get started with this video:
DC Breaking Local News Weather Sports FOX 5 WTTG
Update: Here is a copy of the DC Fire & EMS Patient Bill of Rights FEMS Patient Bill of Rights updated 3-29-11
Yes; No; No; Yes; Maybe.
That would be my assessment as well: Yes, No, No, Yes and Maybe
Yes, No, No, Yes and PROBABLY.
Look at the many DC politicians that have been indicted, arrested or resigned from their position because of corruption. Is it that hard to believe that a Fire ‘administrator’, who was hired because he was friends with the current DC Mayor, who was also scheming a retirement while working in FL, is corrupt? I find overwhelming evidence in the news media about this ‘administrator’ over the past year or so to give me enough of an inclination to say yes.
The best thing possible for the DCFD would be for this guy to leave with the quickness.
“Was there really a HIPAA violation (or perhaps a violation of a DC medical confidentiality statute)?”
There was no HIPAA violation. HIPAA only applies to health care providers and those who handle medical billing. It does not apply to the news media or the general public. The LT at no point violated the patient’s privacy regulations as governed by the HIPAA law.
Even if the LT had requested the media members to not video/report about the medical call, they don’t have to comply with that request as HIPAA doesn’t apply to them.
Having the media/general public see you treat a patient is not violating that patient’s privacy. The only way that would occur is if the LT did an interview after the medical call discussing the specifics of the patient’s condition and/or providing specific information on the patient’s identity.
The news media/public being able to publicly observe the treatment of the patient is not a violation of the HIPAA law. There is only a violation if a health care provider or medical billing employee releases that information.
DCFDmember – do you know if Lt. Alvarado had permission to be interviewed while on duty?
That could be an important aspect of the case because appearing in a television interview while on duty, in uniform, in a fire station in front of a fire truck may not be protected speech.
The 1st Amendment does not protect firefighters who are acting as spokespersons for their fire department – it only protects them while speaking as private citizens on a matter of public concern.
It is hard to argue that a firefighter who is on duty, in uniform, in a fire station is speaking as a private citizen – just as it would be hard for an Army lieutenant assigned to the Pentagon who is on duty, in uniform, and in the Pentagon being interviewed on TV to try to claim he is speaking as a private citizen and not as a “Pentagon spokesperson”.
Now – if he has official permission from the department to speak as a private citizen under those circumstances – the case can be made that he has 1st Amendment protection because was speaking as a private citizen with his department’s permission. Otherwise IMHO – a firefighter who is on duty, in uniform and standing in a fire station is acting as a spokesperson for the department and has no 1st Amendment protection. See Foley v. Town of Randolph.
Chip – any thoughts?
Curt, if you read some of the links on Statters site there is reference to a 1990 lawsuit in US District Court . DCFD (yes DCFD back then) have an order on the books that said employees could not give interviews while on duty without prior written permission from a Public Affairs Officer. The court said “found that the regulation to be an unconstitutional prior restraint on firefighters’ freedom of speech and prohibited the Department “from enforcing (the) regulation in the future
Yes… the 1990s .. and 1980s… and even the 1970s….
Those were the good old days for things like employee rights, 1st Amendment, civil rights… Unfortunately there is a cold wind blowing through this country that takes a pretty dim view of those kinds of “liberal” decisions. The 1st Amendment is not what it used to be.
There is also a difference between a “prior restraint” and a restriction on who can speak to the media as a spokesperson for the department.
I am waiting for Chip Comstock to weigh in on this. He is our resident 1st Amendment expert. I am thinking that 1990s decision is not going to hold up in 2012 to allow on duty personnel to speak to the media any time they want on any topic they want.
I am not sure whether he had permission to be interviewed while on duty, but I doubt that he did. The DCFD administration would not give him permission to speak to the media while on duty if they knew he was going to criticize the administration’s policies.
Someone would have to look at that 1990 ruling for the specifics. Was it simply a member speaking to the media while on duty, and that is what he got charged with? Was the member making official statements, being critical of the DCFD administration, or was the member just providing general information.
I don’t recall all of the specifics of that case, so I’m not sure if it would specifically apply to this case.
The tricky thing is – he has a right to be critical of Chief Ellerbe and the department… supervisors, co-workers, elected officials, even the union, etc. and the department cannot put a blanket restriction on that. That much is clear.
He just does not have a right to do it as a spokesperson for the department – and when a lieutenant is on duty, in uniform, in a fire station standing in front of a fire truck talking about a fire department related matter – how does he say he is talking as a private citizen?
The 1990 decision may be that the department cannot put a broad based gag order on personnel. That does not mean firefighters can give press conferences while on duty, from city property, in uniform.
I have not seen anything that indicates that he was disciplined for that reason, I only point it out because there is a great deal of misunderstanding over this issue. Chip – are you out there?
Sorry for the late response-I was too busy watching my neighbors mishandling explosives in celebration of the country’s anniversary. First-the prior restraint cases are different than the retaliation cases. There are different legal standards, and courts almost always strike down prior restraint on speech. In this case Alvarado was not disciplined because of his speech. At least that’s the FD’s story, and they’re sticking to it. But from my review of the facts, the bases for discipline seem weak-esp as it relates to the filming by the news crew since any interference by Alvarado would be a First Amendment violation. But if Alvarado sues for retalitory action by the FD, it seems that the FD would have to spend its effort defending the original discipline. The City could argue that Alvarado is not entitled to First Amendment protection if he can show that the discipline was merely pretextual, but I think that at that point the City is in trouble-that the court is likely to find that while Alvarado spoke at least once in uniform and while on duty, he also spoke in other forums and while not on duty. More importantly, the court may find that Alvarado’s duties did not include speaking to the press and therefore he is protected. (In Foley, the Chief did not have protection when speaking to the press because that task was part of what he did in his job. The court did not look at the job description,bit looked at the reality of the job duties.)I believe that courts will (while never stating this) look at the two sides and will try to figure out who is being the bigger jerk. I beleive that if all of the DC firefighters who have been disciplined would join together in one case they would have an excellent chance of proving that the City retaliates against those employees who speak out.
Thanks Chip
To the DC folks out there – this is a very challenging area. You can tell because even judges dealing with concrete facts cannot seem to agree where the line is to be drawn. Add to the mix that in real life people disagree over the facts – and it makes for one big steaming pot!!!
I have been looking through my database and my online sources for the 1990s DC case that was mentioned. All I have found so far is the infamous DC bumper sticker case. Is there another one out there?
As Chip said – if it was a “prior restraint” case (where an employer tries to stop employees from speaking publically) the courts will usually strike it down … unless the general order/regulation is narrowly drawn.
It is a stretch to take that kind of ruling and proclaim a firefighter has a right to speak to the media while on duty on any matter he chooses to speak about. Where the line is drawn however… is not all that clear.
The name says it all. Alvarado erred in talking to the press in uniform and on duty and may be subjected to some discipline for that. The rest is all legally defined as “LRB BS”