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FREE SPEECH? Understanding How & When Departments Can

Limit What Firefighters Say Presented by: Deputy Chief Billy Goldfeder and Deputy Assistant Chief (Ret.) Curt Varone, Esq.

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Disclaimer

The materials provided in this webinar are for general informational and educational purposes only. The materials are not intended to be and should not be considered legal advice or opinions. You should not act upon any information presented without first seeking legal counsel on your specific matter. We will look at several examples of firefighter speech issues reported in the media. The use of examples is only intended to enhance the training value of the content – not to discredit or criticize firefighters or departments. Facts related to these incidents have not been independently verified. Further, these examples are not intended to imply similar outcomes in similar incidents/cases.

Presenters

Curt Varone, Esq. Deputy Chief, Exeter, RI Dep. Asst. Chief,

Providence RI (ret.)

Deputy Chief Billy Goldfeder Loveland-Symmes (OH) Fire Department

What Is “Speech”?

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First Amendment

Concerted Activity

Whistleblower

Pickering Balance Test

If employee is (1) speaking on a matter of public concern (2) as a private citizen they must prove that their 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.”

Pickering v Board of Education, 391 US 563 (1968)

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Pickering Balance Test

FFs interest “in commenting upon matters of public concern”

Interests of the FD in promoting the efficiency of the public services it

performs

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“Close Play at Second Base”

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Avoid the Close Play!

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How Firefighters Get in Trouble

Political statements

Photos

Statements about the department

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Example – Political Statements

Sources: The Post and Courier; wltx.com; The State

Black Lives Matter holds protest, blocking intersection

Captain, while on duty, posts comment threatening to run over protesters

Captain is fired Results in temporary closing

of 1 station and lockdown of 31 others

Eventually, many more employees fired for posting supportive comments

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Example – Political Statements

The statements on social media were threatening and could be taken as the County having individuals, who because of their bias, may adjust their care – and that erodes public trust and is unacceptable.

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Locurto v. Giuliani 447 F.3d 159 (2d Cir. 2006)

We conclude that the defendants fired the plaintiffs out of a reasonable concern for disruption, and that this concern outweighed the plaintiffs' individual expressive interests … The First Amendment does not require a Government employer to sit idly by while its employees insult those they are hired to serve and protect.

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Locurto v. Giuliani 447 F.3d 159 (2d Cir. 2006)

An employer can discipline employees for speech that is NOT directly related to their employment - IF it impacts the mission & function of the employer

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Example – Photos

Source: WUSA9.com

Fire department official in charge of the Office of Professional Standards posts “lewd” and potentially racist photos on Facebook

Two firefighters issued formal complaints against him (“conduct unbecoming”)

Placed on leave while department investigates

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Example – Photos

Source: KVUE.com

Responding probationary firefighter documents crash scene on SnapChat with video and photo

“Don’t end up dead like this guy.”

“Tree won this round.” Family members see

posts Firefighter is fired

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Example – Photos

Source: www.northjersey.com

Couple (both members of the department) post wedding invitation photo that incorporates their turnout coats

Chief threatens suspension

One firefighter threatens to file a complaint against chief

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Example – Photos

Issue is due to a new policy that “wasn't clearly explained to us and doesn't have a clear explanation to what we can or cannot keep on Facebook.”

Chief claims policy “work in progress.”

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Example – Photos

We totally appreciate your volunteerism. It would bankrupt the taxpayers to have a paid fire department. Give us time to work the kinks out ... If we have to get involved as a council, we will. To criticize anyone on Facebook should not be permitted but something positive like wedding pictures should be.

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Example – Statements about the

Department

Source: vtdigger.org

Department issues new speech policy that includes confidentiality agreement

6 firefighters refuse to sign; they are fired

Firefighters say they had been raising safety concerns; allege retaliation

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First Amendment Protection

Applies only if: • Firefighter is speaking as private citizen • On a matter of public concern (e.g., safety issues) Example: If you’re a spokesperson for the department and you’re complaining about the overtime policy, you’re probably not protected

Exception: If speech intends to cause harm or disruption to department activities, you may lose First Amendment protection

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Summary

Speech can take many forms

Department CAN restrict what firefighters say

Involves “conduct unbecoming” but goes beyond

Many cases are not cut-and-dry

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What Gets Departments into Trouble

Lack of policy

Unclear policy

Overly broad policy

Lack of leadership

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Have a policy Ensure it meets best

practices Get it reviewed by your

legal resource Ensure members

acknowledge receipt Train members on it

frequently with documentation

Enforce it consistently

Assume that “common sense” will prevail

Adopt an overly broad policy

DO DON’T BG

Unfortunate Reality

Policies that restrict speech

BEFORE it is made

Right of Employer to discipline

employee AFTER THE FACT

Courts are VERY STRICT against

EMPLOYER

Courts are VERY STRICT against

EMPLOYEE

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Curt Varone Attorney at Law Deputy Chief, Exeter, RI Dep. Asst. Chief,

Providence RI (ret.) curtvarone@gmail.com Cell: 401/527-9111 www.firelawblog.com

Billy Goldfeder, EFO Deputy Chief

Loveland-Symmes (OH) Fire Department

chgold151@gmail.com www.FireFighterCloseCalls.com

For More Information

www.lexipol.com/firefighter-free-speech

Sample Member Speech, Expression and Social Networking Policy

Daily Training Bulletins related to firefighter free speech Presentation slides Recording of webinar

Questions? Shannon Pieper, Director of Marketing Communications 949/276-9938 • spieper@lexipol.com