ree speech - lexipolfree speech? understanding how & when departments can limit what...
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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.) [email protected] Cell: 401/527-9111 www.firelawblog.com
Billy Goldfeder, EFO Deputy Chief
Loveland-Symmes (OH) Fire Department
[email protected] 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 • [email protected]