Monday, November 9, 2015

Fire Chief’s Message to Staff About Possible Layoffs Not Protected Speech

With the popularity of Facebook and other social media employee remarks are easier to access and enjoy a much wider potential audience than before. This may be why there seems to be a significant increase in these kinds of claims.

By now, we know that the speech of a public employee about their employer is not protected if the content of the statements were related to their duties or if it reflects personal opinion resulting in disruption to the operations of the employer. Enter the Fire Chief in Lincoln Heights, Ohio. 

Evidently, Lincoln Heights, Ohio is a hotbed of litigation, so much so that the liability insurance risk pool to which it belonged notified it that it was terminating the Village’s membership in the pool because of the excessive number of claims against it. Fire Chief Jonah Holbrook  received a copy of this letter from Village Manager Stephanie Dumas with a warning from her that the Village might have to eliminate its Fire Department. Holbrook quickly passed a copy of that letter along to the members of the Fire Department, stating that they might lose their jobs and they should attend the upcoming Village Board meeting.  The issue was discussed at the Village Board meeting a few days after Holbrook’s message and Manager Dumas reported on the issue in open session. He also posted the following on his Facebook page a couple of days later:

To all of the current/past employees who support the fire department. As some of you may know, the fire department, police department and maintenance department are in jeopardy. Due to insurance related issues that were made public at last Monday's (7/28) council meeting. Council has the meetings recorded by video and there is online access, but I do not know the site. As of now, there is a chance the departments will face even more severe issues, as of October 2nd, 2014 if they cannot find another insurance company.   

Apparently shortly thereafter Dumas learned of Holbrook’s Facebook posting and email to staff. She met with him, asked him to provide written answers to a list of questions and notified him that she would be seeking his resignation after he submitted his written answers to the questions. Surprisingly, Holbrook complied with the directive to answer the written questions and was subsequently discharged. Dumas sent a follow up letter which stated that he was fired for “some, but not necessarily all” of the following reasons:

  1. Emails regarding the delivery of the ambulance run Report to the Police Department.
  2. Text to Fire Department personnel informing them they would not have a job effective October 2, 2014.
  3. Post on Facebook indicating Fire Department personnel would not have a job as of October 2, 2014.
  4. Discussion with Chief of Wyoming Fire Department indicating the Fire Department would not exist after October 2, 2014.
  5. Bomb threat.

This list alone raises a number of questions, for instance, what’s that about a bomb threat? Holbrook, though focused on numbers 2-4 and filed his First Amendment claim, alleging that he was discharged because he engaged in protected speech. Holbrook may have gone wrong when he acknowledged in his deposition that he emailed the Fire Department members and posted the message on Facebook because he felt that employees had the right to know that they might soon lose their jobs and that jobs were difficult to find so he felt a duty to notify his staff so they could start looking for other work. In fact, some fire fighters did find other jobs and leave the Lincoln Heights Department.

In granting summary judgment to the Defendants, the court found that Holbrook did not make the statements in question as part of his job, and that his statements were really based on a personal concern for members of his staff , rather than a concern for the community which might lose its Fire Department. Finally, the court noted that even if his statements were of a public concern, they created significant disruption to the operations of the Department because the statements caused firefighters to quit and diminished the morale among the remaining staff. The court concluded that Holbrook’s statements were not protected speech under the First Amendment.

The case probably provides a number of lessons for both plaintiffs and employers, but relative to protected speech issues, it serves as a reminder that while it may continue to seem counterintuitive, public employee statements are not protected by the First Amendment if they are personal in  nature and have a disruptive impact on the employer’s operations.  While Holbrook’s comments could have easily been characterized as being about a topic of public concern (the loss of municipal fire services) he said they were about his personal concern for the financial well being of the firefighters, which is laudable, but not really a public concern. That coupled with the loss of staff doomed Holbrook’s case.