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LCW Partner Brian Walter And Senior Counsel Alison Kalinski Win MSJ In First Amendment-FBOR Case Arising Out Fire Chief’s Termination
In June 2020, a podcaster contacted a city to ask that its top officials discuss the city’s responses to COVID-19 and the civil unrest related to George Floyd’s death. The city manager gave permission for the others to appear if they chose. Both the police and fire chiefs agreed, and the podcast recording took place during the fire chief’s paid worktime. The podcasters asked how the fire department was preparing for protests and civil unrest. The fire chief gave a lengthy response that discussed civil unrest he dealt with in his past employment following an officer-involved shooting that he believed was “100 percent legitimate.” He said that the media poorly portrayed the shooting and caused demonstrations. He said he used to feel “you’re one good shooting away from civil unrest” whereas now, “you’re one violent interaction [away]” from civil unrest.
The fire chief later attended a meeting for a regional dispatch center. In discussing his displeasure for a vendor that had been used, the fire chief stated “I’m comfortable continuing to move forward, but not taking our foot off their throat either…I think your foot needs to be clearly on their throat, and they need to feel it and they need to feel that constant pressure every single day that we mean business.” Local police chiefs present at the meeting were disturbed by those comments and reported them to the city.
The city manager determined he could no longer trust the fire chief and terminated the fire chief for his statements, finding they lacked compassion, sensitivity and judgment. The fire chief’s notice of termination stated that his at-will employment was being terminated for “an incompatibility of management styles” and explained the supporting reasons were his above-referenced statements.
The fire chief appealed his termination under the Firefighters Procedural Bill of Rights (FBOR). The hearing officer recommended the chief’s termination be upheld and the city council affirmed.
The former chief sued, alleging among other things, retaliation in violation of Labor Code Section 1102.5, retaliation for exercising his right to free speech in violation of the First Amendment, and violation of the FBOR. The chief also sought to overturn his termination. The U.S. District Court dismissed the Labor Code Section 1102.5 claim because the fire chief failed to timely file a governmental claim. The District Court also granted the city’s motion to dismiss his First Amendment claim as to the comments at the regional dispatch meeting, finding that he spoke in his capacity as a public employee.
After discovery, the city filed a motion for summary judgment, arguing that the chief’s speech on the podcast was not protected because he was speaking as a public employee, and that there was no violation of the FBOR because the chief was provided a fair termination appeal hearing. The U.S. District Court agreed, granted the city’s motion, and entered judgment for the city.
On the First Amendment claim, the Court found that the chief’s speech on the podcast, like his speech at the regional dispatch meeting, was not protected because he spoke as a public employee, and not as a private citizen. The test courts use to determine when a government employee has stated a prima facie case for First Amendment retaliation is whether the employee spoke: (1) on a matter of public concern; and (2) as a private citizen. If both of those are true, then the court considers whether the protected speech was a substantial or motivating factor in the adverse employment action.
There was no dispute in this case that the chief’s speech was of public concern. The Court found that the evidence showed that the chief spoke pursuant to his official job responsibilities as a public employee. The city coordinated the chief’s appearance, the subject matter of the podcast was how the city was responding to the unrest, the chief appeared during his worktime, and he was introduced as the fire chief. The Court found that the First Amendment claims failed because the chief was speaking as part of his job and not as a private citizen.
As to the FBOR claims, the Court found that the hearing before a hearing officer that the parties agreed to use was fair and satisfied the chief’s due process rights. The chief pointed to six alleged incidents in the transcript when the hearing officer denied the admission of evidence or rejected the chief’s legal counsel’s questions. The Court concluded that the hearing officer fairly denied the evidence and questions, as leading, irrelevant, beyond the scope of the hearing or the individual’s personal knowledge, or duplicative. Thus, there were no FBOR violations. Finally, the Court found the city was justified in terminating the fire chief for an incompatibility of management styles.