The Randolph (Mass.) Fire Department hired Charles Foley as chief in 2002. In 2003, Foley and the town entered into a contract that provided for annual renewals through June 2006. In 2006, Foley and the town's board of selectmen tried but could not negotiate a new employment contract. The town reappointed Foley as fire chief on Oct. 31, 2006, under the provisions of Massachusetts' so-called “Strong Chief Statute.”

On May 17, 2007, two children died in a fire in Randolph. The state fire marshal held a press conference at the scene and answered questions from the media. Foley also was at the press conference. He was in uniform and fire-suppression activities continued while he spoke, even though Foley claimed that the fire was under control and he had relinquished command to a deputy.

Speaking to the media, Foley pointed out what he considered to be the department's inadequate staffing and poor funding and said that the firefighting operations would have gone more professionally and more according to standard if the department had more manpower. However, he also indicated that the outcome might not have been different even without these alleged budgetary shortfalls.

At the scene, Foley also voiced his frustration with the number of firefighters to the Randolph selectmen. According to the selectmen, Foley grabbed a copy of a newspaper article that reported on the alleged staffing issues and “shoved it forcefully” into a selectman's chest. Foley disputed the allegation, stating that the paper actually never touched the politician. Later that day, a town selectwoman criticized Foley over the phone for discussing staffing and budget issues at the fire scene rather than focusing on the children's deaths and the firefighters' heroism.

Conduct Unbecoming

Subsequent to these events, the town brought disciplinary charges against Foley, alleging that his statements to the media at the fire scene “demonstrated a lack of sound judgment and of accuracy” and were “not conducive to the town's mission of providing effective firefighting services”, that Foley had “initiated inappropriate physical contact” with a selectman; and that when interacting with a selectwoman at the scene, Foley had “displayed a lack of demeanor, ability and independent judgment required for competent command.”

The board of selectmen appointed a hearing officer to evaluate the allegations to determine whether there was cause to discipline Foley. After a three-day hearing, the hearing officer concluded that Foley did “initiate inappropriate and unprovoked physical contact with the selectman” and he had made “inappropriate, inaccurate, intemperate and misleading statements to the news media.”

Characterizing Foley's statements to the media at the fire scene as “unprofessional, inappropriate and unbecoming to a fire chief,” the hearing officer recommended that Foley be suspended without compensation for 15 days. Thereafter, the selectmen voted 3 to 2 to adopt the hearing officer's recommendation and suspended Foley for 15 days. Foley received written notification that his suspension would begin one week later. As a result of the suspension, Foley incurred a loss of $6,100 in salary.

Neither the contract that governed Foley's employment, nor the Strong Chief Statute specifically authorized or required Foley to make public statements on matters of public safety as part of his official duties as chief. At the same time, nothing in the contract or the statute prohibited or restricted Foley from doing so. Prior to the incident in question, Foley had answered media inquires, conducted press conferences and made public statements to the media regarding the fire department and its activities, events and incidents. Foley emphasized that, in his view, all such communications were done entirely on his on volition and disputed any characterization of these media communications as a required or implicitly authorized part of his job.

Following his suspension, Foley sued the town of Randolph and its five selectmen, alleging that they retaliated against him in violation of his First Amendment rights when they suspended him following his comments made at the scene of the fatal fire. Although a public employee “must accept certain limitations on his or her freedom,” it is well-established that “public employees do not surrender all their First Amendment rights by reason of their employment.” The First Amendment protects a public employee's rights — in certain circumstances — to speak as a citizen addressing matters of public concern.

Assumed Job Duties

The key issue in Foley's First Amendment claim was whether his speech at the press conference fell within the realm of protected public-employee speech. Specifically, the question was whether Foley was speaking at the press conference as a citizen or pursuant to his official job duties. Under Garcetti v. Ceballos, speech as a citizen may garner constitutional protection, while speech pursuant to one's job duties cannot.

Randolph and the selectmen argued that Foley's First Amendment rights were not violated because — in their view — he made the statements as part of his official duties as fire chief. Foley argued that he was entitled to First Amendment protection because he was speaking as a private citizen on a matter of public concern.

The defendants emphasized that Foley was “on duty at the fire scene, in full uniform and superintending the activities” of his firefighters when he participated in the press conference. Foley argued that none of these facts, on their own, established that he was speaking pursuant to his duties as fire chief. Instead, Foley asked the court to focus on the target of the speech.

The court noted that Foley was correct in his assertion that neither his uniform nor his presence at the fire scene itself was dispositive of the issue, which was that he was speaking as a private citizen. Foley also argued that because neither his contract nor the Strong Chief Statute required him to make public statements or engage the media, he could not have been acting pursuant to his official duties during the press conference. However, in Garcetti, the U.S. Supreme Court made clear that “the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes.” Instead, courts should take a “practical” view and consider the duties an employee actually performs — or is expected to perform.

In this case, the court found relevant the fact that Foley had answered media inquiries and conducted press conferences regarding the fire department and its activities, events and incidents in the past. The court relied on two previous Fifth Circuit cases for guidance, one being Nixon v. City of Houston. In Nixon, a police officer was suspended for 15 days before being terminated from the Houston Police Department for, among other things, statements he made “to the media while on duty, in uniform, and while working at the scene of an accident.” In his statements, Thomas Nixon criticized the police department's high-speed-chase policy, stating that he was “embarrassed to be a police officer.” Nixon was not designated as a spokesperson and was not authorized to make statements to the media at the scene of the accident. The court found that the officer's statement “was intended to inform the public of the circumstances of the high-speed chase, the subsequent accident, and the department's high-speed-chase policy.” The court concluded that the fact that Nixon's statement was unauthorized by the department and that speaking to the press was not part of his regular job duties were not dispositive — Nixon's statement was made while he was performing his job. Referencing a department media policy stating that, in emergency situations, officers will provide the media with information, the Nixon court added that “speaking with the media is arguably one of an officer's job responsibilities.” Finally, the court emphasized that the officer's speech held “no relevant analog to speech by citizens.”

As in Nixon, Foley was suspended for 15 days after he spoke to the media at the scene of a public emergency about the situation and the circumstances surrounding it — while on duty and in uniform.

In Foley, the court found that Foley's past interactions with the media — even if not a required job duty — demonstrated that such activities were at least “arguably one of [his] job responsibilities.” This position was further supported by a 2006 written performance evaluation, signed by Foley, that evaluated him in the category of “public and community relations/communications” and included a statement that Foley “interacts well with the media.” Also, Foley's speech was directly related to a clear job duty (suppressing the fire) and contained accusations that town policy had hurt his and the fire department's ability to perform that particular task. And, as reflected in the two cited cases, Foley's speech also reflected “special knowledge” that he had gained as a result of his official position.

Moreover — and perhaps most telling — the opportunity for Foley to speak at the particular press conference arose because of his official position; the press conference was not a forum in which any citizen could speak. Had Foley been disciplined for voicing his concerns and frustrations at another forum — whether a town meeting, letter to the editor, or even a statement to the media made at a different time or place — the outcome may have been different. However, under these circumstances, the Foley court found that there is “[q]uite simply no relevant analog to speech by citizens.”

There is no doubt that the issue discussed by Foley was a matter of public concern which could give him some protection under the Massachusetts Whistle Blower Statute and other state law. However, because Foley's statements during the press conference, at the scene of a fire, were made pursuant to his official job duties, his statements were not protected by the First Amendment under Massachusetts law.

This case demonstrates that fire chiefs, like other public employees, do not have absolute First Amendment rights to speak out against their employers. While budget and staffing reductions are legitimate concerns, public officials who routinely speak to the media must be cautious regarding the time, location and circumstances of voicing their criticisms against governmental policies. Speaking while on duty, in uniform, or at those events where the public's access would otherwise be limited, may result in disciplinary action against the employee that will up upheld by a court.

Despite these dangers, fire chiefs should continue to inform the public of the dangers associated with a lack of staffing, apparatus, equipment and training and of other issues of public concern. However, fire-service leaders must consider alternative forums to present their cases to the public to receive full protection under the First Amendment.

David C. Comstock Jr., CFOD, is an attorney specializing in fire litigation and the defense of government entities, including fire departments. He's also chief of the Western Reserve Joint Fire District, Poland, Ohio.

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