Michael McClearnon Sr. was a former president and chief of the Beaver Dams (N.Y.) Fire Department. In October 2003, he served as the president of the department's board of directors. On Oct. 1, 2003, McClearnon sent a letter to the U.S. Fire Administration in which he complained that the department had not received an Assistance to Firefighters Program grant. He also sent a copy of the letter to his two U.S. senators, his congressman and the then-current fire chief of the department.

In his letter, McClearnon complained that the department had not received any federal money and was in desperate need of turnout gear. He claimed to have attended seminars, and stated that he had been honest in applying for money. He further wrote that he couldn't understand how a neighboring fire department, with its own adequate funding, obtained a grant for a fire truck that wasn't needed. He also stated that he could not understand how another neighboring fire department, which had misappropriated its money the previous year and was under investigation, could obtain a second grant. The letter was not approved by the department board of directors, but McClearnon signed the letter as president of the fire company.

Although McClearnon did not name the two other departments in his letter, firefighters and others within the community were aware of the two departments that he had referenced. As such, the letter found its way to the chiefs of the two other departments that had allegedly misappropriate funds and that had received funds for a truck that wasn't needed. After receiving the letter, the chiefs of the two other departments contacted the Beaver Dams Fire Department to express their displeasure with the accusations made against them by the president of a neighboring fire agency.

Soon after, the Beaver Dams Board of Directors held a special meeting to discuss the controversy. At the meeting, McClearnon refused to cede control as president, so the board voted to appoint the vice president as the acting president. The acting president then excused McClearnon from the meeting and discussed the situation with the board. The fire chief of one of the neighboring departments expressed his concerns, and following the meeting the board voted to suspend McClearnon from his position pending the completion of an investigation into the circumstances and potential consequences surrounding the letter.

After learning of his suspension, McClearnon allegedly made several calls to members of the board, in violation of the board's standard operating procedures. This conduct and his refusal to relinquish control at the prior board meeting resulted in McClearnon being charged by the board with inappropriate behavior and harassment.

Within two weeks, the board of the fire district held a general membership meeting to discuss McClearnon's conduct. At McClearnon's request, the board allowed the general membership to determine by vote whether he should be disciplined and, if discipline was to be imposed, the measure of discipline. The membership recommended further investigation into the letter, but imposed a two-month suspension as punishment for McClearnon's prior refusal to cede control of the meeting when the issue regarding the letter first arose, and for McClearnon's telephone calls to members of the board.

The board continued its investigation into the circumstances surrounding the letter and the effect, if any, it had on the department's relationship with its neighboring fire departments. The board received letters from the chiefs of the two departments referenced in the letter to the USFA in which both chiefs disputed the accuracy of McClearnon's allegations. One chief noted that the fire truck that McClearnon characterized as “not needed” was an integral piece of equipment that was often requested by neighboring fire departments, and that Beaver Dams had requested the assistance of a ladder truck on at least 18 occasions within the two years prior to mailing of the letter. The chief of the other department described McClearnon as a great threat to both his fire department and the Beaver Dams Fire Department and threatened the possibility of legal action. Both neighboring departments specifically requested that McClearnon not respond to calls for mutual aid. The board further learned that on some occasions following McClearnon's letter, both neighboring departments failed to ask Beaver Dams for mutual aid, and instead contacted other fire departments, even though Beaver Dams was the closest department.

As a result of the investigation, the board decided to charge McClearnon with misconduct in connection with sending the letter. Soon after, the board met to hear and discuss the charges and allowed McClearnon an opportunity to rebut the charges and call witnesses on his own behalf. Following the hearing, the board determined that McClearnon's letter had a detrimental impact on the fire department and its relations with its neighboring fire departments and suspended McClearnon for one year. The board further recommended to the membership that McClearnon be expelled.

Prior to the expiration of the one-year suspension, the general membership of the department voted to expel McClearnon. In McClearnon v. Beaver Dams Volunteer Fire Department, Inc. 489 F.Supp. 2d 291; 2007 WL 1518641(W.D.N.Y.), McClearnon brought a federal civil rights action against the department, alleging that he was voted out of the department in retaliation for exercising his First Amendment rights.

To state a federal civil rights claim under Section 42 U.S.C. 1983, a plaintiff “must allege (1) that the challenged conduct was attributable, at least in part, to a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege or immunity secured by the constitutional laws of the United States.”

In reviewing McClearnon's claims, the U.S. Federal District Court for the Western District of New York acknowledged that the First Amendment protects the right of public employees to speak out without fear of reprisal on issues of public concern. However, the court also noted that:

“[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency in reaction to an employee's behavior.” [Connick v. Myers, 461 U.S. 138,147 (1983)]

Moreover, even where an employee has spoken out on matters of public concern, a public employer still may take employment action against the employee if the speech is likely to, or in fact has, disrupted the performance of governmental activities or is detrimental to governmental efficiency. [Cioffi v. Averill Park Central School District Board of Education, 444 F. 3d 158,162 (2d Cir. 2006)]

To prove his First Amendment-retaliation claim, McClearnon had to prove that he engaged in constitutionally protected speech because he spoke as a citizen on a matter of public concern, that he suffered an adverse employment action, and that the speech was a motivating factor in the adverse employment decision. The court noted that “whether or not particular speech relates to a matter of public concern is ordinarily a question of law decided on the whole record by taking into account the content, forum, and context of the given statement. If the plaintiff is able to establish a prima facia case of retaliation, the court must then determine whether or not the government employer was justified in taking action against the employee.” (Citations omitted.)

The court found the ultimate question to be whether the employee's right to speak is outweighed by the public employer's interest in the effective operation of the workplace. Specifically a court must assess the extent of the disruption caused by the employee's speech on workplace discipline, harmony among coworkers, working relationships, and the employee's job performance, and determine whether or a disruption justifies the employer's attempt to stifle the employee's expressive activity.

In rendering its decision, the court assumed that the fire department was acting under color of state law when it suspended McClearnon for misconduct and recommended that he be expelled, and further assumed that McClearnon enjoyed a cognizable interest in remaining a volunteer firefighter in determining whether the department deprived McClearnon of his right to freedom of speech. The court noted that in at least one prior case, volunteer firefighters were considered public employees and therefore entitled to due process of law.

In McClearnon's case, the court found that although his speech did touch on matters of public concern, the Beaver Dams Fire Department was justified in suspending and ultimately expelling him on the grounds that his speech was damaging and detrimental to the functioning of the department. Although the purpose of McClearnon's letter was to bring to light disparities in funding between departments and a lack of adequate funding for his own department, the allegations leveled in the letter had a damaging effect on the department.

The court further found that because the McClearnon letter had a damaging effect on Beaver Dams' relationship with the neighboring fire departments, Beaver Dams had a legitimate interest in punishing McClearnon for the content of his speech:

If the harmful effects of the expression to the public workplace outweigh its benefits to the speaker/employee, then the employer is justified in taking adverse action against the employee to mitigate the negative effects. [McEvoy v. Spencer, 124 F. 3d 92,98 (2nd Cir. 1997)]

In reaching this decision, the court determined the letter in question not only had a harmful effect on Beaver Dams relationship with its neighboring fire departments, but that the letter also had a disruptive effect within the Beaver Dams Department. The letter and the reaction to it necessitated several meetings of the board and the general membership, votes by the board and membership, the involvement of attorneys, and a several month-long investigation. Because of the disruption both within and outside of the department, the court found Beaver Dams was justified in allowing its membership to decide whether McClearnon should be expelled and ultimately was justified in expelling him from the department.

The court also pointed out that the purpose of McClearnon's letter was not to expose public wrongdoing or corruption, but instead served as a vehicle for McClearnon to express his own frustration that the department had been passed over for grant money again. Had McClearnon been interested in exposing corruption in the grant process, or with respect to a particular fire department, he would have named those suspected of wrongdoing and identified the allegedly wrongful acts. Instead, McClearnon simply stated that in his own opinion, other unnamed departments were unworthy of receiving grant money and that his department was instead deserving of such funding.

The court found these allegations by McClearnon to be more akin to “gossip” than to protected free speech on issues of public concern. Furthermore, as president of the Beaver Dams Fire Department, McClearnon held a position of importance and responsibility within the organization, and accordingly was obligated to exercise more caution with respect to speech than would be expected of a general member of the organization. Because of his position, “plaintiff's accusations against neighboring fire departments carried more weight than the claims of the general member of a fire department, and accordingly evoked greater concern within the departments accused of wrongdoing.”

In conclusion, the federal district court found that when weighing the importance of McClearnon's speech against the disruption it caused, the fire department was justified in taking employment action against McClearnon. The trial judge held that McClearnon failed to state a claim for violation of his First Amendment rights; while his speech was generally directed to an issue of public concern, the specific allegations regarding the neighboring fire departments did not rise to the level of protected speech. Even if those allegations were protected under the First Amendment, McClearnon's right to make those allegations was outweighed by the fire department's interest in promoting good working relationships with neighboring departments and within its own department.

Previously, I have warned fire chiefs against taking disciplinary action against firefighters based solely on the content of the employee's speech. I have urged that actions against firefighters be based on specific violations of department policy, not because the firefighter, by way of his speech, has created dissension within the department. However, the court in McClearnon clearly demonstrates that not every complaint of a firefighter against a political subdivision is entitled to protection from the First Amendment, despite the fact that firefighters are quick to raise the constitutional flag to insulate themselves from disciplinary action. McClearnon makes clear that while limited constitutional protection may exist for employees, chiefs still have the right to discipline those employees who go public with criticisms that result in great harm to the fire department.

In McClearnon, the fire department did everything right. It moved slowly and did not act in haste once the letter was written. More importantly, the department gave its employee written notice of charges that were being filed against him and the opportunity to rebut those charges in a hearing. The opportunity to present evidence and be heard assures that the firefighter is afforded due process in any termination (or disciplinary) proceeding. The fire department documented the damages or harm caused by the speech of the employee, and presented substantial evidence to the court to prove that the speech resulted in a significant disruption in department operations. Additionally, the department presented evidence that established that the benefit of the firefighter's speech was minimal, and in fact had minimal potential impact on department operations.

The firefighters considered that the court might use a balancing test (based on prior case law) and were prepared to fully establish that, as a matter of law, the employee's speech could and should not be protected. Ultimately, this case proves that fire departments or chiefs may take actions against firefighters based on their speech, where the chief does not shoot from the hip in reacting to critical speech, but instead conduct careful investigations, apply due process, and document the adverse consequences of the employee's action.

---

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.