In late 2004, 100 elementary-school students within the Ector County (Fla.) Independent School District suffered rashes, nausea, vomiting and respiratory problems. The Odessa Fire Department and numerous public-health officials were called to investigate. Pat Land, a captain with Odessa Fire, served as the incident commander. The fire department's hazmat team tested for toxic substances at the school. The test results indicated a high level of acetone in areas where the majority of the affected students had class. Further testing after the rooms had been aired out also showed positive results, albeit at lower levels. The final test, taken after more extensive airing out of the school, did not detect acetone. Land and the school district's expert, Mark Graves, recommended that the school remain closed, because they could not rule out acetone as the cause of the health problems. Dale Childers, an Odessa assistant fire chief, instructed Land not to talk to the media about the test results.

Thereafter, Childers and others involved in the response had a meeting to evaluate the findings, decide what to tell the parents and determine whether to reopen the school. The group decided to inform the parents that all tests were negative, which they communicated in a press release. The school district superintendent decided to reopen the school the next day.

Thereafter, students continued to experience health problems. Because Land worked for the fire department and had a child at the school, parents asked him for information regarding the investigation. Pursuant to Childers' instruction, Land remained silent.

Thereafter, the school district held two informational meetings with parents. Land attended one of the two school meetings. At that time, the assistant chief told the parents that all of the tests were negative. To communicate his disagreement, Land walked out of the meeting. After the meeting, Land asked Childers why he had decided to tell the parents that the test results were negative when they were not. Land accused Childers of lying to the parents. Childers became upset and said he did not appreciate Land's questioning his integrity. Childers then spoke to the department's chief, Richard Dietz, who later testified that Childers was upset and thought Land was being disrespectful. Land later voiced his concern directly to Dietz that Childers had lied to the parents.

More than one month later, Land worked off-duty at a business. After work, he drank approximately four beers and ate snacks, but did not feel drunk or tipsy. At approximately 7 p.m., he took several prescription medications for neuropathy. He remembered leaving to go home around 8 p.m. Later that night, a trooper found him parked in his truck on the side of the road and arrested Land for driving while intoxicated. Land immediately reported his arrest to his superiors, in accordance with fire department policy. Dietz later testified that Land told him that he thought his impairment had resulted from the interaction between his medications and the alcohol. Asst. Fire Chief Roger Boyd told Land not to worry about it, because he was not the first firefighter to whom this had happened. Childers, conversely, told Land, “There's no rule that says there's like any kind of automatic termination, I can tell you that. That's all I know.”

The fire department began conducting an investigation into Land's arrest. Land's physician sent two letters explaining the possible side effects of the combination of alcohol and prescription medication. Childers admitted that he knew nothing about the medication, did not contact Land's physician, and was not particularly interested in whether a drug/alcohol interaction might have caused Land's impairment. Childers further admitted that Land's case was the first time that he had watched the videotape of a firefighter's arrest for DWI. Both Childers and Dietz went to view the videotape together.

Despite the lack of a thorough investigation, Childers prepared a report for Dietz in which he recommended that Land be terminated. Childers testified that he spoke to Dietz concerning his recommendation. Boyd also spoke to Dietz and recommended less severe sanctions. Dietz testified that he did not recall talking to either of the assistant chiefs.

Following the investigation, Dietz terminated Land, but thereafter imposed a much milder punishment to another firefighter who had been cited for DWI. The DWI charges against Land later were dropped. Land then sued both Dietz and Childers pursuant to 42 U.S.C.§1983, asserting retaliatory termination based on speech protected by the First Amendment. Specifically, Land alleged that the chief and assistant chief discharged him based on his actions in connection with the health problems at the elementary school. Land v. Dietz, 2008 W.L. 1848115 (C.A.5, April 14, 2008.)

Both defendants moved for dismissal of the case claiming that they were entitled to qualified immunity. The trial court denied the defendants' request for dismissal, and they appealed. The appellate court had to determine whether Land had properly alleged a violation of a constitutional right and whether Dietz's and Childers' conduct was objectively reasonable in light of the clearly established law at the time of the incident.

The court noted that a claim of First Amendment Retaliation has four elements:

1. The plaintiff suffered an adverse employment decision.

2. His speech involved a matter of public concern.

3. His interest in speaking outweighed the governmental defendants interest in promoting efficiency.

4. The protected speech motivated the defendants' conduct.

Childers claimed that Land did not state a First Amendment violation against him because Childers' role was limited to conducting an investigation, and that he did not cause Land's termination. The court of appeals noted that in the employment context, the actions of ordinary, non-supervisory employees are not typically the basis for a civil rights claim. The court noted that an exception exists where the decision-maker functions as the ordinary employee's “cat's paw” such that the adverse employment decision could be fairly attributed to the employee.

The district court denied Childers' motion for dismissal (for summary judgment) and determined that there were issues that would have to be heard by a jury because Childers:

1. Prepared the recommendation that was accepted, even though it was disputed by other subordinates;

2. Had a special relationship with Dietz, as evidenced by his trip with Dietz to view the videotape of Land's DWI arrest;

3. Discounted Land's attempt to explain his incapacity for medical reasons; and

4. Was angry with Land for his protected speech.

These facts supported the notion that Dietz may have been Childers' “cat's paw.”

For purposes of the appeal, the court determined that Land's speech involved a matter of public concern.

The court also noted that public employers may avoid liability if they can prove that they would have taken the same adverse employment action regardless of the protected conduct. On appeal, the court noted that the only question that it had to address was whether the defendants acted in an objectively reasonable manner with respect to Land's constitutional rights. The defendants urged that their behavior was objectively reasonable, because the city and fire department had policies that allowed for termination in light of Land's DWI. Land countered by pointing out that no one else had been terminated pursuant to that policy and that he was terminated for his speech. The court found that there were questions of fact that a jury would have to decide as to whether Land's termination was objectively reasonable, because the termination depended upon the defendants' motives. The case was then sent back to the trial court to conduct a jury trial on Land's First Amendment claims against both Dietz and Childers, in both their official and individual capacities. The case remains pending for trial.

In the past few years, I have written many articles on the fire chief's or department's liability for violating a firefighter's First Amendment rights. Conversely, I also have outlined those cases that provide fire departments protection against meritless First Amendment claims. This case is unusual in that it subjected a middle manager to First Amendment liability, even though he was not responsible for terminating the employee. The supervisor's only connection to the terminated employee was through his disciplinary investigation of the employee's conduct. This case is also unusual in that the protected speech was not broadcast to the public, but instead was made behind closed doors, voiced directly to a supervisor. Nonetheless, the information conveyed provided some First Amendment protection to the employee.

There are lessons to be learned from this case. First, a fire chief or administrator should selectively choose whom they appoint to conduct a disciplinary investigation. It is best to find individuals with as little connection to the employee or case as possible. An understanding of the department's operations, rules and regulations is helpful. Nonetheless, if an employee has any prior experience with the investigator, the employee will use that to his or her advantage if adverse action is taken. Often, in small departments, finding a person within the department without knowledge of or experience with the employee is impossible. In that case, an effort must still be made to choose the best person possible to conduct the investigation. Appointing an individual from outside the department should be considered, to the extent permitted by collective bargaining agreements, or state or local rules and regulations. The investigator should make efforts at all times to maintain his or her independence, and should not receive instructions or directions by the chief, other than being provided with a general set of facts, and the instructions to determine whether any department rules or regulations have been broken.

A fire chief or administrator should not insert or inject himself or herself into the investigation process. This will provide a cloak of objectivity to the recommendations of the investigator and the decision of the fire chief or administrator when reached. Concerted actions only will lead to a greater risk of liability for the supervisors. Administrators must be careful to be consistent in the disciplinary actions taken against employees. A more severe sanction, especially against an employee who has voiced concerns of “public interest” against a supervisor, may give rise to First Amendment liability if the supervisor cannot justify or substantiate the differences in the sanctions imposed. The proximity of timing between the alleged protected speech and the sanctions will have some impact on a court's decision, but those fire chiefs responsible for taking disciplinary action must be aware that there are many other factors that will play into the court's review, and ultimately the court may simply say, as it did in this case, that it is a question of fact for the jury to determine. A court's decision to permit a case to go the jury will always place the fire chief and any investigating supervisors at risk for an adverse jury award.

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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.