Unfortunately, First Amendment freedom of speech cases are becoming more common in the fire service. Another one was recently decided in Habel, et al, v. Macomb Township, et al, No. 04-60160, U.S. District Court for the Eastern District of Michigan, Southern Division (2006).

In this case, four Macomb (Mich.) Township Fire Department firefighters brought suit against the department, the township, Fire Chief Raymond Ahonen, Township Supervisor John Brennan and the township clerk, claiming that each had violated the firefighters' First Amendment rights, among others.

One of the plaintiffs, Kenneth Meerschaert, began working for the department as a part-time firefighter in 1981. He advanced through the ranks and in 2000 was promoted to assistant chief. In that position, his responsibilities included training on-call firefighters, which caused him to become concerned about perceived staffing and training inadequacies. He felt that the department was inadequately staffed and that many firefighters weren't attending training sessions. He suggested to the chief that those not attending be disciplined, but Ahonen disagreed.

Meerschaert then spoke to the township attorney, township officials, community residents and the press. Several articles appeared in newspapers. As a result, Brennan, through Ahonen, issued an order requiring that all media inquiries regarding the department be directed to Ahonen or him.

Meerschaert claimed that after he went public with his concerns, his relationship with Ahonen began to deteriorate. On Oct. 28, 2002, Meerschaert attended a township meeting and once again tried to voice his concerns, but he stated that he encountered so much hostility that he felt forced to leave. Two days later he was transferred to another station, denied access to a computer he needed to perform his duties, denied use of a department vehicle, required to report to a subordinate, denied access to files he needed, and had his keys taken away from him.

After the township meeting, Meerschaert and several other plaintiffs prepared a flier that included statements about Brennan's lack of concern for the safety of the community. It was distributed to about 250 residents, who were encouraged to attend the next board meeting.

About two weeks later on Nov. 14, 2002, a call came in requesting an emergency medical response. Meerschaert said that the dispatcher did not provide a clear address of the emergency, so he waited to verify the address while two other firefighters covered the run. Meerschaert later left work to take his wife to a doctor's appointment. He was subsequently suspended for 45 days for neglect and evasion of his duties on that day. Meerschaert resigned from the department in January 2003.

Plaintiff Thomas Habel began working for the department in 1982 and was promoted to lieutenant in 2000. In 2002, he likewise began to voice concerns about the need for more personnel, stricter enforcement of training requirements and more safety education. When assisting Meerschaert in conducting CPR classes in the community, he expressed those concerns to the public. Habel claimed that after the township began to receive adverse publicity, he started to experience incidents that he described as harassing. He and Meerschaert weren't invited to the department awards ceremony honoring those who served 20 years or more, though both had done so.

On Jan. 16, 2003, Habel was at the station when Ahonen arrived. He said that Ahonen interrupted Habel's conversation with another firefighter and declined to respond to Habel's greeting. When Ahonen was leaving the station, Habel said, “Chief, you drive careful out there.” Later that same evening, Habel was suspended. Ahonen later filed a police report against Habel for threatening violence relating to the driving remark. According to Habel, no one conducted an investigation or questioned him about the incident.

Habel also worked as a deputy sheriff for the township, but he was reassigned to a territory outside the township, reportedly at Brennan's insistence. Habel further reported that he had been intensely embarrassed by being ordered to wash fire trucks, an assignment reserved for those of lower ranking.

Plaintiff David Herczeg started as a probationary firefighter in November 2001 and was a paid-on-call employee still in probationary status at the time of these events. In late 2002, he was on duty when a Michigan Occupational Safety and Health Administration investigator arrived. Herczeg said that a command officer approached him and a coworker and instructed them to hide any unmarked chemicals, but Herczeg declined to do so. Herczeg said that after this incident, Ahonen ignored him. Although a written evaluation of his work was satisfactory, Herczeg was terminated several months later without explanation.

Plaintiff Geoffrey Smith was hired as a part-time firefighter in February 2000, and he experienced no problems with Ahonen during the first two years of his employment. Smith said that in the fall of 2002, he also became concerned about safety training, staffing and response time for the firefighters. He talked to reporters and residents about the MIOSHA incident involving the chemicals. His name appeared in numerous newspaper articles, where he was cited as speaking to safety concerns, the need for a more advanced fire department, a lack of personnel, and how and where he believed that the township was wasting tax dollars. He also assisted in the preparation of the fliers that were sent out to residents.

Smith contended that after these events, Ahonen also treated him differently. He said that his number of runs was limited, Ahonen shunned him, his accessibility to dispatch was restricted, he did not receive new keys to the station when the locks were changed, and charges were continually brought against him.

The defendants denied the plaintiffs' charges, arguing that their claims should be dismissed because the plaintiffs' speech was not of matter public concern, and even if it were, the defendants' interest in maintaining a united work force outweighed the plaintiffs' right to speak out.

The court began by listing the elements that the plaintiffs had to prove to establish a First Amendment retaliation claim. Specifically, they were required to show that:

• They were engaged in constitutionally protected speech or association,

• They were subjected to adverse actions that caused them to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that conduct, and

• The adverse actions were motivated at least in part by the protected conduct.

Because the plaintiffs were public employees, they also had to demonstrate that their speech implicated a matter of public interest or concern, and that their interest in taking up the matter of public concern outweighed the defendants' interests as employers “in promoting the efficiency of the public services it performs through its employees.”

The court observed that generally, speech implicates a matter of public concern when it informs the community that a government entity has failed to discharge its governmental responsibilities or has engaged in “actual or potential wrongdoing or breach of public trust.” It involves issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government. The fact that a public employee engages in the speech while in the course of his or her employment doesn't necessarily preclude a finding that the speech touches upon a matter of public concern. While the employee's motive for engaging in the speech in question is relevant, it's not a dispositive factor when considering whether the employee's expression is of public concern.

The court said that the defendants' challenge to whether the plaintiffs' speech qualified as touching on matters of public concern was built upon their characterization of the topics discussed by the plaintiffs as dealing first and foremost with the plaintiffs' own personal interests. The court disagreed with the defendants' characterization, holding that the plaintiffs' speech here was not exclusively about personal employment issues. Rather, much of their speech concerned the well-being of the public in general. They spoke about safety and training issues, thus bringing these concerns to the attention of the general public and the township administration. The flier they prepared and circulated urged citizens to contact their elected officials.

The court noted that the freedom to criticize public officials and expose their wrongdoing is at the very core of First Amendment values, even when the conduct is motivated by personal pique or resentment. The First Amendment still protects the plaintiffs' right to voice their concerns and criticize the defendants and their policies. The court then concluded that the plaintiffs' efforts to expose what they perceived to be the inadequacies of the fire department fell within the scope of content deemed to be matters of public concern.

The court next considered whether the plaintiffs' “interest in making their statements outweighed the interest of the township, as an employer, in promoting the efficiency of the public services it performs through its employees.” Because the plaintiffs' speech “substantially involved matters of public concern,” the defendants were required to make an even stronger than normal showing that their interests in regulating the plaintiffs' speech outweighed the plaintiffs' interest in speaking. The defendants contended that they acted reasonably to maintain a positive work environment in light of the negativity that the plaintiffs projected onto the department. The court disagreed, saying that the defendants had failed to produce sufficient evidence of insubordination or disruption that would tip the balance in their favor as a matter of law.

Although a fire department ordinarily should be afforded great leeway in disciplining insubordinate firefighters, it's not a self-evident proposition that firefighters who defy a chief's order by speaking out about the fire department or even criticizing it commit an act of insubordination that threatens its efficiency. The court said that the defendants failed to produce evidence that the threat of insubordination in this case was so great as to outweigh the public's interest in an informed discussion about the inadequacies of the fire department.

Indeed, the First Amendment retaliation cause of action was designed to prevent attempts by officials to silence public employees. Quoting from earlier case law, the court said that public employees often are the members of the community who are likely to have informed opinions regarding the operations of their public employers, operations that are of substantial concern to the public. Were they unable to speak on these matters, the community would be deprived of informed opinions on important public issues. Therefore, the interest at stake is as much the public's interest in receiving informed opinions as it is the employee's own right to disseminate it.

The defendants next challenged whether either Smith or Herczeg had suffered an adverse action. The court found that there was sufficient evidence to show that they did. Herczeg was terminated from his position as a probationary firefighter without a stated reason. Although as a probationary employee he could be terminated for any reason, the law still prohibits his termination for exercise of his First Amendment rights.

Smith had to show that he was subjected to adverse actions that caused him to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that conduct. The court noted that he had suffered adverse employment actions in the form of multiple disciplinary actions, reduced runs and presumably pay, loss of keys to the station, and presumably loss of status. The court then held that the defendants had failed to show as a matter of law that Herczeg's and Smith's injuries were insufficient.

After considering several additional arguments, the court concluded that the defendants had failed to establish that the suit should be dismissed. While this case is clearly rife with controversy, it nonetheless provides us with some important lessons.

• Although a probationary firefighter can be fired for no reason, this is not a license to violate his or her First Amendment rights.
• The interests of the public frequently are implicated by First Amendment protections as much as those of the speaker.
• A fire department must make a strong showing that its efficiency is threatened to be able to limit its employees' speech.

---

Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He is legal counsel for the Wisconsin State Firefighters Association and the National Volunteer Fire Council. He is also currently the chairman of the NVFC, the secretary of the National Fire Protection Association and a director of the National Fallen Firefighters Foundation.