Several past Fire Chief legal columns have dealt with free speech and the balance between an employee's right to speak out and an employer's right to maintain order and discipline. A recent decision by the U.S. Court of Appeals for the 7th Circuit has revisited this topic in a high-profile case, Greer v. Amesqua, 7th U.S. Circuit Court of Appeals, No. 99-2767 (2000).

The Madison (Wis.) Fire Department and firefighter Ronnie B. Greer had a long history of conflict. In the 1980s, Greer was reprimanded for chronic tardiness and disciplined at least twice for insubordination after shouting matches with superior officers. He quarreled with then Chief Earle Roberts over two separate but related issues and refused to submit to a department shaving inspection.

He told local newspaper reporters that the department hazmat team was unequipped, untrained and unprepared to respond to calls, despite Chief Roberts' announcement that the team was ready to go to work. Roberts removed Greer from the team, prompting him to file a complaint with the Wisconsin Equal Rights Division alleging employment retaliation in violation of his right to free speech. Although the claim was eventually settled for $18,500, that didn't mark the end of conflict.

When Debra H. Amesqua was sworn in as Roberts' successor in 1996, Greer, the lone vocal dissenter, attended her swearing-in ceremony bearing a large placard. On one side it read, "Injustice is just wrong. Not affirmative action." On the reverse side it said, "When does wrong become right?"

Apparently Greer believed that Amesqua was unqualified for the job and that she was hired over more-qualified candidates. Amesqua is a Native American whom Greer believed to be homosexual, and Greer credited her appointment to affirmative action rather than to her substantive qualifications. It should be noted that Amesqua has never said anything about her sexual orientation.

In 1996, Greer was reprimanded and docked for being absent without leave. The department also began disciplinary proceedings against him for religious speech in the workplace, but subsequently dropped that investigation. Soon thereafter, however, Greer was suspended for three days for an argument with a superior over misuse of sick pay, an action he unsuccessfully appealed to the Board of Police and Fire Commissioners (pfc).

Then, in late 1996, Greer disseminated to fellow firefighters in his station a pamphlet titled "Homosexuality: The Truth." The pamphlet referred to homosexuality as a "filthy scourge" and blamed gays for disease and child molestation.

On Nov. 27, 1996, Amesqua suspended Greer for three months without pay and wrote him that "your disciplinary record is extremely poor. The sanction I am imposing is a last-ditch attempt to get you to alter your ways. You should fully appreciate that any further breaches of our standards could well result in your termination." Once more he unsuccessfully appealed to the pfc, which warned him that it would not suspend him again.

The final confrontation had begun on Nov. 5, 1996, when a local tv station aired video of Div. Chief Marcia Holtz making physical contact with and screaming at recruit Ron Cato during a training session. Six days later, the firefighters union formally requested that Holtz be suspended and reprimanded for what became known as the Holtz-Cato incident. The assistant chief whom Amesqua assigned to investigate the matter concluded that Holtz's conduct was not unreasonable under the totality of the circumstances. Amesqua then extended Holtz's probation for six months and ordered her to attend a leadership class.

Although Holtz has also not expressed any sexual orientation, Greer believed her, too, to be a lesbian and objected to the investigation's outcome. On April 28, 1997, he faxed a self-styled "news release" titled "Homosexual Chief rewards [sic] Homosexual Chief for Assault?" to a number of local media outlets, including both major Madison newspapers. In the release, he objected to the appointment of an assistant chief to investigate the charge, arguing that an independent, disinterested party should have performed the investigation.

He went on to say that the relationship between Amesqua and Holtz went back a long way because of their affiliation with an organization called "Women in Fire" (actually Women in the Fire Service), which he said was an organization seen by most firefighters in the area as predominantly homosexual. He said that Amesqua and Holtz were both homosexual women who had been seen to have clear agendas concerning women in the fire service, and questioned whether this was a case of favoritism.

He contended that if this had been a white male chief officer shoving and screaming at a female recruit, heads would have rolled. He further claimed that other chiefs coveted the leadership class that Amesqua required Holtz to take and that there was a waiting list to get in.

After the release resulted in press coverage by the Capital Times, a Madison newspaper, saying that Greer insinuated that there was a lesbian conspiracy, Amesqua directed an assistant chief to investigate. Greer admitted to the investigator that his knowledge about the Holtz-Cato incident derived entirely from tv reports and workplace gossip. However, he insisted that his release was "only asking questions," not making accusations.

Amesqua adopted the investigator's recommendation that Greer be discharged for insubordination, his continuing campaign to derogate the department, disregard for department rules and "unequivocal assertion of his continued right to do what he did." The report went on to say that the release constituted harassment and brought the department into disrepute.

Amesqua notified Greer that his release was "equivalent to spitting in the Department's face" and his "continuing presence on the worksite can no longer be tolerated considering the open, notorious and personal way in which [he] attempt[s] to address [his] personal agenda." She then filed formal charges with the pfc recommending Greer's termination.

After eight days of hearings spanning nearly six months, the pfc found just cause for termination under department rules, Wisconsin law and federal law. Less than a week later, Greer sued Amesqua and various others under 42 usc 1983 seeking reinstatement and damages for violation of his due process, equal protection and First Amendment rights. When the district court ruled in Amesqua's favor and dismissed all of Greer's claims, he appealed to the Court of Appeals.

In support of his due process claim, Greer argued that:

* his hearing before the pfc was constitutionally inadequate,

* three of the five pfc commissioners were biased against him, and

* the department rules under which he was prosecuted were too vague to be enforceable.

In considering the first claim, the appellate court ruled that the eight-day pretermination hearing was adequate and that to require more "would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee."

The court also dismissed Greer's conflict-of-interest argument, noting that he'd failed to provide any evidence of personal bias or animosity against him by the three commissioners about whom he complained. It further noted that it was difficult to even identify the conflict of interest that Greer suspected.

Finally, the court also dismissed Greer's vagueness claim. It held that government regulations are void for vagueness if people of common intelligence must guess at their meaning and may differ as to their application. However, when the government is acting in the role of employer, it enjoys much more latitude in crafting reasonable work regulations for its employees. Although the rules in question were written in general language, they sufficiently defined a range of inappropriate conduct in the employment setting that a reasonable employee would understand.

For his equal protection claim, he argued that he, as a male heterosexual, was treated differently from female homosexual employees who had also criticized the department, identifying Amesqua and Holtz. The court held that where an employee has an "undisputed record of gross insubordination," as Greer did, he must show that another grossly insubordinate worker was treated better than he was. Neither Amesqua nor Holtz, the court noted, "had comparably dismal disciplinary records, nor made comparably vituperative attacks" on the department. Consequently, his equal protection claim was dismissed because he failed to show himself to be similarly situated with Amesqua, Holtz or other members of an unprotected class who were treated better than he.

Finally, the court dealt with Greer's First Amendment claim that his termination, based on his "press release," violated his right to freedom of speech. The court stated that the department violated Greer's First Amendment rights only if Greer could establish that:

* his speech addressed a matter of public concern and

* his First Amendment interest in that speech outweighed any injury that the speech might cause to the government's interest in promoting the efficiency of the public service it performs through its employees.

The court first concluded that Greer's speech did in fact regard a matter of public concern. The release primarily addressed the issue of favoritism within the department and the lenient disciplinary action taken against Holtz. Whether public officials are operating the government ethically and legally is a quintessential issue of public concern.

The court went on to state that even though the release was replete with personal jibes at Amesqua, and Greer nursed an ongoing disrespect for her, a personal aspect within the speaker's motive doesn't necessarily remove the speech from the scope of public concern. The court held that Greer's central motivation was exposing what he considered illegitimate favoritism by Amesqua for lesbian firefighters. His criticisms of the department went far beyond complaints regarding his individual employment situation and were not motivated primarily by purely personal grievances.

The court then moved to balancing Greer's interest in commenting on matters of public concern against the department's interest in promoting efficiency. The court cited the following factors to be applied:

1) whether the speech would create problems in maintaining discipline or harmony among co-workers;

2) whether the employment relationship is one in which personal loyalty and confidence are necessary;

3) whether the speech impeded the employee's ability to perform his or her responsibilities;

4) the time, place and manner of the speech;

5) the context in which the underlying dispute arose;

6) whether the matter was one on which debate was vital to informed decision-making; and

7) whether the speaker should be regarded as a member of the general public.

The court went on to say that the manner and means of the employee's protestations are key considerations in balancing the interests. Greer never approached Amesqua or Holtz regarding the Holtz-Cato incident and did not pursue internal avenues for questioning the department's investigation. Neither did he allow the union to address the matter, but instead sent off his release to the local media, causing the department considerable public embarrassment.

The court said that the publicity and sensationalism of Greer's release belied the fact that it imparted little new information about the incident. The court went on to say that despite Greer's claim that he was innocently "just asking questions," he instead circulated his naked accusations to mass media outlets for broad public consumption and intended to publicly indict the integrity of the department's leadership.

The court found that the department's interests in disciplining Greer and maintaining order were quite substantial. Greer had publicly excoriated Amesqua as a lesbian harboring "radical agendas" and denounced both Amesqua and Holtz as "homosexual women," although neither had publicly declared her sexual orientation. The court also found Greer's protests that neither woman had concealed her alleged homosexuality at work to be irrelevant.

It noted that the pfc had warned Greer to cease his campaign against Amesqua. It also observed that as a firefighter known within the community to be an outspoken department critic, Greer likely anticipated and intended the damaging effect of his release. The court held that the department reasonably felt that Greer's speech, if left unpunished, particularly in light of his disciplinary history, would disrupt the department's operation by degrading its standing with the public, undermining Amesqua's authority and inciting disharmony within department ranks. The court concluded that the department's interests as an employer in government efficiency and workplace morale outweighed Greer's First Amendment interests.

Greer argued that his news release did not ignite actual disruption in the workplace and therefore should not be a factor. However, the court held that actual disruption need not occur before an employee could be disciplined when the threat of future disruption was obvious. The press release threatened to undercut Amesqua's authority and disrupt the department.

Greer also argued that the "veracity" and "sincerity" of his statements bore critical weight. He claimed that his allegation that Amesqua had illegally favored Holtz was true, or at worst, a sincerely held belief. The court rejected this position, stating that the court has never held that an employer must prove the falsehood of the employee's statements before disciplining the employee. The court said it assumed that Greer's release was not recklessly false, yet nonetheless held that the department was justified in terminating him.

In conclusion, the appellate court agreed with the lower court and upheld its dismissal of all of Greer's claims. Since it's unlikely that the U.S. Supreme Court will hear this case, this opinion is probably the last word on the matter. It certainly illustrates the difficulties that can arise in terminating an employee when free speech issues are a factor. It also gives some direction in deciding what considerations the courts think are important in this context.

The 7th Circuit's opinion is well written and quite readable. I strongly encourage you to read it if you're dealing with this subject.