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Fire Law Review at FDIC 2012

Thu, 24 May 2012|

The Fire Service Court team--Chip Comstock, John K. Murphy, Brad Pinsky, and Curt Varone--talks about the major fire department legal issues of 2012 and make projections for the next year.

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Transcript

From FDIC 2012 welcome to fire service -- radio. On video my name's Brad Hinske and I'm your host today. We meet today is -- Comstock -- grown and John Murphy we the fire engineering lawyers I'm gonna make that cannot really afford -- -- -- -- enough fire engineering dot com radio program you monthly with a live radio show and we are all here at FDIC 2012. Lecturing judge today and tomorrow. On various topics and today we want to talk about. You know that some of the hot topics of the weekly got a good one because I -- of the week. And Dodd then maybe a little look back through year so I think that topic we should start talking about I've got to hand the microphone back and forth. Is perhaps talk about what's going -- Miami once again these facts I mean just left the issue. Right now cal. Perry -- -- -- I can't argue with the best of my knowledge there was C captain Miami Dade. Who made the FaceBook posts. That was -- bomb you don't -- on and off duty time my understanding is the end it was. You know -- personal personal commentary. On an issue that it happened down in Sanford Florida where a young young black. Youth we saw shots under questionable circumstances and it's really kind of stuck capture a lot of attention and moved. The nation in doubt that the captain down -- Miami Dade had made some notes comments about some social issues that he felt I had thought impacted those and he did it and it's you -- sort of a street vernacular away. And you know there's a question a ball whether or not that was so appropriate. For a public. Employee. To be on May eighteenth. You know and in -- the way that he had done a sort really restate the question opens do weird. Does the First Amendment -- protection that we all all enjoy. -- end when you're a public employee. Now fortunately we -- First Amendment. Guru Rick Gosselin was actually I think speaking on First Amendment as First Amendment issues so -- let me ask you got a guy eight. Who says see -- you're very nice -- -- the chamber of all look very large community by saying some very not nice things some would call and I believe an absolutely racist with the comments he made these are very. Com -- -- -- comments. Again they raised a lot of anger so here's this guy he's a member of the fire department. Try and also the fire department off duty not at the -- post very. And that. Had no intention of raising you -- comments and now the fire department looks at him as -- -- representative. Almost of the fire department and the question is what about some discipline so what is the what is the law that we have what guidance we offer our. Viewers and listeners I don't what do you do with somebody who makes these type of comments on again. -- very heated. Public issue that has nothing to do -- department. Bridges is not about that department whatsoever it's not any knowledge he knows in that department it's just an issue out there that happens to be in the community and having nothing to do the -- -- -- A public employee has first amendment rights is no question about that as long as the employee is not speaking as an employee at -- because employee he he may not have first amendment rights. But if he is speaking as a citizen in and that's the case cheer him speaking as a citizen -- they don't like anybody else good on their FaceBook. The person has first commemorates his -- are speaking about the matter of public -- -- In this case arguably. It that he would say -- matters of public concern issues about the prosecutor issues about -- What the prosecutorial process was was taking place. However government. Also has rights as an employee or. Two. Keep the discipline within the employment ranks they just keep the and so this the tough -- or -- to balance the employees first amendment rights vs the employer's rights to maintain discipline. If you look at historical cases. The courts typically look at in this type of -- would say has never been hard. Hasn't been issues created with the public has has the department's reputation been harmed. And if you look at the actual facts in this case I think the answer is going to be yes you have actually members -- the of the department itself. -- -- at City Hall. So in that case I think if the employer. -- -- employee and the employee file suit I think the courts are -- uphold the discipline of the employee. And there's another older case that would support this in the New York City members of the FDNY. How to float in the parade. In on that float they. -- mockery. Made fun of the African American community and -- black face themselves I think I'm pretty -- -- and right and and the court said they had a first this they were that it was talking about some issues in one of the boroughs. And there was some some racial tension cases and they were making fun -- and the court said. They had a right first -- -- right to try to make their point however. Again New York City had a right to maintain discipline and maintain the department's image and they said these are members of the of the community of of an -- -- that is supposed to protect. The class what they're making fun of and in that case they said that the employer had a right to discipline and I think that the facts there -- real logic would be analogous. And I think this is a topic we talked about quite a bit in the past and -- you know the courts have. Ruled both for and against I think gun. The ability of an employee to post material on FaceBook I think the last NLRB decision. Was -- and decided. Well as a really decide I think they settled -- And then they talked about is this water cooler talk as -- something that you wouldn't ordinarily talk about then deal with speed with few or. Fellow firefighters are other citizens of the community. The other issue here I think is -- so racially charged. That everybody's -- -- -- and on edge with whatever could be. Construed as. You're violating somebody's rights are trash talk in somebody's -- you know parenting skills or. Whatever the issue is I think it makes it really. More sensitive to an organization -- -- when you have somebody new organization that's. Come may be speaking out of turn. And I think the other part of this is we've always talked about policy and that creating a policy having a policy enforcing a policy about using social media. And what the -- -- and I know -- we've talked about it they'll probably for the last two or three years. And -- people just continue to go out and violate the policy. Now or department says geez -- really don't have a policy to enforce. And so how are we gonna learn -- how we gonna do that. -- -- -- -- lot of policy out there -- lots of social media policy. I know that Doug Kerr has written probably -- -- -- -- you guys have -- have as well. You know all about corporate America has policies on social media. Not restricting the use of -- -- kind of controlling. The image I believe that they want their organizations to. Project to a community so certainly in a domino environment doesn't -- real sensitive. Nationally and that's going to continue to be sensitive. You have an individual who may have some intimate knowledge -- -- opinion. Based on some prior experience. Then he happens to put out -- -- book. An hour in you know having this discussion all over again. But to go one of those things that I know triple talk about not talk about an hour lectures here. -- is going to be a thing called the Pickering balancing test and that's really -- the key guidance that the US Supreme Court has given us. Four are determining whether or not an employee a public employee has a First Amendment right and the problem with the Pickering balancing test is if you're judge shoots a wonderful test if -- -- law school professor -- It's a wonderful tests if we were sitting around here it's it's a wonderful tests to talk about in theory. But in terms of the ability of the fire chief or a union official or a spot typical fire -- -- to make sense out of that. Tests is just it it's just too complicated. And you know I don't know and possibly this case you -- might give us in the Somali cases that -- sort of percolating through the system bomb. It in regards primarily to social media. That may give the Supreme Court the opportunity to address -- I don't know if they gonna be inclined to try to make it a little bit clearer. Forest but the Pickering balancing test is this just so difficult and it's hard to predict. On which way -- the court is going to rule mulled whether or not this individual in this particular case he's gonna have first amendment rights or not and if you don't that at some point the person has the make a decision to usually -- felt something on the computer and then hit send. And you know you got it and you -- you did needs to be some standards. It in terms of when it's okay to do that when it's when it's nice gifts this particular fire fighter may be if you changed the words a little bit. The war bomb maybe if he had taken the other side of the same issue. Com this would be a non issue and I think fundamentally if you think about the founders of the the United States and and those who wrote the constitution. They were trying to saying it's okay you know that's what we're trying to protect. So I don't know I think that that you know well I didn't think maybe the Supreme Court needs to go back and and really kind of take us all look at that Pickering balancing test. -- I'd -- is that I think that. It is from a practical standpoint I it was called referred to as the stink test -- -- to say which side -- mourn outside the courts to rule against. The problem is you don't know that at the time you push a button. You don't know what effect it's gonna have a community and people -- ignored or he may have people protesting in and -- you have to have that harm to a crew once -- course. The courts -- usually rule in favor of the the opposite party and unfortunately by then it's too late. You know the governments -- her team policeman heard it's all over the news and it's it's it's not there's no -- clear guidance as you said. Make it amazes me because. We ended up last year a year ago. And this very video show. Talking about social media saying can't wait to see what next year brings -- and yet here we are today you know discussing these issues. I like to look back and Monday's vikings look back on our -- -- and -- -- why we -- shows that we've done and talk about some of the issues. On the one of the issues missourian I guess this -- was talked about -- was. If any city I believe cancels so it residents swift water or ice rescue team and won't be told somebody -- because -- fire department couldn't get to them. The employee. Go fire department member -- now specifically talking about the operations -- their fire department. -- in the City Council meeting open up nurturing these facts. -- before this City Council and accuses the mayor and the council of killing that individual because he took their money away. And to me it's. It's the opposite side of this argument comments I would try to combat that was a radiation so maybe somebody wants a common and that -- that -- -- that led to a broker a good rule we we have some guidance on that at least whether that's acceptable. It alone but I think -- may -- -- two cases but the Doocy Alameda case in California with the drowning. And then there was a case out of a police on the trip was -- for romance -- BC about the case in Ohio in the success of all you're right you're absolutely right OK I was thinking you -- -- the -- case but you're right where rom there was fatigue syndrome what town was that come. Yeah in fact I think I singled that out as one of the top yesterday it was -- -- what you're right. It was a dive rescue case rights and with a dive team had to had been eliminated for financial reasons and then -- relatively short period of time bomb to two people had had drowned. And because of the delay in getting the regional team and they're supposed to local team -- -- for a regional or state team to get in there. Of the bodies were not promptly fountains. Bomb a firefighter went to a City Council meeting in and did he did -- wood with some pretty strong language shalom -- public officials and yet identified himself he took some steps to identify themselves -- as plus the private citizen that he wasn't speaking on behalf of the of the department and and so while it's pretty clear in the clearly it was a matter of public concern those of the two touchstone. You -- still in order to get to the Pickering balancing tests you've got to be speaking as a private citizen on a matter of public concern. And Nam. Feel which which -- that the source of the sickness circuit and they and they said that bomb he had he was exercising his first amendment rights. The end -- they overturn the discipline that was imposed on him. Did that actually the key part of that case was she was disciplined for lying. He made accusations in the in the deep deep discipline him for misrepresentations. In front of council. District court dismisses the case out and dvd firefighter -- -- to the six Circuit Court of Appeals. In what they said was it was a matter of public concern. And that they weren't sure which way the Pickering test was gonna go but that one of the issues was just -- testy even apply if the employees line. And that the court said that it may not apply if the employees line you don't even get to that point but. The burden of proof of proving that the employees line is on the employee you're. It was on the city and indeed. Court appellate court said the two were sufficient facts raised by the firefighter to suggest that what he was speaking was the truth. And therefore they needed to go back beside was this in fact it is clues first a question of fact. As to whether or not he was speaking the truth and then apply the test so it's been remanded back -- for -- -- a decision by the by the trial court. But I thought it was very interesting because it came down very hard. On the City Council and in favor of the firefighter giving him the benefit of the doubt on these issues. And and what gets me is as a fire captain I've got 3-D -- fire chiefs here. Com is -- lawyers and but you know as far kept and to me that's complete and subordination and in a -- it mice. -- -- -- -- When I see okay well we've made a decision in the fire service how we've decided to purchase this engine and one of our captains or lieutenants are firefighters can go to the City Council as they -- that -- made a horrible decision's -- act. Public safety he's made the worst decision possible he's incompetent he's not trained in whatever it is. And now we want to discipline him from in subordination and maybe we can't. But I I'm curious how this sets I mean it it god sent me. So should firefighters be -- to say anything they want just because it's a matter of public concern. I think in the right forum. And again the other -- from -- firefighters by profession but they still are citizens and have a right as a citizen. To speak I think the issue again all these issues Dahmer comes to budgetary. Cutbacks and -- programs and unfortunately somebody dies as a result of that. You know we're seeing in that sort of trend across the country that -- major programs have been cut out I know we polluted today Alameda case and around -- these ice water rescue cases and you'll swim teams in dive teams are very expensive. And so. You know the City Council and the mayors and that sort of elected officials are making some you know. -- pretty challenging. Decisions to reduce services. And so becomes again and them and an emotional issue and so you know does a firefighter have the right do you go to a City Council meeting or heaven and meeting. Privately with the mayor council people independently. -- -- spirit and expresses opinion that in a public forum. Then -- the same results occur you know does he get disciplined. Probably not become known as the chief get you know disciplined for not -- policies about firefighters speaking. Know how can restrict that sort of sort activity. And so again we go back to this if it wasn't such an emotional issue would even be an issue at all. And second of all Chris will be over you know and you -- are we scaring the city councils away from. Making budgetary -- cuts on programs there may be popular or. You know well because you know Tony firefighters like to dive and it's run. It but it really serves no useful purpose for the community but do they have the right to -- it. And so. You know I think we're going to be facing those those challenges and we have faced them already in the past and again we're gonna be seen those more in the future. As it deals with -- -- of the firefighters speak out because he has some intimate knowledge about the effects of the program. On the community. Not another aspect to what you -- I'm sensitive to that concern you raise and it's some it's an issue a lot of different fire department's bomb. This -- the wind it seems to be drawn. Is whether or not what the five -- complaining about is a petty grievance or private grievance. Or is really a matter of public concern. And that you don't if there was let's say some fraud and we re recently dealt with a -- -- you know discuss the case -- -- they may have been so -- insider dealings on some fire truck could pump purchases. And certainly a firefighter -- seeking to bring that to light that there was some impropriety in the bid process. Palm's certainly you don't wanna silence you want to stifle calm the employees that are going to be disclosing improprieties. On the other hand if the person she's gonna be whining a boat you know we wanted this particular manufacturer and set of that particular manufacturer. In this really. You don't really thought of a minor nature of personal preference I think it's truly personal blog grievance our petty grievance. And not really a matter of public concern so that's how -- -- you know the quarts of sort of -- come down on the. -- besides that dichotomy there's one other one and that is has the fire department provided. Sufficient opportunity for the fire fire to present his or her grievances. Within the department up the chain of command there are some departments -- -- say thou shall not file any grievances style shall not talk to the mayor thou shall not do anything. And in those cases again the courts are saying what are you doing any of these people have important information that they need to share with the public. And so in those cases where the department itself. Has tried to eliminate. Easily fire fine in favor of the firefighter prior restraint right. Well he even where the and he did the prior restraint is a -- on complete speech but we can just have thou shall not talk to the mayor. Even though you may do other things. However if you have a chain of command policy that says you need to store you have an issue you go through the chain of command. And then you can bring it after you've given the chief see opportunity due to address your concerns and then you can bring it to council as a citizen. That's okay they're usually gonna say that's okay and so what happens a firefighter want to jump around the chain of command. And he wants to go -- -- one to the mayor again the courts aren't that much in favor. Of the fire -- in those instances -- say he'll like this is illegal and paramilitary organization you need to address. These -- -- in a proper order. And we're not -- what you'd start creating issues within the department by running around a -- commits I think it's really good that you have policies in place. Then addressed the chain of command. And in those cases you're not you're not punishing the fire murder for what he said they're punishing him because the -- -- the process used to say he violated -- command. That's frankly what what I think we should be doing and frankly on FaceBook I'm in favor of policies we say -- say whatever you're gonna -- but when you say it you must post this disclosure we're not speaking on behalf of the fire department I'm not an authorized representative. And so then when they say something like that. And they don't post I'm not an authorized representative -- you're punishing them for not posting that -- for what they said just for not disclaim. Yeah let's get back to the Florida case Switzerland say would -- have made any didn't make any difference I think everybody who looked at that FaceBook posting in in the Florida -- -- six. We know he's not posting on behalf for the department. They -- later identified him as a captain. And it would -- it's still created. Oral lot of different variables that know each case has to be taken in and of itself and that's what makes it so hard for the employer the employee. But -- you know -- I'm just simply refuse if it's truly something no that's going to be concerned you wanna take to achieve commanders a recent cases that the court I talked about out of Georgia. We're person raised an issue. On FaceBook. About some this treatment within the in the department they thought there was a police case and they thought the -- -- the that that the police. Sources creating some favours to some relatives and in that case the court said you know this is a matter of public concern. This is something that that they should have first animal rights with but if it was -- that important. How come they didn't address -- true chain of command to the superiors or others within the city why did they just posted on FaceBook. What was the real purpose here. And so they look at that he'll do that first remember right isn't that great when she could have gone -- -- -- officer could have gone to. The chain of command a racy issues internally and -- get response and then go out and go like external. Let's do -- couple other minutes -- much time we have. On the issues from the prior year a couple quick topics that we really liked. I mean and is already John -- -- the issues how we had somebody aghast on doctor bass -- And we were talking about mental health issues. Com and what to do you -- there was some cases. That were I can't come out at the time. We actually had the benefit of privately talking to the one in one of the individuals coming out going through all the facts basically what do we do for our employees. How when they may seem suicidal. What obligations. Do we have and we had doctor that's come in and talk to us about. You know what employees or employers can do for their employees and we had some discussion about what rights what obligations we have when we see. Posttraumatic stress. Employee. And -- now bring you -- as well. Because you talk about what the police -- calm and I thought that was import enough we should bring that up again let's do that. Well we do have doctor Beth Murphy. Over in those peanut gallery and she's not being -- -- -- in whatsoever and she's ignoring us but we're talking about. PT SD in suicide and policies and observations and whatnot I think that the conversation we had -- the time was. Was taking. Because -- yesterday rumor about talking to another gentlemen from. Colorado over had a firefighter that it's like suicidal ideology -- and was talking the talk. And -- but had subtle signs prior to -- recognizing that there is -- severe issue going on. -- and so they finally eastern in the counseling and then you can be retired under the department because it was just too stressful. And the and the fire officer looks back caddie -- you -- there's just so many subtle signs of that I missed. And so I'm thinking there were and we were missing a training opportunity here to teach. The fire officers and firefighters to recognize the subtle symptoms. Home because the big symptom is he got a dead firefighter earnest too late and I know that. -- Phoenix so I think Arizona's probably had 45 suicides in their organization. Not to public service in this everybody's wondering -- were we -- will be missed and and and you're gonna miss it sometimes. I think recognition early intervention. I'm not saying no no -- crazy and it was always been that way because you know there may be something going on there -- we're we should be recognizing we should be seeing. And they just fire officers. And educators. Need to talk -- talk about it. Then we need to bring professionals and to help us recognizable symptoms. They get firefighters steered in the right direction so they get taking care of before the -- of the fatal result. -- -- Everything -- you know. The -- troops is really cross section of -- of society and we do have from mental health issues there there are. Similar result is that yes of course the -- everybody's got -- issues but. But really when it when it comes down to -- some of the yellow -- the suicides that we're seeing armed. We're kind of hard on each other in many ways. -- and it is busy group mentality -- someone to start -- -- a little strange. They get a little bit alienated and then they act a little strange in the get a little bit more alienated in this cause sometimes instead of actually reaching out and get anxious and some help. Did the people or ostracize the individuals or ostracize -- -- I think that some there's so there's a closer recognition in -- more enforcement. About having psychological services available for the officers and it could be because they've they're on -- Umpqua slump but they're much more raw attentive to that certainly are you I teach -- class -- disciplined. And one of the things that we recommend one over both five footers going to be disciplined that support services be made available particularly where it's gonna lead to termination. Bomb because. And that's that's gone it's not a typical -- the typical stress the could push someone. -- and possibly we stressed that led them but into the situation to begin with that and I'm not trying to be soft on crime. Soft on un com misconduct but at the same time if there's psychological reason we can fix you know we have books a vehicle would you -- a transmission problem -- fix the transmission problems with the -- to took the vehicle back on the road. And you know sometimes we don't apply the same thought process tore our people as well -- But I think that the cops sure had a was on that on that regard in most departments have a psychologist or psychiatrist that's available to them to help them com dog guy did departments through some of these issues that they have with -- individual officers and they make the decision and and particularly when the when the person's going to be terminated -- to. -- that help that person through the stresses of that you know that that -- change. And a comment and we we got to wrap this up the way I wanna think all -- Listeners and watchers and I want to invite everybody back. Too rusty John kerchief and I -- neither -- speaking here or certainly listening to our monthly Blog Talk Radio show. And -- all the other phenomenal speakers on that -- We look forward to hearing your issues you can always email us and let us know what you would like -- talk about and hopefully we can give you some advice that keeps you in your department on -- right path and staying out of trouble and in the public's. Public side of think the good people. So well whatever we can do to help the fire service out I think we all want to do so from fire engineering 2012 I wanna thank all of you -- again John -- -- For attending and had a great show any safe and out legally healthy year.

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