Litigation: firefighters and free speech

Litigation: firefighters and free speech

Citation: Gilbrook v. City of Westminster, 9th U.S. Circuit Court of Appeal, Nos. 96-56306, 96-5675, and 97-55314 (1999).

“Four Westminster (CA) Fire Department firefighters (Gilbrook, Garrison, Herr, and Wilson), members of the city`s firefighters` union local, were dismissed as a result of actions they took in the city`s 1992 mayoral election. The union endorsed the mayor`s challenger. The mayor was reelected. Shortly after the election. the city council appointed a committee to review the city`s budget. The committee recommended cuts in fire services, dismissal of firefighters, and curtailment of the firefighters` political activities.

“The union protested the budget cuts. The city council voted to reorganize the fire department by laying off six firefighters, removing a truck from service, and increasing paramedic services. One of the council members told one of the four firefighters that the budget cuts were `political retribution` for the firefighters` campaign against the mayor.

“One of the city`s council members had called one of the four firefighters a `Jimmy Hoffa.`

“The fire chief began investigating the department`s compliance with a city policy requiring firefighters to file a Personnel Transaction Form (PTF) when taking a paid leave. Many firefighters were unaware of the rules surrounding the form. The fire chief informed city officials about his findings in closed-door city council meetings.

“The city also hired a private company to audit the fire department. The company concluded that the undocumented forms had cost the city money, but the district attorney stated there was not enough evidence to support criminal charges.

“During the PTF investigation, political tensions were high. One city council member accused the firefighters of manipulating the overtime system; another alleged the firefighters were `ripping off` the taxpayers.

“After a house fire caused a child`s death, the battalion chief at the scene told one of the four firefighters he thought the tragedy could have been averted if he had the proper equipment and staff. After discussing the incident, the union issued a press release that placed blame with the mayor and city council. The city fired Garrison for issuing the press release and not complying with PTF policy. The fire chief fired Gilbrook, claiming he embezzled funds, violated the PTF policy, and drove a fire truck with a suspended license. The chief also fired Herr and Wilson for `fraudulently` accumulating paid leave time in violation of the PTF policy.

“The assistant city manager, who had attended the closed-door city council meting with the chief, acted as the hearing officer and affirmed the chief`s decisions. He, however, reinstated Wilson, finding that his PTF violation didn`t warrant dismissal.

“The firefighters sued the city and 10 individual city officials, including the fire chief, assistant city manager, and city council members. The firefighters claimed the city and official fired them in retaliation for exercising their free speech and association rights and conspired to retaliate against them. Gilbrook also claimed the city official slandered him by calling him a `Jimmy Hoffa.`

“The city asked for judgment without a trial on Garrison`s claims. The court granted the city`s request, holding Garrison`s press release wasn`t protected speech, so it couldn`t support a claim of retaliation. The rest of the firefighters` claims went to trial.

“The jury found for Herr and Wilson on the conspiracy to retaliate claims. It also found the city council member was liable for calling Gilbrook a `Jimmy Hoffa.`

“The city appealed the jury`s verdicts in favor of Herr, Wilson, and Gilbrook. Garrison appealed the grant of judgment without a trial on his retaliation claim.

“The decision was affirmed in part. Evidence supported Herr`s and Wilson`s conspiracy to retaliate claims. It didn`t support Gilbrook`s slander claim because the city council member`s statement was protected by the First Amendment. Garrison`s retaliation claim could go forward.

“A civil conspiracy is the combination of two or more people who, by some concerted action, intend to accomplish an unlawful objective to harm another person. There was enough evidence for the jury to infer the city officials had retaliated and conspired to retaliate against Herr and Wilson.

“The fire chief was directly involved in Herr`s and Wilson`s terminations. He headed the PTF investigation and kept the other city officials apprised of his findings through closed-door city council meetings. He also issued the discharge notices, accusing Herr and Wilson of fraud, when the district attorney`s office had not substantiated such charges.

“The assistant city manager acted as hearing officer even though he had attended the closed-door city council meetings during which the chief discussed the PTF investigation. After the hearing, he met with the chief to discuss the terminations. The jury could have concluded the assistant city manager was a biased hearing officer who rubber-stamped the chief`s decisions.

“The city council members were present during the closed-door meetings. They also made several hostile statements about the firefighters, including threatening political retribution and accusing the firefighters of criminal conduct. The jury could have inferred that the council members shared a `unity of purpose` with the fire chief and the assistant city manager.

“The First Amendment protects statements of opinion that address matters of public concern and do not contain a `provably false factual connotation.` The council member`s `Jimmy Hoffa` statement was protected by the First Amendment, so the council member couldn`t be liable for slander.

“The council member made the statement in a broad context during the debate about whether to cut the fire department`s budget. Unlike after the PTF investigation began, the political environment wasn`t full of accusations of criminal wrongdoing. The general context showed the statement was merely the council member`s opinion about a union official and political opponent ….

“Garrison`s press release was protected speech if it addressed a matter of public concern and his interest in speaking outweighed the department`s interest in promoting the efficiency of the workplace. The press release addressed a matter of public concern–the fire department`s ability to respond effectively in life-threatening emergencies.

“Garrison`s interest in speaking outweighed the department`s interest in an efficient workplace. Garrison directed his statement to citizens, not to another firefighter. He also didn`t have a high-level, policy-making position that required personal loyalty and confidentiality. No evidence showed the statement affected Garrison`s duties, impaired a close working relationship, or obstructed routine office operation. The fire department had a substantial interest in discipline, but the statement didn`t criticize fellow firefighters or pose any threat to internal discipline.”

(Reprinted with permission from Firestation Lawyer; 12:7; July 1999; Quinlan Publishing Co., Boston, MA 02210; (617) 542-0048; e-mail: info@quinlan.com; Web site: http://www.quinlan.com).

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