Officers Lose Retaliation Lawsuit Over “Ground Zero” Assistance

Michael Rubino and Gerald Weimer are officers with the Township of Middletown, New Jersey Police Department. On September 11, 2001, Rubino and other officers were directed by the Township’s Police Chief to go to New York City to assist with the rescue efforts. On September 12, however, the Chief declined to authorize Middletown police officers to assist in New York City because he believed no assistance was needed from the Middletown Police.

On September 13, Rubino informed the Chief that he believed assistance was needed in New York City and that he wanted to go to New York to help. The Chief instructed Rubino that Middletown police officers were not to go to New York City, to which Rubino replied that he would take a personal day off from work in order to go assist. The Chief initially said that he would not allow Rubino to use his personal day for that purpose, but eventually relented when he realized Rubino was intent on going and allowed a small group of officers, including Rubino and Weimer, to go to New York City.

On September 13, a police sergeant called Rubino at Ground Zero to inform him that the Chief was ordering all Middletown officers to return. Rubino protested to the sergeant that all the officers were being utilized, and the sergeant passed along the information to the Chief. The Chief did not change his mind and insisted that all the Middletown officers leave. Rubino worked at Ground Zero until 4:00 a.m. on September 14.

On September 14, Rubino was summoned to the Chief’s office upon reporting to work. At that time, the Chief stated no officers could assist even during their off-duty time. The Chief further ordered that no officer should wear a badge while in New York City or any other item identifying him as a Middletown police officer. At some point during this conversation, Rubino commented that a lieutenant had misrepresented the Middletown Police Department’s role in the rescue efforts of September 11 and the Chief became agitated.

Rubino alleged that he was retaliated against in a variety of ways for his challenges to the Chief’s position on the Ground Zero assistance. Rubino alleged, for example, that he was transferred, was the subject of an improper personnel review, and was the subject of charges for neglect of duty.

Weimer was the subject of more direct retaliation. The lieutenant Rubino alleged to have misrepresented the Department’s role sent a package containing horse manure and a threatening note to the homes of Weimer and Rubino and two other officers. Weimer went to the lieutenant’s residence to return the box and to complain, but the lieutenant did not answer the door. It appears that Weimer left the box at the lieutenant’s residence. Almost a month later, in May 2002, the lieutenant, in his pick-up truck, followed Weimer through various Township streets for no apparent reason. Weimer documented and reported this incident in a memo to Detective Lieutenant Michael Cerame. Weimer and the other recipients eventually made a formal request for an internal affairs investigation. Shortly thereafter, the Chief suggested that Rubino and Weimer seek counseling.

Rubino and Weimer instead filed a lawsuit against the Township, alleging that they were the subject of retaliation for their exercise of their free speech rights protected by the First Amendment. A federal court of appeals disagreed, and dismissed the lawsuit.

The key to the Court’s decision was its premise that the First Amendment only protects speech by employees if that speech is a matter of public interest, and only if the employee’s interest in making the speech (and the public’s interest in hearing the speech) is not outweighed by the employer’s need for efficiency and discipline.
The Court easily acknowledged that the speech about the Department’s response to September 11 was a matter of public concern. It was the manner of Rubino’s speech that persuaded the Court to dismiss his lawsuit: “Rubino’s concern, however, took the form of challenging the Chief’s orders – persistently, flagrantly, and in front of others. We agree with the trial court that Rubino’s expression of his concern was outweighed by the public interest in maintaining obedience, order, and discipline in the Police Department, especially in the time of crisis that was the time period immediately following the attacks of September 11.”

Weimer, who claimed he was retaliated against because of his memorandum concerning the horse manure, fared no better. The Court found that “Weimer fails to show how his memo regarding the lieutenant’s behavior constitutes speech that is a ‘matter of public concern’ as opposed to speech asserting Weimer’s own interests and issues. Moreover, the only act committed by the Chief or any others in the Police Department directed towards Weimer was the suggestion that Weimer, and the other officers, seek counseling. Morrell cannot credibly construe the Chief’s suggestion to seek counseling as retaliation when the officers claim they were traumatized by the lieutenant’s actions.”

Bradshaw v. Township of Middleton, 2005 WL 2077137 (3rd Cir. 2005).

This article appears in the October 2005 issue