Firefighter’s Off-Duty Speech May Be Entitled To Constitutional Protection

Robert Abad was employed as a firefighter and paramedic for the City of Marathon, Florida from November 2003 through May 2006. In November 2005, Abad was elected secretary/treasurer of Local 4396 of the International Association of Fire Fighters.

The following month, Abad wrote an opinion column which was published in the Marathon Free Press. The column suggested that the quality of services provided by Marathon firefighters and paramedics was at risk due to an insufficient number of emergency workers and what Abad characterized as “below average annual wages.” In the column, Abad called on the public to write letters and to contact their Council members “to support the firefighter/paramedics and pay the additional $10 per Marathon resident it would take to raise firefighter/paramedic wages. Abad signed the column “Robert Abad, Lieutenant – City of Marathon – Fire Rescue – Local 4396 Secretary.”

The City suspended Abad for three shifts without pay for violating its “media relations” policy. Abad responded by filing a federal court lawsuit alleging that his suspension violated his free speech rights.

Because Abad’s speech was off duty, it potentially was entitled to some constitutional protections. The City nonetheless argued that it was entitled to summary judgment because the article did not involve a matter of public concern.

A federal trial court refused to dismiss Abad’s lawsuit. The Court began with the proposition that if speech can “be fairly considered as relating to any matter of political, social, or other concern to the community,” it qualifies as a matter of public concern. The Court ruled that “while Abad stood to gain personally from the pay raise he advocated in his column, the issues raised by the column regarding the quality of service provided by the local firefighter/paramedics were of concern to the general public, as demonstrated, in part, by the column’s contents and the local decision to print the column. Abad’s speech involved a matter of public concern.”

The City next argued that even if Abad’s speech addressed matters of public concern, its interest in the “effective and efficient fulfillment of its responsibilities” outweighed Abad’s free speech rights. The Court was unconvinced by the City’s argument, commenting “it is arguable that the column may have contributed to some reduction in public confidence in the Fire Department, as it was intended to raise concern about the Department’s efficiency. However, Abad’s speech was both public and political, aimed at raising public consciousness of what he characterized as a potential danger to the community. Therefore, this Court balances the interest of Abad and the City, and finds more weight in favor of Abad.” In denying the City’s motion for summary judgment, the Court sent the matter for trial on the merits of Abad’s claims.

Abad v. City of Marathon, Florida, 2007 WL 417018 (S.D.Fla. 2007).

The article appears in our April 2007 issue.