Fire Department Computer Rule Impermissibly Vague

Ralph Bowman is a firefighter for Butler Township, Ohio. In 2007, routine maintenance of the Township computer system revealed that members of the Fire Department had been accessing and downloading violent and pornographic files from the Internet on work time using Township computers. When an investigation concluded that Bowman had accessed a video entitled “Felony Fights,” which he claimed had some training value, the Township terminated Bowman. Bowman challenged his termination through the court system.

The Ohio Court of Appeals overturned Bowman’s termination. The Court noted that neither the Department’s Code of Ethics nor the Township’s personnel policies provided any guidance as to appropriate computer use for firefighters. Neither document mentioned computer usage specifically, and the Code of Ethics only mandated that employees adhere to the “highest standards of morality.” The Court found that the Code of Ethics, “while laudable, is vague and not clearly definable.”

The Court was clearly troubled by the fact that Bowman had watched violent and not pornographic videos. The Court observed that “although watching pornographic videos would more universally be classified as conduct that does not satisfy the highest moral standards, here the appropriateness of Bowman’s conduct turned on the more amorphous question of where to draw the line about which violent behaviors are consistent with the highest standards of morality and thus acceptable to watch on television or computer. The Township conceded that some violent content was permissible, such as football coverage, news reports, or perhaps even fighting championships, while arguing that the military-themed violence in the videos watched by Bowman was inappropriate. The Township contends that common sense and appropriateness should have informed Bowman that the videos in question were improper in the workplace but, in our view, these estimable concepts provide no meaningful guidance.

“In discussing whether a statute is vague, the United States Supreme Court has held that the legislature cannot forbid or require the doing of an act in terms so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application. Due process requires a person to have notice of conduct that is prohibited. In our view, the Township failed to provide such notice with respect to use of the computer to access legal, non-pornographic materials. Bowman cannot be found to have engaged in malfeasance warranting his dismissal.”

Bowman v. Butler Township Board of Trustees, 2009 WL 3931368 (Ohio App. 2009).

This article appears in the January 2010 issue