Court Upholds Fire Captain’s Demotion For Affair With Subordinate

Randolph Starling was a captain with the Palm Beach County, Florida Fire Rescue Department. In May 2005, he arranged to have Carolyn Smith, another firefighter, transferred to his fire station as his subordinate. Sometime during the next few months, Smith and Starling – then married but separated from his wife – began an intimate relationship. Starling’s wife filed for divorce in July, and he moved into Smith’s house in October, although his divorce did not become final until April 2006. Starling and Smith’s cohabitation was common knowledge among their friends and coworkers, and they married in June 2006.

Soon after moving in with Smith, Starling learned that Ken Fisher, his direct supervisor, had been using Smith’s home for extramarital trysts with another married firefighter. When Smith told Starling that Fisher had once solicited her (through the other firefighter) for a three-person sexual encounter, Starling asked her to stop letting Fisher use her home. According to Starling, this angered Fisher, who threatened him with disciplinary action and told him to end his relationship with Smith.

On January 11, 2006, Fisher issued an Employee Development Form stating that Starling’s “preoccupation” with Smith was “causing a disruption for the station officer and for the crew” and urging Starling to “return his performance to its past level.” Although the form was not designed for disciplinary purposes, it warned Starling that his failure to prioritize “making station rounds and being more consistent with his daily routine” could “lead to initiation of a special performance review or disciplinary action.”

Within ten days, Starling learned that he faced potential disciplinary action for his conduct in three separate incidents during the previous year and a half. On February 13, the County’s Fire Rescue Administrator demoted Starling from captain to firefighter/paramedic. Starling accepted union representation and filed a grievance, which the Administrator denied after a hearing at which Starling had union representation. The Union declined to pursue arbitration of the dispute – a decision left to its discretion under the terms of the collective bargaining agreement – on the basis that Starling’s claim lacked merit.

Starling sued Fisher and the County under Section 1983 of the Civil Rights Act, alleging that his demotion violated his First Amendment right to intimate association. When a federal district court dismissed his claim, Starling appealed to the federal Eleventh Circuit Court of Appeals.

The Court held that Starling had no constitutionally-protected freedom of association right with respect to his relationship with Smith. The Court noted that “in the ‘quasi-military’ context, which includes both fire departments and police stations, we have afforded public employers greater latitude to burden an employee’s rights, particularly when the exercise of that right impacts discipline, morale, harmony, uniformity, and trust in the ranks. For instance, we held that a police chief could burden his secretary’s fundamental right to marry because her marriage to a subordinate in the office could undermine her loyalty, particularly when she might be working on matters that directly affected her husband. Loyalty and confidentiality, we explained, are absolutely critical to the effective functioning of a police department.

“In this case, the County has a strong interest in regulating intimate relationships between supervisors and their subordinates in the Fire Department. The Palm Beach County Operational Procedure ‘strongly discourages’ romantic relationships between supervisors and subordinates because there is always a ‘potential for abuse of power’ and ‘sexual harassment’ in those relationships. The County’s interest in discouraging such behavior is heightened in the Fire Department, which has a special ‘need to secure discipline, mutual respect, trust and particular efficiency among the ranks due to its status as a quasi-military entity different from other public employers.’ For instance, Starling’s battalion worked 24-hour shifts that required him and his subordinates to sleep and work in close proximity. Intimate, extramarital relationships between subordinates and supervisors in this environment can be particularly destructive to the chain of command by weakening trust and discipline and threatening harmonious interpersonal relationships.

“The mere potential for this kind of disruption in the Fire Department would likely justify a burden on a fundamental right to intimate association. This case, however, does not require such extrapolation – the undisputed record evidence shows that Starling’s relationship with Smith was damaging operational efficiency. First, the relationship was impairing internal discipline in Starling’s battalion. For instance, Starling’s special attention for Smith – including their late night association – was threatening the ‘harmony’ of the shift. Second, the record also shows that Starling was affording Smith special favoritism, behavior which can undermine personal loyalty and confidence in impartial leadership. Third, the record also shows that Starling’s relationship with Smith distracted him from his responsibilities and impeded his overall performance at work.”

Starling v. Board Of County Com’rs, 2010 WL 1294054 (11th Cir. 2010).

This article appears in the July 2010 issue