Firefighter’s Statements Critical Of City Council Potentially Protected Speech

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This article appears in the May issue of our monthly newsletter, Public Safety Labor News.

Ron Westmoreland is a firefighter for the City of Bay Village, Ohio. The Fire Department has roughly 24 firefighters. Budget concerns in the spring of 2008 led to the adoption of changes that substantially reduced overtime for firefighters.

In addition, the Fire Chief recommended that the dive team be eliminated, a recommendation approved by the City Council. The Chief stated that the dive team had been used an average of less than once per year, had never actually rescued anyone, and had cost between $10,000 and $12,000 in overtime annually. Also, he determined that between 1999 and 2007, the City had purchased a total of more than $26,000 in diving gear and equipment from Westmoreland’s for-profit dive business.

Two drowning incidents in or near Bay Village quickly followed. Westmoreland was not working when a 12-year-old boy drowned at Columbia Beach on August 9, 2008, but Westmoreland responded to the scene where a seven-year-old boy drowned at Huntington Beach on September 1, 2008.

Two weeks later, on September 15, 2008, Westmoreland spoke for a total of about eight minutes during the public comment segment of a regular Bay Village City Council meeting. Westmoreland, off duty and not in uniform, identified himself as a 16-year veteran of the Bay Village Fire Department, a former member of its disbanded dive team, an international public safety diving trainer, and an expert in public safety diving. Westmoreland had been the instructor of the Bay Village dive team, and had instructed firefighters from other area communities.

Westmoreland’s speech was directed at the City’s decision to cut funding for certain safety services and the outcomes resulting from those decisions. Throughout his speech, Westmoreland mentioned not only the dive team, but cuts to training for safety personnel and difficulties resulting from the “shuffling of ambulances.” Westmoreland also spoke pointedly about the drowning on September 1, asking, “how many children have to die before Council and the administration understands,” and claiming that they had been warned that it would be “not if, but when” there would be a loss of life because of the cuts.

The Mayor then ordered Westmoreland to serve a three-tour unpaid suspension on the grounds that Westmoreland’s statements at the City Council meeting constituted insubordination, malfeasance, misfeasance, dishonesty, failure of good behavior, and conduct unbecoming of an officer. Westmoreland responded by suing the City, claiming the discipline retaliated against him for the exercise of his free speech rights.

The main issue before the federal Sixth Circuit Court of Appeals was whether Westmoreland’s City Council appearance was “as a citizen or as a firefighter.” Under the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), if Westmoreland was speaking in his capacity as a firefighter, his speech was automatically not constitutionally protected.

The Court found that it was clear that Westmoreland was speaking as a citizen about a matter of public importance. As the Court described it, “although Westmoreland identified himself as a public employee, he appeared off duty, out of uniform, and at a public meeting to address the Mayor and City Council during the public comment period. Nothing in the record supports the claim that Westmoreland’s expression was made pursuant to a task that was within the scope of his official duties.”

The City also argued that although Westmoreland’s speech was couched in terms of concern about the drowning death, it was motivated by Westmoreland’s financial loss of overtime and business, and communicated “nothing more than the quintessential employee beef: management has acted incompetently.” The Court disagreed, finding that “Westmoreland denied that his speech was motivated by financial or personal interest, claiming that he ‘never advocated for overtime or equipment for himself as a priority over safety and security of the citizens of Bay Village.’ Westmoreland stated that his business earned only $600 to $700 in profits annually from sales to Bay Village – although neither party has indicated how much Westmoreland may have lost in overtime pay – and attested that, as ‘the highest credentialed dive rescue official in Bay Village, he wanted to state to the City Council in the strongest terms the public concern over the detrimental effect of removing dive rescue capacity. The substance of Westmoreland’s expression undoubtedly involved matters of public concern.”

The Court then turned to a lower court’s finding that Westmoreland’s statements were knowingly or recklessly false. The lower court had concluded that “Westmoreland, at a minimum, was reckless in attributing the death of the child to the lack of a dive team.”

The Appeals Court rejected the lower court’s findings, concluding that “Westmoreland did offer evidence to support his belief that the lack of a dive team meant that the child did not have a chance of being rescued. Westmoreland explained by way of affidavit that, although there were twelve divers on the scene, those divers did not arrive until more than one hour after the 911 call, ‘making them ineffective for a rescue.’ Keeping in mind that Westmoreland is not required to prove that his statements are true and that defendants must prove that the statements were not only false, but were made with intentional or reckless disregard for the truth, it was error to conclude on this record that Westmoreland made intentionally or recklessly false statements.

“Westmoreland presented evidence that he had reason to believe that, if not disbanded, the Bay Village Rescue/Dive Team would have responded sooner, could have found the child in the water sooner, and might have given the child a chance of surviving. Nor is an intentional or reckless disregard for the truth shown by the fact that the divers who arrived later were not deployed before the child was found. Despite Westmoreland’s inflammatory rhetoric that the budget cuts were partly responsible for condemning that child to death, the City has not shown that it was intentionally or recklessly false for Westmoreland to claim that the rescue effort was hamstrung because Bay Village no longer had a dive team.”

The Court returned the case to the lower court for a hearing on whether any false statements were knowingly or recklessly made; whether a reasonable official would have believed any false statements were knowingly or recklessly made; and, if necessary, whether – taking into account any falsity – Westmoreland’s interest in speaking as a citizen on a matter of public concern outweighed the defendants’ interest in promoting the efficiency of the public services it performs through its employees.”

Westmoreland v. Sutherland, 2011 WL 6034297 (6th Cir. 2011).

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