Split Decision On Firefighter Facebook Terminations

Kevin Buker, a Battalion Chief in the Emergency Services Bureau of Howard County, Maryland Department of Fire and Rescue Services, maintained a private Facebook account. Buker’s Facebook friends included employees of the Department and other public safety agencies, as well students from an EMT class that he taught. Buker set his Facebook privacy settings such that only his “friends” – and not the general public on Facebook – could view his Facebook activity.

Buker did not list the Department as his employer on his Facebook page. However, he posted photographs of himself in uniform participating in the Fire Department’s Honor Guard at a parade during a firemen’s convention and “tagged” himself in one of the photographs. Buker’s Facebook page also contained photographs of him teaching EMT classes, including one of him sitting in front of a cake that read “Thank You Chief Buker.”

On the afternoon of Sunday, January 20, 2010, Buker was in his office at the Second Battalion at the Department working and watching news coverage of a gun control debate. Buker posted the following statement on his Facebook page: “My aide had an outstanding idea, let’s all kill someone with a liberal…then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal…its (sic ) almost poetic…”

Volunteer Firefighter Mark Grutzmacher wrote the following comment on Buker’s Facebook wall: “But…was it an ‘assault liberal’? Gotta pick a fat one, those are the ‘high capacity’ ones. Oh…pick a black one, those are more ‘scary’. Sorry had to perfect on a cool Idea!” Buker “liked” Grutzmacher’s comment and posted the following statement: “Lmfao! Too cool Mark Grutzmacher!”

A battalion chief sent a screenshot of Buker’s initial Facebook post to an assistant chief, who brought the Fire Chief into the picture. That resulted in an assistant chief asking Buker to “take a look at your recent posts and take down what you feel might not be consistent with Department social media policy. Please let me know when accomplished.” Buker responded by removing the original post, though he complained that his comments had been misunderstood.

Buker then posted the following on Facebook: “To prevent future butt hurt and comply with a directive from my supervisor, a recent post (meant entirely in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I’m not scared or ashamed of my opinions or political leaning, or religion. I’m happy to discuss any of them with you. If you’re not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry on.”

Buker then continued with another post, stating “Howard County, Maryland, and the Federal Government are all Liberal Democrat held at this point in time. Free speech only applies to the liberals, and then only if it is in line with the liberal socialist agenda. All it took was one liberal to complain…sad day. To lose the First Amendment rights I fought to ensure unlike the WIDE majority of the Government I serve.”

The County fired Buker and Grutzmacher for violating its social media policy and for insubordination. A federal court recently dismissed Buker’s lawsuit but allowed Grutzmacher’s to proceed.

The Court began by conceding that at least the original Facebook posts were about a matter of public concern (the issue of gun control), and thus were potentially protected by the First Amendment. However, the Court upheld Buker’s discharge, relying on the fact that the position of battalion chief “is the most critical leadership position in the organization because Battalion Chiefs manage the day-to-day operations of the field, of all emergency services, and direct the day-to-day enforcement of policies and procedures. The content and form of the January 20 Facebook posts arguably are controversial, divisive, and prejudicial, and because these potentially offensive messages came from an individual high up in the Department’s chain-of-command, the Department did not have to wait to see if the controversy affected the discipline, mutual respect, or trust among the employees Buker supervised before addressing it. When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate. It was reasonable, based on the contents of the January 20 posts and the comments from other firefighters, for the Fire Department to think that Buker’s posts could negatively impact the public’s perception of the Department and interfere with its ability to protect the public safety.”

In addition, the Court found that “even if Buker’s interest in making the January 20 Facebook posts had outweighed the Department’s interests in promoting respect, trust, and efficiency and protecting the public, the later Facebook posts were not protected speech and constituted insubordination. Although the posts discuss the County’s social media policy and reference First Amendment rights, they were made in the context of the Department’s disciplinary investigation into Buker’s posts. There is no evidence in the record that Buker spoke as a citizen on a matter of public concern when he made the later Facebook posts. Rather, the record reveals that Buker made increasingly hostile statements about managerial decisions he found disagreeable or unwise. Such speech was not entitled to First Amendment protection. Rather, it was wholly unprotected insubordination that the Fire Department was not required to tolerate.”

As to Grutzmacher, the Court found that “the evidence of purportedly potentially adverse effects on the efficiency of the Fire Department on which the Department seeks to rely, while pertinent to Buker, is essentially meaningless as to Grutzmacher. Moreover, email exchanges among Department managers downplay the involvement of anyone other than Buker, writing: “Many other inappropriate comments were made re Buker’s posting, by others from within the dept. No one above the FF rank though. The Department has presented no relevant facts upon which it could base an argument that Grutzmacher’s interest in speaking as a private citizen on matters of public concern was outweighed by the Fire Department’s interest in providing effective and efficient services to the public.”

Buker v. Howard County, 2015 WL 3456750 (D. Md. 2015).