Fire Captain Demoted Over Public Comments About Fireworks Display

Scott Kern, a captain for the Kokomo, Indiana Fire Department, was living in the Willowridge subdivision of Kokomo. For several years, Willowridge residents had organized and presented Fourth of July fireworks displays for the neighborhood.

During June of 2004, Fire Chief David Duncan received an anonymous complaint that Willowridge residents had set up donation boxes to obtain contributions for a July 2004 fireworks display. Chief Duncan contacted Kern and advised Kern that a fireworks permit would be necessary. Kern responded that he would contact the community members involved in organizing the fireworks display.

Several days later, Chief Duncan received a copy of a flyer soliciting donations for a Fourth of July fireworks display to be held at Willowridge. Kern was listed as one of the contact persons. Chief Duncan mailed certified letters to each of the named individuals, including Kern, advising them that conducting a fireworks display without a permit would be a violation of law.

Ron Herrell, a retired Fire Department inspector and then an Indiana State Representative, volunteered to investigate. He then contacted the State Fire Marshal, who ostensibly advised that a permit should be obtained for a fireworks display using large fireworks, but that it was possible to obtain an expedited permit, and that “[the Chief] better have a reason to deny it.”

Chief Duncan indicated that he did not know that he would make an exception for a fireman by granting an expedited permit and that he “didn’t owe Kern any favors” because Kern had opposed Pat Donohue in the primary election for mayor.

Kern obtained an application for a fireworks permit from the State Fire Marshal’s office and brought the partially-completed application to a June 30, 2004 meeting with Chief Duncan. The permit application listed Kern’s name, telephone number, address, and signature. It also included an aerial photograph of the Willowridge subdivision, indicating the drop zone and area from which the fireworks would be launched. The application did not list the name of the fireworks shooter, nor did it include a listing of fireworks sizes and types or a Certificate of Insurance. Kern and Chief Duncan discussed, but did not resolve, the issue of whether Kern’s homeowner’s policy served as adequate insurance because the fireworks would be launched from his property. Chief Duncan advised Kern that he would not approve an incomplete permit application.

The planned fireworks display was canceled. Subsequently, the Kokomo Tribune and the Kokomo Perspective published articles about the cancellation. In an article published by the Kokomo Tribune, Kern was quoted as saying, “I don’t mind if someone has a personal vendetta against me. I don’t mind confrontation. But I do mind when it hurts the people of the neighborhood. I think the City is abusing its power.”

On July 7, 2004, in an article published by the Kokomo Perspective, Kern admitted, “We never got licensed.” The Perspective further quoted Kern as saying, “We completed the rest of the process, and the state fire marshal told us there was no reason why our permit couldn’t be signed. But the Chief dragged his feet.” On July 11, 2004, the Kokomo Tribune published a letter signed by Kern and two other members of the “Fireworks Committee.” In part, the letter provides:

“It would be nice if they took as much interest in getting their equipment in better working order instead of wasting taxpayer dollars and spending so much time trying to shut down our fireworks show. We would like to think that this has no political strings attached to it, but I think we would be sadly mistaken if we thought that way…I guess that’s what we get for our tax dollar. Living in perhaps the highest tax rate zone in the city is an old run-down fire truck for our so-called fire protection and a side of harassment from the fire department for good measure.”

In response, the City demoted Kern to the rank of firefighter for “conduct unbecoming a firefighter.” Kern responded with a lawsuit alleging the demotion violated his free speech rights.

The Indiana Court of Appeals rejected Kern’s lawsuit. The Court began with the observation that Kern was acting as a private citizen in making his comments. Thus, the Court was required to consider whether “his speech was restricted beyond that necessary for the efficient and effective operation of the Fire Department.”

The Court ultimately rested its decision on the paramilitary nature of the Department: “Kern, as a public employee, retained a right to become involved in public discourse. On the other hand, he was employed as a member of a paramilitary organization with the heightened need for discipline and a greater potential for public harm in the face of dissension in the ranks. Kern implied that he had inside knowledge of improper motivation by a Department official, an implication having great potential for disruption, yet Kern was aware at all times that his application for a private fireworks display was incomplete.”

In the Court’s view, the damage that Kern’s statements did to the public image of the Department outweighed Kern’s free speech rights.

City of Kokomo v. Kern, 852 N.E.2d 623 (Ind.App. 2006).

This article appears in the October 2006 issue