Firefighter’s E-Mail Protected By First Amendment

Brad Love was a volunteer and part-time firefighter for the Sugar Creek Township Fire Department in Indiana. During the Republican primary election in the Spring of 2006, Bob Boyer, a retired volunteer firefighter, challenged the incumbent for the office of Sugar Creek Township Trustee. One of the Trustee’s principal duties is to appoint a fire chief to oversee the Department.

Boyer’s campaign platform was based on what he viewed as unnecessary spending and inefficient management by the incumbent, particularly with regard to the Department. Specifically, he took issue with the Department purchasing five new vehicles over the past several years without using a bid process and then allowing them to be used as take-home vehicles. Boyer also thought that the incumbent made a mistake in hiring Robert Rehfus as fire chief, whom Boyer described as “a ‘big city’ fire chief with ‘big city’ ideas.” He pledged that, if elected, he would “hire a fire chief with practical knowledge of running a small fire department.”

Not surprisingly, the election was hotly contested within the Department. Most of the volunteer firefighters, including Love, supported Boyer and most of the career firefighters, including Chief Rehfus, supported the incumbent.

In addition to the concerns with the Department, Boyer also opposed the Township purchasing what he viewed as prime development land for a public park before seeking a less expensive alternative. Once the land was purchased, however, Boyer publicly committed to work toward the development of the park.

On April 24, 2006, a few weeks before the May 2 primary, an e-mail concerning Boyer’s intentions with regard to the parcel of land set aside for the park was forwarded to Love by an acquaintance. The e-mail alleged that Boyer would, if elected, sell the land. Two days later, while off duty and from his home computer, Love sent a responsive e-mail to a small group of citizens associated with a local children’s athletic league. Love’s e-mail supported Boyer’s candidacy and discussed several issues, including the park, that were the topic of the upcoming primary election. The e-mail read as follows:

“Unfortunately [the allegation that Boyer intends to sell the Township parks if elected] is just not true!!! I have been on the fire dept here in town since 1994 and have known Bob since then. I asked him face to face if this rumor is true, and he flat denies it. Bob may be a lot of things, but a liar is not one of them. The sad issue actually is that this rumor has been started by career firefighters that are afraid of loosing [sic] free reins of the check book. They have started this and several rumors to take away from the real issues. The fact is that most of these firefighters want to tell us how to vote, but they don’t think our community is good enough to live in. Bob is not going to lay firefighters off nor cut their benefits either. He will take away unnecessary cars and put people back on shift that should be there anyway.”

Love’s e-mail went on at great length, making assertions not just about “gas guzzling SUVs” but also pay raises, staffing, and call loads.

Eventually, a copy of Love’s e-mail made its way to Chief Rehfus. Concluding that Love had made some false statements in the e-mail, on May 17, 2006, Chief Rehfus terminated Love’s employment for conduct unbecoming a firefighter and failure to be truthful.

Love challenged his termination on free speech grounds. The Indiana Supreme Court reinstated his lawsuit, finding the e-mail message protected by the free speech guarantees of the First Amendment.

The Court stressed the following points: “First, Love wrote the e-mail from his home computer while he was off duty; he was not fulfilling any of his duties as a firefighter. Love was engaging in speech in which any other citizen could engage. Second, the government’s allocation of funds and resources within the Department was clearly a matter of public concern, like the allocation of resources in Pickering. The designated evidence in no way suggests that Love’s e-mail was an extension of any dispute with his superiors. Love responded to an e-mail challenging a political candidate’s campaign with an e-mail supporting that political candidate’s campaign, in which he gave his own political opinion. In sum, this was a general grievance as to the operation of government like the letter in Pickering; it was not an employment-related grievance.

“The fact that several firefighters discussed the e-mail and thought there may have been inaccuracies does not suggest that workplace harmony or discipline was disrupted. The firefighters had been discussing the election and were already split into opposing camps before Love’s e-mail was circulated. And this election was particularly divisive. Therefore, any potential disruption would not have been caused solely by Love’s speech. And the fact that Love’s e-mail provoked debate and discussion supports and possibly bolsters its important First Amendment value.

“Considering the strength of the First Amendment interest at issue here, it would have taken a substantial showing of significant disruption for the government’s interest to prevail. The defendants have failed to even approach the required showing. They have failed to show that Love’s e-mail had any potential to create difficulties maintaining discipline or loyalty (aside from political loyalty) or to interfere with the close-working relationships in the Department. Moreover, nothing suggests that writing and sending the e-mail interfered with either Love’s ability to perform his duties or the regular operation of the Department.”

Finding Love’s e-mail to be protected speech, the Court returned the matter for trial to determine whether “Chief Rehfus had final policymaking authority with respect to his firing of Love, such that the Sugar Creek Township is liable for the Chief’s action. We conclude that there are genuine issues of material fact that must be resolved in order to determine whether, as a matter of state law, Sugar Creek Township is liable for the Chief’s actions.”

Love v. Rehfus, 2011 WL 1519356 (Ind. 2011).

This article appears in the June 2011 Issue