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COA: Firefighter's e-mail didn't harm department

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A firefighter shouldn't have been fired for his e-mail commenting on the financial situation of the township's fire department because the e-mail didn't impact the effectiveness of the department, the Indiana Court of Appeals ruled today. The appellate court found the trial court also erred in ruling that municipality liability couldn't be established based on the conduct of the firefighter chief.

In Bradley J. Love v. Robert Rehfus, individually and in his capacity as fire chief of the Sugar Creek Township Fire Department, and Sugar Creek Township, No. 30A01-0905-CV-250, volunteer and part-time firefighter Bradley J. Love appealed the grant of summary judgment in favor of fire chief Robert Rehfus and Sugar Creek Township in Love's suit following his termination with the department. The trial court ruled as a matter of law that Love didn't engage in protected First Amendment activity.

Love was fired by Rehfus after he learned about an e-mail Love sent from his personal e-mail account on his home computer to people affiliated with the New Palestine Cadet Football League. In the e-mail, Love explained his support for volunteer firefighter Bob Boyer, who was running for township trustee against incumbent C.O. Montgomery. Love's e-mail said officers had been given SUVs, which they drove all over the state, and don't respond to emergency runs after 4 p.m. He also discussed the township's tax rate and firefighter personnel.

Rehfus told Love in a letter he was fired because he lied in the e-mail, which is conduct unbecoming firefighter, and failed to be truthful. Rehfus and many of the firefighters supported Montgomery for re-election.

People who work for the government are still citizens and as long as they speak as a citizen about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate effectively and efficiently, wrote Judge Patricia Riley.

Using Pickering v. Bd. Of Ed. Of Township High School Dist., 205 Will Cty., 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L.Ed.2d 811 (1968), and City of Kokomo v. Kern, 8520 N.E.2d 623 (Ind. Ct. App. 2006), the appellate court concluded the trial court erred in granting summary judgment in favor of the defendants. Caselaw says if no damage is proven, then the statements may be protected even if they are false, Judge Riley wrote.

"Overall, while the specific impact of the speech weighs more heavily in favor of the government entity when paramilitary organizations are involved because of the public safety implications, here, we cannot say that Love's e-mail impacted the operational effectiveness of the fire department," she wrote. "There is a complete lack of evidence suggesting intra-department disruption or any other actual or significant harm to the fire department. In absence of any evidenced harm, we do not need to evaluate whether Love's statements were false and recklessly made and whether this warrants the denial of First Amendment protection."

The Court of Appeals also held Sugar Creek Township could be held liable because the decision to fire Love was made by a policy-maker of the fire department. At the time he was fired, Love was on probation for unrelated matters and Rehfus had final authority to terminate Love. His decision represented county policy and gave rise to municipal liability.

The case was remanded for further proceedings.

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  1. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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