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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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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