ILNews

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

Back to TopE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. 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.

  5. 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?

ADVERTISEMENT