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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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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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