What would you do if a firefighter came into your station sporting a brand new tattoo with KKK written on his bicep - and he is a white captain supervising a predominately black engine company? Could you, as a chief, ask him to cover it up?
What about a collection of ethnic pride pins regaling a uniform? Could you ask the firefighter to take them off?
Or what about a firefighter speaking out against budget cuts and picketing - could you shut him up?
Those are the kinds of questions that Chief David C. Comstock Jr. of Western Reserve Joint Fire District in Poland, Ohio spoke about at a workshop at the Fire Department Instructors Conference in Indianapolis this week. He is also a lawyer practicing with Comstock, Springer & Wilson Co., LPA, in Youngstown, Ohio.
“If you’re looking for the quick topics, I can tell you the answers right now,” Comstock said, ticking off several answers in rapid fire. “ Prior restraints on speech, you can’t; restrictions on associations, you can’t; restrictions on supporting political candidates, you can’t; restrictions on political activities you can’t; restrictions on signs, maybe; bans on pins on uniforms you can; restrictions on tattoos you can; bans on beards, I don’t know. If that’s what you’re looking for you can leave now.”
Using several case law studies, Comstock presented several scenarios and the real outcomes of the cases as a way to illustrate when and how administrators or supervisors should take disciplinary action against firefighters for actions that are not protected by First Amendment rights, adopted in 1791.
In his presentation, called “The First Amendment in the Firehouse,” Comstock gave participants a broad framework from which they can make determinations about whether a firefighter’s actions can be curtailed and when they are protected.
“I don’t want to give you fish, I want to teach you how to fish,” he said.
Firefighters and fire officers most often get into trouble when they don’t know what kinds of expressions are protected by law and which are not, Comstock said.
“The point of the class is not to instruct firefighters to keep their mouths shut but to keep them out of trouble,” he said.
Comstock outlined four areas that must be considered for a firefighter who is thinking about taking action against a department for violation of First Amendment rights, and for a department to take disciplinary action against perceived unprotected and harmful expressions.
He said the expression of speech must be in some public forum; must be of public concern; and the interest of the public must outweigh the interests of the government.
For example, employees may speak about budget cuts, department policies and other topics that the public might be concerned about, Comstock said. However, they may not speak about personal items that are not of interest to the greater public, he said, adding that those who do have no protection.
Then, there is a balancing test that must be done: the employee’s right to speak must be weighed with the employer’s right to discipline.
To have a potential claim, the employee must have suffered some sort of “adverse employment action,” such as suspension, termination, or reprimand, Comstock said.
“Lawyers have to eat,” Comstock said. “No lawyer is going to bring a case if he doesn’t think there was some adverse action involved.”
If the criterion for a case is met and it goes to court, Comstock said judges will almost always weigh the opposing sides in the case.
“I call it the ‘stink test,’” he said, adding that judges can often figure out the intent behind the action.
“There are times when the guy is just a pain in the ass and he is always filing suits and causing trouble and something just stinks about it,” Comstock said, noting that the court often rules in favor of the defendant if the case was frivolous from the start, or the employee has a history of antagonism.
Then, there are times when the defendant side might stink. For instance, a firefighter might simply be trying to point out unsafe practices and truly trying to disseminate information of concern to the public, but the government doesn’t want the information made public. That’s a case where the court might rule in favor of the plaintiff.
Comstock told the chiefs and employers that “Speech is not an excuse to avoid discipline,” and bad acting employees can be terminated with just cause and cannot hide behind First Amendment protection claims.
Outright bans on talking to the media or attempts to abridge free speech are never a good idea, he said, noting that they seldom hold up and often cause more problems than they solve.
He reminded employers that, unlike a fire scene, it’s not necessary to come to a snap conclusion and make a quick decision when it comes to disciplining employees for perceived bad behavior that might be protected by First Amendment rights.
“Get someone’s opinion on whether it passes the stink test before making a decision,” he said, adding that whatever action is taken, it should be documented well for possible future legal action.
He also advised seeking legal counsel, if there’s any question, before taking adverse action against an employee to avoid potential lawsuits.
And he offered some personal advice.
“For the chiefs or employees, get some thick skin,” Comstock said. “Look all of us here in the fire service, we like busting each other. It’s the thing I like about the fire service. We often say, if we’re not busting you, we don’t love you. So, as a chief, if someone is going to criticize you, don’t worry about it… Roll with it. Get along with the firefighters. We are going to have disagreements. We’re going to have to deal with pains in the butts. Listen to each other. Trust each other and you’ll avoid headlines that are going to hurt you, and avoid first amendment lawsuits.”