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.”