Pittsburgh Captain Claims Withholding Severance Payout Violates First Amendment

A Pittsburgh fire captain who retired on June 1, 2012 has filed a lawsuit in Federal Court alleging the city wrongfully withheld payment of his accrued sick leave. How is that a Federal case? He claims the money was withheld in retaliation over him having exercised his 1st Amendment rights two days before while on duty.

David Cerminara, 56, filed suit yesterday alleging that the city and Public Safety Director Michael Huss were attempting to unlawfully punish him for comments he made to reporters on May 30, 2012 that were critical of the Pittsburgh Department of Public Works.

Captain Cerminara was on duty at the time and watched as one city crew painted lines on the roadway in front of his station. An hour later, a second crew came by and tore up the freshly painted surface in preparation for resurfacing. A news crew in the area covering the story asked Captain Cerminara what he had seen and he told them, including referring to the work as a waste of taxpayer funds. The news station then ran a humerous story about line painting/repaving incident.

When the story aired, it apparently angered city officials and prompted Public Safety Director Huss to order a disciplinary investigation of Captain Cerminara for having spoken to the media without permission.

Here is where the story gets kind of weird. Captain Cerminara retired June 1, 2012 at 08:00 hours. According to the lawsuit Huss rescinded Captain Cerminara’s retirement, and purported to order him to “remain on duty pending the outcome of a Trial Board hearing on June 21, 2012.”

In fact, according to the complaint, Huss himself went to Captain Cerminara’s house on June 1, 2012 at about 2:30 pm to personally deliver the order. According to the complaint: “When it was pointed out to Defendant Huss that he could not order a person who no longer worked for either him or the City of Pittsburgh to remain on duty, to attend a hearing, or indeed to not speak as a private citizen on a matter of public concern, he became enraged.”

The city and Huss have since refused to give Captain Cerminara his severance check, estimated to be approximately $20,000.

The lawsuit goes even a bit further and discusses a previous suit that Captain Cerminara filed against the department. In 2007, Captain Cerminara was suspended indefinitely without pay after he suffered a seizure. The department considered him to be medically unfit. He sued under the Americans with Disabilities Act and was reinstated with backpay. While the new lawsuit does not specifically allege retaliation over the prior lawsuit, the implication is clearly there.

Here is a copy of the 2007 ADA case. Cerminara ADA

Here is a copy of the suit filed yesterday.  Cerminara 1st Amend

This is the second story this week where disciplinary action has been taken against an on-duty firefighter for speaking to the media. Recall the DC case of Lt. Alvarado.

Once again we see the difficult questions associated with whether firefighters are speaking as “private citizens” – in which case they may have 1st Amendment protection, or whether firefighters are speaking as spokespersons for their fire department – in which case they do not. In between the two extremes of “private citizen” and “spokesperson” is a vast grey area… a 1st Amendment “no-man’s land”.

One tool we have to try to help sort through the 1st Amendment  quagmire is the Pickering Balancing Test… but even that test is not all that helpful in the private citizen-spokesperson dichotomy because it requires a determination that someone is speaking as a private citizen for it to even apply. Here is a concise restatement of Pickering Balancing Test:

If an employee is (1) speaking on a matter of public concern (2) as a private citizen, they must prove their interest “in commenting upon matters of public concern” outweighs the “interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees” in order to have 1st Amendment protection

And as I say at every opportunity – the Pickering Balancing Test a phenomenal test if you are a judge (in which case have the luxury to second guess everyone after the fact… who cares if no two judges can agree on the specifics of a given case) or if you are a law school professor (in which case you can create wonderful hypotheticals to dazzle your students)… but in terms of being a fire chief trying to establish reasonable boundaries, or the average firefighter trying to figure out where the boundaries are – the Pickering Balancing test is a huge disservice to us all.

More on the Cerminara case.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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