Michigan Whistleblower Suit Heads to Federal Court
A Michigan fire chief who filed a state court whistleblower lawsuit in July following his termination in April, is now headed to federal court, courtesy of the city’s decision to remove the case to U.S. District Court.
Fire Chief Robert Tompos was terminated by the City of Taylor on April 19, 2013 following a tumultuous relationship with Mayor Jeffrey Lamarand. You may recall that in 2012 the city council filed suit against the mayor to try to get him to accept an $8.1 million SAFER grant to restore 32 firefighter positions. Under threat of being found in contempt of court the mayor was forced to accept the funding.
According to the complaint, Chief Tompos complained to Mayor Lamarand, the city council and the media that:
- Protective clothing and gear used by firefighters was out of date, out of compliance with applicable safety standards, dangerous to the firefighters using it, and could cause significant injury or death to fire fighters;
- Reduced staffing of the Fire Department slowed response times and posed a danger to the public;
- Reduced staffing of the Fire Department posed a danger to responders;
- Reduced staffing meant that the Fire Department could not operate within applicable safety standards; and
- Defendant Lamarand wrongfully removed $60,000 from the City budget.
Mayor Lamarant objected to Chief Tompos’ publically exposing these allegations, accused him of being insubordinate, threatened him with termination, and actively took steps to prevent him from reporting concerns to the council. Oddly enough, when Mayor Lamarant terminated Chief Tompos last April he said it was purely for budgetary reasons.
The suit contains two counts: a state law whistleblower violation and a Section 1983 claim alleging violation of Chief Tompos’ First Amendment rights. Today, the case was removed to US District Court for the Eastern District of Michigan due to the First Amendment claim (which incidentally is a weaker argument than the whistleblower allegation given).
As we saw last week in the Baltimore County case – it has become SOP for attorneys defending municipalities to seek removal of state court suits where a federal claim is made.
Here is a copy of the removal request. Tompos Whistleblower Removal
Here is a copy of the original state court complaint. Tompos v City of Taylor
Curt – I'm curious what your opinion is. Do you think this guy has a case? As a full time fire chief who has worked in both strong mayor and council/manager forms of government, it is my opinion that his tactics were very risky and there's no guarantee he's going to prevail in court simply by claiming a first amendment violation. I constantly have to remind this younger generation of firefighters that yelling "First Amendment!" to justify anything from Facebook postings to insubordination will somehow protect them and their job.
Going around the mayor to speak to council or the media would definitely get the fire chief terminated in any city I've worked at, so I'm not sure why Tompos thinks he somehow has a case there. To even have a prayer for prevailing, I would presume he'd have to:
– Provide records and evidence that prove PPE was dangerous
– Provide response time data that proves response times have changed and that this has had documented negative impacts on the community
– Provide evidence that staffing reductions have some increased "danger" and impacted safety standards to a negligent level
It all seems rather nebulous to me and a pretty high standard to try to prove. But I'm not the legal expert. I gave up trying to predict court case outcomes after OJ Simpson. 🙂
DS
GREAT question!!!
Let me first start by saying – despite the rhetoric we get from a certain news network that tells everyone that we here in the US are way too liberal – the courts are not at all liberal when it comes to the First Amendment rights of public employees. Far from it – public employees do not have the right to say what ever they feel like when ever they feel like. Even when a public employee such as Chief Tompos is exposing governmental wrongdoing or a public safety concern – there are limits.
Public employees only have a First Amendment right to speak about a work related matter if (1) it is a matter of public concern and (2) they do so as a private citizen… and even then the wonderful Pickering balancing test must be applied. Take a look:
Pickering v Board of Education, 391 US 563 (1968)
– Incidently try drafting a policy that incorporates the Pickering balancing test… in a way that is not unconstitutionally vague….
Applying this to Chief Tompos (who I sympathize greatly with) – he is going to have to establish that his comments to the council and media were made as a private citizen and not in his capacity as fire chief. While I don't know much about the circumstances beyond what has appeared in the news… I would imagine he is going to have an unhill battle.
The Chief's stronger case may be his whistleblower action. I have not reviewed Michigan's whistleblower statute nor the case law so I cannot comment on it – but let me put it this way: his whistleblower argument has to be better than his First Amendment argument.
It is unfortunate that far too many fire chiefs in this country are "under the thumb" of elected officials who may not have the public's interest at heart. However, the public would be no better served if every public employee who didn't like something that an elected official did was free to criticize/undermine – using his/her public position as a pulpit from which to attack – the elected official.
So we are left with this sort of uneasy balance where public employees have a limited – some may say very limited – right to discuss work related matters provided they meet the Pickering balancing test.
I just wish SCOTUS would give us a better tool than Pickering.