11th Circuit Rules Florida Assistant Chief Has No First Amendment Protection

An assistant chief who was terminated after he complained publically that the “City’s actions would negatively impact the fire department’s provision of services”, was not entitled to protection under the First Amendment, according to a ruling handed down last week by the 11th Circuit.

Assistant Chief Richard Moss was terminated from the Pembroke Pines Fire Department in June of 2010 after his position was eliminated. Chief Moss had been critical of the City’s handling of pension and budgetary issues going back to September of 2009. He sued in federal court claiming the elimination of his position was pre-textual and retaliation for his exercise of his free speech rights under the First Amendment.

The trial court ruled in favor of the city concluding that Chief Moss was not speaking as a private citizen under Garcetti v. Ceballos, 547 U.S. 410 (2006), and even if he was speaking as a private citizen, the city’s interests in regulating his speech outweighed his free speech interests under Pickering v. Board of Education, 391 U.S. 563 (1968).

The decision is quite well written, and offers important insight for future cases about how courts will balance the competing interests at stake:

  • The Assistant Fire Chief position was eliminated in June 2010, and Plaintiff was terminated. Plaintiff contends that the manner of his termination was unprecedented, as the City had never eliminated a position from the fire department except by attrition. In addition, Plaintiff claims that he was not allowed to apply for a vacancy in the fire department in spite of his history of exemplary evaluations and obvious qualification for the position. Based on these facts, Plaintiff alleges that he was terminated in retaliation for his speech.
  • [T]he City argued that (1) Plaintiff’s speech was not protected by the First Amendment because it was made pursuant to his official duties and (2) the City’s interest in avoiding dissension within the fire department outweighed Plaintiff’s interest in the speech.
  • [T]he court held that Plaintiff’s speech was not protected by the First Amendment. Alternatively, the court held that the City’s interest in restricting Plaintiff’s speech outweighed Plaintiff’s First Amendment interests. As to the latter, the court’s holding was based on Chief Picarello’s testimony that although he had instructed his staff not to get involved in the collective bargaining agreement controversy, Plaintiff admitted that he had refused to follow this directive. According to the court, this evidence supported the City’s theory that Plaintiff’s speech threatened dissension within the fire department and, as a result, First Amendment protection was not warranted.
  • The central inquiry is whether the speech at issue “owes its existence” to the employee’s professional responsibilities.
  • Factors such as the employee’s job description, whether the speech occurred at the workplace, and whether the speech concerns the subject matter of the employee’s job may be relevant, but are not dispositive.
  • We have rejected “narrow, rigid descriptions of official duties urged upon us to support an inference that public employees spoke as private citizens.”
  • [W]e agree with the district court that the slim evidence he offered is insufficient to make Plaintiff’s threshold First Amendment showing.
  • The district court’s alternative holding concerned the second stage of the First Amendment analysis, known as the Pickering balancing test.
  • The Pickering test seeks to arrive at a balance between the employee’s interest in commenting on matters of public concern and his employer’s interest in efficiently providing public services.
  • Indeed, we have recognized a heightened need for order, loyalty, and harmony in a quasi-military organization such as a police or fire department.
  • Applying the above analysis, the district court held that the City’s interest in avoiding dissension and discord in the fire department, particularly during the very sensitive and volatile negotiations with its employees, outweighed Plaintiff’s interest in expressing his opposition. Its holding is well-supported by the trial transcript. Plaintiff conceded that the budget issues and collective bargaining agreement negotiations were divisive topics among City employees. In particular, the City required 100% agreement to either pension concessions or a pay cut; employees disagreed on the more desirable option, depending on where they were in their career; and tension arose between employees who wanted to accept concessions and those who preferred to take a pay cut.
  • Under the circumstances, Chief Picarello had a right to insist that Plaintiff, who was his Assistant Fire Chief and second-in-command, refrain from commenting on the budget and collective bargaining agreement issues. Plaintiff refused to do so..
  • Plaintiff’s argument that the City failed to show that Plaintiff’s speech had any actual negative impact on the fire department is irrelevant. The government’s legitimate interest in avoiding disruption does not require proof of actual disruption.
  • Reasonable possibility of adverse harm is all that is required.

Here is a copy of the ruling: Moss v Pembroke Pines

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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