A deputy chief from Hartford, Connecticut who was suspended for 30 days without pay last week, has filed suit against his fire chief, two other ranking officers, and the mayor alleging violations of his right to free speech.
Deputy Chief Daniel Nolan filed suit today in Connecticut Superior Court naming Fire Chief Carlos Huertas, Interim Assistant Chief Scott Brady, Fire Marshal Roger Martin, Mayor Pedro Segarra, the City of Hartford, and the Hartford Fire Department as defendants. The named defendants were sued in their personal as well as official capacities.
On July 28, 2015, Chief Nolan was suspended for 30 days without pay for an incident that occurred at an April 16, 2015 meeting of a task force panel looking into problems with the department. The task force was formed in part over concerns arising from the October 7, 2014 death of FF Kevin Bell at a house fire.
As described in the complaint:
- During the panel, the plaintiff was sharply critical of defendant Huertas and the department leadership.
- Immediately after the panel, members of the media posed questions to defendant Huertas, who began to rebuff some of the comments made during the panel by the plaintiff, and defendant Huertas as also began to speak about the training division, over which the plaintiff has supervision.
- At about that time, plaintiff approached; members of the media instantly expressed an interest in hearing from the plaintiff.
- At about that time, defendant Brady brusquely approached the plaintiff and told him in a rude and adversarial tone that he was dismissed.
- The plaintiff refused and cited a good faith belief that defendant Brady was not in his chain of command.
- Defendant Brady invaded the plaintiffs personal space in an aggressive manner, reiterating the order dismissing the plaintiff.
- The plaintiff informed defendant Brady that he was addressing the safety of the department.
- The plaintiff then proceeded to answer questions posed to him by the media relating to the operation of the department. In answers to these questions, the plaintiff was sharply critical of the department leadership.
The complaint alleges the defendants violated Chief Nolan’s federal First Amendment Rights under state and federal law, conspired to violate his federal First Amendment Rights under state and federal law, violated his state constitutional free speech rights under state law, violated his state and federal rights to due process, engaged in a civil conspiracy, committed abuse of process, and committed intentional infliction of severe emotional distress.
Here is a copy of the complaint: Nolan v Huertas
Chief Nolan’s biggest hurtle in advancing his First Amendment claims remains the biggest problem we see so often in social media cases: the Pickering balancing test and Garcetti v. Ceballos, 547 U.S. 410 (2006). Some quotes from Garcetti:
- “precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.”
- “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”
- “When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences. When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny. To hold otherwise would be to demand permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.”
In the event Chief Nolan can convince the court he was in fact speaking as a private citizen at all relevant times, the infamous Pickering balancing test will apply:
If a public 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”. Pickering v. Board of Education, 391 US 563 (1968).
Do you see why I am not a big fan of the Pickering balancing test?