Houston Chiefs Prevail in Suit Brought By A District Chief

The dismissal of a lawsuit brought against two ranking chief officers of the Houston Fire Department by a district chief over a social media post has been upheld by the US Fifth Circuit Court of Appeals. District Chief Steven Dunbar filed the federal court action pro se after he was suspended and transferred for a social media post that discouraged certain members of the department from transferring to his district.

The facts as explained by the Fifth Circuit:

  • In July 2019, Steven Dunbar, a District Chief for the Houston Fire Department, made a post in a private social media group for HFD firefighters.
  • Discussing a transfer opportunity HFD had posted the month before, he wrote: “If you are thinking about putting in for a spot in District 64 on C-shift you better have your sh** together. Wanna play games like previously-assigned members? You will be miserable…promise.”
  • Under HFD’s transfer guidelines, “No member will communicate with [a] member requesting [a] transfer, including the incoming officer, to promote or influence the candidacy of a member or to discourage a member from applying for a posted or anticipated vacancy. Any violation of this directive will result in disciplinary action.”
  • A similar statement was included in the memorandum announcing the transfer opportunity.
  • HFD Assistant Fire Chief Robert Garcia saw Dunbar’s post and expressed concern about it to HFD Fire Chief Samuel Peña, which ultimately led to Dunbar being transferred to an administrative position in another district.
  • The transfer form filled out by Garcia explained that Dunbar was being transferred because his “[s]ocial media posts meant to discourage members from transferring to their district compromises the integrity of the HFD Transfer policy.”
  • Soon after Dunbar was transferred, Garcia also asked the HFD Professional Standards Office to investigate Dunbar for creating a hostile work environment through his social media post.
  • The investigation resulted in Dunbar being suspended for three days for violating the transfer guidelines, a suspension that was later reduced to one day.
  • Dunbar has since been assigned to a post as District Chief in a different district.

Chief Dunbar sued Chief Peña and Chief Garcia alleging a violation of his First Amendment rights. He also claimed that the department’s transfer policy was an unconstitutional infringement on member’s First Amendment rights. The US District Court for the Southern District of Texas dismissed the case, prompting Chief Dunbar to appeal.

  • Public employees are entitled to circumscribed constitutional protections in connection with their governmental duties, but they “do not surrender all their First Amendment rights by reason of their employment.
  • Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.”
  • Therefore, to be protected against adverse employment action in retaliation for speech, a public employee must speak in the employee’s “capacity as a citizen,” rather than pursuant to the employee’s “official duties,” and the employee must address a matter of public concern.
  • Otherwise, “the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.”
  • A public employee speaks on a matter of public concern when the speech “can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.”
  • For example, “a teacher’s letter to the editor of a local newspaper concerning a school budget constitute[s] speech on a matter of public concern.”
  • In this case, Dunbar’s post did not address a matter of public concern. As evidenced by it being posted in a private group for HFD firefighters, Dunbar’s comment on potential transferees’ applications to a particular HFD district was relevant only to HFD employees who might have been considering such a transfer, not to the public generally.
  • Accordingly, Dunbar cannot sustain a First Amendment claim against Garcia and Peña for their response to his post.
  • For similar reasons, Dunbar’s broader challenge to the constitutionality of the HFD transfer guidelines also fails.
  • A public employer like HFD can adopt policies restricting its employees from speaking on issues that are not of public concern so long as those policies do not unduly restrict other, protected speech.

Here is a copy of the decision:

For those who have questions about social media, the First Amendment, free speech, and how to draft an effective social media policy, please join us next week

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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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