Anti SLAPP Laws and the DC LT OT Debacle

Last week Dave Statter asked me to look into a case out of Washington, DC, where a fire lieutenant accused of working excessive overtime sued a local TV station claiming its coverage defamed him. The case was recently dismissed under a law called an Anti-SLAPP law.

I’m going to do my best to explain the issues – but please understand that this is a complicated area of the law. It also is a lesson to us all in how well intentioned laws enacted to protect the “little guy”, can end up being manipulated by big corporations to protect their interests.

Let’s start with the facts. DC Fire & EMS Lieutenant Richard Lehan was the top overtime earner in the department between 2008 to 2010. When the story broke back in 2011, politicians were pushing each other out of the way to be the first to condemn Lt. Lehan and blame former Fire Chief Dennis Rubin for allowing him to work so many hours.

I have a different take. As a shift commander in Providence, I was the one who had to make the phone calls to fill empty spots on fire trucks. I did it for over 8 years as a deputy chief, and for 9 years prior to that I did it occasionally as a battalion chief filling for the deputy.

Like many fire departments, Providence had a lot of overtime because the city leaders realized it was cheaper to pay firefighters overtime than hire enough firefighters to eliminate it. (Note: it is roughly a 25-30% savings for the community for every overtime hour worked compared with the hourly cost of hiring additional personnel with benefits – but that’s another story). As a result, we had so much overtime that on many days it was hard to find enough personnel willing to work. Friday and Saturday nights, Superbowl Sunday, Mother’s Day, Father’s Day, school vacation weeks, the holidays – the shifts when it was inconvenient for others to work – it was hard to find willing personnel. Those situations forced us to order firefighters to work – firefighters who expected to be able to go home, who wanted to go home, who’s family expected them to be home – including some who were under a court order to have visitation with their children – I had to order to work under threat of discipline in order to properly staff the trucks

When we found ourselves in that “ordering” situation, we had other firefighters who were willing to step forward and agree to work without being ordered. Some may have been at or over the maximum number of hours permitted – but the option was to order a firefighter who does not want to work, or allow a firefighter who does want to work. My assumption is that Lt. Lehan is the kind of firefighter who would work when ever needed, as often as possible, regardless of how many hours they have already worked that week. Because of folks like Lt. Lehan other firefighters got to go home when they were supposed to, to attend Christenings, little league games, visitation, and parents nights like normal parents.

Apparently when the story of Lt. Lehan’s overtime broke, Fox’s DC affiliate WTTG-TV covered it but left out the kind of background information I just provided. Instead, WTTG-TV portrayed Lt. Lehan in an unflattering light. The station also misstated some of the figures, and falsely claimed that Lt. Lehan and his brother controlled the assignment of overtime.

In an effort to clear his good name and set the record straight, Lt. Lehan sued WTTG-TV alleging defamation.  Defamation is a civil tort involving damage to a person’s reputation through the publication of false, harmful, and unprivileged statements made to others. While we could spend days talking about defamation – and the various defenses – keep in mind that definition: damage to a person’s reputation from the publication of false statements.

The news station responded with a somewhat unconventional defense: that Lt. Lehan’s suit was a SLAPP suit and should be dismissed under DCs Anti-SLAPP law.

SLAPP stands for strategic litigation against public participation. It is a term that refers to suits filed by powerful interests intended to intimidate or silence critics by burdening them with the high costs of litigation. SLAPP suits are filed not to win, but to raise the cost of a course of action as a way of silencing debate or criticism. The fact that powerful interests would utilize teams of lawyers to financially bury well intentioned advocates of public interest cases (who typically had less money) – prompted legislatures around the country to adopt Anti-SLAPP laws.

Essentially, an Anti-SLAPP law is a law that gives a defendant to a SLAPP suit a defense – one that allows a court to dismiss the case at a very early stage.  At its core, an Anti-Slapp law is intended to protect the Davids of the world from the Goliaths. Jurisdictions differ in the criteria for a SLAPP suit. Some states require that the defendant have recently filed a complaint or communication with a governmental entity over an issue of public concern. Other states consider a suit to be a SLAPP suit if the defendant has merely raised a concern to the public.

Back to Lt. Lehan and WTTG-TV. When Lt. Lehan sued WTTG-TV for defaming him, the news station claimed that the suit was a SLAPP suit intended to silence their efforts to expose wrongdoing in DC Fire & EMS. Despite the fact that it was Goliath who was claiming that David was being unfair, the court sided with WTTG-TV and dismissed the suit. The court concluded that Lt. Lehan’s suit was a SLAPP suit, which shifted the burden on to Lt. Lehan to establish a likelihood of success on the merits of the case if it were to go to trial.  In the court’s opinion, Lt. Lehan somehow failed to prove a likelihood of success… that he had been defamed.

I apologize for the length of this explanation – but in truth I have barely scratched the surface of the case, and the problems with SLAPP suits and Anti-SLAPP laws. Hopefully this explanation along with Dave Statter’s coverage provides you with a better understanding of the issues.

If you have questions, ask away in the comment section!!!

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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