There’s a story that has been kicking around for almost a week out of Haverhill, Massachusetts where a firefighters’ union representative labeled the mayor a “murderer” following a fatal fire. The case has been discussed in the comments section of some of the other Fire Law posts on 1st Amendment cases, and I have discussed it with several of you offline, but the Haverhill story really warrants a full discussion in its own right.
Last Tuesday night/Wednesday morning there was a fatal fire in Haverhill that claimed the life of 84-year-old Phyllis Lamot. Following the fire, Greg Roberts, president of the Haverhill Firefighters’ union and Edward Kelly, president of the Professional Firefighters of Massachusetts, claimed an understaffed rescue truck contributed to the death. Firefighter Todd Guertin went a bit further calling the mayor a “murderer” for reducing the rescue’s staffing from three to one shortly before the fire to save money. Guertin also recommended that the victim’s family file a wrongful death suit.
The allegations set off a furor in the press and a firestorm politically that ended quickly the following day with an agreement to staff the rescue vehicle back at three firefighters using personnel who agreed to work “unpaid punishment duty” for the remainder of the fiscal year. Those personnel include 27 members who were involved in last year’s EMT certification scandal. They also include Guertin, who publically apologized to the mayor for his comments and agreed to work 72 hours on the rescue for free.
Two legal issues caught my attention. The first issue involves the perennial conflict between the 1st Amendment Rights of public employees to bring legitimate concerns to the attention of the public versus the right of a public employer to control the reckless and irresponsible statements of employees. The second issue is whether or not employees can agree to work extra hours for their employer without compensation as punishment.
1st Amendment Conflict
It is an age old conflict pitting public employers against public employees, fire chiefs against firefighters. When does a public employee enjoy 1st Amendment protection?
On the one hand, it makes a lot of sense to protect the 1st Amendment rights of public employees. No one is in a better position to reveal the misdeeds of elected and appointed officials than public employees. Public employees see the abuses of power up close, abuses that may be invisible to the public. They know how things ought to be, and can be instrumental to alerting the public to corruption and misconduct… that is if they feel secure enough to stick their necks out. To muzzle those employees is to keep the public in the dark about the inner workings of government, and allow abuses to continue.
On the other hand, how can a government agency function if employees are permitted to freely and without recourse make untrue and unfounded allegations? Often by virtue of their position as public employees their allegations appear to the public to be credible. And who is to say what is true or untrue, particularly when an allegation revolves around something as inherently unprovable as whether a fire victim would have survived had additional firefighters been assigned to a particular unit.
As a general rule, public employees enjoy broad protections under the 1st Amendment when criticizing elected officials. However, those protections have their limits. Statements that are false and known to be false when made are not protected. Arguably calling the mayor a murderer is just hyperbole, but it may come pretty close to being over the line.
The US Supreme Court has made a sincere effort to strike a reasonable balance between the 1st Amendment rights of public employees and needs of public employers. The Court’s analysis is one that leaves legal scholars nodding, but the average person saying “say what?”
The analysis has come to be known as the Pickering Balancing Test and the test goes something like this:
If an employee is (1) speaking on a matter of public concern (2) as a private citizen, they must prove that 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”… in order to have 1st Amendment protection.
Get the picture? How is the average person expected to apply that test in their daily affairs when lawyers, judges, and law school professors struggle with it? It is beyond me. Let’s look at the analysis in the context of the Haverhill case.
Was Guertin speaking about a matter of public concern when he accused the mayor of murder? The answer is probably yes, because at its heart the discussion pertained to unsafe staffing levels that jeopardized the public’s safety. On the other hand someone could argue that the offensive comment went well beyond a discussion of unsafe staffing into an unwarranted personal attack that is not a matter of public concern. For what it is worth, my vote is for Guertin – that the comment was a matter of public concern.
Was Guertin speaking as a private citizen or as a spokesperson for the department? That is a factual question that will depend on a number of factors related to what Guertin was doing at the time the comments were made. Was he on duty or off duty, in uniform or out of uniform? Did he identify himself as a firefighter, as a union official, or perhaps as a private citizen? Did he take steps to make it clear he was not talking as a spokesperson for the department, or was that obvious from the context. If it could be argued that he was representing the union when the statements were made, then in addition to 1st Amendment protections an additional set of protections arise under collective bargaining laws, as a “concerted activity”. I do not have enough details to venture a guess on this one, but let’s assume Guertin spoke as a private citizen (or else the analysis is over because he’d lose right there).
Lastly comes the infamous balancing of the employee’s interests against employer’s interests – and to be honest I would say it is too close to call (or maybe I have run out of gas… this is a long blog). They both have concerns and perspectives that warrant protecting. It is a perfect example of why the Pickering Balancing Test is a great test in academia and courts, but is unworkable in real life. So in the end perhaps it is a good thing that the case was settled. Maybe the wisdom of the Supreme Court was to make it so complicated that normal people would simply give up and settle. Who knows.
Extra Hours Punishment
Now for the penalty of working extra hours “for free”. In many departments, the idea of working extra hours as punishment is not new, and has been a part of department tradition for decades. In Providence, many of the older rule books (pre-1974 going back to the late 1800s) identified extra hours as a possible penalty for a disciplinary infraction.
As several folks who have written in to me have pointed out, the Federal Fair Labor Standards Act (FLSA) does not permit an employer to allow an hourly employee to work extra hours without compensation. After researching the issue myself and seeking guidance from one of the top FLSA gurus in the country, attorney Chip Kirwan, it would seem that the proposed discipline plan may run afoul of the FLSA. There is no exemption for folks who work extra hours for disciplinary purposes.
There is one possible loophole – and despite my best efforts to find a case on point I have not been able to do so – that has to do with the 207(k) firefighter’s exemption.
Under the FLSA, overtime is mandatory for all employees after 40 hours. Section 207(k) extends that limit for firefighters to an average of 53 hours per week. If Haverhill firefighters average 42 hours per week (which most departments in the Northeast work), then arguably the disciplined personnel COULD be permitted to work the additional 11 hours per week provided everyone is in agreement with the practice. This would likely have to be a voluntary arrangement since it potentially changes the employees hours/rates of compensation. It would NOT be an option for discipline that is imposed or ordered against the employees’ will and the extra hours could not cause the employees wages to fall below minimum wage.
Perhaps this loophole is a bit of a stretch, or perhaps it is exactly what the folks in Haverhill were banking on. In either event it will be interesting to see how the plan plays out.