Arbitrator Overturns Demotion in Miami Dade Facebook Rant Case
Miami Dade’s Brian Beckmann is once again a captain, courtesy of a long awaited arbitrators ruling handed down today.
Just about a year ago, the case made news when Captain Beckmann posted some remarks about the Trayvon Martin shooting case that many took to be racist. The remarks themselves did not reference race but in the context of the thread were understood by some to be offensive. For the record those remarks were:
"I and my co-workers could rewrite the book on whether our urban youths are victims of racist profiling or products of their failed, (expletive), ignorant, pathetic, welfare dependent excuses for parents."
While the remarks were initially shared with a limited number of his Facebook friends, an “offended” co-worker of Captain Beckmann’s forwarded the post to others causing the statement to go viral.
Riding a wave of public anger over the posting, Miami Dade Mayor Carlos Gimenez directed Fire Chief William W. Bryson to terminate Captain Beckmann. Chief Bryson felt a 14 day suspension was more in order but relented to the demotion when he realized his own job was on the line.
The arbitrator’s ruling issued today reversed the demotion and imposed a 14 day suspension concluding that the Mayor exceeded his authority in dictating the punishment which by law was delegated to the Fire Chief.
The Mayor made the decision to demote Mr. Beckmann, and Chief Bryson carried out the Mayor’s decision by signing the demotion letter. Chief Bryson did so only because he believed that he had no discretion to do otherwise. …
The Arbitrator deems it self-evident that the [city’s personnel] directives – that [dictate that] the demotion decision must be made by a Department Director – refers to who must make the decision and not to who must sign the paperwork. The latter without the former would be an empty clerical gesture, unworthy of memorialization in the CBA. …
Under CBA Article 4.8, Chief Bryson alone was to have made the decision to demote…
[T]he Arbitrator finds that Chief Bryson believed that if he did not fire or demote Captain Beckmann, he would be discharged. That constraint upon Chief Bryson’s independent judgment constituted a violation of the parties’ CBA contractual intent….
In reinstating Captain Beckmann the arbitrator also awarded him back pay for the nearly eleven months he was paid at firefighter’s rate.
Here is a copy of the ruling: Arbitrator's Decision – Beckmann Facebook Posting Demotion
I have to admit, I am somewhat disappointed that the case focused solely on the role of the mayor in overreaching the fire chief, and not on what is a more important issue: the First Amendment rights of an off duty firefighter to discuss a non-work related matter of public concern as a private citizen.
Perhaps that will have to await a civil suit.
Yet another racist southern skinhead getting away with crap. Typical redneck stupidity caused by being reared in some scummy trailer park.
Generalizing? Yup. Making assumptions based solely on physical appearance? Yup, just like Beckmann did. Making asinine comments designed to inflame paranoia? Yup, just like Beckmann did. But I'll bet the good ole boy network jumps ugly on me, cause Beckmann's white, not "one-a-them".
Not as cool when someone's sniping back, is it?
What Beckmann did was disgusting, plain and simple. His ass SHOULD have been fired.
Hey Andrew
Great points about the content of his remarks – but the question becomes should you be fired for what you said because someone may be offended?
What if a group in your community (let's say Fox News fanatics) got upset and put political pressure on your boss (plus your boss doesn't like you and wanted to use it as an excuse to be rid of your liberal ass… haha… just kidding)… But seriously… what if your boss made a calculated decision that he could get alot more votes by terminating you than saying "Well… Andrew was trying to make a point… I disagree with the point but he has a right to his opinion"….
Shouldn't public employees have a right to express their opinions… even if they differ from what most people think? Is it right to require public employees to self-censor themselves when off duty and discussing non work related matters… so as not to offend anyone? BTW… Is it possible not to offend anyone and still be able to voice one's opinion?
I went to see 42 last weekend – and the blatant racism took me right back to my youth.
What Branch Rickey did… what Jackie Robinson did… offended alot of people. Should the First Amendment be interpreted to allow a public employee who supported Jackie Robinson to be disciplined by their employer because it was considered by many whites to be offensive? Is the measure of what we can and cannot say – do or not do – whether someone is offended? Gravely offended.. extremely offended… super duper offended???
There has to be a line… and IMHO the line is hate speech. When someone engages in speech that constitutes hate speech or harassment – there is no First Amendment protection. Short of that – public employees speaking on a matter of public concern as private citizens on a topic that has nothing to do with their employment – should not be disciplined.
That brings us back to your original point: did Brian Beckmann's comments constitute hate speech??? That should be the focus… not whether he is right or wrong, smart Ivy League grad or a dumb red neck, KKK member or if he coaches a little league team full of under priviledged kids.
I hope the case eventually goes to the US Supreme Court – and they give us some clarification. I really think the focus needs to be on whether the speech constitutes hate speech… and not whether people are offended.
I was hoping the ruling would also see a distinction between a person sharing his opinion with a group of "friends" and someone else who takes that comment and goes public with it. My non-legal mind was intrigued by that aspect of this case..
Dave
That is another great point. If I gave you a scenario where FFA said something inappropriate to a small group of people, and FFB caused it to be seen by millions – we would pretty clearly be looking at some responsibility flowing back to FFB. Not the case here… and not likely to even be a possibility.
Curt,
Actually, this is pretty much a straight Pickering case. And absent a compelling interest in the efficient operation of the fire department, which isn't even the focus of this speech, this isn't a close – Beckmann should not have even been disciplined for the speech. If the speech rose to the level of hate speech, which is definitionally problematic in my POV, then there may have been criminal implications, which could then give rise to disciplinary action. But to discipline for ugly speech is not proper.
But then again, we have the Ceballos decision in 2006, which gives public employer's a way to get around Pickering – namely just define almost everything as within a person's job description, even off-duty behavior (I see this in my licensure defense practice for nurses – the nursing board defining every criminal offense, no matter how seemingly unrelated to nursing, as an offense related to nursing). The Court in Ceballos put in a bit of a bright line rule, stating that if the speech is within the course and scope of employment, the employee has no First Amendment protection. And I think that is what is behind comments like Andrew's.
This case may illustrate the problem that Justice Souter identified in his dissent in Ceballos – namely that an employer could discipline an employee for speech if they defined the course and scope of employment broadly enough. The majority swatted away this concern, dismissing it by stating that job descriptions don't always track what actual job duties are for the purposes of this analysis.
That said, I think the arbitrator was constrained in his decision by procedural issues. Beckman's free speech wasn't at issue here, it was the decision the mayor made to violate the CBA and local law in determining the proper disciplinary action. Beckman still has a 1983 claim that he could pursue that might actually work on a Pickering balancing test, but without knowledge of the authority of the arbitrator under Florida law, I don't know if that argument could have even been raised at this level.
Marc
Great points. The Pickering test is a wonderful test if you are a judge – (you get to second guess everyone after the fact), or a law school professor (you can come up with great hypos for your class) – but in terms of being a fire chief and trying to draft a policy…. well, let's say I think it is a great disservice to many people who are trying to help AVOID these kinds of debacles.
As for Pickering – here is the simplest formulation I have seen for it:
…right… try putting that into a policy…. without violating due process by having a policy that is so vague that "men of common intelligence must necessarily guess as to its meaning and differ as to it's application".
Yes – Captain Beckmann may have a 1983 action and perhaps it will be the vehicle to get better clarification from SCOTUS.
I think the Pickering test would weigh in favor of the city based upon the fire storm the posting created. Hence-the difference in opinion is why the test does not provide guidance. The interesting issue with respect to that test in this case is the effect of the "rebroadcast" by a fellow employee. BTW I don't think there will be a civil case if back pay is awarded.
No one ever said making policy was easy! Kind of reminds me of Justice Stewart's dictum on obscenity – "I know it when I see it." That is pretty hard to put into policy as well.
The problem, as usual, is always definitional. What is the interest of the State in promoting efficiency? What is efficiency? What public service is performed and how can speech relate to the public service? We all like bright line tests because they are easy to enforce.
This is a debacle because, like you said, someone got offended and someone else had to "make it right." I, for one, don't think this is even close on Pickering – this is clearly not speech which impinges on the "efficiency of public services," unless there is something else about the facts I don't know about. That i don't like the speech is irrelevant, but that is why this became an issue – someone was offended and complained. It became a bigger issue because of the complaint and then some spineless elected officials couldn't say "we don't like what was said by the Captain, but he has a First Amendment right to say it, just like you have a First Amendment right to complain about him making the statement." And likely that spineless elected official is someone of my general political persuasion!
Even without Pickering, writing a policy to deal with situations like this would be difficult without simply running roughshod over free speech concerns. And I don't think this case will get any more clarification if it even gets up to SCOTUS.
I have seen this so many times in my career. Somebody screws up and instead of maintaining their cool the people in charge let emotions get the best of them and impose excessive discipline. Thank you Mr. Varone for posting another interesting case.
And now that I have stirred the pot, as my wife put it, let me confess a few things.
1. Public employees OBVIOUSLY have a right to hold opinions, and, within the confines of CBAs, state laws, department regs, etc, they have the right to disseminate those opinions, as long as they do not rise to the level of hate speech. I am probably one of the more opinionated employees in my town (using "employee" loosely, as we are a paid-on-call department), and far and away the most liberal, and while I certainly don't agree with Beckmann's comments, I will, as the saying the saying goes, fight to the death for his right to make them.
2. As Chief Varone has pointed out both here and in a personal communication, it would be interesting to look at the role — and motivations — of the co-worker who leaked these comments, and what liability might attach.
3. Obviously, I do not know Beckmann personally, and have no idea as to his overall political leanings (although his comments give me a pretty good idea). The MAIN reason I phrased my comment the way I did was the almost visceral hatred and racism displayed by so many emergency services personnel in the wake of the Trayvon Martin case and some others. Cops, firefighters and medics tend to be fairly conservative, but a LOT of them seem to go absolutely crazy if a minority is involved, especially in light of our "Kenyan, Muslim,socialist" president whose main failing seems to be that he's black. My commentary was simply a "pay-back" example of what so many have been saying about Martin (and, for that matter, Jackie Robinson, who was a WONDERFUL man in addition to being a gifted athlete; my father was a ournalist in NYC and became very close friends with Robinson). Beckmann's physical appearance gave me the (cheap) opening for the same kind of cheap shots that minorites have been getting for years.
Is Beckmann a racist? I don't know, and I hope not. Were his comments perhaps unfortunately blunt, and maybe even taken out of context? Sure, that's possible.
We as public employees have the same rights as other citizens (for the most part), but part of accepting a public paycheck is realizing that we MUST hold ourselves to a higher standard of behavior than the animals running loose. After all, we protect ALL people in America, not just whites, or Hispanics, or natural-born citizens (despite what Fox news might claim). We MUST protect them all, or we are failing them all.
As Michael Connelly's protagonist Harry Bosch often says, "We all count or none of us count." That should be on our apparatus, right above "To Protect and Serve". And, yes, I said ABOVE.
Hey Andrew, just curious, how do you judge a mans knowledge and character, much less his intelligence from copy and pasted text? You question his "learnings" and label him to be trailer trash then post uneducated opinion. You're ready for a career in politics my friend!
If you read my comment immediately above, you'll see that I admit I know nothing of Beckmann; I was using him as a reverse example of some of the hysterical racism that infests the emergency services these days. If one looks back over the last few years, there have been dozens or hundreds of cases in which emergency services personnel — whom I feel should hold themselves to the highest possible standards of conduct — have lashed out against those we should be protecting.
My comment about guessing Beckmann's belief is based on Beckmann's posted comment: "I and my co-workers could rewrite the book on whether our urban youths are victims of racist profiling or products of their failed, (expletive), ignorant, pathetic, welfare dependent excuses for parents." That does not exactly sound like approval of Trayvon Martin or his parents.
But again, the MAIN point was to show how these knee-jerk racist reactions hurt us, the victims, and society.
If you had read either post in full, you might have understood. Instead, you read the first couple of sentences and went off on your own tangent.
The ONLY way I would go into politics would be if I could find a party that shared my platform: all ATMs work the same, all gas pumps work the same, all TV remote work the same (and don't need a doctorate in electrical engineering to get them to work), and all cars have the same controls in the same place. And all public employees — including commissioners, chiefs, governors, and congresscritters — have to take the same drug tests as welfare recipients, cops, firefighters, EMS workers, and line workers. And if a pol tests positive, he/she IMMEDIATELY forfeits job, salary, pension, and everything else, with no right of appeal. Yes, even if a false positive. They do it to us, so let's return the favor.