Letter to Editor Results in Suspension of Union VP in Washington State

A union official’s letter to the editor warning the public about a proposed reduction in staffing has led to his three day suspension.

Central Kitsap Fire & Rescue District suspended IAFF Local 2819 Vice President Ronny Smith over a letter he submitted to the Central Kitsap Reporter, and later to a web site, the Kitsap Fire Watch. The letter was posted on February 7, 2014.

The letter described two incidents where a delay associated with a proposed station closure would have a made a difference in the outcome of medical emergencies. The descriptions included the date, time, street, age of the patients, and a general description of the chief complaint as a “respiratory failure” and a “cardiac episode.”

Fire Chief Scott Weninger considered the release of the information to be a “breach of patient confidentiality” and reported that “the district has received notice of potential legal action because of that.”

The department initially considered terminating Smith, but following a month of deliberations settled on the three-day suspension. The department considered Smith’s actions to be a violation of HIPAA as well as departmental policies.

Smith was quoted today as saying “I’ve been notified that for my actions to educate the residents of Chico on the risks of their station’s closures, I will be suspended for three days. I am being punished and financially impacted simply for providing facts to The Reporter, to Kitsap Fire Watch and to the residents of Chico.”

IAFF Local 2819 is reportedly filing an unfair labor practice complaint with the Washington Public Employees Relations Commission.

Here is more on the story.

Here is a link to the letter.

Two big points in a case like this are likely to be the First Amendment and the right of employees to engage in “concerted activities.” When employees have protection under either of these legal principles, they cannot be disciplined. On the other hand, when employees operate outside of the protections offered, they can be disciplined.

Under the First Amendment, the Supreme Court has left us with a decision-making tool known as the Pickering Balancing test. Here is about the most concise restatement of Pickering Balancing Test that exists:

If an 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” in order to have 1st Amendment protection

As I say at every opportunity – the Pickering Balancing Test a phenomenal test if you are a judge (in which case have the luxury to second guess everyone after the fact… who cares if no two judges can agree on the specifics of a given case) or if you are a law school professor (in which case you can create wonderful hypotheticals to dazzle your students)… but in terms of being a fire chief trying to establish reasonable boundaries, or the average firefighter trying to figure out where the boundaries are – the Pickering Balancing test is problematic.

Under the concerted activities protection, the National Labor Relations Board has said repeatedly that employees have a protected right to communicate with the public when “part of and related to an ongoing labor dispute.”

  • Employees have a protected right to seek help from third parties regarding their working conditions”
  • “prohibiting employees from expressing their personal opinions to the public regarding ‘the workplace, work satisfaction or dissatisfaction, wages hours or work conditions’ is unlawful.”

It is not entirely clear how far employees can go before they lose concerted activities protection. It is unlikely that labor boards or the courts would condone violating HIPAA or breaching a patient’s confidentiality. However, what if an employee – in the exercise of his First Amendment and “concerted activities” rights – releases nothing more than what is released during a routine radio dispatch?

It would appear that the Washington PERC will be taking up that very question in the near future.

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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