Virginia Fire Department Prevails in First Amendment Suit

A fire department in Virginia has prevailed in federal court in a suit that alleged the First Amendment rights of two firefighters had been violated. Last Friday, a jury ruled in favor of the Front Royal Volunteer Fire and Rescue Department and its president, David Santmyers, in suit brought last year by Philip Charles and David Ellinger.

Charles, who at one time served as the fire company secretary, and Ellinger, who had been the treasurer, claim they were wrongly disciplined after they spoke out about concerns they had. Charles was terminated from the department and Ellinger was suspended for 60 days.

Both sued claiming a violation of their civil rights (42 USC § 1983) under the First Amendment (free speech) and 14th Amendment (due process); ultra vires action – in that the discipline violated the fire company’s charter and bylaws; and defamation.

According to the complaint

  • Plaintiff Philip Charles has served as a career or volunteer fireman for the last 57 years without incident. In 1998, he moved to Front Royal, Virginia and began volunteering with the local Department in 1999.
  • Plaintiff Mike Ellinger is currently a Deputy Sheriff in Frederick County; he has served as a volunteer fireman with the Department since 2002.
  • The Department is one of several companies established under the Warren County Department of Fire and Rescue Services. The Department utilizes Career staff and volunteers to operate and receives its primary funding through the County.
  • Over the past ten years, the Department has been reduced from three fire engines and one ladder truck to one fire engine and one ladder. Beginning around 2011, the County began to significantly cut funding to and substantially reduce the assets of the Department.
  • The Plaintiffs, who are also residents of Warren County, were concerned that the reduction in resources was causing the Department to be ill-prepared to handle the volume of fire hazards present in the Town and the County.
  • Additionally, as tax-paying citizens the Plaintiffs were particularly concerned with a program known as the “Cost-Recovery Program,” whereby the County began charging for use of the Department’s ambulances and emergency medical service vehicles and would reimburse some of the funds to the Department.
  • Plaintiffs began to raise their increasing concerns about the funding of the Department but met staunch resistance from some of the other members of the Board and especially the President, Defendant Santmyers, who basically attempted to silence dissenting voices. Due to the harsh reaction of the Board and the President, Philip resigned from his secretary position during the summer of 2012.
  • In March of2013, Philip spoke to and invited a reporter from the local newspaper to attend a public meeting of the Department where funding of the Department, particularly as it related to the placing of another fire engine up for sale due to the County’s unwillingness to fund the fuel necessary for the fire engine to operate.
  • Additionally, at about this time Philip also talked to a member of the Town Council for Front Royal about the lack of funding and the concomitant discarding of resources being experienced by the Department.
  • In response to these actions, the Department led by Defendant Santmyers removed Philip from membership in the organization. The Department biased the vote against Philip by trumping up false charges, not following its procedures and, upon information and belief, even including non-voting members among those who voted for his removal.
  • In addition to providing him assistance in seeking the information related to the above issues, Plaintiff Mike Ellinger spoke up against the treatment of Philip, even noting in writing that the Department’s actions were unconstitutional. Mike felt forced to resign his office of Treasurer because of the inappropriate Board actions.

The jury ruled in favor of the department and Santmyers of all three counts.

More on the verdict.

Here is a copy of the original complaint. Charles v Front Royal VFRD

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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