RI Local Again Forced to Sue Town For Relief From Anti-Union Discipline

A Rhode Island IAFF union president who is facing termination for threatening his fire chief with a vote of no confidence, has filed suit claiming his termination constitutes retaliation for his union advocacy, his whistleblower activities, and for exercising his protected free speech rights.

Captain David M. McGovern, currently the Acting Union President of Tiverton Firefighters IAFF Local 1703, filed suit in US District Court for the District of Rhode Island claiming that he is the victim of retaliation for his exercise of his protected First Amendment rights under 42 U.S.C. § 1983. The suit also alleges violations of Rhode Island Whistleblower’s Act, Rhode Island General Laws, § 28-50-1, et seq., in that the threatened discipline is retaliation for his bringing to the chief’s attention violations of Rhode Island General Laws, federal statutes and Tiverton local laws.

The suit names Fire Chief William S. Bailey, III, the town of Tiverton, and the town’s treasurer as defendants. Captain McGovern was suspended with pay on May 1, 2024, and was more recently given notice of a termination hearing on May 28, 2024. IAFF Local 1703 is also a named plaintiff in the case. Quoting from the complaint:

  • For approximately the past fifteen (15) years the Tiverton Fire Department has been afflicted by a catastrophic turnover rate among its sworn members. The high turnover rate is based largely upon the pay for members of the Department, which ranks among the lowest of fire departments in the State of Rhode Island.
  • Low pay and a high turnover rate create a substantial problem with recruiting new members and with the retention of the existing members of the Tiverton Fire Department.
  • Low pay and a high turnover rate has resulted in catastrophically low morale among the membership of Local 1703.
  • During the month of March of 2023, a member of Local 1703 was assaulted by a senior member of Local 1703.
  • The March 2023 assault was brought to the attention of the Fire Chief, Bailey, who performed no investigation and did not discipline the senior member who committed the assault.
  • On or about April 23, 2024, members of the Tiverton filed with the defendant, Bailey, a formal complaint as a result of claims of a hostile work environment.
  • The formal complaint recited the March 23, 2023 assault referenced above and claimed that the defendant, Bailey, had violated the Tiverton Employee Handbook, the State of Rhode Island Violence Prevention in the Workplace policy (Rhode Island General Laws § 28-52-1) and the Occupational Safety and Health Administration (OSHA) regulations on workplace violence.
  • A member of the Tiverton Fire Department applied for a job with another fire department and was offered employment with that fire department.
  • The member notified defendant Bailey of the decision to accept employment with the other fire department.
  • On April 22, 2024, a member of Local 1703 filed a formal report with the defendant, Bailey, and the Town Administrator, Christopher Cotta, complaining of “direct physical, verbal and psychological actions” by a senior member of the Tiverton Fire Department against him and other members of the Tiverton Fire Department.
  • On April 22, 2024, the plaintiff, David McGovern, in his capacity as Acting President of Local 1703, wrote out a formal complaint with defendant Bailey concerning the failure of the Town of Tiverton, to allow a member, who had non-elective surgery scheduled, to use a loosely-administered sick leave bank that had been established by the Town.
  • The Town of Tiverton is currently refusing to allow members to utilize the “sick bank” and continues to maintain, interest-free, sums of money in excess of one hundred thousand dollars ($100,000), which should be paid to current and retired members of Local 1703.
  • Within a short period of time after the member notified defendant Bailey of the decision to accept employment with another fire department, a woman identified as the girl-friend of defendant Bailey, contacted the member by Facebook messaging and began a conversation wherein the girlfriend denigrated and insulted the member for leaving the Tiverton Fire Department.
  • The decision of the member to leave the Tiverton Fire Department and to accept employment with another fire department was a private matter and was not public at the time that the defendant, Bailey’s girlfriend denigrated and insulted the member for leaving the Tiverton Fire Department.
  • The only manner in which the defendant, Bailey’s girlfriend would have known that the member had decided to leave the Tiverton Fire Department and accept employment with another fire department would be that the defendant Bailey disseminated private information to his girlfriend, with the intent to punish the member for leaving the Tiverton Fire Department.
  • As of April 25, 2024, the Executive Board of the plaintiff, Local 1703, had made a decision to ask for a “no confidence” vote among the union’s membership, pertaining to the defendant Bailey.
  • The decision to seek a “no confidence” vote among the membership of Local 1703 is an action and expression of speech that is protected under the First Amendment to the United States Constitution.
  • The decision to seek a “no confidence” vote among the membership of Local 1703 is an action and expression of speech that is protected “concerted activity” that the union membership are allowed to undertake within their rights as the members of a collective bargaining representative.
  • On April 23, 2024, the plaintiff, David McGovern, in his capacity as the Acting President of Local 1703, met with the defendant, Bailey and asked Bailey to resign in light of the Facebook contacts between Bailey’s girlfriend and the Local 1703 member who had informed Bailey of the decision to leave the Tiverton Fire Department to work in another fire department.
  • Defendant Bailey, accompanied by the Tiverton Fire Department Deputy Chief, invited the plaintiff, David M. McGovern, who was present into his capacity as the Acting President of Local 1703, into his office at Station 2 of the Tiverton Fire Department.
  • The plaintiff, David M. McGovern, accompanied by Lt. Nicholas Barboza, entered the office of defendant Bailey and outlined the concerns of Local 1703, alleging that Bailey had failed to address at least three incidents of harassment, including most recently, the incident involving Bailey’s girlfriend’s Facebook messages with the member who had informed Bailey of a decision to leave the Tiverton Fire Department for employment with another fire department.
  • The member who was the recipient of denigrating and abusive comments by Bailey’s girlfriend over the decision to leave the Tiverton Fire Department for employment with another fire department filed a police report with the Tiverton Police Department concerning the messages.
  • In the meeting with defendant Bailey, plaintiff McGovern, again acting in his capacity as the Acting President of Local 1703, informed Bailey that the membership of Local 1703 would decide on May 6, 2024 about whether to vote “no confidence” in Bailey’s leadership and that, in McGovern’s opinion, the vote of “no confidence” would pass.
  • During the meeting of April 25, 2024, the plaintiff McGovern, as the Acting President of Local 1703, informed defendant Bailey that if the membership of Local 1703 voted “no confidence” in Bailey’s leadership, the outcome of that vote would negatively impact Bailey in the event that he attempted to leave the Tiverton Fire Department for other employment.
  • At the end of the meeting, defendant Bailey indicated that he wanted to apologize to the member who had received the denigrating and abusive Facebook comments from his girlfriend, however the member did not wish to speak to Bailey due to the stress caused by the incident.
  • On May 1, 2024, the defendant, Town of Tiverton’s Town Administrator, Christopher Cotta notified the plaintiff, David McGovern that:
  • “You are hereby suspended with pay effective today, May 1, 2024, for the lesser of 30 days or until such time that you have had an opportunity to be heard at an administrative hearing that I, as Town Administrator, will be holding regarding your recent conduct on both April 23, 2024. It is my intention to remove you from the municipal employment position as a fire captain on the Tiverton Fire Department for, among other things, conduct unbecoming as an officer and the allegations of criminal conduct alleged to have occurred on or about the dates described above. …”
  • On May 16, 2024, the Town of Tiverton, by and through its Town Administrator, Christopher Cotta, informed the plaintiff, David McGovern that the Town would hold a hearing on May 28, 2024, informing the plaintiff “you are being given written notice of my intention to have you removed from your office and position within the Tiverton Fire Department.”

You may recall another lawsuit filed by Local 1703 recently when the town sought to discipline the executive board for violating a new social media policy. Following a lawsuit filed in US District Court challenging the policy and the discipline on First Amendment grounds, the policy was rescinded as was the threatened discipline. The matter was resolved via a consent judgment. The current suit contends that the town’s disciplinary actions against Captain McGovern is retaliation for the union’s previous lawsuit.

The suit asks the court to issue a temporary restraining order against the town to block further discipline of Captain McGovern, along with additional injunctive relief, an award of damages and attorneys’ fees.

Here is a copy of the complaint:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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