First Circuit Restricts Public Employees Free Speech Rights: Foley v. Town of Randolph, 598 F.3d 1 (1st Cir. 2010).
The First Circuit Court of Appeals recently addressed a municipality’s ability to restrict the free speech rights of its public employees. In Foley v. Town of Randolph, the fire chief sued the Town of Randolph and its selectmen for civil rights violations under Section 1983 claiming that they retaliated against him in violation of his First Amendment rights to free speech. Relying on the Supreme Court’s decision in Garcetti v. Ceballos, the United States District Court granted summary judgment in favor of the Town, which was recently upheld by the First Circuit Court of Appeals.
On May 17, 2007, a residential fire took the lives of two children. When the fire chief arrived at the scene, he took command and began to control operations. While he was in uniform and in the midst of fire suppression activities, he spoke to the press. He was critical about the fire details and commented on what he considered to be inadequate funding and a lack of fire department staffing. The chief lamented that proposed overrides to Proposition 2½ were rejected by the voters. Shortly thereafter, disciplinary charges were brought against the chief. The Selectmen were of the view that his statements to the media “demonstrated a lack of sound judgment and of accuracy” and “were not conducive to the Town’s mission of providing effective fire protection services.” The Town suspended the chief for fifteen days.
The chief filed suit, arguing that his speech was protected by the First Amendment and that by disciplining him on account of that speech, the town violated his First Amendment rights. The First Circuit disagreed. The Court noted that although public employees do not forego all First Amendment protections by virtue their public employment, the Court must consider the interests of government employers in exercising some degree of control over their employees’ words and actions in order to ensure the efficient provision of public services. Constitutional protection of a public employee’s speech depends on whether he was both (1) speaking about a matter of public concern, and (2) speaking as a private citizen. If the answer to either question is “no,” then the employee has no appreciable First Amendment claim.
The Foley Court held that the chief was “obviously” speaking about a matter of public concern. The budget and effectiveness of Randolph’s fire department is of interest to the community. The chief’s opinion on the effect of diminished resources on the department’s ability to fight fires is an example of the “well-informed views” which the public has an interest in receiving. The Court, however, was not convinced that the chief was speaking as a private citizen. In analyzing whether the chief spoke as a citizen rather than as a Randolph employee, the Court first noted that it is not dispositive that the chief was not required to speak to the media. Notwithstanding that he was previously evaluated on how well he interacted with the media, the chief’s job description was “neither necessary nor sufficient” to determine whether his speech at the press conference on the day of the fatal fire was pursuant to his official duties. More critical to the analysis was the context of the chief’s speech. The chief was in uniform and on duty and spoke about issues related to budget and staffing. When choosing to speak to the press, the Court held, the chief was regarded as the public face of the fire department when speaking about department matters. Also, the chief addressed the media at a forum to which he had access because of his official position. Hence, because the chief was speaking on matters of public concern in his official capacity – not as a citizen – his speech was not protected under the First Amendment.
The Foley decision provides clearer guidance for determining when a public employee’s speech is made in that employee’s official capacity. Furthermore, Foley identifies circumstances when a municipality may discipline a public employee for official speech. In light of the First Circuit’s ruling, municipal employees should take extra care when addressing the public on matters of importance to their municipality.