Federal judge: Fire chief’s comments to press weren’t protected

Wednesday, April 8, 2009

Editor’s note: The Associated Press reported on Oct. 7, 2010, that Charles Foley had settled his lawsuit against the town of Randolph. The town manager told The Patriot Ledger that under terms of the agreement, the chief’s suspension would be removed from his personnel file and replaced with a letter that states both sides could have handled the matter differently. Foley was to receive $27,000 to cover his legal expenses.

A federal judge recently rejected a First Amendment claim brought by a Massachusetts fire chief who was suspended for speaking to the press at the scene of a fire.

U.S. District Judge Patti B. Saris found that Charles D. Foley Jr.’s speech — though not mentioned in his job description or required in his employment contract — was job-related speech within the meaning of the U.S. Supreme Court’s decision in Garcetti v. Ceballos, and therefore was not protected.

Town leaders in Randolph suspended Foley for 15 days in part because of critical comments he made to the news media after a fire in May 2007 that left two minors dead. At the fire scene, Foley answered questions from reporters and said the fire department was inadequately staffed and poorly funded.

According to town officials, Foley also shoved a reporter’s news article in the chest of a city selectman. Foley denied that the paper ever touched the selectman. After a three-day hearing in summer 2007, a hearing officer concluded that Foley initiated “inappropriate and unprovoked physical contact” with a town official and made “inappropriate, inaccurate, intemperate, and misleading statements to the news media.” The hearing officer recommended a 15-day suspension.

In September 2007, the selectmen voted 3-2 to adopt the hearing officer’s recommendation and give Foley a 15-day suspension. Foley then filed a federal lawsuit, alleging among numerous claims that town officials violated his First Amendment rights.

He alleged that town officials retaliated against him for speaking out to the public via the press interviews at the fire scene. With respect to the First Amendment claim, the town officials contended that speaking to the press was unprotected, job-related employee speech under the Garcetti decision. In Garcetti, the Supreme Court ruled that public employees do not have First Amendment rights in statements made in the course of their official job duties.

Foley pointed out that his job description did not require him to speak with or forbid him from speaking with the news media and that his employment contract did not require him to make such statements. In addition, Foley emphasized that the target of his speech was the general public.

However, Judge Saris ruled in favor of the town and its selectmen in her March 11 opinion in Foley v. Town of Randolph. She relied on the 5th U.S. Circuit Court of Appeals decision Nixon v. City of Houston (2007) in which the appeals panel rejected the free-speech claim of a police officer who was disciplined for making statements at an accident scene. The 5th Circuit ruled that even though the officer was not required or authorized to make such statements to the public, the statements were made while he was performing his job.

“As in Nixon, Foley was suspended for fifteen days after he spoke to the media at the scene of a public emergency, about the situation and the circumstances surrounding it, while on duty and in uniform,” Saris wrote. “Moreover, and perhaps most telling, the opportunity for Foley to speak at this particular press conference arose because of his official position; this was not a forum at which any citizen could speak.”

Saris said that if Foley had been “disciplined for voicing his concerns and frustrations at another forum — whether a town meeting, a letter to the editor, or even a statement to the media made at a different time and/or place — the outcome may have been different.”

Saris did note that the content of Foley’s speech addressed matters of public importance that could be protected under a state whistleblower law.