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?First Amendment violation

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Asyml8r

Guest
What is the name of your state? Massachusetts
I am a full-time firefighter for a city that runs it's own ambulance (EMT's). Paramedic services are contracted out by the city to a private company. About 10 months ago the chief terminated the contract with the current paramedic provider, which is in litigation due to the legality of what he did. The "new" paramedic provider is opined by the firefighters as providing subpar medical service to the community. About a month ago a petition appeared at the fire station addressed to the mayor (election year, and no one knew who the new mayor would be). The incumbent won. Five members signed this petition which stated that we believe the former paramedic provider was the best in quality care, response times, etc.. We were questioned by the chief why we signed this and a week later we were all assigned different work schedules with extra duties by the chief. It is being grieved and the chief told our union president he has no intention of rescinding his order, the mayor stated he will back any decision by the chief. The above lawsuit is suing the chief, the mayor, and the city. A Boston Globe reporter has been following this story from the beginning and is "chomping at the bit" to talk to us, we've refused. Has a violation occurred?
 


stephenk

Senior Member
"a week later we were all assigned different work schedules with extra duties by the chief"

what reason were you given regarding the change in schedules?
 
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Asyml8r

Guest
reason

stephenk, thanks for your reply. We were given no reason whatsoever, only it took place within 2 weeks of signing this petition and being questioned on why we signed it by the chief. My work schedule has not changed in 4 years, and another one hasn't changed in 10 years. I was also told by the Personnel Officer yesterday (number 2 in charge of the department) that they wanted to place Albuterol (a life saving drug for asthmatics) on the ambulance and train us in it's usage, but they will not do that until "the dust settles on this whole petition thing". If that's not blatant disregard for public safety, I just don't know what is anymore. Once again, thanks for your reply.
 
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nospecialfx

Guest
Re: reason

If you contend a violation of your free speech rights, then--maybe, just maybe--you should show your department that you fully plan to exercise that right, and talk to the reporter...just a thought. People don't like their dirty laundry aired--you start talking and they might be more willing to back off to get you to shut up--or it might backfire and they come after you harder.

At any rate, there are a lot of organizations out there that will take on constitutional cases pro bono -- get everyone together and start looking. Try the ACLU and then go from there...
 
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Asyml8r

Guest
reason

nospecialfx, thanks for your reply and info. I was reading on another, if not this website about Pickering rules which states "If the employee's comments aren't on a matter of public concern, those comments are not protected". In parentheses below it states "A tip for fire service managers: Most often when the court determines that speech isn't a matter of public concern it is because the court has found that the employee has taken a private grievance public". Since the chief has failed to respond to our grievance in the alloted period, it now moves to the mayor's desk, which he has seven days to make a decision, which he has stated he will back the chief. Is this still considered a private grievance? Thanks for any help you can give me on this matter.
 
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nospecialfx

Guest
Re: reason

As fireman for the city, (if I understand right) you're actors of the state, right? Public officers, at least -- my guess -- and this is a guess -- I'm not extremely versed in this area of law -- is that you and your job is always a matter of public concern. Just my opinion though.

If you're in a position to judge that paramedics are not serving their duty to the public and you voice that concern, I'm thinking you're on "protected" grounds with that.

If you could argue that your work schedule changes hinder your ability to serve the public effectively rather than safely, then you've got public concern there.

It's really subjective judging of the facts -- and you'll need a good lawyer to argue those things for you. Best of luck.

Asyml8r said:
nospecialfx, thanks for your reply and info. I was reading on another, if not this website about Pickering rules which states "If the employee's comments aren't on a matter of public concern, those comments are not protected". In parentheses below it states "A tip for fire service managers: Most often when the court determines that speech isn't a matter of public concern it is because the court has found that the employee has taken a private grievance public". Since the chief has failed to respond to our grievance in the alloted period, it now moves to the mayor's desk, which he has seven days to make a decision, which he has stated he will back the chief. Is this still considered a private grievance? Thanks for any help you can give me on this matter.
 

ellencee

Senior Member
I do not believe that it is a public concern at all. It is a matter of EMTs not liking the change in contracted paramedic services from a provider that the EMTs liked to a provider that the EMTs do not like. The EMTs do not work for the paramedic service but are firefighters that also function as EMTs when they are not fighting fires. The paramedics render emergency medical care and transportation only; they do not fight fires and they are not subject to performance review by the EMTs.

To me, it seems appropriate to move the EMT/firefighters to a duty roster that places them in less contact with the paramedic service or to terminate them for insubordination (unless it violates union contract terms).

Firefighters respond faster than any other emergency service provider. Paramedics are often hindered from reaching a scene for reasons that do not affect the response time of firefighters.
Everyone, including the original poster, needs to keep that information 'in mind'.

EC
 
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nospecialfx

Guest
But if it affects the public safety, as he contends, then they probably meet the "public concern" test enough to have a cause of action...regardless of the other merits...
 
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Boxcarbill

Guest
By asking whether a violation has occurred, I presume you are asking whether the reassignment to different work schedules with extra duty by the chief was done wrongfully because the five of you had exercised your constitutionally protected right of free speech?

That is not a simple question which can be answered within the limitations of this forum. Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context [461 U.S. 138, 148] of a given statement, as revealed by the whole record. Connick v. Myers, 461 U.S. 138 (1983). I do think, however, that you may have confused what is a matter of public concern and what is a public comment. One can make a public comment regarding either a private concern or a public concern. On the other hand, a governmental employee may comment privately or publicly on a matter of public concern. Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979), held that First Amendment protection applies when a public employee arranges to communicate privately with his employer rather than to express his views publicly. Certainly, whether a parmedic provider is providing subpar medical service to the community is a matter of public concern. But this being a matter of public concern only addresses one issue and certainly does not answer the question whether the reassignment was in violation to your constitutionally protected right of free speech.
 

ellencee

Senior Member
It's a really easy issue to resolve. All 'call sheets' have required entries of documentation, ie. time call received, time dispatched, unit dispatched, time of arrival at destination, time leaving destination, time of arrival at hospital ER (or time returned to station), and time 'patient' turned over to the care of other medical care providers (ER).

All of these records are maintained for several years.

All anyone needs to do is compare the information from the former provider with the information from the new provider. If there is a 'problem', facts from these records would carry much more weight than a petition by employees.

If the public is being harmed by the new provider, the hospital's administration would have complained to the mayor and the chief. Delayed response time equals increased expense in treatment; increased expense in treatment equals increased need for funding from the city, county, state, and federal government. The mayor can't remain in office or be re-elected if the city is losing money due to the new EMS provider; change would be required.

My opinion is that this poster and his fellow petition-signers want the Constitution to protect them from being held accountable for acts directly related to their bad behavior as employees and not a solution to protecting the needs of the public at large.

EC
 
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Asyml8r

Guest
reassignment, extra duties

In reply to Boxcarbill, the second in command of the department has stated to other officers of the department that "those guys", meaning us, "are being punished for signing the petition and they got what they deserved and I don't feel sorry for them at all".

Thanks for your reply and the other information you provided.
 
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Boxcarbill

Guest
ellencee said:
It's a really easy issue to resolve. All 'call sheets' have required entries of documentation, ie. time call received, time dispatched, unit dispatched, time of arrival at destination, time leaving destination, time of arrival at hospital ER (or time returned to station), and time 'patient' turned over to the care of other medical care providers (ER).

All of these records are maintained for several years.

All anyone needs to do is compare the information from the former provider with the information from the new provider. If there is a 'problem', facts from these records would carry much more weight than a petition by employees.

If the public is being harmed by the new provider, the hospital's administration would have complained to the mayor and the chief. Delayed response time equals increased expense in treatment; increased expense in treatment equals increased need for funding from the city, county, state, and federal government. The mayor can't remain in office or be re-elected if the city is losing money due to the new EMS provider; change would be required.

My opinion is that this poster and his fellow petition-signers want the Constitution to protect them from being held accountable for acts directly related to their bad behavior as employees and not a solution to protecting the needs of the public at large.

EC
The legal issue is not whether the new paramedics provide substandard care, superior care or the same standard of care that the prior paramedics provided. The legal issue in this case, at least one of the threshold issues, is whether the topic of the petition--i.e. the quality of paramedics care is a matter of public concern or is the topic private concern--of interest only to the governmental agency. It is irrelevant whether the firefighters opinion is well founded. A governmental employee does not forfeit his constitutional right to comment on public matters because he is employed by the government. Therefore the issue in the case is whether the firefighters' reassignment with additional duties was done in retaliation for the firefighters' signing of the petition. In Pickering v. Board of Education, 391 U.S. 563 (1968), the court stated that " a public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment. "
 
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ellencee

Senior Member
BCB
I understand what you are saying in each post; however, I still do not believe that the poster proved or substantially indicated that a matter of public concern exists. The only issue that I consider to be substantially indicated is that of disgruntled employees.

If a matter of public concern exists and is ignored by the powers that be, then I hope the firefighters would be protected in bringing the issue to the attention of the public. In all reasonable probability, though, in a city where response time and paramedic response fell from 'good' to 'terrible', I sincerely doubt the victims and the families of victims would sit quietly and wait on the firefighters to do something to change the situation.

EC
 

ellencee

Senior Member
Boxcarbill
If the firefighters go public with their story and are protected, or seek to be protected, by the Constitution, then can not the Chief and the mayor go public with comments about the firefighters placing the public in danger by failing to follow proper procedure and the direction(s) of their supervisor and thereby disrupting the effectiveness of emergency response teams and endangering the lives of the public? I mean, who wants firefighters and EMTs that can not follow orders and work as a team?!

EC
 
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Asyml8r

Guest
Boxcarbill

Boxcarbill, you have by far, provided me with some interesting thought. I have a friend at law school who's eating this up like bacon, him and his classmates "LOVE IT". At this time, we believe, and can prove that the "quality" of paramedic service "is a matter of public concern". Let's not forget that the second in command made it quite clear that the people who signed this petition are being placed on "punishment duty" for signing the petition itself.

As far as the Albuterol issue, isn't the city, ultimately responsible for withholding lifesaving drugs to asthmatic patients "until the dust settles on this issue" accountable for their actions and thereby a matter of public concern?

So, I wonder, can we voice our concerns with the media and the treatment provided to us by our own employer, as a matter of great public concern?

I'd like to say that I do appreciate and value all interest in this posting. Thank you.
 
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