Foley v. Town of Randolph

United States Court of Appeals
For the First Circuit

No. 09-1558

CHIEF CHARLES D. FOLEY, JR.,

Plaintiff, Appellant,

v.

TOWN OF RANDOLPH, MASSACHUSETTS;
RICHARD W. WELLS, PAUL J. CONNORS, WILLIAM ALEXOPOULOS IN THEIR
OFFICIAL CAPACITIES; MAUREEN C. KENNY AND JAMES BURGESS IN THEIR
INDIVIDUAL AND OFFICIAL CAPACITIES,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Lynch, Chief Judge,
Stahl, Circuit Judge,
and DiClerico,* District Judge.

Kevin G. Powers with whom Linda Evans and Rodgers, Powers &
Schwartz LLP were on brief for appellant.
John Foskett with whom Paul R. DeRensis and Deutsch, Williams,
Brooks, Derensis & Holland, P.C., were on brief for appellees.

March 10, 2010

*
Of the District of New Hampshire, sitting by designation.
 STAHL, Circuit Judge. Plaintiff-appellant Charles D.

Foley, Jr. ("Foley"), Chief of the Fire Department in Randolph,

Massachusetts, claims that the Town of Randolph and the Town

selectmen ("Defendants") wrongfully retaliated against him in

violation of his First Amendment rights when they suspended him for

fifteen days based on public statements that he made at the scene

of a fatal fire. Plaintiff brought suit pursuant to 42 U.S.C. §

1983, and the district court granted summary judgment in favor of

Defendants. Plaintiff now appeals, and after a careful review, we

affirm.

I. Facts and Background

The following facts are undisputed, except where stated.

On May 17, 2007, at approximately 5:00 a.m., the Randolph Fire

Department ("Department") responded to a fire at a single-family

residence in Randolph. When Foley arrived at the scene, he took

command as Chief of the Fire Department. Tragically, two children,

ages seventeen and ten, were trapped in a second floor bedroom and

died. At the scene of the fatal fire, the State Fire Marshal,

Foley, and Sergeant Frank McGinn, an employee of the State Fire

Marshal's office and the lead investigator that day, answered

questions from the media at press conferences convened by the

Marshal.1 Foley was in uniform and fire suppression activities

1
According to Foley, there were three press conferences at the
scene, all of which were facilitated by the Marshal. Foley also
recalled in his deposition that Deputy Marshal Leonard, the State

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were still ongoing when he spoke, though Foley asserts that, by the

time of the first press conference, the fire was under control and

he had stepped away from command, leaving the deputy chief in

charge. At that first press conference, the Marshal spoke, and

then Foley addressed the reporters.

Foley spoke about the details of the fire, but he also

commented on what he considered to be inadequate funding and a

related lack of staffing at the Randolph Fire Department.2 Foley

noted that the Department had lost positions each year since 2002

and that the Department's response times had increased over the

same period. While Foley could not definitively state that the

outcome in this particular fire would have been different if the

Department had been better staffed, he indicated that the operation

would have gone more professionally and more according to standard

if the Department had more manpower.

Foley then declined to answer questions from the press

which related to the ongoing investigation of the fire, for

example, whether there were any working smoke detectors inside the

Fire Marshal's second-in-command, was present at the press
conferences, but Foley said that he did not believe that Leonard
made a statement.
2
Foley characterizes his role at the press conferences as
"talking about the fire" and answering questions from the press.
However, it is unclear from the partial transcript of the first
press conference whether Foley's comments about the understaffing
and underfunding of the Department were prompted by a question from
the press or were made on Foley's own initiative.

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house and where in the house the fire started. Subsequently, in

response to questions from reporters, he again spoke of his

frustration that the staffing levels of the Department were

inadequate to accomplish the Department's goals. He referred

specifically to Proposition 2 ½, Mass. Gen. Laws ch. 59, § 21C, the

Massachusetts statute which limits property tax increases by

municipalities, and lamented that the proposed overrides to

Proposition 2 ½ had been defeated in the Town of Randolph for two

years in a row. He said, "I've been asking to replace the fire

fighters here in the Town over the last five years and it seems to

have fallen on deaf ears." He then said to the reporters, "As many

of you are here today you have the resources to bring this

information to the public."

Also, at the scene of the fire, Foley objected to the

reduction in the number of firefighters in the Department to

Defendant James F. Burgess, Jr., a Randolph Selectman. Burgess

asserted in his affidavit that during this exchange, Foley grabbed

the draft of a reporter's newspaper article and "shoved [it]

forcefully" into Burgess's chest. Foley disputes this allegation,

asserting that he "passed the draft to Burgess." Foley also spoke

with Defendant Maureen C. Kenney, a Selectwoman of Randolph, at the

scene and made reference to the manpower cuts in the Department.

Later that day, Foley called Kenney at her home, and

Kenney criticized him for addressing staffing and budgetary issues

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at the scene of the fire, rather than focusing on the victims or

the heroism of the firefighters.

Subsequent to these events, disciplinary charges were

brought against Foley.3 It was alleged that Foley's statements to

the media at the scene of the fire "demonstrated a lack of sound

judgment and of accuracy" and "were not conducive to the Town's

mission of providing effective fire protection services"; that

Foley had "initiated inappropriate physical contact" with Burgess;

and that Foley "displayed a lack of the demeanor, ability, and

independent judgment required for competent command and control"

while interacting with Kenney at the scene.

The Town appointed a hearing officer to evaluate the

allegations and determine whether there was cause to discipline

Foley. The hearing officer considered testimony and exhibits

during a three-day hearing, and on August 27, 2007, issued a report

finding that Foley did "initiate inappropriate and unprovoked

physical contact" with Burgess and that he made "inappropriate,

inaccurate, intemperate, and misleading statements to the news

media" at the scene of the May 17, 2007, fire.4 The hearing

3
Though Foley asserts that it was Burgess and Kenney who
brought the charges against him, the record does not reveal the
origin of the allegations.
4
Regarding the third allegation, the hearing officer concluded
that while Foley was, in fact, "emotional" at the scene, "his
exhibition of emotions did not impair him from being in command or
in tactical control of the fire scene nor was such behavior
inappropriate or irregular under those circumstances."

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officer recommended that Foley be suspended without compensation

for fifteen workdays. On September 10, 2007, the Board of

Selectmen voted three-to-two to adopt the hearing officer's

recommendation, and Foley was suspended for fifteen consecutive

workdays without compensation, commencing on September 17, 2007.

Neither the contract which governed Foley's employment

from 2003 to 2006 nor the "strong" chief statute, Mass. Gen. Laws

ch. 48, § 42, which governed his employment subsequent to October

31, 2006, specifically authorized or required Foley to make public

statements on matters affecting the Fire Department as part of his

official duties as Chief. However, nothing in the contract or the

statute prohibited Foley from doing so.5

Previously, in August 2006, Foley received a written

performance evaluation from the Town, which scored his job

performance in seven categories, including "Public & Community

Relations/Communication." The description of that category

included: "[i]nteracts well with the media." In an affidavit,

Foley stated that his communications with the media were made of

5
In 2006, when Foley and the Board of Selectmen were engaged
in contract negotiations, Foley proposed a provision that
specifically granted him, as Fire Chief, the authority to make
public statements on "any matters which may affect the public as
they may apply to public safety . . . or the fire department
generally." That provision and the majority of the other
provisions proposed by Foley were rejected by the Board. Because
Foley and the Town were unable to agree on a negotiated contract,
the Board reappointed Foley under the provisions of Mass. Gen. Laws
ch. 48, § 42.

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his "own volition" but that he was expected by Town officials and

residents to "interact well" with the media on those occasions when

he chose to do so.

Prior to the incident at issue in this case, Foley had

conducted at least one other press conference, answered media

inquiries, and offered comment to the media regarding the business

of the Department and the Department's activities. Richard Wells,

Foley's immediate predecessor in the Fire Chief position, also

routinely responded to inquiries from the media regarding the Fire

Department during his tenure.

Foley filed this action in the United States District

Court for the District of Massachusetts, on November 30, 2007,

alleging a violation of his First Amendment rights and several

state law claims. Both parties filed motions for summary judgment,

and after a hearing and a review of the submissions, the district

court granted the Defendants' motion as to Foley's First Amendment

claim in a Memorandum and Order dated March 11, 2009. It is from

that order that Foley now appeals.6

II. Discussion

A. Standard of Review

We review the district court's grant of summary judgment

de novo, viewing the evidence in the light most favorable to Foley

6
The district court dismissed Foley's state law claims without
prejudice, and Foley has limited his appeal to his First Amendment
claim.

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and drawing all reasonable inferences in his favor. Schubert v.

City of Springfield, 589 F.3d 496, 500 (1st Cir. 2009). Summary

judgment is appropriate when "the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is

no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law." Fed. R. Civ. P.

56(c)(2).

B. Foley's First Amendment Claim

Foley argues that his speech to the media at the scene of

the fire on May 17, 2007, was protected by the First Amendment and

that by disciplining him on account of that speech, the Defendants

have violated the Constitution. Given the circumstances

surrounding the speech in this case, we disagree.

The Supreme Court has long recognized that public

employees do not forego all the protections of the First Amendment

by virtue of working for the government. See Pickering v. Bd. of

Educ., 391 U.S. 563, 568 (1968). The Court's employee-speech

jurisprudence has protected the rights not only of the employees

themselves, but of the general public "in receiving the well-

informed views of government employees engaging in civic

discussion." Garcetti v. Ceballos, 547 U.S. 410, 419 (2006).

Against these interests, the Court has sought to balance the

interests of government employers in exercising some degree of

control over their employees' words and actions in order to ensure

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the efficient provision of public services. Id. at 418-19. The

Court has held that "[s]o long as employees are speaking as

citizens about matters of public concern, they must face only those

speech restrictions that are necessary for their employers to

operate efficiently and effectively." Id. at 419.

In other words, to determine whether Foley's speech is

entitled to First Amendment protection, the first question we must

answer is whether Foley was both (1) speaking about a matter of

public concern and (2) speaking as a citizen.7 If the answer to

either of these sub-parts is no, then he has no First Amendment

claim based on the Defendants' action in relation to his speech.

Garcetti, 547 U.S. at 418. It is only if we determine that Foley

was speaking as a citizen about a matter of public concern that

"the possibility of a First Amendment claim arises, and the second

step of the inquiry is made: 'The question becomes whether the

relevant government entity had an adequate justification for

treating the employee differently from any other member of the

general public.'" Curran v. Cousins, 509 F.3d 36, 45 (1st Cir.

2007)(quoting Garcetti, 547 U.S. at 418).

Here, Foley was obviously speaking about a matter of

public concern. The budget and effectiveness of a town's fire

7
Though Foley argues otherwise, we have previously held that
this is a question of law for the court when, as here, the material
facts are not in dispute. Curran v. Cousins, 509 F.3d 36, 45 (1st
Cir. 2007); accord Gagliardi v. Sullivan, 513 F.3d 301, 306 n.8
(1st Cir. 2008).

-9-
department is certainly of concern to the public, especially when

that budget may be impacted by voter approval of an increase to the

town's property tax burden. As Chief of the Fire Department,

Foley'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.

At issue, then, is whether Foley was speaking as a

citizen when he made his remarks to the press about underfunding

and understaffing. In Garcetti, the Court held that when public

employees make statements "pursuant to their official duties," they

are not speaking as citizens for First Amendment purposes, and the

Constitution does not insulate their communication from employer

discipline. 547 U.S. at 421. This is so because "[e]mployers have

heightened interests in controlling speech made by an employee in

his or her professional capacity." Id. at 422. But the Court

acknowledged that the case afforded it "no occasion to articulate

a comprehensive framework for defining the scope of an employee's

duties in cases where there is room for serious debate" since the

plaintiff, Ceballos, had conceded his speech was pursuant to his

employment duties.8 Id. at 424.

8
Ceballos, a deputy district attorney, had prepared an
internal memorandum for his supervisors expressing his belief that
an affidavit used to obtain a critical search warrant in a case
contained serious misrepresentations and recommending dismissal of
the case. Garcetti, 547 U.S. at 413-14. Ceballos claimed that the
memorandum was protected speech.

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 The Court did provide some guidance, however, indicating

that the scope of an employee's duties for First Amendment purposes

may not necessarily be determined by the employee's formal job

description, as "[f]ormal job descriptions often bear little

resemblance to the duties an employee actually is expected to

perform." Garcetti, 547 U.S. at 424-25. Further, it was not

dispositive that Ceballos "expressed his views inside his office,

rather than publicly" or that the speech in question "concerned the

subject matter of [his] employment." Id. at 420-21. Ultimately,

"[t]he proper inquiry is a practical one." Id. at 424.

In dicta, the Court stated that an employee's speech

retains some possibility of First Amendment protection when it is

"the kind of activity engaged in by citizens who do not work for

the government." Garcetti, 547 U.S. at 423. The Court cited two

examples of such activity: (1) writing a letter to a local

newspaper, as the teacher-plaintiff did in Pickering to criticize

the school board, see 391 U.S. at 566, and (2) discussing politics

with a co-worker, see Rankin v. McPherson, 483 U.S. 378 (1987), and

equated them to "public statements [made] outside the course of

performing [one's] official duties." Garcetti, 547 U.S. at 423.

The Court distinguished those examples from speech made pursuant to

employment responsibilities, for which "there is no relevant

analogue to speech by citizens who are not government employees."

Id. at 424. Ceballos's speech had no such analogue; when he wrote

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the internal memorandum at issue in the case, he "spoke as a

prosecutor fulfilling a responsibility to advise his supervisor

about how best to proceed with a pending case." Id. at 421

(emphasis added).

In analyzing whether Foley spoke as a citizen rather than

as the Chief of the Fire Department, we first note that it is not

dispositive that Foley was not required to speak to the media. See

Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192, 1203

(10th Cir. 2007) ("speech may be made pursuant to an employee's

official duties even if it deals with activities that the employee

is not expressly required to perform"); Williams v. Dallas Ind.

Sch. Dist., 480 F.3d 689, 693 (5th Cir. 2007) ("[a]ctivities

undertaken in the course of performing one's job are activities

pursuant to official duties" even if the speech at issue "is not

necessarily required by [the employee's] job duties"). Foley's job

description is "neither necessary nor sufficient" to determine

whether his speech at the press conference was pursuant to his

official duties, Garcetti, 547 U.S. at 425, though we do note that

the fact that Foley was ostensibly evaluated on whether he

"[i]nteracts well with the media" suggests that speaking to the

press is a duty he "actually [was] expected to perform." Id. at

424-25.

More critical to our analysis is the context of Foley's

speech. Though Foley was not required to speak to the press as

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part of his job, he did, in fact, choose to do so at a press

conference convened by the State Fire Marshal, at the scene of a

fatal fire, at which no one but the Marshal, the Marshal's lead

investigator, and Foley himself gave comment. Foley was in uniform

and on duty at the time.9 While he declined to answer certain

questions posed by reporters, he voluntarily spoke about issues

related to the budget and staffing of the Department. As Chief, he

had been in command of the scene, and when choosing to speak to the

press, he would naturally be regarded as the public face of the

Department when speaking about matters involving the Department.10

Under these circumstances, Foley addressed the media in his

official capacity, as Chief of the Fire Department, at a forum to

which he had access because of his position. Thus, "there is no

relevant analogue to speech by citizens." Garcetti, 547 U.S. at

424; see Brammer-Hoelter, 492 F.3d at 1203 (equating speaking as a

9
While neither of these factors is dispositive, each is
relevant and important to the inquiry. See, e.g., Nixon v. City of
Houston, 511 F.3d 494, 498 (5th Cir. 2007) (noting that police
officer spoke to the media while on duty, in uniform, and while
working at the scene of an accident, and holding that speech was
not protected); Mills v. City of Evansville, 452 F.3d 646, 648 (7th
Cir. 2006) (observing that police officer was on duty and in
uniform when engaged in challenged speech, and concluding that she
spoke "in her capacity as a public employee").
10
Cf. Tabb v. District of Columbia, 605 F. Supp. 2d 89, 95
(D.D.C. 2009) ("If plaintiff was generally responsible for
presenting the public face of the agency to the District of
Columbia government and to the media, and if she expressly spoke in
that capacity when she contacted the Mayor's Office and media
outlets . . ., then . . . [her] statements likely are not
protected.").

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government employee with speaking "as an individual acting 'in his

or her professional capacity'" (quoting Garcetti, 547 U.S. at

422)); cf. Tamayo v. Blagojevich, 526 F.3d 1074, 1092 (7th Cir.

2008) (holding that a senior administrator of an agency was not

speaking as a citizen when testifying before a legislative

committee since she was testifying "because of the position she

held within the agency" and was "not appearing as 'Jane Q.

Public'").

We note that Foley's speech is distinguishable from the

letter to the editor written by the plaintiff in Pickering. As the

Court noted in Garcetti, that letter had "no official significance

and bore similarities to letters submitted by numerous citizens

every day." Garcetti, 547 U.S. at 422. Here, given that Foley

spoke from the scene of the fire where he was on duty, in uniform,

and speaking alongside the State Fire Marshal, we cannot say that

the speech had "no official significance." In fact, it is more

likely that anyone who observed the speech took it to bear the

imprimatur of the Fire Department.

Certainly, Foley's comments to the press fall closer to

the line of citizen speech than the internal memorandum that

Ceballos submitted to his supervisor in Garcetti. However, the

fact that Foley expressed his views to the public rather than

within the workplace is not dispositive, and other courts have

found employee speech to fall outside the protection of the First

-14-
Amendment even when it is delivered publicly. See, e.g., Nixon,

511 F.3d at 498; Turner v. Clark County Sch. Dist., No. 2:07-CV-

00101-JCM-GWF, 2009 WL 736016, at *2 (D. Nev. Mar. 19, 2009).

Foley argues that his speech is nonetheless analogous to

that of citizens "who avail themselves of opportunities to publicly

express themselves through the media." Foley points specifically

to a Boston Globe article in which Randolph residents expressed

their opinions on the budgetary and staffing issues of the Fire

Department as they related to the May 17, 2007, fire. Foley also

cites an article from the Patriot Ledger in which Randolph

residents spoke to a reporter regarding their votes on the

Proposition 2 ½ override of 2008. However, this speech is not

analogous to Foley's. Any citizen can be interviewed by a reporter

about her reaction to an event or her thoughts about an issue. But

when a government employee answers a reporter's questions involving

matters relating to his employment, there will be circumstances in

which the employee's answers will take on the character of

"[o]fficial communications," Garcetti, 547 U.S. at 422, and thus

will not be entitled to First Amendment protection. Those

circumstances were present here: Foley spoke while in uniform and

on duty; he spoke from the scene of a fire where he had been in

command as the Chief of the Fire Department; and his comments were

bookended by those of another official -- the State Fire Marshal.

When Foley availed himself of this particular opportunity to

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communicate with Town residents through the media on matters

involving his Department, his speech took on a degree of official

significance that has "no relevant analogue to speech by citizens."

Garcetti, 547 U.S. at 424.

Foley also contends that the content of his speech at the

press conference entitles that speech to First Amendment

protection. He argues that once he stopped speaking about the fire

and began to "lecture" the Town residents about their defeat of the

Proposition 2 ½ overrides, he was speaking as a citizen. We

disagree. Foley characterizes the nature of his comments about

Proposition 2 ½ too narrowly. His remarks on Proposition 2 ½

related to his concerns about its impact on the budget and staffing

needs of the Fire Department. The general topic of Foley's remarks

was the struggle of the Fire Department to accomplish its goals in

the absence of additional funding and staffing that an override of

Proposition 2 ½ could provide. The subject of Foley's speech was

entirely related to matters concerning the Fire Department.11 Under

11
Lindsey v. City of Orrick, 491 F.3d 892 (8th Cir. 2007),
which Foley cites for the proposition that an employee speaks as a
citizen when his speech deviates from a subject related to his job
duties, is distinguishable. In Lindsey, the city public works
director, whose duties included maintaining the city's parks, water
systems, streets, and sewers, spoke at several City Council
meetings about what he believed to be the city's noncompliance with
the state's "sunshine" law. 491 F.3d at 895-96. Lindsey
questioned whether the city was violating the law by entering into
non-public executive sessions and passing city ordinances without
public discussion. Id. at 896. Though Lindsey's job required him
to attend Council meetings to report about public works issues, id.
at 895, his comments about the city's alleged noncompliance with

-16-
the circumstances of the press conference, when speaking about such

matters, Foley was speaking in his official capacity as Chief.

Our holding does not, as Foley claims, strip him of the

opportunity ever to speak publicly on similar issues, without fear

of retaliatory discipline. As Chief, Foley is on call at all

hours, but that does not mean that any public statements he makes

regarding the Fire Department will be outside the protection of the

First Amendment. As the Supreme Court has recognized, "[w]ere

[public employees] not able to speak on [the operation of their

employers], the community would be deprived of informed opinions on

important public issues." Garcetti, 547 U.S. at 420 (citing San

Diego v. Roe, 543 U.S. 77, 82 (2004)) (second and third alterations

in Garcetti). As Fire Chief, Foley is "'the member[] of [the]

community most likely to have informed and definite opinions'"

about the budget and staffing of the Fire Department, see Garcetti,

547 U.S. at 419 (quoting Pickering, 391 U.S. at 572), but he is

also the individual whose speech is most likely to be construed as

an "[o]fficial communication" of the Department. Thus, determining

whether a government employee who is the head and de facto

spokesperson of his department is speaking as a citizen or an

employee is a highly fact-specific inquiry.

We emphasize that our holding is limited to the

particular facts of this case. Under the circumstances of the

the sunshine law were in no way related to public works.

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press conference discussed above, there could be no doubt that

Foley was speaking in his official capacity and not as a citizen.

However, as the district court noted, had Foley voiced his concerns

and frustrations in another forum -- at a town meeting, in a letter

to the editor, or even in a statement to the media at a different

time and/or place -- we might characterize his speech differently.

See, e.g., McLaughlin v. City of Nashville, Civil No. 06-4069, 2006

U.S. Dist. LEXIS 78133, at *8-9 (W.D. Ark. Oct. 23, 2006) (holding

that city finance director stated a claim that she spoke "in her

capacity as a concerned citizen, rather than in her official

capacity" when she spoke about the financial situation of the city,

via newspaper and radio, "at her own expense and on her own time");

Hailey v. City of Camden, Civil No. 01-3967, 2006 WL 1875402, at

*16 (D.N.J. July 5, 2006) (holding that deputy fire chiefs who

attended City Council meeting and complained about fire department

practices after "plac[ing] their names on the agenda as any citizen

would" were not speaking pursuant to their official duties).

C. Conclusion

We recognize that there is a delicate balance that must

be struck between the constitutional rights of government employees

to express their views on matters related to their employment and

the public's interest in hearing those views, on the one hand, and

the interest of a government employer in controlling employee

speech that contravenes the employer's goals, on the other. We

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hold that when the circumstances surrounding a government

employee's speech indicate that the employee is speaking in his

official capacity, Garcetti dictates that we strike the balance in

favor of the government employer. Under such circumstances, the

employee's speech takes on an official significance and, as the

Supreme Court has reasoned, "[o]fficial communications have

official consequences, creating a need for substantive consistency

and clarity. Supervisors must ensure that their employees'

official communications are accurate, demonstrate sound judgment,

and promote the employer's mission." Garcetti, 547 U.S. at 422-23.

Here, under circumstances which indicate that Foley was speaking as

Chief, members of the Board did not violate Foley's free speech

right when they concluded that it was inappropriate for Foley to

address budgetary and staffing issues at the scene of a fatal fire.

Speaking to the media under the circumstances discussed

above, Foley could have hoped and anticipated that his frustration

with the budgetary and staffing shortfalls of the Department might

have reached a greater audience and had a greater impact than if he

voiced his views in another forum. However, those same

circumstances imbued his speech with the official significance that

removed it from the protection of the First Amendment.

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 We conclude that Foley was not speaking as a citizen and

that he consequently has no First Amendment cause of action.12 We

thus affirm the order of the district court granting summary

judgment in favor of the Defendants.

12
We acknowledge that in Brasslett v. Cota, 761 F.2d 827 (1st
Cir. 1985), we reached a different outcome on a somewhat similar
set of facts. However, that case was decided before Garcetti,
which now governs our review of the issues.

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