Foley v. Town of Randolph, et al

Filing 920100309

Opinion

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var WPFootnote1 = 'Of the District of New Hampshire, sitting by designation.\
'

var WPFootnote2 = '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\
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.\
'

var WPFootnote3 = '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.\
'

var WPFootnote4 = '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.\
'

var WPFootnote5 = '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."\
'

var WPFootnote6 = '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.\
'

var WPFootnote7 = 'The district court dismissed Foley\'s state law claims without\
prejudice, and Foley has limited his appeal to his First Amendment\
claim.\
'

var WPFootnote8 = '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). \
'

var WPFootnote9 = '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. \
'

var WPFootnote10 = '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").\
'

var WPFootnote11 = '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.").\
'

var WPFootnote12 = '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\
the sunshine law were in no way related to public works. \
'

var WPFootnote13 = '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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