By DAVID C. COMSTOCK JR.
In May 2005, Captain Randolph Starling of the Palm Beach County (FL) Fire Rescue Department arranged to have Firefighter Caroline Smith transferred to his fire station as his subordinate. Sometime during the next few months, Smith and Starling began an intimate relationship, despite the fact that Starling was married but separated from his wife. Starling’s wife filed for divorce in July, and Starling moved into Smith’s house in October, although his divorce did not become final until April 2006. The couple married in June 2006.
According to Starling, soon after moving in with Smith, he learned that Ken Fischer, his direct supervisor, had been using Smith’s home to conduct an extramarital affair with another married firefighter. When Smith told Starling that Fischer had once solicited her (through another firefighter) for a three-person sexual encounter, Starling asked Smith to stop letting Fischer use her home. Starling alleged that this angered Fischer, who threatened him with disciplinary action and then told him to end his relationship with Smith.
When Starling and Smith continued their relationship, Fischer allegedly began saying offensive things about the relationship and following Smith on the job in an attempt to catch her doing something wrong. Starling requested transfers for Smith and himself, but those requests were denied; he also complained to his union representative. Starling claimed that when Fischer learned of the union’s involvement, he threatened to “see to it” that Starling would lose his captain’s rank. Fischer disputed these allegations in their entirety and alleged that Starling’s relationship with Smith was damaging his battalion’s effectiveness.
On January 11, 2006, Fischer issued an employee development form (EDF) stating that Starling’s “preoccupation” with Smith was “caus[ing] a disruption for the station officer and for the crew” and urging Starling to “return [his] performance to its past level.” The EDF also stated that Starling had delivered a package for Smith when he was supposed to be responding to a call, had cancelled a training session to spend time with her, and helped her at night with her reports while he was on duty. Although the EDF was not designed for disciplinary purposes, it warned Starling that his failure to prioritize “mak[ing] station rounds and be[ing] more consistent with [his] daily routine” could “lead to initiation of a special performance review or disciplinary action.” Starling responded to the EDF, without denying any specific accusations, by complaining of the “hostile work environment” Fischer had created for him and Smith.
Within 10 days, Starling learned that he faced potential disciplinary action for his conduct in three separate incidents during the previous year and a half. Starling claimed that Fischer misrepresented the seriousness of these incidents to punish him for continuing his relationship with Smith. Nevertheless, on February 13, 2006, the county’s fire rescue administrator, the only person with authority to discipline department employees, demoted Starling from captain to firefighter/paramedic. Starling accepted union representation and filed a grievance, which the administrator denied after a hearing at which Starling had union representation. The union declined to pursue arbitration of the dispute, a decision left to its discretion under the terms of the collective bargaining agreement on the basis that the claim lacked merit.
Thereafter, Starling sued Fischer and the county under 42 U.S.C. Section 1983 for violating his First Amendment right to intimate association. Intimate association involves “choices to enter into and maintain certain intimate human relationships.” The First Amendment protects these choices to differing degrees against “undo intrusion by the government because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” [See Roberts v. U.S. Jaycees, 468 U.S. 609, 617-618 (1984).] Fischer denied playing any role in Starling’s demotion. The administrator denied having any knowledge of the relationship between Starling and Smith until after the demotion.
With these denials, and arguing that Starling had no First Amendment right to engage in an “adulterous” relationship with Smith, Fischer and the county moved for dismissal of the complaint. The district court then dismissed the complaint after concluding that Fischer was entitled to qualified immunity because Starling’s alleged First Amendment right to intimate association with Smith was not clearly established under constitutional law. The trial court did not resolve whether the First Amendment protected Starling’s constitutional right to association with Smith. Starling appealed the dismissal on several grounds, alleging that his First Amendment rights as a public employee had been violated.
In determining whether or not the trial court reached a proper conclusion, the appellate court applied the balancing test developed in Pickerington v. Board of Education, 391 U.S. 563 (1968). The Pickerington balancing test, in the public employment context, involves the weighing of the employee’s interest in the exercise of a constitutional right against the employer’s interest in maintaining an efficient workplace. The court noted, based on prior law, that the test in the intimate association context is identical, except the intimate association does not have to be a matter of a public concern. However, the test still requires (1) an adverse employment action in which (2) protected association was a “substantial” or “motivating” factor in the employer’s decision.
In this case, neither party disputed that Starling’s demotion was an adverse employment action, nor was there evidence in the record suggesting that Starling’s relationship with Smith was a motivating factor in his demotion. However, in balancing the issues, the court concluded that the county’s interest in discouraging intimate association between supervisors and subordinates is so critical to the effective functioning of its fire department that it outweighed Starling’s interest in his relationship with Smith in the workplace. In reaching this conclusion, the court did not address whether the First Amendment protects intimate extramarital association. Instead, the court simply assumed arguendo that Starling’s right to intimate extramarital association with Smith was a fundamental right.1
The court’s conclusion rested on its assessment of the county’s interest in discouraging extramarital affairs between supervisors and subordinates in the fire department. Prior cases had held that operational efficiency is a vital government interest. Therefore, the court had to determine whether Starling’s affair with his subordinate (1) impaired discipline by superiors or harmony among coworkers, (2) had a detrimental impact on close working relationships for which personal loyalty and confidence were necessary, or (3) impeded the performance of the employee’s duties or interfered with the regular operation of the enterprise. [See Rankin v. McPherson, 483 U.S. 378, 388 (1987).] In analyzing these factors, “the manner, time, and place of the employee’s expression are relevant, as is the context in which the dispute arose.”
Furthermore, the more Starling’s demotion was necessary to the “effective functioning” of the fire department, the more the [demotion] becomes justifiable, and thus the more likely it is that a court will find the “demotion” constitutionally permissible by finding the employer’s interest to outweigh the employee’s interest. [See McCabe v. Sharrett, 12 F. 3d 1558, 1570 (11th Cir. 1994).]
The court noted that in the “quasi-military” context (which includes fire departments), public employers have been afforded greater latitude to burden employees’ rights, particularly when the exercise of that right impacts discipline, morale, harmony, uniformity, and trust in the ranks. For instance, the appellate court had previously held that a police chief could burden a secretary’s fundamental right to marry because her marriage to a subordinate in the office could undermine her loyalty, particularly when she might be working on matters that directly affected her husband. The court explained in that case that loyalty and confidentiality are absolutely critical to the effective functioning of a police department.
In the case involving Starling, the court noted that the county had a strong interest in regulating intimate personal relationships between supervisors and their subordinates. The county operational procedure discouraged romantic relationships between supervisors and subordinates because there was always a potential for abuse of power and sexual harassment in those relationships. The county’s interest in discouraging such behavior was heightened in the fire department, which has a special “need to secure discipline, mutual respect, trust, and particular efficiency among the ranks because of its status as a quasi-military entity different from other public employers.” For example, the court cited the fact that Starling’s battalion worked 24-hour shifts that required him and his subordinates to sleep at work in close proximity. The court noted that “intimate, extramarital relationships between subordinates and supervisors in this environment can be particularly destructive to the chain of command by weakening trust and discipline and threatening harmonious interpersonal relationships.”
The court further ruled the following:
“The mere potential for this kind of disruption in the Fire Department would likely justify a burden on a fundamental right to intimate association …. This case, however, does not require such extrapolation: the undisputed record evidence shows that Starling’s relationship with Smith was damaging operational efficiency. First, their relationship was impairing internal discipline in Starling’s battalion …. Second, the record also showed that Starling was affording Smith special favoritism, behavior which can undermine personal loyalty and confidence in impartial leadership.”
Starling argued that the county could have promoted efficiency without burdening his right by granting his request to transfer Smith out of his battalion. Starling’s relationship with Smith, however, had already damaged his battalion’s effectiveness, and there was no guaranty that her transfer would have ended these disruptions (according to the court). The court determined that Starling’s argument did not alter its conclusion that the county’s interests in an efficient fire department outweighed Starling’s interest in intimately associating with Smith. The appellate court, therefore, upheld the dismissal of Starling’s case against Fischer and the county.
The issues surrounding the marital relationships found in the Starling case occur more often in the fire service than one might think. In fact, it is not unusual to find many forms of personal relationships within both the career and the volunteer fire service. It is common to see multiple generations of family members working together in the same fire department and in the same firehouse; father and child, brothers and sisters, uncles, and even the occasional grandfather/grandchild work side by side. When one family member is the direct supervisor of another, issues often develop. Two such examples are claims of favoritism and unfair advantages in promotional examinations.
More often than not, the issues created by direct supervision of family members are ignored. These relationships can affect harmony among coworkers and often detrimentally impact the close working relationships between employees and their supervisors. Fire service administrators often ignore the issues because they or family members would be negatively impacted by any policy that might be adopted to eliminate direct supervision of the relatives. They do so even when courts have found that there is no constitutional protection to maintain such relationships in a fire service setting.
Proactive fire department leaders, including those in the volunteer fire service, should consider implementing policies that eliminate or significantly reduce the ability of one relative to oversee, manage, or discipline another relative. These policies may simply adjust the chain of command or, when necessary, transfer responsibilities from one fire department member to another. There are, however, those instances where fire departments’ memberships consist of several large families; in such cases, it may be impossible or impractical to implement such a policy. Nonetheless, there are steps that can be taken to reduce the potential for disharmony.
For example, outside chiefs can assist in promotions. Disciplinary boards should be comprised of individuals who are not family members and who do not otherwise have a family tie. Disciplinary authority can be granted to a nonfamily member if the decision of a family member can be made. Even these suggestions will face criticism where one relative must choose his or her replacement to recommend promotion or discipline of another relative.
The easiest way to address this issue is in advance, before a situation arises. By then, the issues relating to how one family member can effectively supervise another will be too little, too late. Often, a fire department faced with critical situations must resort to total bans on nepotism and familial working relationships, which will cause more harm than good in the long run. Public pressure can come to bear on many of these decisions; it is best to plan for various contingencies that might arise in advance. It is not popular to make these types of difficult decisions or recommendations that affect family relationships within a department. However, well-planned foresight will save everybody time, expense, and the negative publicity that these cases often generate.
REFERENCE
1. The appellate court did not reach the question whether the district court erred by concluding that a right to intimate, extramarital association was not clearly established under the First Amendment.
DAVID “CHIP” COMSTOCK JR. is a 30-year fire service veteran and chief of the Western Reserve Joint Fire District in Poland, Ohio. He is a chief fire officer designee and lectures and writes on fire service topics relating to chief and company officer operations, liability, and personnel issues. Comstock is also an attorney in the firm of Comstock, Springer & Wilson Co., L.P.A., in Youngstown, Ohio. His practice is focused on insurance defense litigation including governmental liability and insurance fraud/arson cases.
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