By Arthur Hirsch, The Baltimore Sun
7:34 PM EST, November 13, 2013
Howard County is asking a federal court to throw out a former Fire Department battalion chief's lawsuit, arguing that the Facebook posts that triggered his dismissal were not constitutionally protected because they were "at best, personal opinion or pique and, at worst, insubordinate."
The response, filed Tuesday in U.S. District Court, follows a suit brought last month by Kevin P. Buker. The county argues that posts on Buker's personal Facebook page early this year did not involve "a matter of public concern" — a key element in cases involving the First Amendment rights of public employees.
A 16-year department veteran, Buker is asking the court for back pay and benefits, as well as reinstatement in his job, which paid $103,659 a year when he was dismissed in March. Public employees in Maryland have been disciplined in the past for social media activities, but attorneys familiar with this area of law said they knew of no previous instances in the state in which a government employee had been dismissed for this reason.
The suit involves two Facebook posts Buker made while he was on a 24-hour shift at the Ellicott City fire station on Jan. 20, two posts on Jan. 23 and one on Feb. 17.
On Jan. 20, in the weeks after the mass shooting at Sandy Hook Elementary School in Newtown, Conn., Buker posted a message that his lawsuit called a "satirical comment" about assault weapons legislation being discussed at the time.
"My aide had an outstanding idea," he wrote, according to his lawsuit. "Let's kill someone with a liberal … then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal with another liberal … its almost poetic."
That message prompted several responses from Buker's Facebook friends, including one from volunteer firefighter Mark Grutzmacher, who has also been dismissed from the department. Buker responded by "liking" Grutzmacher's message and adding: "Too cool, Mark Grutzmacher."
Buker complied with a request from a supervisor to take down the original post, and on Jan. 23 he added two more messages. One commented on the dominance of "Liberal Democrat" politics in the county, state and the federal government, and said "Free speech only applies to the liberals."
On Feb. 17, Buker also "liked" a posting by a volunteer firefighter that included a picture of an elderly woman with her middle finger extended, with the message: "For you, Chief" and "I'll post whatever the [expletive] I want."
Citing an array of court opinions, the county argued that the posts do not merit constitutional protection for speech by public employees. While Buker argued the Jan. 20 posts had to do with gun control, the county responded that the messages did not refer to the legislation, and were not "aimed at promoting public debate" on it.
The county argues that Buker, in the later posts, "served as a model of insubordination" by criticizing the department's social media policy. While Buker insists nothing he did interfered with his job performance, the county argues the posts undermine Buker's ability to function as a battalion chief responsible for making sure agency policies are followed.
Buker has 14 days to file a response, but could ask for an extension, said Margaret Ann Nolan, the county solicitor. Buker's lawyer, Edward S. Robson, did not respond to requests for comment.
Copyright © 2014, The Baltimore Sun