By Brian Early
Foster’s Daily Democrat
FARMINGTON, N.H. — The American Civil Liberties Union of New Hampshire is requesting permission to join a federal lawsuit filed by a Farmington firefighter who argues he was unlawfully fired because of what he posted on Facebook.
Alexander Morin, of Ten Rod Road in Farmington, sued the town last year, challenging his July 21, 2015, termination as a per-diem firefighter by the town. He lists both the town and seven town officials, including the town administrator, the fire chief and members of the board of selectmen in the suit. The town argues Morin was terminated for violating the town’s social media policy after he was twice disciplined and warned that any further misconduct could lead to his dismissal.
Earlier this month, the ACLU-NH filed an amicus brief in support of Morin arguing the town’s social media policy “is hopelessly overbroad under the First Amendment and effectively bans speech simply because the town disfavors it.”
The social-media policy in effect when Morin was terminated stated that town employees, on personal time, are free to express themselves so long that it “does not impair or impede performance duties or negatively affect the public perception of the department or town,” according to court documents.
ACLU-NH argues the “negatively affect the public perception” standard in the social media policy is “impossibly vague.”
“This standard does not give employees notice of what they can and cannot say online about the town to comply with the policy,” the ACLU-NH stated. “Put another way, the policy is so ambiguous that it allows for town officials to engage in arbitrary and discriminatory decision-making in determining whether an employee has violated its terms.”
The ACLU-NH also argued the social-media policy violates state law.
While Morin has approved the ACLU-NH joining the suit, the town has not and plans to file an objection to the non-profit organization joining the lawsuit by the end of the month.
According to court documents, both sides agree that Morin was terminated for comments he made on a Facebook thread on the Farmington Community Forum page on July 18, 2015. After a post on the page about an apparent medical emergency taking place in the town, Morin stated that “personal emergencies don’t need to be put on Facebook.”
Later he posted, “The only people that need to be privy to details of emergencies are the emergency responders and the families involved. It should not be a conversation on Facebook.”
An argument in the thread ensued about what should or should not be posted on Facebook. Morin states in the court documents that he was off duty and out of town when the medical incident occurred and that he was commenting as a private citizen.
Following the incident, a resident complained to the fire chief, stating that Morin and another firefighter who engaged in the thread made her “nervous to know that this is the way people of public service act.”
When Fire Chief James Reinert reviewed the Facebook thread after the resident’s complaint, Reinert “concluded that the comments had the potential to damage the relationship between his firefighters and the residents of Farmington, and thereby impair the ability of Farmington Fire & Rescue to carry out its responsibilities,” according to court documents.
On July 20, 2015, the Farmington Board of Selectmen held a non-public session to discuss action against Morin and the firefighter who was also involved in the argument. On July 21, Morin received a termination letter that stated he was fired for violating the social-media policy.
Morin appealed the decision, which was upheld by the town administrator and later by the selectmen. The other firefighter was also fired, but later reinstated upon appeal.
During Morin’s appeal, town officials said Morin’s two previous disciplinary incidents “weighed heavily against him” according to court documents. One was an Oct. 21, 2013, incident where Morin was in a physical altercation with a co-worker and was given a 30-day unpaid suspension and placed on probation for six months. On April 14, 2015, Morin was warned for responding to a mutual aid call in his personal vehicle “in direct violation of prior orders.” It was in this letter that Morin was warned that any future violations could result in “further disciplinary action, including reduction in per diem work hours, suspension or termination,” according to court documents.
A jury trial at the U.S. District Court in Concord is currently scheduled for October. Morin seeks “enhanced compensatory damages for Farmington’s termination of the plaintiff in a wanton, malicious or oppressive manner” as well as damages “for the unlawful action of the town of Farmington.”
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