Love v. Rehfus

Citation918 N.E.2d 448
Decision Date22 December 2009
Docket NumberNo. 30A01-0905-CV-250.,30A01-0905-CV-250.
PartiesBradley J. LOVE, Appellant-Plaintiff, v. Robert REHFUS, Individually and in His Capacity as Fire Chief of the Sugar Creek Township Fire Department, and Sugar Creek Township, Appellees-Defendants.
CourtCourt of Appeals of Indiana

Andrew P. Wirick, Hume Smith Geddes Green & Simmons, LLP Indianapolis, IN, Attorney for Appellant.

Steven C. Jackson, Ferguson & Ferguson Bloomington, IN, Attorney for Appellees.


RILEY, Judge.


Appellant-Plaintiff, Bradley J. Love (Love), appeals the trial court's grant of summary judgment in favor of Appellees-Defendants, Robert Rehfus (Chief Rehfus), individually and in his official capacity as Fire Chief of the Sugar Creek Township Fire Department, and the Sugar Creek Township (the Township) (collectively, Appellees). We reverse and remand for further proceedings.1


Love raises two issues on appeal, which we restate as follows:

(1) Whether the trial court erred by concluding as a matter of law that Love was properly terminated from his position as a volunteer and part-time fireman because his email commenting on the financial situation of the Township's fire department was not protected by the First Amendment to the United States Constitution; and (2) Whether the trial court erred by concluding as a matter of law that municipal liability could not be established through the conduct of Chief Rehfus.


In 2006, Love was an employee of the Sugar Creek Township Fire Department, serving as a volunteer and part-time firefighter. That year, the Township's Trustee, CO. Montgomery (Montgomery), ran for re-election, while being opposed by Bob Boyer (Boyer), who was a volunteer firefighter until his resignation to run for the office of Trustee. The firefighters at the fire department were divided in their support for the respective candidates. Love supported Boyer, whereas Chief Rehfus supported the incumbent.

On April 26, 2006, while off-duty and from his home computer, Love responded to an email he had received from an individual concerned about township land development for parks. Love's response amounted to an email in support of Boyer's candidacy for Trustee in which he discussed certain issues which were the topic of the primary election scheduled for May of 2006. This email, sent to several individuals in the community who were related to the New Palestine Cadet Football League, stated as follows:

Unfortunately this [the allegation that Boyer intends to sell the township parks] is just not true !!!

I have been on the board of directors for the New Palestine Cadet Football League for 6 years. I have been active in our pursuit of raising funds to help with the parks board. I am pushing for the parks as much as anyone, in fact even more than most.

I have been on the fire dept. here in town since 1994 and have known Bob since then. I asked him face to face if this rumor is true, and he flat denies it. Bob may be a lot of things, but a liar is not one of them. The sad issue actually is that this rumor has been started by career firefighters that are afraid of loosing [sic] free reigns of the check book. They have stated this and several rumors to take away from the real issues. The fact is that most of these firefighters want to tell us how to vote, but they don't think our community is good enough to live in.

Bob is not going to lay firefighters off nor cut their benefits either. He will take away unnecessary cars and put people back on shift that should be there anyway.


Our fire dept. expenditures have quadrupled since 1999.

We have 5 new sport utility vehicles that have been purchased in the last 4 years that are given to officers to have free use of. I see them in Castleton, Greenwood and all over the State. We pay for them, gas and insurance. These gas guzzling SUV's are being driven home to Anderson, Greenfield, Franklin Township, and other areas outside of the township every day and YOU pay for it. They do not make emergency runs after 4pm and are just a perk that WE pay for. Large cities like Warren Twp, Lawrence Twp, City of Lawrence, Pike, Perry, and others do not have this many take home cars, and they sure don't give the cars they have to Lieutenants or Captains like we do.

Our Tax Rate is 140% higher than any other Township in the County, that includes Greenfield.

Our current trustee has given himself a 29% pay raise since 1999.

We just took out a $700,000.00 emergency loan to pay for firefighters we hired that we did not have the money for, nor do we need. We could have put some current personnel back on shift and took away their 7-4 jobs that we don't need to accomplish the same thing. We make 1,300 emergency calls with the same number of people that Greenfield makes over 4,000 calls with. WHY???

The current administration says that their gross spending habits do not affect tax rate, but where does the money come from to pay for all of this.

I train firefighters all over the State of Indiana and Northern Kentucky and have worked in Ohio, Illinois and Michigan as well. I see everyone and how they do things. This is the worst managed spending I have ever seen in my 9 years of working with 100's of fire depts.

I support Bob because he is a CPA and business man, not a driving instructor. He knows better how to handle funds of a Multi Million Dollar Business.

Who would YOU hire to manage your personal funds, a CPA or a Driving Instructor? ?!!? ?

I ask you support Bob Boyer because he is more qualified for the job and addresses current issues and not made up rumors.



(Appellant's App. pp. 76-77).

On or about May 17, 2006, Chief Rehfus terminated Love. Explaining the reasons for the termination, Chief Rehfus stated in a letter to Love that


While it is every person's [sic] right to support and vote for whoever they so choose, it is totally inappropriate to lie about a person or several persons. One of those persons that you lied about was me in an E-mail to the New Palestine Soccer League.

To be specific you stated that I did not make runs after 1600 hours. That would be a lie and you know it.

None of the administration thinks that Sugar Creek Township is good enough for them to live in. That would be lie number two because two of us live in the township. Where is the rule that says you must live in the township in order to work here?

Lie number three is that we have more take home vehicles than any other fire department. You already know that is incorrect, but you will obviously say anything that will embellish your lies.

Effective this date you are terminated from this department for conduct unbecoming a firefighter, and failure to be truthful. Lying about the Chief of the Department is an inexcusable offense.

(Appellant's App. p. 99).

On May 30, 2007, Love filed his Complaint for Damages, Injunctive and Declaratory Relief, and Request for Trial by Jury. On January 23, 2009, Appellees filed their Motion for Summary Judgment alleging that (1) Love's First Amendment Rights were not violated because false statements disseminated to the public are not protected political speech and (2) the theory of respondeat superior is not applicable under a § 1983 claim. On April 10, 2009, Love filed his Memorandum in Opposition and Designation of Evidence. On April 27, 2009, the trial court held a hearing on Appellees' Motion for Summary Judgment and the next day, the court entered its Order summarily granting judgment for Appellees and dismissing Love's claims.

Love now appeals. Additional facts will be provided as necessary.

I. Standard of Review

This cause comes before this court as an appeal from a grant of summary judgment. Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind. Ct.App.2008). Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court's ruling was improper. Id. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff's cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiff's claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

II. Freedom of Expression

Love contends that the trial court erred in concluding as a matter of law that he did not engage in a protected First Amendment activity. His argument focuses on the fact that the content of his email was substantially true and was not damaging to the operation of the Township's fire station. On the other hand, while Appellees do not dispute that Love's email contained political speech and is the reason for his termination, Appellees argue that "recklessly false statements made by a public employee enjoy no First Amendment protection." (Appellees' Br. p. 12).

Love commences the discussion in his appellate brief by quoting at length from Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), standing for the proposition that governmental employees cannot be discharged because of their political affiliation. Here, as also pointed out by Appellees, it is clear that Love was not...

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4 cases
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