Love v. Rehfus, 30S01–1004–CV–162.

Docket NºNo. 30S01–1004–CV–162.
Citation946 N.E.2d 1
Case DateApril 21, 2011
CourtSupreme Court of Indiana

946 N.E.2d 1
32 IER Cases 316

Bradley J. LOVE, Appellant (Plaintiff below),
Robert REHFUS, Individually and in His Capacity as Fire Chief of the Sugar Creek Township Fire Department, and Sugar Creek Township, Appellees (Defendants below).

No. 30S01–1004–CV–162.

Supreme Court of Indiana.

April 21, 2011.

[946 N.E.2d 5]

Andrew P. Wirick, Indianapolis, IN, Attorney for Appellant.Steven C. Jackson, Bloomington, IN, Attorney for Appellees.

On Petition to Transfer from the Indiana Court of Appeals, No. 30A01–0905–CV–250.
SULLIVAN, Justice.

A township fire chief terminated a firefighter for sending a private email supporting a political candidate running for township trustee to a small group of citizens because the chief believed the email contained false statements of fact. We find that the email was constitutionally protected speech under the test set forth in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and its progeny. We also conclude that there are genuine issues of material fact that must be resolved in order to determine whether, as a matter of state law, the township is liable under 42 U.S.C. § 1983 for the fire chief's actions.


The plaintiff, Brad Love, was a volunteer and part-time firefighter for the Sugar Creek Township Fire Department (“Department”) during the spring of 2006. 1 During the Republican primary election that spring, Bob Boyer, a retired volunteer firefighter, challenged the incumbent, C.O. Montgomery, for the office of Sugar Creek Township Trustee. One of the Trustee's principal duties is to appoint a fire chief to oversee the Department.

Boyer's campaign platform was based on what he viewed as unnecessary spending and inefficient management by the incumbent, particularly with regard to the Department. Specifically, he took issue with the Department purchasing five new vehicles over the past several years without using a bid process and then allowing five paid Department officers to drive the vehicles home and have them for personal use. Boyer also thought that the incumbent made a mistake in hiring as fire chief the defendant, Robert Rehfus (“Chief Rehfus”), who Boyer described as “a ‘big city’ fire chief with ‘big city’ ideas.” Appellant's App. 219. He pledged that, if elected, he would “hire a fire chief with practical knowledge of running a small fire department.” Id. Not surprisingly, the election was hotly contested within the Department—most of the volunteer firefighters, including Love, supported Boyer and most of the career firefighters, including Chief Rehfus, supported the incumbent.

In addition to the concerns with the Department, Boyer also opposed the township

[946 N.E.2d 6]

purchasing what he viewed as prime development land for a public park before seeking a less expensive alternative. Once the land was purchased, however, Boyer publicly committed to work toward the development of the park. This campaign issue gave rise to the current dispute.

On April 24, 2006, a few weeks before the May 2nd primary, an email concerning Boyer's intentions with regard to the parcel of land set aside for the park was forwarded to Love by an acquaintance. The email alleged that Boyer would, if elected, sell the land. Two days later, while off-duty and from his home computer, Love sent a responsive email to a small group of citizens associated with a local children's athletic league. Love's email supported Boyer's candidacy and discussed several issues, including the park, that were the topic of the upcoming primary election. The email read as follows:

Unfortunately [the allegation that Boyer intends to sell the township parks if elected] 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 started 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 [sic] are being driven home to Anderson, Greenfield, Franklin Township and other area's [sic] 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 personal [sic] back on shift and took [sic] 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

[946 N.E.2d 7]

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 [sic] 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 [to] support Bob Boyer because he is more qualified for the job and addresses current issues and not made up rumors.

Appellant's App. 59–60.

Eventually, a copy of Love's email made its way to Chief Rehfus. After consulting with township counsel, Chief Rehfus sought to verify whether some of the numbers cited by Love in his email were in fact true. The Chief was particularly offended by the statement alleging that “[t]hey do not make emergency runs after 4PM” because he had routinely made such runs. Concluding that Love had made some false statements in the email, on May 17, 2006, Chief Rehfus terminated Love's employment for conduct unbecoming a firefighter and failure to be truthful, in accordance with the Department's General Orders. The termination letter read as follows:

While it is every persons [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.

Id. at 61.

Love filed suit under 42 U.S.C. § 1983 in Hancock Circuit Court against Chief Rehfus, in both his individual capacity and his official capacity, and against Sugar Creek Township for violating his federal constitutional rights under both the First and Fourteenth Amendments. The defendants filed a motion for summary judgment arguing both (1) that Love's constitutional rights were not violated because false statements are not protected by the First Amendment, and (2) that the Township could not be held liable under § 1983 on a theory of respondeat superior. The trial court entered summary judgment for the defendants on both grounds.

The Court of Appeals reversed. Love v. Rehfus, 918 N.E.2d 448 (Ind.Ct.App.2009). First, it held that Love's statements were protected by the First Amendment because, even if false, they did not cause any actual harm to the Department. Id. at 453–57. Second, it held that the Township was subject to liability under § 1983 because Chief Rehfus established final government

[946 N.E.2d 8]

policy respecting employment decisions within the fire department. Id. at 457–58.

The defendants sought, and we granted, transfer, Love v. Rehfus, 929 N.E.2d 789 (Ind.2010) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).


We first address the defendants' argument that the First Amendment does not protect Love's speech. This Court has not addressed the First Amendment rights of government employees 2 since Indiana Department of Highways v....

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