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McClernon v. Beaver Dams Volunteer Fire Dep't

May 24, 2007

MICHAEL J. MCCLERNON, PLAINTIFF,
v.
BEAVER DAMS VOLUNTEER FIRE DEPARTMENT, INC., DEFENDANT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

INTRODUCTION

Plaintiff Michael J. McClernon, Sr., ("McClernon") a former President of the Beaver Dams Volunteer Fire Department ("Beaver Dams" or the "Fire Department" or "Department") brings this action pursuant to 42 U.S.C. § 1983 claiming that his civil rights were violated in connection with his suspension and expulsion from the Department. Specifically, McClernon contends that he was retaliated against for exercising his right to freedom of speech when he was voted out of the Department after having written a letter to the United States Fire Administration complaining that the Fire Department had not received a fair proportion of grant money, and that other fire departments which had received grants were unworthy of receiving such money either because they didn't need the money or had misused grant money in the past. McClernon asserts that because he was exercising his right to speak freely on a matter of public concern, his expulsion from the Fire Department unlawfully violated his right to free speech as guaranteed by the First Amendment to the United States Constitution.

BACKGROUND

Plaintiff Michael McClernon, Sr., is a former member, President, and Chief of the Beaver Dams Fire Department. In October, 2003, he served as president of the Board of Directors of the Fire Department. On or about October 1, 2003, McClernon sent a letter via e-mail to the United States Fire Administration, a governmental agency, in which he complained that the Fire Department had not received adequate monetary grants from the federal government (hereinafter, the "McClernon letter"). Plaintiff copied the letter to United States Senators Schummer and Clinton, United States Representative Randy Kuhl, and Tim Hudson, the Department's Fire Chief. Specifically, McClernon wrote:

Dear Sir,

As we are aware of the overwhelming need for funding, I for one can not understand how a neighboring Fire Dept. with great means of funds available to them, can get a $348,000.00 grant for a Firetruck that they didn't need, {other than the need to showcase it} just because they didn't have this innovated [sic] piece of Equipment? {Pumper-tanker} also [sic] this Dept. is home to the State Fire Academy, and our Dept. is just a one-horse town out in the middle of nowhere, and we can't get a grant that would benefit several smaller Dept's. in our area. We are all small Dept's. and we rely heavily on each other, for equipment that none of us can afford. In 2001 I put in for 30 sets of turnout gear that was desperately needed for the safe outfitting of my Firefighters, and the City of Buffalo gets close to $250,000.00 for gym equipment. Our Dept. can't afford a grant writer. I've attended seminars on this issue.

I don't understand the fact that another neighboring Fire Dept. misappropriated their [sic] money last year, is under investigation, and still got another grant this year. I don't wish to sound immature, But [sic] I feel that all of the Dept's that didn't get a Grant the last few years feel the same way. I truly wish there was another way to appropriate these funds, other than a group of people looking at these applications, and from a distance, make [sic] a decision on someone's creative way of saying they need this, I wish it could be investigated by a panel to see if they actually need this money, or at least prioritize who gets the money. Lets face it, there is quite a bit of creativity going on. I tried to be very honest to the fact that we needed this money. I been [sic] told by both these Dept's. I've referred to in this letter, The Beaver Dams Vol. Fire Co. Inc. does not have a village or a Town to pay its bills, we pay all of our bills, and as you know, costs go up each year, and with taxes increasing each year, we rely on getting Grants to help us update our abilities that we don't have money for.

I wish not to keep you from other duties, but I feel as President and also past Chief of our Dept. I needed to voice my opinion on this matter. I await a reply that is not just your form letter you send to all Dept's. I wish to hear straight from the horses [sic] mouth what we need to do to be more competitive in these Proceedings.

Exhibit 2 to Plaintiff's Affidavit in Opposition to Defendant's Motion for Summary Judgment. Although the letter was not approved by the Board of the Beaver Dams Fire Co., Inc., McClernon signed the letter as President of Beaver Dams Fire Company.*fn1

In addition to its intended recipients, The McClernon letter found its way to the Chiefs of the Fire Departments that McClernon had referenced in the letter. Although McClernon had not specified the name of the fire department that had recently received funds for a truck that it "didn't need," it was widely known that the letter referred to the Montour Falls Fire Department. Similarly, it was known that the fire department that was believed to have "misappropriated funds" was the North Corning Volunteer Fire Department.

Upon receipt of the letter, the Chiefs of the two fire departments contacted the Beaver Dams Fire Company to express their displeasure with the accusations made against them by the President of a neighboring Fire Department. See Defendant's Statement of Undisputed Facts at ¶ 8. Thereafter, the Board of Directors of the Fire Company held a special meeting on October 21, 2003 to discuss how to handle the controversy that resulted from McClernon's letter. Because the meeting involved plaintiff's conduct, several board members asked that control of the meeting be given to the Vice President. Plaintiff, however, refused to cede control of the meeting and thereafter the Board voted to appoint the Vice President as the Acting President. The Acting President then excused plaintiff from the meeting, and discussed plaintiff's situation with the Board. The Fire Chief of the North Corning Fire Department expressed his concerns to the Board, and following the meeting, the Board voted to suspend plaintiff from his position pending investigation into the circumstances surrounding the sending of the letter and the consequences resulting from the sending of the letter.

Upon learning of his suspension, plaintiff allegedly made personal telephone calls to members of the Board, in violation of the Boards standard operating procedures. On October 24, as a result of this conduct, and his conduct at the October 22, 2003 meeting, plaintiff was charged by the Board with Inappropriate Behavior and Harassment.

On November 2, 2003 the Board of the Fire District held a general membership meeting to discuss McClernon's conduct. At McClernon's request, the Board allowed the general membership, by a vote, to determine whether or not he should be disciplined, and, if discipline was to be imposed, the measure of discipline. During the meeting, the membership agreed to conduct further investigation into the letter, but imposed a suspension of approximately 2 ...


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