A volunteer fireman sued a volunteer fire department, its chief and others, under 42 U.S.C. §§ 1983, 1985 and 1988, seeking a declaration that his dismissal violated his First Amendment rights and requesting an injunction ordering his reinstantement. The District Court (Ellen B. Burns, Judge ) dismissed the action after trial on the ground that appellant's expulsion was not state action and that his expulsion was sustainable independent of First Amendment grounds. The Court of Appeals held that the dismissal was state action, that some of appellant's conduct involved First Amendment rights, but that under the doctrine of Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968), the relationship between appellant and his fellows in the volunteer fire department was so close and the defendant's conduct so egregious that his activities on balance were not protected by the First Amendment. The Court also held that a By-law of the Department as applied was neither vague nor overbroad. Affirmed.
Before Mansfield and Gurfein, Circuit Judges, and Leval, District Judge.*fn*
Appellant, Robert Janusaitis, a volunteer fireman, sued the Middlebury Volunteer Fire Department (MVFD or the Department), the chief of MVFD (the Chief), and the Members of the Executive Committee of MVFD under 42 U.S.C. §§ 1983, 1985 and 1988. He sought a declaration that his dismissal from the MVFD violated his First Amendment rights. He also requested an injunction ordering his reinstatement. In addition, he challenged the validity of the regulation under which he was dismissed on the grounds of vagueness and overbreadth. After a trial on the merits, the United States District Court for the District of Connecticut (Hon. Ellen B. Burns, Judge) dismissed the action on the grounds that the MVFD's expulsion of the appellant did not constitute state action*fn1 and that, assuming state action, the dismissal did not violate the plaintiff's rights since there were sufficient grounds for dismissal independent of any First Amendment rights.
We hold that the Department's dismissal of the appellant from the MVFD constituted state action and that his conduct involved speech, but that balancing appellant's abrasive and personally motivated conduct against the particular need for close and harmonious relations among the members of a volunteer fire force, the dismissal did not violate appellant's First Amendment rights. We hold, moreover, that Rule 13 of the Department's By-laws, under which the appellant was dismissed, is neither unconstitutionally vague nor overbroad as applied.
Appellant joined MVFD in 1973 at the age of eighteen. In 1976, the membership elected him lieutenant for a one-year period. The events giving rise to this cause of action occurred between April and November of 1977 when he was a twenty-two year old accountant.
In April 1977 appellant submitted a report containing numerous criticisms of the management of the Department to the Executive Committee, a small body of non-officers. The report included charges that morale was low, that training and discipline were inadequate, that accounting procedures deviated from generally accepted accounting principles, and that his past recommendations on these subjects had been ignored.
In July, apparently dissatisfied with the reaction of the Executive Committee, the appellant drafted a letter to the Internal Revenue Service. The text was as follows:
I hereby relinquish myself from all liability both financially and crimminally (sic) from any action against the Middlebury Volunteer Fire Department, concerning their accounting procedures.
I have notified the department that they are violating the Internal Revenue Code and generally accepted accounting principles.
I can document all my findings.
The appellant handed a copy of the letter to the Chief and to the Chairman of the Executive Committee, and threatened to mail the original to the IRS if accounting practices were not changed promptly. Though a committee was appointed on July 11 to investigate the tax exempt status and accounting policies of the Department, both the Executive Committee and the Chief were annoyed by the threat and determined that some disciplinary action was warranted. The Chief initially executed an informal suspension and then, after the Executive Committee formally recommended a 30-day suspension, suspended the appellant pursuant to Rule 13 of the By-laws, which provides for the discipline of any member engaging in "unbecoming conduct detrimental to the welfare or good name of the Department." At the time of the suspension, the appellant admitted that he was aware of the Department's policy that complaints should first be brought in house, and conceded that his conduct was in error.*fn2
On September 4, several days after returning to active duty, the appellant, nevertheless, wrote a letter to the Chief charging that his suspension was politically motivated and that the actions of the officers and Executive Committee with regard to the suspension were malicious, reckless, imprudent, illogical, immoral, unethical and in violation of the appellant's rights "as a citizen of the United States . . . ." The appellant demanded "an Immediate apology." In addition, the appellant consulted a law firm, which wrote to the Executive Committee requesting that the suspension be expunged and suggesting that otherwise litigation would follow.
On October 24, the appellant delivered a letter to the First Selectman of the Town. The cover page stated, "Attached is a copy of a letter which will be sent to the news media within seven (7) days." The attached letter, addressed to the editor of a Waterbury paper with copies to two other local papers and a radio-TV station, suggested that the First Selectman lacked "respect for the law," that the Department and the First Selectman were trying to "cover up," and that the appellant, "with deep regret," was planning to sue the Department for "violating (his) rights as a citizen of this country." When the Selectman showed him the letter one week later, the Chief stated, "(T)his is it he's got to go." The Chief promised the Selectman, however, that he would discuss the letter with no one until after the coming election, then one week away.
The final episode in the events preceding the dismissal concerns a newspaper story, published on November 5, entitled "Fireman Tells Story After Reinstatement." The story, printed after several conversations between the appellant and a reporter, stated appellant's complaint with regard to the failure of MVFD to have its own federal income tax number as a non-profit organization, indicated that appellant intended to bring the matter to the attention of the Internal Revenue Service if the violations were not corrected, and reported that appellant was considering suing the MVFD on the ground that the 30-day suspension involved a denial of due process.*fn3
On November 6 the Chief summoned appellant to appear before a meeting of the officers on November 9 "to discuss (appellant's) recent conduct in statements made and documented in public which may constitute conduct detrimental to the good of the Department." At the conclusion of the meeting the appellant was dismissed from the Department. In a subsequent letter detailing the grounds for dismissal the Chief pointed to dereliction of duties, the threat posed by the IRS letter, the threat of legal action if the suspension were not rescinded, misinformation given to the public in the newspaper article with regard to the grounds for the suspension, the threat to the First Selectman, and contribution to the decline of morale as well as participation in "activities detrimental to the Good Welfare of the Department."*fn4 On appeal to the Executive Committee, the dismissal was upheld by a unanimous vote.
The District Court's first ground for dismissing the complaint was that the actions of the MVFD did not constitute the state action required under § 1983 and the Fourteenth Amendment. In so concluding, the Court relied largely on the "nexus" test of Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974). Applying the five indicia of state action set out in Jackson v. The Statler Foundation, 496 F.2d 623 (2d Cir. 1974), the Court concluded that while the financial contribution by the Town to the MVFD was considerable, the dismissal of the plaintiff could not be considered state action because the Town was not involved in the regulation of departmental activities, and there was no nexus between the Town's involvement with the Department and the disciplinary activities of the Department.*fn5
In its discussion of state action, the District Court rejected as inapplicable the doctrine of Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961),*fn6 and distinguished earlier cases which found state action by volunteer fire departments, See Everett v. Riverside Hose Co. No. 4, Inc., 261 F. Supp. 463 (S.D.N.Y.1966); Williams v. Rescue Fire Co., 254 F. Supp. 556 (D.Md.1966), on the ground that those cases involved allegations of racial discrimination and were thus subject to a less exacting standard. It also distinguished Holodnak v. Avco Corp., Avco-Lycoming Div., Stratford, Conn., 381 F. Supp. 191 (D.Conn.1974), Aff'd, 514 F.2d 285 (2d Cir. 1975), Cert. denied, 423 U.S. 892, 96 S. Ct. 188, 46 L. Ed. 2d 123 (1975). In Holodnak, supra, 514 F.2d at 288-89, we explained the meaning of Burton and applied it to a First Amendment violation. In Burton the private lessee of a restaurant in a state parking authority complex had engaged in racial discrimination. Chief Judge Kaufman noted that "because the Parking Authority had "insinuated itself into a position of interdependence' with the restaurant in carrying out its accepted governmental responsibilities, it had an obvious interest in the permissibility of the challenged activity. . . ." "To fail to recognize state action . . . would, in many cases, permit the Government to endorse and encourage conduct in which it could not itself permissibly engage."
Judge Burns, after concluding that the dismissal of the appellant did not constitute state action, noted that even if state action were present, the facts would not support the First Amendment claim. The Court apparently assumed that of the various communications involved only the communications with the newspaper implicated First Amendment protections. Since the facts showed that the communication with the newspaper was "not the primary or even substantial reason for (appellant's) dismissal," the Court concluded that the dismissal was not unconstitutional under the holding of Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977).*fn7
The Middlebury Volunteer Fire Department was established in January 1941 after a special town meeting. The Department performs its fire-fighting functions pursuant to an agreement with the Town promulgated under a state statute authorizing any town to "enter into an agreement with any volunteer fire company or companies within the town for the protection thereof from fire on such conditions as to financial assistance and the observance of the regulations of the board of selectmen, town council or board of fire commissioners as such ordinance prescribes . . . ." Conn.Gen.Stat. § 7-301. The state also provides, by statute, that a municipality must indemnify volunteer firemen to the extent of any damage for which they become liable in the course of fire-fighting duties, Conn.Gen.Stat. § 7-308, and that volunteer firemen "shall be construed to be employees of the municipality" for purposes of workmen's compensation. Conn.Gen.Stat. § 7-314a.
The Town Board of Selectmen has final vote of approval of the person elected by the membership as Chief of the MVFD. The Department occupies land and buildings which are owned by the Town free of charge, and also uses fire-fighting equipment owned by the Town. In its budget for fiscal year 1976-1977, the Town provided the sum of $37,714 for fire protection and in April of 1978 ordered a new truck at a cost of $68,000 for use by MVFD. Although all the ...