Virginia Lawyers Weekly VA Lawyers Weekly
In this suit by a volunteer firefighter who alleges he resigned his position as treasurer of the nonstock Fire Department corporation and was suspended as a member after he raised issues about lack of funding and inadequate resources, the Harrisonburg U.S. District Court denies summary judgment to defendant fire department.
Plaintiffs claim the fire department’s retaliatory actions – stripping the former secretary of the corporation of his membership and “indefinitely” suspending the fire department’s former treasurer – violated their First Amendment right to free speech because the fire department is a state actor, plaintiffs were speaking on issues of “public importance,” and the retaliation was directly and proximately related to plaintiffs’ free speech right. Plaintiffs also allege the treasurer’s “indefinite suspension” amounts to a due process violation because this plaintiff has a property interest in the benefits he receives as a member of the fire department, in the form of personal property tax relief from the county and/or town, a “locality vehicle decal” at no charge, use of fire department facilities to wash and maintain personal vehicles and free use of the fire hall for events.
Because defendant fire department fails to show there are no genuine issues of material fact, summary judgment is not proper. Whether the fire department is a state actor is a question of law that requires resolution of issues of fact. The competing affidavits and deposition testimony produced thus far contradict each other as to the historical and current degree of governmental control over the department, the department’s funding and the hierarchy within the departments. There are many unresolved factual issues necessary to complete the state action analysis, and the court must wait until it hears the evidence at trial to decide the state action issue.
The court is not convinced plaintiff’s alleged property interest in personal property tax relief, a vehicle decal and use of the fire department facilities is de minimis. Plaintiff alleges an average loss of $324 per year in the form of tax relief and a free decal, $120 per year for no longer being able to wash his vehicle at the fire department, and $1,200 for his inability to rent the fire department space for free. Tax relief in any form tends to be a benefit desired by all citizens. The more than $300 in yearly tax relief is not de minimis.
Summary judgment denied to defendant.
Charles v. Front Royal Volunteer Fire & Rescue Dep’t (Urbanski) No. 5:13cv120, Sept. 18, 2014; USDC at Harrisonburg, Va. VLW 014-3-485, 7 pp.
