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The issue of whether a DeKalb County, Ga., firefighter’s First Amendment rights were violated when he was suspended for insubordination in a verbal exchange with a county official may be headed for the U.S. Supreme Court. The firefighter, James J. Travers, was off duty and participating in a salary picket on public land when he exchanged words with DeKalb’s chief executive officer, Vernon A. Jones. He was subsequently suspended for 30 days for insubordination. In June, a federal appellate panel of the 11th U.S. Circuit Court of Appeals determined that DeKalb officials did not violate the firefighter’s First Amendment rights when they suspended him. On Thursday, in the wake of that ruling, the firefighter’s attorney, A. Leroy “Lee” Parks Jr., of Parks, Chesin & Walbert, notified U.S. District Judge Robert L. Vining Jr. of the Northern District of Georgia that he intends to seek a writ of certiorari from the U.S. Supreme Court. Vining’s ruling favoring Travers was reversed by the appellate court. The question of whether an off-duty public employee picketing on a public right-of-way in front of a public building may be punished for perceived insubordination during an apparent exercise of his First Amendment privileges is at the heart of the suit. The litigation also addresses the issue of qualified immunity from prosecution for public officials. The U.S. Supreme Court in 2002 slapped down an 11th Circuit ruling giving immunity to Alabama prison guards for what the high court determined were clear constitutional violations. The firefighter’s suit stems from a 2001 exchange between Travers and Jones, who, at the time, had been in office for less than six months. Travers was suspended after he called to the CEO while he and a group of other firefighters were picketing for higher wages on a public sidewalk outside the county administration building, according to the appellate opinion. The appellate opinion states that during the demonstration, Travers spotted Jones and began chanting his name and that Jones, in turn, warned the firefighter that he would not tolerate insubordination. The two men then engaged in a verbal exchange, and, according to the appellate opinion, “There was a sharp conflict between the plaintiff and the defendants as to what transpired at that time.” Travers was subsequently suspended from his job without pay for 30 days for conduct unbecoming an officer and insubordination to the CEO. A county merit officer upheld that suspension. Travers then sued Jones, DeKalb Fire Chief Scott B. Wilder and the county, claiming he had been punished in retaliation for exercising his right to free speech. The nature of the exchange between the firefighter and the county CEO is significant because federal law does ban an employer from demoting or discharging a public employee for engaging in free speech, which is protected by the First Amendment. But according to the opinion, “An employer may, however, discipline an employee for insubordination,” and the First Amendment does not require an employer to tolerate an embarrassing, vulgar or otherwise inappropriate verbal attack simply because an employee is picketing. Last year, Judge Vining denied qualified immunity to Jones and Wilder. Vining also refused to grant summary judgment to the county, in part because “the merits of the case turn on whether the plaintiff’s or the defendants’ version of the facts is correct,” according to the appellate opinion. But the appellate panel reversed Vining’s ruling. In doing so, the panel insisted that any questions of fact were resolved in the administrative merit hearing after Travers appealed his suspension. Because the merit officer “did not indicate” any errors of fact that would reverse the suspension, those findings “are binding upon the court in a case such as this one if the employee received a full and fair opportunity to present his case in the administrative hearing,” the opinion states. “Under Georgia law, once an administrative body rules on questions of fact, the questions of fact are thereafter precluded from relitigation.” The federal appellate panel also took issue with Vining’s determination that the county merit ruling had been less than fair. In district court pleadings, Travers had asserted that in the merit hearing he had been unable to compel two witnesses, at least one of them a lawyer, to testify on his behalf. Nor could he compel the attendance of Jones or subject him to cross-examination. But the appellate opinion chided Travers for his own inaction in failing to notify witnesses in a timely fashion. “Contrary to the decision of the district court, it appears that Travers did receive a full and fair opportunity to litigate at an administrative hearing,” the opinion says. Members of the appellate panel included Circuit Judges Gerald B. Tjoflat, Stanley F. Birch Jr. and Senior Judge Paul H. Roney. The decision was written per curiam.

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