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Cassidy v. Salt Lake County Fire Civil Service Council3/4/1999
(For Official Publication)
Third District, Salt Lake Department The Honorable Homer F. Wilkinson
This case comes to us on appeal from a decision of the Third District Court affirming a ruling of the Salt Lake County Fire Civil Service Council (the Council). Appellant James Cassidy claims the Council violated his First Amendment free speech rights by failing to promote him to captain. We affirm.
BACKGROUND
The Salt Lake County Fire Department hired Cassidy on August 1, 1982, as a firefighter. His free speech claim stems from two separate incidents. The first took place in 1990 when Cassidy filed a grievance challenging a new protocol regarding the handling of fire code violations uncovered during routine inspections. Cassidy asserted, among other things, that the change was illegal and contrary to the fire department's mission. Captain Scott Collins, Cassidy's immediate superior, and Fire Chief Larry Hinman both rejected Cassidy's grievance. Cassidy then went to Terry Holzworth, Director of Public Works, who rejected Cassidy's approach to him as being outside the grievance process. Finally, Cassidy appealed to the Salt Lake County Civil Service Review Commission, which also rejected Cassidy's appeal as outside its jurisdiction.
The second incident occurred in 1992 when Cassidy objected to the creation of a "wildland fire crew." The proposed wildland fire crew would allow the fire department to hire and train part-time firefighters to fight brush fires, thus allowing full-time firefighters to concentrate on structural fires or fires threatening lives and property. After expressing his opposition to his captain and other co-workers, Cassidy approached Deputy Chief Don Berry. Although Cassidy told Deputy Berry he would "take action to see that the department didn't hire those people," he never filed a formal grievance regarding the creation of the wildland fire crew.
In October 1992, Cassidy was promoted to the position of Hazardous Material Firefighter with an increase in pay. As of October 19, 1992, Cassidy was the highest ranking candidate on the department's promotional register. Nevertheless, neither Cassidy nor Jay Miles, who were both qualified applicants, was interviewed for a promotion announced that month. This was a violation of Salt Lake County Civil Service policy 2150.3.2.2, which required that if an individual had not been interviewed for a position within the last ninety days before the interview, he or she must be re-interviewed for the position. Because Cassidy had recently received a promotion, and because the department mistakenly believed Cassidy had been interviewed within the ninety-day window, it was assumed there was no need to interview him. The department subsequently announced that Mont Cooper was given the captain position.
Upon learning of its oversight, however, the department granted both Cassidy and Miles interviews, essentially to satisfy the technical requirements of the Civil Service rules. During Cassidy's interview, the interviewers discovered Cassidy had secreted a tape recorder under his jacket and was recording the interview. On November 23, Cassidy filed a grievance with the Council, alleging he had been denied fair procedure in the interview process.
In the meantime, another station captain position became available. Four candidates were eligible for that position: George Painter, Miles, Cooper, and Cassidy. The interview committee, consisting of Assistant Chief Corack, Assistant Chief Swenson, Battalion Chief Lindburg, and Deputy Chief Berry, convened in December 1992 to conduct interviews for that position and the position prematurely given to Mont
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