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AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES v. D.C.

May 2, 2005.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3721 and KENNETH LYONS, Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant.



The opinion of the court was delivered by: JOHN BATES, District Judge

MEMORANDUM OPINION

This matter comes before the Court on a motion for a temporary restraining order ("TRO") and preliminary injunction against defendant District of Columbia. Plaintiffs the American Federation of Government Employees, Local 3721 ("Local 3721") and its president, Kenneth Lyons, represent emergency medical technicians ("EMTs") and paramedics who are employed by and provide ambulance assistance for the District of Columbia. The dispute arises out of an alleged change to the administrative leave policy of the D.C. Department of Fire and Emergency Medical Services ("Department") on January 25, 2005, which allegedly makes the availability of administrative leave for Local 3721 officers to speak with public officials contingent on the viewpoints to be expressed at such meetings, in violation of plaintiffs' First Amendment rights. Plaintiffs seek an injunction prohibiting defendant from implementing the alleged new policy and directing defendant to return to the administrative leave policy in effect prior to January 25, 2005.

At a status hearing held on March 8, 2005, plaintiffs agreed to hold their motion for a TRO in abeyance and proceed with expedited briefing on their motion for a preliminary injunction, subject to a renewed request for action on the TRO should plaintiffs be faced with a denial of an administrative leave request on allegedly unlawful grounds. The Court subsequently held a hearing on the motion for a preliminary injunction on March 22, 2005. At that time, it became apparent that the Department had voluntarily ceased applying a viewpoint-based policy to requests for administrative leave to meet with public officials, to the extent one had been in effect. Thus, the Court encouraged the parties to reach a resolution of their differences, and the parties agreed to make such efforts. A few days after the hearing, the Department memorialized its administrative leave policy in a letter to Local 3721 and another affected union — a policy that appears to address plaintiffs' First Amendment concerns. See Def.'s Notice of Filing (Mar. 31, 2005). However, the parties have been unable to reach a resolution disposing of the motion for a preliminary injunction. Accordingly, the Court now proceeds to address whether the entry of a preliminary injunction is warranted based on the factual record as it presently exists. Although the events that allegedly transpired on January 25, 2005 raise serious First Amendment concerns, the Department's subsequent actions formally implementing an administrative leave policy that is content-neutral weigh heavily against the extraordinary relief of a preliminary injunction. As explained in more detail below, the Court therefore denies plaintiffs' motion for a preliminary injunction.

  BACKGROUND

  A. The Relationship Between the Parties

  Local 3721 is the collective bargaining representative for civilian emergency medical services personnel who are employed by the District. The District agency charged with administering these services is the D.C. Department of Fire and Emergency Medical Services. Plaintiff Kenneth Lyons is a long-time civilian paramedic employed by the Department and the current president of Local 3721. A separate union, the International Association of Firefighters Local 36 ("Local 36") is the collective bargaining representative for uniformed fire fighters employed by the Department. In addition to fire rescue and control, the fire fighters also are occasionally assigned to provide basic emergency medical services.

  Plaintiffs allege that the Chief of the Department, Adrian H. Thompson, has cut training, staffing, and other resources previously allocated to the Department's emergency medical services. Lyons and other Local 3721 officers have expressed their opposition to these changes within the Department, to the press, and to local and federal elected officials and agency administrators, on the ground that the changes have compromised the quality of the emergency medical services provided to the public. In 2004, and again this year, certain D.C. Council members introduced a bill referred to as the "Third Service Legislation" that proposes to remove emergency medical services from the Department, to be placed in another existing District agency or in a new independent agency. The bill is currently pending before the D.C. Council. Defendant admits that Chief Thompson and the fire fighters' union oppose the Third Service Legislation. Plaintiffs support the legislation and have organized and spoken out in support of it.

  In the past, Local 3721 officers have been granted "administrative leave" to meet with public officials on issues of concern to the union, the Department, and the public. Administrative leave, also known as "official leave," excuses an employee from work without loss of pay or charge to his/her personal leave. Verified Am. Compl. ¶ 16; Answer ¶ 16. While on administrative leave, "an employee is actually on the payroll and doing the business of the employer." Decl. of Kenneth E. Jackson ("Jackson Decl.") ¶ 10 (Ex. 8 to Def.'s Opp. to Pls.' Mot. for Preliminary Injunction (filed Mar. 15, 2005) ("Def.'s Opp.")). The terms of the collective bargaining agreement ("CBA") between Local 3721 and the Department address the circumstances under which administrative leave will be granted. Article 3, Section A.2, states:
The approving Management official may approve administrative leave for unit employees to attend activities of mutual benefit to the Union and the Employer as mutually agreed upon, provided it creates no conflict with staffing needs. The Union President or his/her designee and the Fire Chief or his/her designee will determine activities of mutual benefit.
Ex. 1 to Def.'s Opp. (emphasis added). Article 5, Section D.6, further provides that:
Union officers and stewards who are unit members will be permitted reasonable official time, in accordance with this Article to engage in the following Labor-Management business: . . .
. . .
6. The Union President may meet with public officials on issues of mutual benefit to both Labor and Management.
Id. (emphasis added).

  Plaintiffs allege that prior to January 25, 2005, the Department had a practice of routinely granting administrative leave to Local 3721 officers based only on (1) an officer's submission of the dates of the requested leave in advance of a meeting with a public official, and (2) noninterference of the leave with adequate staffing. During such meetings with public officials, plaintiffs have discussed their concerns about changes within the Department and the impact of these changes on the Department's ability to provide quality emergency medical services to the District.*fn1 Plaintiffs allege that in or around January 2005, in the course of local media coverage over the proposed Third Service Legislation, Mayor Anthony Williams was "questioned aggressively" about the legislation on a radio show. Prior to that incident, from January 2003 to January 2005, neither Lyons nor any other employee represented by Local 3721 had been denied administrative leave because of inadequate staffing.

  B. The Alleged Change in Policy on January 25, 2005

  Plaintiffs allege that, on January 25, 2005, shortly after the Mayor's radio appearance, Kenneth E. Jackson, Executive Officer to the Fire Chief, denied Lyons' requests for administrative leave to attend meetings with public officials on January 26 and February 2, 2005, because Lyons had criticized the Chief and his policies. Verified Am. Compl. ¶ 20. Lyons' testimony is that
Jackson informed Lyons that Chief Thompson would no longer approve administrative leave for Local 3721 officers to attend meetings with public officials to criticize the Chief and his policies. Jackson stated that from that point forward, the Chief would be personally reviewing the Local's requests for administrative leave and that any future requests for administrative leave to attend meetings with public officials must state the subject matter of the proposed meeting and the substance of any statements the Local 3721 officer plans to make at the meeting.
Id. Lyons further avers that Jackson stated that these new administrative leave requirements would not apply to the fire fighters' union, Local 36, which happened to support Chief Thompson in opposing the Third Service legislation. Id. ¶ 21. The policy expressed at the January 25, 2005, meeting did not exist in writing. Id. ¶ 29.

  Lyons used his personal leave in order to attend the above-referenced meetings. Another officer of Local 3721, Steven Chasin, submitted a leave request on February 11, 2005, requesting administrative leave to meet with a public official on February 17, 2005, without specifying the subject matter of the meeting or the substance of his planned remarks. Jackson denied this administrative leave request, too. Based on Jackson's statement and the denials of the administrative leave requests, plaintiffs brought this action pursuant to 42 U.S.C. § 1983 alleging that Jackson's actions constitute an impermissible prior restraint on speech in violation of plaintiffs' First Amendment rights. Preliminary injunctive relief to halt implementation of the January 25, 2005 policy and return to the prior procedure for administrative leave requests has been sought by plaintiffs.

  C. The Policy Promulgated on March 25, 2005

  At the preliminary injunction hearing, defense counsel denied that the Department had a policy of denying administrative leave based on the content of the requester's planned speech. Tr. Mot. Hr'g at 43-45 (Mar. 22, 2005). Counsel referred to a letter from Jackson to Lyons dated March 10, 2005, as evidencing this position, which explained the basis of the denial of Lyons' administrative leave request dated March 9, 2005 as follows: "While the agency is not interested in what you might say, it is concerned that you indicate in your request ...


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