Ex-firefighter’s lawsuit dismissed

Judge: plaintiff attempted to tamper with witness before hearing


A federal judge last month dismissed a former Long Beach firefighter’s six-year-old lawsuit against the city, which claimed that his First Amendment right to free speech had been violated and that he had been the object of political retaliation after he publicly criticized Fire Department operations and a number of high-ranking city officials.

U.S. District Judge Ann Donnelly also said that the plaintiff, Jay Gusler, attempted to intimidate and tamper with a witness, former professional firefighter Michael Seeman, which “might well constitute a crime.”

Gusler, a former professional firefighter who joined the department in 1993 and was promoted to lieutenant in 1998, had filed numerous claims against city officials — including then City Manager Charles Theofan and Fire Commissioner Scott Kemins — amid a rift between the paid and volunteer members of the department. The majority of the suit was dismissed in August.

Gusler has been an outspoken critic of the volunteer firefighters’ recruitment and training as well as the way the department as a whole has been run, and has claimed that city policies endanger the public.

He was demoted from his position as executive officer and slapped with a number of disciplinary charges, including a suspension, after he challenged the city’s power structure and attempted to “shed light on the corruption, ineptitude and incompetence of the Long Beach Fire Department,” according to the complaint. As a result, he faced violent threats, and “his career has been destroyed and his life turned upside down.”

Last year, Gusler was dismissed when he was found guilty of misdemeanor forgery and identity theft after prosecutors made the case that he misled the city to win a bid to install a new boiler at the Rec Center, only to perform substandard work that ultimately cost the city money. Gusler strongly denied those accusations, and his attorney claimed that the charges were politically motivated.

The judge described what she called Gusler’s “personal vendetta” against the volunteers and a litany of grievances with officials. At a hearing on Dec. 2, she ruled that comments he made online criticizing volunteers, chiefs and other officials undermined Fire Department operations — and possibly residents’ safety — and were not constitutionally protected.

“Gusler was looking to drive that wedge — he was looking to exacerbate that situation,” said attorney Paul Millus, who represented the city. “He wanted to draw a line in the sand between the paid firefighters and volunteers, to the detriment of the citizens of the city of Long Beach. What the judge did was, essentially, finally put to bed Mr. Gusler’s claims that he was simply a citizen speaking out on matters of public concern for the benefit of the citizens of Long Beach.”

Attorneys for Gusler declined to comment on the case, and said they are considering an appeal.

A wide range of complaints

According to court documents, the concerns Gusler voiced ranged from alleged misconduct by the department’s chiefs and city officials to a dispute with the administration about staffing. In a 2008 letter to Theofan, Gusler described the “dire state” of volunteer firefighters’ performance, and called on the city to increase the number of paid firefighters on overtime during busy summer weekends.

Gusler also spoke out on the Schwartz Report, an online blog, in 2009, alleging that various volunteer members had criminal records. In 2011 he mocked volunteers for their allegedly slow response times and inferiority on Long Beach Patch, according to court documents. And in a 2010 letter to Theofan, he repeated what Donnelly called “well-worn” grievances.

“Indeed, the plaintiff’s primary motivation in each instance was personal, and was driven by his disdain for the volunteer members of the department and his resentment that volunteer members supervised him,” the judge said.

The city also rejected many of Gusler’s accusations, and moved to have the lawsuit dismissed. Officials said that the lawsuit cost the city nearly $220,000 in attorney fees alone.

Kemins and former Fire Chief Richard Corbett testified that Gusler’s comments undermined the teamwork and trust that is crucial to the department’s operations, hurt morale, were one of the “driving forces” in widening the rift between volunteer and paid members, and potentially put the safety of firefighters and residents at risk.

A courtroom twist

The Dec. 2 hearing took an unexpected turn, according to those in attendance, when Seeman, a witness for the plaintiff and now a firefighter in Westchester County, told Donnelly that he was concerned after Gusler called his boss before the hearing and suggested that Seeman’s testimony might cause problems for him at work.

“It’s scary about what I answer,” said Seeman, who worked as both a paid and volunteer firefighter in Long Beach. “He’s done this before to other people, and called their work and gotten them in trouble, and I’m concerned about what’s going to happen … with my employment.”

In her Dec. 9 decision, Donnelly wrote that Seeman was “visibly nervous” and uncomfortable. Because of the alleged witness tampering, Gusler chose not testify at the hearing.

“Beyond its obvious impact on the witness, the plaintiff’s attempt to tamper with a witness speaks volumes about the purposes of his speech,” Donnelly wrote. “The plaintiff’s intimidation effort underscores that he intended to bolster himself and lash out at the volunteers — rather than express concern about the effectiveness of the volunteers or the safety of the residents of the city of Long Beach.”

At the hearing, Gusler’s attorney, Gary Novins, said that his client believed he did nothing wrong.

Novins questioned accusations that Gusler’s actions were responsible for the rift between professional and volunteer firefighters, which he called speculative. He said that witnesses failed to provide specific examples of his online posts causing actual harm to the department.

But Donnelly disagreed, and wrote that Kemins, Corbett and Seeman provided credible testimony. In one instance, volunteers refused to help paid members clean up their equipment and pack up their engine, as had been done in the past. Even more alarming, she wrote, was talk that volunteers were refusing to supply paid firefighters with water at a fire.

“As a practical matter and as a matter of public policy,” the judge wrote, “a public entity like the Fire Department should not have to wait until an employee’s speech actually causes specific damage.”