More than three months after Douglas Day was fired as a police officer at the Capitol, state officials provided him documents showing that a Facebook post about a protest at the Capitol led to his dismissal.
Day was fired on Feb. 6, three days after his Facebook post. He was writing about a protest over the state’s response to the Freedom Industries chemical leak and the subsequent water crisis.
“If there was any time I despised wearing a police uniform, it was yesterday at the Capitol during the water rally,” Day wrote. “A girl I know who frequents the Capitol for environmental concerns looked at me and wanted me to participate with her in the event. I told her I have to remain unbiased while on duty at these events.
“She responded by saying, ‘You’re a person, aren’t you?’ That comment went straight through my heart!” Day wrote on Facebook.
The documents were provided by the state Attorney General’s Office and the state Division of Protective Services in response to a Feb. 13 request from Gordon Simmons, a field organizer for United Electrical, Radio and Machine Workers Local 170, the West Virginia public workers union, who has filed a grievance on Day’s behalf.
Some “additional materials” were withheld, according to a May 20 letter Assistant Attorney General Jennifer S. Greenlief sent Day, because they were “exempt from disclosure by either attorney-client privilege or work-product doctrine.”
On the day he was fired, Day received a letter from Kevin J. Foreman, deputy director of the Division of Protective Services, reminding Day that his job was “at-will position and [you] may be released from employment without cause.”
“If you are an employee whose job requires your political allegiance, like the secretary of an agency in the administration, they can replace you without batting an eyelash,” Simmons said. “But if you are a public employee, whose job is not a political appointment, you have the right to have security in your job. If I am going to fire you or discipline you, I have to have good reason.”
“‘At will’ in public service doesn’t mean that if I don’t like the way you cut your hair, or if I don’t like the toothpaste you use, you are gone, you are out of here.”
In response to his request, Day also received copies of several internal statements about why he was fired.
On Feb. 3, the day Day wrote his Facebook post, Capitol Police Lt. T.M. Johnson wrote to Foreman that the post “shows no respect to the department, the uniform or the law enforcement community which he represents.”
On Feb. 12, Sgt. A.E. Lanham Jr. wrote to Foreman, “I found the entire [Facebook] posting to be extremely offensive and shocking … This is just another episode of many incidents which show his bad attitude and lack of enthusiasm toward police work in general and toward our department in particular.”
Lanham did not list any of those “many incidents,” but said he believed Day’s firing was justified.
“If they believed there was some sort of a violation I made, then why wasn’t it addressed? They never brought me in and never said anything to me,” Day said. “In 2½ years working there, I had no disciplinary action taken against me at any time. Nothing was ever written up and I received no reprimands.”
Simmons called the reasoning behind Day’s firing “narrow-minded and flimsy.”
“Other state workers also have Facebook pages. There is no violation of policy in what Doug did. And he was very careful not to name who he was talking about,” Simmons said. “Can they take away his right to free speech?”
Lawrence Messina, spokesman for the state Department of Military Affairs and Public Safety, said he had not heard about the documents Day received.
“We should let the grievance process take its course,” Messina said.
A grievance hearing in Day’s case is scheduled before the Public Employees Grievance Board on June 10. The administrative law judge scheduled to hear Day’s appeal is Lewis Brewer, who served as director of the state Ethics Commission between 2004 and 2009.
Simmons will represent Day at the hearing.
Before he joined the Capitol Police in 2011, Day spent 13 years as a combat medic in the Army and a police officer in the Air Force. He also spent several years as a security officer for Kanawha County parks and at Yeager Airport.
Reach Paul J. Nyden at firstname.lastname@example.org or 304-348-5164.