Chapter 16 - DISCIPLINE
Article 16-13
Link: GEORGIA - CAPTAIN FIRED AFTER CREW FAILED TO LOCATE HOUSE WHERE WOMAN DIED IN STRUCTURE FIRE - REINSTATED (Jan. 9, 2012)
Article 16-12
ILLINOIS: PORNOGRAPHY – MOBILE DATA TERMINAL – POLICE OFFICER PROPERLY FIRED
On July 12, 2011, in Hurst v Board of Fire and Police Commission, Case No. 4-10-0964 (IL Dist. 4 App.), the Appellate Court of Illinois held that Clinton Police Department properly fired officer Billy Hurts for watching porno on his MDT. The Court held that the Board of Fire and Police Commission of the City of Clinton did not violate the state eavesdropping statute by admitting the porno into evidence at a hearing, and this evidence “overwhelming supported the Board’s decision to discharge plaintiff.”
http://www.state.il.us/court/opinions/AppellateCourt/2011/4thDistrict/July/4100964.pdf
The Court described the charges:
“On January 30, 2009, Michael Reidy (Reidy), the Clinton chief of police, filed with the Board written charges against plaintiff. Reidy alleged plaintiff viewed pornography on the employer-owned mobile data terminal while on duty in violation of “certain rules and regulations of the City of Clinton Police Department.”
No violation of eavesdropping law:
“Plaintiff claims Reidy violated the eavesdropping statute by using the employer owned
mobile data terminal, and the software thereon, as an eavesdropping device to ‘secretly
monitor’ pornography viewing by plaintiff. Under the terms of the eavesdropping statute, in order for a communication to constitute a protected ‘electronic communication,’ both the sending and receiving parties must intend it to be private under circumstances justifying such expectation. 720 ILCS 5/14–1(e) (West 2008).”
***
Nothing in the record before this court suggests the ‘sending *** parties’ of the
various pornographic images intended to keep them private; thus, the images were not electronic communications according to the statute. Because they were not electronic communications, plaintiff's claimed error is without merit.
Police manual put him on notice:
“Moreover, a Clinton Police Department Policy and Procedures Manual (Manual)
dictated the mobile data terminals were to be used for law-enforcement purposes only and further, that officers would not use the mobile data terminals in any manner that would tend to discredit the police department. The Manual disclosed messages sent on the mobile data terminal were ‘retrievable.’ Because plaintiff was aware of the terms of the Manual, he did not have a reasonable expectation of privacy in his communications after the Manual went into effect. As the Board noted in its decision, plaintiff had no reasonable expectation of privacy or confidentiality with regard to his use of city-owned computers during the performance of his official duties.”
Legal Lesson Learned: Fire & EMS departments should also inform personnel in department policy that MDTs, similar to department computers, are to be used for official purposes only, and the data is retrievable.
Article 16-11
AK: OFF-DUTY MISCONDUCT – FLEEING POLICE - FIREFIGHTER TERMINATION UPHELD FOR BRINGING DISCREDIT ON FD
On Feb. 9, 2011, in Charles Lawrence v. City of Texarkana, Arkansas and Fire Department of Texarkana, the Supreme Court of Arkansas, 2011 Ark. 42; 2011 Ark. LEXIS 43, upheld the termination of firefighter Charles Lawrence. The Court rejected his argument that the Fire Chief’s letter of termination failed to specify the specific FD rules he violated.
The Court described the facts:
“Appellant was a twelve-year veteran of the fire department and had achieved the rank of Engineer. On November 1, 2003, Appellant was approached by Jerry Reeves, a Nevada County Reserve Sheriff's Deputy, after he received a report that Appellant and his family had been involved in a family dispute at a local store. Reeves first spoke with Mrs. Lawrence, who was upset and attempting to calm her children. He then approached Appellant, who was sitting in his truck, across the street from where his wife and children were. According to Reeves, he informed Appellant that he wanted to talk to him about the family-disturbance report that he had received. Then, while Reeves was in the process of checking Appellant's license, Appellant hurriedly left the scene. Reeves turned on his blue lights and pursued Appellant down a nearby county road, at times, reaching speeds of over 100 miles per hour. Appellant then pulled off the road and fled down a pipeline right of way, and Reeves was unable to continue his pursuit. Later, an officer with the Arkansas Game and Fish Commission located Appellant's vehicle, but he was not in it. Reeves again came into contact with Appellant after he was subsequently arrested by the Game and Fish officer.
Two days after his arrest, Appellant was scheduled to work a shift at the fire department. He contacted another firefighter and arranged to switch shifts. Appellant later met with Bobby Honea, Fire Chief for Texarkana, Arkansas. Chief Honea, who had been informed of the fleeing incident, inquired of Appellant as to what had transpired. Appellant declined to explain the situation, stating that it was a personal matter. On November 7, 2003, Chief Honea sent Appellant a letter, terminating his employment with the fire department. In that letter, Chief Honea pointed to the fact that Appellant had failed to show for his scheduled shift on November 3 and that he had been arrested for fleeing in Nevada County.
Appellant appealed his termination to the Commission, and a hearing was held on December 15, 2003. Following the presentation of testimony, the Commission unanimously voted to affirm Appellant's termination. The Commission's decision was announced orally by the Commission's chairman.”
The Arkansas Supreme Court had earlier remanded the case for further hearing, and now the case was back before the Court for final ruling. The firefighter argued that the Fire Chief failed to specify the FD rules he violated.
The Court rejected this argument, writing:
“Chief Honea's letter, which was dated November 7, 2003, recited three instances where Appellant had either failed to report for duty or violated the sick-leave policy. The letter then went on to state as follows:
It has also been brought to my attention that you were arrested for fleeing law enforcement officials. This incident occurred on November 1, 2003 in Nevada County.
A plain reading of section 14-51-301(b)(11)(A) reveals that the reasons given for the termination are not required to include citations or references to specific rules. Rather, the statute requires only that the writing present ‘the reasons for the discharge.’
The circuit court upheld Appellant's termination pursuant to section 1.2 of the rules in question, which prohibits a Department member from committing an act that might bring discredit to the Department or its members; and pursuant to section 1.3, which requires Department members to conduct themselves in such a manner as is approved by law- abiding, self-respecting citizens. The circuit court stated that, although Chief Honea's letter ‘was not totally clear on this issue,’ the court believed that Appellant was terminated for the conduct of November 1, 2003, and not merely for the fact that he was arrested. The circuit court pointed out that Appellant was thus given notice of the conduct that was being reviewed and that Appellant had the opportunity to appear and give his version of the incident.
We agree with the circuit court's assessment of Chief Honea's letter and conclude that it satisfied section 14-51-301(b)(11)(A)'s requirement of presenting the reason for Appellant's discharge in writing. Accordingly, Appellant's argument that his termination was not in accordance with state law is without merit.”
Legal Lessons Learned: Fire Chiefs should in disciplinary letters carefully specify the FD or city policies violated. This helps in any subsequent appeals to Court or to an arbitrator.
Article 16-10 and also Article 6-43
DISCIPLINE: DURING MOTHERS’ DAY PARTY AT FIRE STATION, FF TOOK 6-YEAR OLD SON TO TOP OF RAISED AERIAL LADDER - FF AND CAPTAIN IN CHARGE WERE SUSPENDED FOR 24-HOURS - CIVIL SERVICE BOARD REDUCED DISCIPLINE TO LETTERS OF REPRIMAND
On Dec. 15, 2010, in St.. Tammany Parish Fire Protection District No. 4 v. Operator John Picone and Captain Mike Jacobs, Court of Appeal of Louisiana, First Circuit, La. App. 1 Cir. 12/15/10; 2010 La. App. LEXIS 1750, the Court held 3 to 0 that the Civil Service Board had the authority to reduce the discipline to letters of reprimand.
FACTS
The Court described the following facts:
“On May 10, 2009, there was a Mother's Day family party at St. Tammany Parish Fire Protection District No. 4, Fire Station 43. Operator John Picone had climbed to the top of an extended tire truck ladder with his six-year-old son, who aspired to be a fire fighter. District Fire Chief Greg Kernan and Assistant District Fire Chief Daniel Haydel were driving down Highway 59 near Fire Station 43, when they noticed that the ladder truck was extended. They stopped at the fire station, and Assistant Chief Haydel went inside to tell Captain Jacobs to get Operator Picone to come down from the ladder, which Captain Jacobs did.
Thereafter, St. Tammany Fire Protection District No. 4 issued a departmental charge to Operator Picone and Captain Jacobs which asserted ‘possible violation of Section 9.20 item # 3. The commission or omission of any act to the prejudice of the department service or contrary to the public interest of policy' of the Municipal Fire & Police Civil Service Law.’”
24-HOUR SUSPENSIONS REDUCED TO LETTERS OF REPRIMAND
“After the hearing, Captain Jacobs and Operator Picone were each given a 24-hour suspension without pay, and without overtime during the pay cycle.
Operator Picone and Captain Jacobs each appealed their disciplinary rulings to the Civil Service Board. After their hearings, the Civil Service Board amended both discipline actions to written reprimands. St. Tammany Fire Protection District No. 4 appealed the Civil Service Board rulings to the district court, which affirmed the Civil Service Board rulings. St. Tammany Fire Protection District No. 4 is now appealing the district court judgment.
CLASSIFIED EMPLOYEES – RIGHT TO APPEAL CIVIL SERVICE COMMISSION
“Matters involving classified employees of municipal fire and police departments are governed by the Municipal Fire and Police Civil Service Law, La. R.S. 33:2471, et seq., and by La. Const. 1921, Art. XIV, § 15.1. See La. R.S. 33:2591 and La. Const. 1974, Art. X, § 18. Any regular employee in the classified [Pg 3] service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause may demand a hearing and an investigation by the Board to determine the reasonableness of the action. La. R.S. 33:2501(A). Landry v. Baton Rouge Police Department, 2008- 2289, pp. 4-5 (La. App. 1 Cir. 5/8/09), 17 So.3d 991, 994 (footnote omitted).
If the decision of the Board is prejudicial to the appointing authority, the appointing authority may appeal the decision to the court of original and unlimited jurisdiction in civil suits of the parish where the Board is domiciled. See La. R.S. 33:2501(E)(1). The district court's review of the Board's quasi-judicial administrative determination is an exercise of appellate jurisdiction. Review by the district court does not include a trial de novo. The district court's review is confined to the determination of whether the decision made by the Board was made in good faith for cause under the provisions of La. R.S. 33:2471-2508. La. R.S. 33:2501(E)(3). The district court may not substitute its opinion for that of the Board. The district court should accord deference to a civil service board's factual conclusions and must not overturn them unless they are manifestly erroneous. Likewise, the intermediate appellate court's review of a civil service board's findings of fact are limited. Those findings are entitled to the same weight as findings made by a trial court and are not to be overturned in the absence of manifest error.
(Case citations omitted).
FD POLICY AMBIGUOUS – REDUCED DISCIPLINE UPHELD
“St. Tammany Fire Protection District No. 4 asserts that the Civil Service Board constructively found both the existence of legal cause and good faith on its part and simply substituted its judgment for that of the appointing authority.
The district court expressly stated, in its reasons for judgment, that after considering the record it could not say that the Civil Service Board was arbitrary and capricious, or in bad faith or without cause, in amending the disciplinary actions from a 24-hour suspension to a written reprimand. After a thorough review of the case, we cannot say that the district court failed to use the correct standard of review in affirming the Civil Service Board's decision.
An examination of the record shows that while the Civil Service Board found that the complained of conduct did occur, the Civil Service Board further found that the policy or rule relied upon by St. Tammany Fire Protection District No. 4 to impose a suspension upon Operator Picone and Captain Jacobs was ambiguous and in need of clarification. After a thorough review of the record, we find no manifest error in the Civil Service Board's ruling.
Thus, for the foregoing reasons, the district court judgment is affirmed. The costs of the appeal in the amount of $633.92 are assessed against St. Tammany Fire Protection District No. 4.”
Legal Lessons Learned: Courts are reluctant to overturn administrative bodies like a Civil Service Commission in disciplinary matters; similar to reluctance to overturn arbitrator decisions under Collective Bargaining Agreement.
Article 16-9
MD: CODE OF ETHICS – WHITE PAPER CONFIRMS UNETHICAL FIREFIGHTER CONDUCT IS IMPACTING FIRE SERVICE - U.S. FIRE ADMINISRATOR KELVIN COCHRAN CALLS FOR FIRE SERVICE CODE OF ETHICS
On March 10, 2010, the Cumberland Valley Volunteer Firemen’s Association published a White Paper reflecting several fire leadership meetings, “Reckless Conduct Endangers America’s Fire Service - - Fire Service Reputation Management,” http://www.cvvfa.org/fullstory.php?103330.
U.S. Fire Administrator Kevin Cochran is quoted in the press release on the White Paper, urging all fire service leaders “to develop, establish, disseminate, abide and enforce a Fire Service Code of Ethics.”
Among the hot topics discussed in the White Paper:
Cheating on promotional exams, and re-certification tests;Arson by firefighters; li> Theft / misappropriation of funds;Misuse of FD facilities;Alcohol abuse;Other drug abuse;Harassment and discrimination.
Legal Lessons Learned: FDs should consider adopting a simple Code of Ethics, and conduct annual training on the Code; see for example the IAFC’s 2003 Fire Chief Code of Ethics: http://www.iafc.org/associations/4685/files/downloads/ABOUT/POLICY_STATES/IAFCpol_CodeEthicsChiefs.pdf
Article 16-8
OH – FIREFIGHTER TERMINATED FOR IMPROPER COMPUTER USE - WINS COURT APPEAL - TOWNSHIP AND FD DID NOT HAVE A COMPUTER USE POLICY - VIDEOS WERE VIOLENT BUT NOT PORNOGRAPHIC
On Nov. 20, 2009, in Ralph Bowman v. Butler Township Board of Trustees, 2009-OH-6128 (can read full opinion, www.supremecourt.ohio.gov), the Ohio Court of Appeals for Montgomery County reversed the termination of the firefighter. The Court (3 to 0) held that the Township’s ethics policy failed to provide any meaningful guidance on what videos were prohibited.
Ralph Bowman worked as a part-time firefighter / EMT. In 2007, the Township was conducting normal maintenance on its computer system when they discovered that numerous on duty personnel were accessing inappropriate web sites. Bowman’s password was traced to eight questionable sites. He admitted to only accessing one video, Felony Fights, and said other firefighter knew his password.
The Court wrote: “Seven of the videos were violent, military videos and one contained sexually explicit language, but was not pornographic.”
· Lions Eat Man (10/1/07 at 6:46 pm)
· Hamas Militant Shot Killed (10/1/07 at 6:47 pm)
· Felony Fights (10/1/07 at 7:05 pm)
· Helicopter Crewman Execution (10/1/07 at 7:09 pm)
· Sniper Shots (10/1/07 at 7:12 pm)
· Guerillas Killed (10/1/07 at 7:13 pm)
· Terrorists Guerilla Killed (10/1/07 at 7:13 pm)
· Best Girlfriend Ever (10/19/07 at 8:46 pm).
The Court of Appeals held:
“Due process requires a person to have notice of conduct that is prohibited. In our view, the Township failed to provide such notice with respect to use of the computer to access legal, non-pornographic materials. Prior to Bowman’s disciplinary proceedings, the Township has provided no meaningful guidance as to where it drew the line between appropriate and inappropriate content along the spectrum of behaviors that can be accessed by television or computer.”
Under Ohio Rev. Code 505.38, a firefighter may be removed if there is proof he violated Ohio Rev. Code 733.35, “bribery, misfeasance, malfeasance, nonfeasance, misconduct in office, gross neglect of duty, gross immorality, or habitual drunkenness.” The Township failed to prove that Bowman was guilty of “malfeasance” for viewing the videos.
Note: Unless the Township appeals this decision to the Ohio Supreme Court and that Court overturns the Court of Appeals, firefighter Bowman will presumably be entitled to back pay and interest, and perhaps attorneys’ fees. In addition, other Butler Township firefighters may directly benefit from this decision. According to press reports, there were 10 firefighters disciplined. Two others were terminated (President and Vice President of IAFF Local 4491; the State Employee Relations Board has recently ordered them reinstated for protected union activities, and the Township is appealing). Three firefighters were suspended without pay for 10 days, one was suspended for 6 days, and four resigned prior to a hearing. See Dayton Daily News, Nov. 20, 2009 article: http://www.daytondailynews.com/.
Legal Lessons Learned: FDs or their political subdivision should have a computer use policy that defines prohibited activities, and prohibits the sharing of passwords.
Article 16-7
LOUISIANA: NEW ORLEANS CAPTAIN HAS PHOTO TAKEN WITH FEMALE WEARING PASTIES - POSTED ON INTERNET – SUPERINTENDENT SOUGHT DEMOTION TO FIREFIGHTER BUT COURT AGREES WITH CIVIL SERVICE COMMISSION ON 12-DAY SUSPENSION
On Sept. 2, 2009, in Ross Hennessy v. Department of Fire, 2009 La. App. Unpub. LEXIS 547, the Court of Appeal of Louisiana (3 to 0) denied the Superintendent’s appeal seeking to demote Captain Hennessy to firefighter. The photo was not posted on the Internet ("craigslist") until one year after it was taken; it then came to FD’s attention. The FD’s Peer Review Committee recommended a 12-hour suspension for "bringing reproach" on the FD, and 6-hour suspension for improper command. The Civil Service Commission agreed. The Superintendent appealed to the Court of Appeals, which denied the appeal; the Court noted that the FD had previously not disciplined officers for similar conduct, and even authorized FF to hose down women and men participating in the "Red Dress Race."
The facts as reported by the Court:
"In February of 2007, Capt. Hennessey was stationed at Engine Company Number 9, located at the corner of Decatur Street and Esplanade Avenue. The station located at Decatur Street and Esplanade Avenue responds to calls up to Toulouse Street in the French Quarter.
Capt. Hennessey testified that on February 19, 2007, Lundi Gras, he and other firemen responded to a call. The firemen parked the fire truck at Orleans Avenue and Bourbon Street. As the firemen returned to the fire truck, Mardi Gras revelers asked to take a photograph with them. An anonymous individual posted the photograph on 'craigslist’, an internet site, approximately one year later. The photograph depicts Capt. Hennessey standing directly behind one female. The photograph also depicts an Italian firefighter, in town for a "ride-along" with Engine 9, with his arm around the second female. The photograph reveals that the female Mardi Gras revelers wore only body paint and pasties on their upper bodies.
Superintendent Charles Parent (Supt. Parent) testified that Deputy Chief Gary Frank provided a copy of the photograph to him, and in June of 2008, an investigation began. After the investigation, the NOFD charged Capt. Hennessey with violating the rules and regulations of the NOFD. Specifically, the NOFD charged Capt. Hennessey with violating Article 3, Section 3.1.3.1, which provides, 'The Captain shall be responsible for the proper discipline of members also, the efficiency and operation of the unit under his/her command.’ The NOFD further charged Capt. Hennessey with violating Article 5, Section 5.2.27, which provides, 'Members shall be governed by the customary and reasonable rules of proper behavior and shall not commit any act that brings reproach upon themselves or the Department.’
A Peer Review Committee met and held a hearing on August 3, 2008. Thereafter, the Peer Review Committee found Capt. Hennessey guilty of both charges and recommended a six hour suspension for violating Article 3, Section 3.1.3.1 and a twelve hour suspension for violating Article 5, Section 5.2.27.
After reviewing the information presented at the Peer Review Committee hearing, Supt. Parent imposed a six hour suspension for the violation of Article 3, Section 3.1.3.1. Supt. Parent deviated from the twelve hour suspension recommended by the Peer Review Committee and demoted Capt. Hennessey to the classification of Firefighter for the violation of Article 5, Section 5.2.27, as well for the violation of Article 3, 3.1.3.1.
Capt. Hennessey appealed the discipline imposed by the NOFD. In due course, a hearing officer was appointed to receive testimony. Before the hearing officer, Supt. Parent testified that he disciplined Capt. Hennessey as Capt. Hennessey interfered with the efficiency of the NOFD by bringing a bad reflection on the NOFD. Supt. Parent opined the picture made the NOFD look like an 'unprofessional group of buffoons.’ Supt. Parent acknowledged that he did not receive a complaint from a member of the public regarding the picture.
Supt. Parent also testified that the firemen were not in their proper location and were surrounded by people, which would slow their response time in the event of a call. Supt. Parent further stated part of a captain's job 'is to be instructing his younger underlings on proper behavior and proper firefighting.’
Capt. Hennessey admitted the other firemen in the Lundi Gras photograph were under his command. Capt. Hennessey testified that he has been asked to pose for thousands of photographs, both in and out of the French Quarter, when he has gone out on calls. Capt. Hennessey admitted he and the other firemen were in uniform at the time the Lundi Gras photograph was taken.
Capt. Hennessey further identified photographs taken during the Red Dress Race. Capt. Hennessey testified the NOFD approved the use of a hose by the participants. Photographs taken during the event show scantily attired men and women wetting one another down and posing with the fire hose.
The parties stipulated that if Deputy Chief Joseph Buras were called to testify, he 'would testify that he was ordered by his command to provide not only water, but the use of a hose for the participants of the Red Dress Race.’ Further, while Deputy Chief Buras questioned the order, the participants of the race were allowed to use the hose for whatever purpose they chose.
Capt. Steve Cordes (Capt. Cordes) testified he was previously stationed at 317 Decatur Street. Capt. Cordes further stated that while it was not condoned, the companies that bordered the French Quarter were always out in the crowd during the Mardi Gras season. Additionally, Capt. Cordes noted that women like to take pictures with the firemen while they are in uniform and sometimes the women are wearing less than the women in the picture at issue. Capt. Cordes testified that other administrations 'never encouraged, but they knew it went on, and they just overlooked it.’ Capt. Cordes stated District Chief Chris Michaels not only knew these sorts of activities occurred, but that District Chief Michaels participated in the activities.
After reviewing the testimony and evidence, the Commission granted the appeal for the limited purpose of reducing the Appellant's discipline to the recommendation of the Peer Review Committee, namely a six hour suspension for violating Article 3, Section 3.1.3.1 and a twelve hour suspension for violating Article 5, Section 5.2.27. In its decision, the Commission stated:
'We have no hesitancy agreeing with Fire Superintendent Charles Parent's conclusion that circulation of the picture on the internet brought "reproach" to the New Orleans Fire Department. The internet site carrying the photograph identifies the New Orleans Fire Department, and an observer could readily reach the conclusion that some firemen in the "Big Easy" are cavorting around with partially clad women while on duty and in uniform during Mardi Gras.
Though we do not condone Appellant's [Capt. Hennessey] bad judgment, we are not convinced that the disciplinary step of demotion was commensurate with Appellant's misconduct. There is no credible evidence in the record that he has previously compromised Fire Department ethical standards or that the isolated incident during the Mardi Gras season adversely affected the performance of his duties as a fireman. Appellant testified that it is common for civilians to want to be photographed with firemen-out of respect for their position-and that the Department has never explicitly condemned such a practice. Under the right circumstances such photographs can generate good will for the Fire Department. Unfortunately that was not the case here. Though Appellant should be disciplined, we think demotion from the position of Captain, a position which he has properly performed for 12 years, was unjustified.’" [Footnotes omitted.]
The Court of Appeals refused to demote the Captain:
"[W]e note the [Civil Service] Commission took into account Captain Hennessey’s record as well as surrounding circumstances. We recognize the NOFD serves as a special guardian of the public safety and operates as a quasi-military institution where strict discipline is imperative. However, while we do not condone Captain Hennessey’s conduct or seek to minimize the conduct, we believe a demotion is too Harsh a penalty for conduct that is well-known throughout the NOFD and not explicitly condemned."
Legal Lessons Learned: FDs need to issue clear SOGs on posing for photos while on duty. In addition, SOGs are needed regarding photos and comments on Internet sites such as Facebook.
Article 16-6
FL: CAPTAIN DEMOTED – CONSENSUAL SEX OFF-DUTY WITH FEMALE FF – CLAIMS RETALIATION BY BATTALION CHIEF - LAWSUIT DISMISSED
On Feb. 2, 2009, in Randolf Starling v. Board of County Commissioners, Case No. 08-80008-CIV, U.S. District Court for Southern District of Florida, 2009 U.S. Dist. Lexis 7030, a firefighter with the Palm Beach Fire Rescue Department claimed he was improperly demoted because he exercised his alleged "First Amendment right of freedom of intimate association."
United States District Judge Daniel T. K. Hurley described the facts in a detailed opinion [note from author of this newsletter - because of the lurid allegations, we have replaced names of other individuals with their initials]:
" Starling was hired as a firefighter with the Palm Beach County Fire Rescue Department ("the Department") in 1994, and was promoted to Captain in 2002. From May 2005 to January 2006, Starling was stationed as Rescue Captain at Station 42, where he reported to District Chief [D/C KF]. Under the then operative chain of command, [D/C KF] reported to [a Battalion Chief], who reported to [a Division Chief], who reported to [a Deputy Chief], who reported to [the Fire Rescue Administrator]. [The Fire Rescue Administrator] is the highest ranking employee at Fire Rescue and the only person with authority to demote a Fire Rescue employee.
In July, 2005, Starling began an intimate, extramarital relationship with a subordinate co- worker, firefighter [Ms. CS]. In October 2005, Starling moved into [Ms. CS’s]house. Their cohabitation was well known to family, friends and co-workers within the Department. Shortly after he moved in with [Ms. CS], Starling learned that [D/C KF] was using [Ms. CS’s] home as a meeting place for his own romantic trysts with another county employee, [Ms. LP] (a friend of [Ms. CS’s] ). According to plaintiff's complaint, [D/C KF] allegedly used his superior authority over [Ms. CS] set up this arrangement. When Starling insisted that [Ms. CS] end the arrangement -- shortly after learning that [D/C/ KF] Fischer, through [Ms. LP] had solicited [Ms. CS] for a "three way" sexual encounter involving [Ms. CS], [Ms. LP] and [D/C KF]. [Complaint P 9]. [D/C KF] allegedly retaliated by ordering Starling to end his relationship with [Ms. CS], failing which [D/C KF] promised to do "everything in his power" to ensure that Starling "lost his captain's bars." [Complaint P 10].
Starling continued to pursue his relationship with [Ms. CS], ultimately marrying her in June, 2006 (two months after his divorce became final).
The trial judge described the discipline that followed:
• "On January 11, 2006, [D/C KF] issued an 'Employee Development Form’ (EDF) to Starling, essentially a cautionary note with no disciplinary impact, raising question on certain performance related issues, as well as his preoccupation with firefighter [Ms. CS]."
• "On Jan. 13, 2006, Captain [M] issued a notification and acknowledgment of violation of rules and regulations arising out of a December 19, 2005 incident involving plaintiff's alleged failure to follow protocol by discontinuing patient care prior to arrival at a hospital. Plaintiff received a written reprimand for this incident."
• "On January 17, 2006, Captain [M] issued another notice of investigation into a failure to perform duty charge arising out of a January 6, 2006 episode in which plaintiff allegedly logged a two hour delay in reporting to duty zone."
• "On January 20, 2006, Captain [M] issued notice of investigation into Starling's alleged failure to report an incident which occurred in 2005 when a woman on a bicycle crossed the path of his fire rescue truck."
• "On February 7, 2006, Starling gave two tape recorded statements in connection with the episode, stating that while exiting the fire station in his fire rescue truck, a woman riding a bicycle fell in front of his truck without making impact. He said he did not report the incident at the time because the woman did not want any help, and he decided to simply 'let it go.’"
• "On February 13, 2006, Captain [M] issued a report regarding the bicycle incident, concluding that the evidence substantiated charges of misconduct, including failure to perform duty."
• "On February 14, 2006, Captain [M] issued a report on the delay in reporting to zone incident, likewise concluding that the evidence substantiated the charge of failure to perform duty. At that time, Starling was issued notification and acknowledgment of violation of rules and regulations, placed on administrative leave and demoted from Captain to Firefighter/Paramedic."
• "On March 2, 2006, [Fire Rescue Administrator B] held a grievance hearing regarding Starling's demotion. [Fire Rescue Administrator B] ultimately demoted plaintiff based on a recommendation from senior staff [two Deputy Chiefs] on the failure to perform duty charges and denied the plaintiff's grievance."
• "On April 18, 2008, the plaintiff's union advised that it would not pursue arbitration of his demotion because the claim lacked merit. Plaintiff has not pursued any action against the union for breach of good faith duty of representation, nor has he filed any other lawsuit regarding the alleged violation of his rights."
The lawsuit named Palm Beach County and [B/C KF] as defendants. The complaint alleges the County is liable because [Fire Rescue Administrator B] demoted him as part of a concerted retaliation action by [B/C KF]. The judge found no evidence of such a concerted effort:
"There is nothing in Capt. [M]’s reports which suggested such a retaliatory motive, and no other evidence suggesting that [Fire Administrator B] might have learned of [B/C KF]’s alleged improper motives from some other source. On this record, [Fire Administrator B]’s adoption of his deputy chief's recommendations cannot constitute unconstitutional county policy, even if [B/C KF] triggered or participated in the investigations and acted on retaliatory motives in pressing the charges or in persuading the deputy chiefs to act upon them."
The lawsuit also named [B/C KF] as a defendant, sued in both his official capacity and in his personal capacity. The trial judge dismissed the Battalion Chief in his official capacity, since he did not make the demotion decision. The Court also held that the Battalion Chief enjoys qualified immunity, and could not be sued personally unless he violated a clearly defined legal right. Plaintiff alleged the Battalion Chief violated his First Amendment "freedom of intimate association" but the courts have not clearly defined such a right. Neither the U.S. Supreme Court, nor the U.S. Court of Appeals for the 11th Circuit (includes Florida) have decided whether public employees, such as firefighters, have a First Amendment right to have adulterous relations with subordinates.
"With this background, the court need not decide whether Starling's relationship with [Ms. CS] -- an initially adulterous relationship between a superior and subordinate employee in a quasi-military employment hierarchy -- constituted the kind of intimate association protected by the First Amendment. It suffices that the contours of the asserted right of intimate association were not so clearly established at the time of the alleged violation that a reasonable person in [B/C KF]’s position would have known that his challenged conduct was illegal. Accordingly, the court concludes that defendant [B/C KF] is entitled to qualified immunity on plaintiff's first amendment retaliation claim."
The trial judge cited several court cases involving police officers and other public officials, and the adverse impact of superior officers having sexual relations with subordinates:
"In addition, courts have historically recognized that rights of intimate association and marriage are not absolute, and may appropriately give way in the government employment context where the exercise of the right creates unreasonable interference or impediment to the effective functioning of the public office. See e.g. Patches v City of Phoenix, 68 Fed. Appx. 772 (9th Cir. 2003)(unpub)(sexual relations among officers in police department may be appropriate matter of inquiry in light of possible adverse effect on morale, assignments, and command subordinate relationship), citing Thorne v City of El Segundo, 726 F.2d 459 (9th Cir. 1983); Shawgo v Spradlin, 701 F.2d 470 (5th Cir. 1983)(disciplinary action against two police officers for co-habitation did not violate privacy interests in light of rational relation between exigencies of department discipline and forbidding members of quasi military unit to co-habitate); McCabe v Sharrett, 12 F.3d 1558 (11th Cir. 1994)(transfer of police chief secretary after marriage to police officer did not violate associational right of secretary regardless of legal standard that applied). See also Flaskamp v Dearborn Public Schools, 385 F.3d 935 (6th Cir. 2004)(school board's decision to deny tenure to teacher for having an alleged intimate relationship with former high school student within nine months of student's graduation did not directly and substantially affect teacher's right of intimate association)."
Legal Lessons Learned: Sexual relations with a subordinate in the fire service can be problematic, for both the participants and the FD.
Article 16-5
OHIO – LAST CHANCE AGREEMENTS – COMPANY PROPERLY FIRED MAINTENANCE EMPLOYEE FOR NOT WEARING SIDE SHIEDS ON SAFETY GLASSES – VIOATED THE LCA
On Dec. 24, 2008, in Robert Tack v. PCC Airfoils, Inc., the Ohio Court of Appeals for the Fifth District, 2008 Ohio 6898, 2008 Ohio App. LEXIS 5758. affirmed (3 to 0) the decision of a trial judge in Stark County Court of Common Pleas, granting summary judgment to the employer. The employee breached the "Last Chance Agreement" entered into between the company, the employee and the labor union, Metalworkers Alliance, Inc. [Author’s comment: While this case does not involve the fire service, it reflects the good management practice of documenting safety violations and use of LCAs.]
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 16-4
OHIO: CLASSIFIED SERVICE - POLICE CHIEF WAS IMPROPERLY FIRED - CITY NEVER SERVED HIM WITH REMOVAL ORDER - CHIEF REINSTATED WITH BACK PAY
On August 7, 2008, in The State ex rel.McClaran v. City of Ontario, 119 Ohio St.3d 105, 2008-Ohio-3867, the Ohio Supreme Court (7 to 0) held that Tim McClaran, a member of Ontario, OH police force since 1975, was entitled to reinstatement as Police Chief, with back-pay, since the city failed to prove it had "good cause" to remove him from his classified position under Ohio Revised Code 124.34.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 16-3
OHIO - 12 Oho State Patrol Face Possible Termination, Two Sergeants Have Been Demoted, Three Others Reprimanded – Sharing Test Answers
The fire service administers lots of tests. This unfortunate story deals with Ohio State Patrol. On August 26, 2008, The Akron Beacon Journal reported that the 12 troopers facing termination will be provided a hearing at the Patrol district’s headquarters.
On July 16, 2008, the Ohio Inspector General issued an investigation report concerning cheating by State Troopers on a renewal exam for permits to operate breath testing instruments. The IG found that one Trooper in the Canton Post made copies of his answer sheet for an exam on March 2, 2007, and shared it with others through April 4, 2008, including tests on April 17, 2007, August 31, 2007, October 25, 2007 and April 2, 2008, and April 4, 2008. You can read the full report at: http://www.watchdog.ohio.gov/investigations/2008097.pdf.
The permits are issued by the Ohio Department of Health, Bureau of Alcohol and Drug Testing (BADT). The Bureau has reported possible similar incidents at two police departments in Hamilton County, which are being investigated by those departments.
The Ohio IG concluded that BADT testing was not adequately monitored by the BADT testing inspectors.
"We interviewed all five testing inspectors who are responsible for administering renewal exams statewide. We found there was no written, standardized procedures addressing how inspectors should administers exams. For example, the inspector who administered the exam on April 4, 2008, pointed out questions to test takers that were answered incorrectly and gave them an opportunity to change their answers. We did not find that the other inspectors provided such guidance."
The Ohio IG also concluded that five OSHP sergeants exercised "poor judgment" and did not demonstrate "appropriate supervision over subordinates" during the April 4, 2008 test at the Canton Patrol post. Three of the sergeants were present when a Trooper openly distributed a copy of the answer sheet to other Trooper before the exam started. The other two sergeants were given the answer sheet by the same Trooper before they entered the room to take the exam.
Legal Lessons Learned: The IG’s report is a "must read" for fire service instructors who administer exams.
Article 16-2
“Larry’s Legal Lessons: Two New Orleans Dispatchers Suspended After Katrina; Court reverses ruling because workers not notified of return-to-work deadline.” Eddie Fuller and Wanda Newsome v. Department of Fire, Court of Appeals of Louisiana, 2007 La. App. LEXIS 1895, September 19, 2007. Article published 10-29-09 in www.firehouse.com; to read article go to this web site and Search, “Bennett.”
Article 16-1
OHIO - WORKERS’ COMP – TERMINATING AN EMPLOYEE WHILE OUT ON MEDICAL LEAVE IS BREACH OF PUBLIC POLICY DOCTRINE
On April 23, 2007, in Klopfenstein v. NK Parts Industries, Inc, 117 Ohio App.3d 286, 2007-Ohio-1916, the Ohio Court of Appeals for Shelby County held that David Klopfenstein, an “at will” laborer in the warehouse of NK Parts Industries who was injured on the job and fired 10 months later when he could not return to work, can sue the company for wrongful discharge for breach of the “public policy doctrine.” A jury can now hear the case and possibly award him substantial damages.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
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Posted by UC solely as information and for the benefit of students.