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SC Firefighter Paramedic Fired Over Facebook Video

Colleton County, South Carolina paramedic and firefighter Jason Brown was fired earlier this month because of a video he posted on Facebook. Brown’s situation is similar to an increasing number of disciplinary actions being taken against firefighters for social networking. The case shows the challenge that fire service leaders and firefighters face in dealing with social media issues.

What appears to be uncontroverted is that Brown created an animated video at a web site, xtranormal.com, on which you can create cartoon-like characters, type in a script, and the characters will speak in a robotic-like language. The video involved two characters, a white firefighter and a black doctor, set in the emergency department of a hospital. That is about all the parties can agree on.

Brown claims he had no evil intent, did not intend for the video to depict his department or the local hospital, and did not intend to insult anyone. However, Brown’s dismissal letter said "This video has created an embarrassing situation for this department, our public image and the cooperative relationship we enjoy with Colleton Medical Center. It reflects poorly on you and Colleton County." The letter also accuses Brown of producing a “derogatory video”. The video depicted the doctor in an unflattering light.

The problem with many of the cases like Brown’s, is that fire departments, by and large, have no rules and regulations pertaining to social media and social networking. As such, fire chiefs who are upset with something a firefighter posts online, must make a case of “conduct unbecoming”, “dishonorable behavior” or some similar catch-all regulation. Such cases run into all sorts of legal challenges because “conduct unbecoming” is inherently vague and subject to interpretation. The United States Supreme Court as said repeatedly that rules and regulations are invalid if they forbid or require the doing of an act "in terms so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application." Zwickler v. Kota (1967)

Fire departments need to have written policies to deal with social networking issues for the benefit of the department, as well as for the benefit of the members. If Colleton County had a clear policy, there would be no guesswork about what is and is not permitted, and whether Brown's video crossed the line. Firefighters deserve to know the rules beforehand, and not have to guess about what is and is not permissable.

Fire service leaders should be under no illusions – cases like Brown’s are going to increase. We are seeing the very beginning of what will be a very large problem that can either be effectively managed…. or ignored… until it cannot be ignored.

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Posted in Disciplinary Action, Social Media

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5 comments Posted by on February 27, 2010

Black Sunday: What’s the Big Fuss? It was Just a Fire!

The Black Sunday fire occurred on January 23, 2005, a tragic day in a tragic decade for FDNY. Six firefighters were force to jump from the top floor of an apartment building on East 178th Street. Miraculously only two firefighters were killed, as the 50 foot fall had the potential to take many more lives. The other four trapped firefighters suffered broken bones and disabling injuries.

There were a number of contributing factors that led to the fire extending up and trapping the six members. The fire started on the floor below, and crews were unable to get water on the fire for an extended period of time. The trapped firefighters were searching above the fire. The apartment they were in was an illegally converted unit.

The apartment had been illegally subdivided by erecting walls to create additional rooms that the tenants then rented out for $75 to $100 a week. The arrangement blocked the firefighters from reaching a fire escape, leaving them with the choice of burning to death or jumping. Had they reached the fire escape, it likely would have been just another fire.

Prosecutors filed criminal charges against both the tenants and the building owners. The theory was that the tenants made the illegal subdivisions and the owners looked the other way, each making a conscious choice to put money before safety. All were charged with manslaughter, criminally negligent homicide and reckless endangerment.

A year ago this month the tenants were acquitted of all charges, and the owners were convicted of criminally negligent homicide and reckless endangerment. So it was rather shocking to learn that Judge Margaret L. Clancy of New York Supreme Court (the original trial court…. it’s a long story if you are not from NY… but the NY Supreme Court is a trial court not an appellate court) set the verdicts aside yesterday, February 23, 2010, concluding that the prosecution failed to prove that the defendant owners knew about the illegal partitions.

Failed to prove the owners knew…. That phrase keeps echoing in my mind. Failed to prove the owners knew? What about an owner who looks the other way at fire code violations? How do you prove that someone looked the other way? You put the evidence before they jury and ask them to make the inference about what the defendant knew. Juries are entitled to draw a reasonable inference.

According to an attorney for the owners, David J. Goldstein, “There was absolutely no evidence that either of these defendants were aware of the conditions in the third-floor apartment of that building,” he said. “In order to be criminally negligent or reckless, you have to know that a condition exists.” I disagree. A defendant who chooses to remain ignorant of the facts is just as culpable as one who  knows.

Failed to prove the owners knew… why would a judge look for a way out for defandants under circumstances like this…. 

The fire problem in the United States is much larger than in any other industrialized country – in part because we continue to play these “blameless” games when it comes to fire. Have a fire??? No problem… its an accident, we are sorry for your loss, go collect your insurance. Overload an extension cord and start a fire… sorry for your loss, go collect your insurance. Fall asleep cooking because you were drunk… sorry for your loss, go collect your insurance.

Why do we as a society so willingly tolerate accidents when it comes to fire? We don’t do it with vehicle accidents. In fact we don’t do it with any other type of accident that occurs. Its like Americans have a different value system when it comes to fire. If this case involved the owners of a commercial truck who claimed they didn’t know the brakes were defective, we would have no problem saying you should have made sure the truck had regular inspections and not simply relied on the driver. Why do we so willingly tolerate conscious ignorance when it comes to fire.

Judge Clancy is not alone in her willingness to tolerate “accidents” related to fire. In her mind, as tragic as the outcome was, it was just a fire. It’s not like someone used a gun… or a motor vehicle. It was an accident.

That tolerance of fire is a nation-wide problem. Other countries that do not share that tolerance have much lower incidences of fire. The Black Sunday tenants and the owners would most certainly have faced criminal consequences in those countries. The result of a legal system that takes such behavior seriously….. is fewer fires.

What do you think?

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Posted in Criminal Law

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3 comments Posted by on February 24, 2010

GE Microwave Linked to Kitchen Fires

Here's an interesting video addressing a products liability concern with GE microwave ovens starting fires even though they are not in use at the time.

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Posted in Civil Suit, Fire Prevention, Product Liability

4 comments Posted by on February 23, 2010

Another Lawsuit Looms for Westbrook

The Westbrook, Maine Fire Department has seen its share of legal battles over the past 15 years, and it would seem that another one is on the horizon. Former Fire Chief Daniel Brock, in office only a year, was let go immediately upon newly elected Mayor Colleen Hilton’s inauguration on January 15, 2010.

Brock had been brought in from the outside to help clean up a department in turmoil, but the new mayor wanted her own man. She promptly appointed the police chief to serve as acting fire chief.

However, Chief Brock obtained legal counsel, and a quick check of the City Charter disclosed that the fire chief is entitled to serve “until retirement, resignation or death, or removal for good and sufficient cause, on complaint of the mayor, such complaint being sustained by a majority vote of the full council.”

Even faced with that language, Mayor Hilton remained defiant claiming the charter provision doesn’t apply because she “eliminated” the fire chief’s position (remember… the job she gave to the police chief… she forgot to mention in her inauguration speech that she was really eliminating the position and must have misspoken when she said the police chief would be the acting fire chief because you can’t eliminate a position and then assign someone else to do it on an acting basis. Come to think of it, she actually said would "I will not be reappointing the current fire chief"… but hey… it was her first day).

Anyway – the poor taxpayers and the firefighters of Westbrook seem destined for another senseless legal battle, unless cooler heads can prevail. Am I the only one who is tired of politics as usual?

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Posted in Civil Suit, Municipal Liability

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8 comments Posted by on February 22, 2010

Brenda Lee’s $6.2 Million Verdict Overturned!!!

The California Court of Appeals, 2nd District, yesterday reversed one of the most celebrated fire service discrimination cases of the decade. LA City Firefighter Brenda Lee claimed she was harassed and discriminated against based on her race, gender and sexual orientation. She obtained a $6.2 million jury verdict in 2007.

The court ruling handed down on Thursday, February 18, 2010, held that Lee failed to pursue administrative remedies available to her. Lee’s law suit was one of a number of law suits against LA City FD that led one publication to issue the headline “Lawsuit Sweepstakes at LAFD”.

Additional details.

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Posted in Civil Suit, Discrimination

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2 comments Posted by on February 19, 2010

State Sues Fire Protection District Over Tax Ceiling

The state of Missouri has filed suit against the Mehlville Fire Protection District over problems with the district’s tax rate. The suit, filed by Attorney General Chris Koster on February 8, 2010 in St. Louis County Circuit Court, challenges whether Mehlville collected more in property taxes than state law permits.

In April, 2009 the District’s voters passed a measure to lower the tax ceiling by 36 cents per $100 of assessed property, from 74 cents per $100 of assessed valuation to 38 cents. The measure was hotly contested, with Board Chairman Aaron Hilmer strongly advocating the cut, and prevailing in the end. The tax ceiling is not the tax rate, but the tax rate cannot exceed the tax ceiling.

The problem was that the state was busy with its own initiatives to limit taxes, and passed a law that some (including the State Auditor Susan Montee and the Attorney General) interpret as limiting Mehlville’s tax ceiling to 37 cents per $100. According to the state, the combined effect of Mehlville’s 36 cent tax reduction measure and state law, have limited the district’s options for taxes to charging a maximum of 1 cent per $100.  In other words, when the district voters thought they were reducing the tax ceiling from 74 cents to 38 cents, they actually reduced it from 37 cents down to 1 cent.

The district’s total budget is approximately $10 million. Ironically, on February 18, 2009, an op ed piece posted on the Welcome Call, a local St. Louis news web site advocated passing the 36 cent reduction, calling it “real tax reform”. Whether “real tax reform” will l result in the district going bankrupt remains to be seen.

More in the story.

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Posted in Civil Suit, Municipal Liability

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1 comment Posted by on February 17, 2010

Rockingham NC Overtime Suit Settled – $167k

In March 2009, ten Rockingham, North Carolina firefighters, all members of IAFF Local 4702, filed suit against the city of Rockingham alleging overtime pay issues and violations of Fair Standards Labor Act. The same ten firefighters were responsible for creating Local 4702 on October 1, 2008, and have since claimed to have been subjected to retaliatory discipline by the city administration.

Among other things, the case involved the right of off duty personnel to be compensated for being on-call, and subject to a strict immediate return to duty policy if needed for an alarm. After the suit was filed, it was amended to include additional allegations of retaliation.

Both sides have confirmed that the case has been settled for $167,000, with the firefighters receiving $93,000 in compensation and $74,000 in attorneys fees. The settlement cost the city roughly $30,000 out-of-pocket, with their insurance carrier paying the remainder.

Under the terms of the settlement agreement, the city admitted no wrongdoing or violations of the FSLA, and said the decision to settle was made for financial reasons.

More on the story.

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Posted in Civil Suit, FLSA, Labor Law, Municipal Liability

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2 comments Posted by on February 15, 2010

Sexual Assault and the Scope of Employment for Firefighters

Which of the following seems out of place:  porn star costume party, on-duty firefighters, alcohol, and sexual assault. Unfortunately those four terms all came together in Sacramento, California on July 2, 2004. In the aftermath of this and several similar escapades, 24 firefighters were disciplined, two resigned, and a protracted civil suit was filed against two firefighters and the Sacramento Fire Department by the woman who alleged the sexual assault.

In a decision issued on August 31, 2009, the California Court of Appeals refused to hold the City of Sacramento liable for the conduct of the on-duty firefighters. The court cited the general principle that an employer should not be held liable for a sex crime committed by an employee because there is “no causal nexus to the employee’s work”. In other words, while ordinarily an employer is liable for the acts of an employee committed within the scope of his/her employment, sexual offenses are by their very nature outside of the scope of a firefighter’s employment. 

While the Court of Appeal’s ruling is in line with the law in most states, the factual determination of the “scope of employment” as applied to the Sacramento Fire Department in 2004 certainly raises some interesting questions. If you are interested, take a look at the following:

Four firefighters charged with having consensual sex while on duty in fire station

Two firefighters disciplined for having consensual sex while on duty in fire station (Sacramento Metro FD)

Firefighters use engines to pick up women and go joy-riding

These cases are not used to demean the Sacramento Fire Department, and truth be told, Fire Chief Joe Cherry was able to restore order in the ranks and credibility amidst a most challenging period in the department’s history. However, the facts leave open the question at what point can such rampant misconduct open the door to an expanded notion of what is in the scope of employment, or in the alternative, to a direct allegation of negligent supervision? 

Incidentally, negligent supervision was alleged in the case, but the court ruled that the Plaintiff “forfeited” the cause of action by failing to present an analysis of the forseeablility of the sexual assault in her brief. Say what?…… Let’s call it legal jujitsu – but the bottom line is the firefighters are on the hook for what happened, not the city.

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Posted in Civil Suit, Municipal Liability, You Can't Make This Stuff Up

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No comments Posted by on February 12, 2010

Public Records Law Versus Firefighter Bill of Rights

A recent case involving the Anderson Fire Protection District, in California points out the challenges that sometimes occur when complying with open records laws. In May, 2009, the district board placed the fire chief on leave while it investigated allegations of misconduct.

The board hired a former police chief in Anderson to conduct the investigation, which  resulted in a 1,000 page report that cost the taxpayers a whopping $41,000 to prepare. The fire chief ended up resigning on July 1, 2009, but according to the Record Searchlight, neither the chief nor the board were forthcoming about the investigation. The newspaper felt that the cost of the report and the resignation were news worthy events that warranted full disclosure.

After its request for the report was rejected, the Record Searchlight sued the district in November, 2009 to obtain a copy under the Californian Public Records Act. Like open records laws in other states, the CPRA grants a right to the public to view public records unless the records fit within a specific exemption. While none of the exemptions were applicable under the circumstances, the district board felt that the California Firefighters Procedural Bill of Rights Act required them to withhold the report.

In a ruling issued in December, Shasta County Superior Court Judge Monica Marlow determined that the district wrongfully failed to comply with the public records law, and ordered the release of the report. The judge concluded "The public interest in disclosure outweighs the public interest that would be served by withholding the records."

According to the Record Searchlight, the report reveals that among other things, the fire chief watched pornographic material on the office computers, was observed to be intoxicated while in uniform, and sexually harassed and verbally abusive to his own employees. On January 25, 2010 Judge Marlow followed up her prior ruling with an award of attorneys fees, ordering the district to pay the newspaper $16,123.

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Posted in Civil Suit, Disciplinary Action, Open Records Laws

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3 comments Posted by on February 10, 2010

Atlanta Firefighters Disciplined for Failing to Fully Assess Shooting Victim

The Atlanta Fire Department disciplined three firefighters last week for their role at a shooting in December, 2009. The firefighters were charged with failing to properly assess the condition of a mortally wounded store clerk before assuming he was dead.

If video does not play, click here to go directly to Ch11 News.

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Posted in Duty to Act, EMS

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No comments Posted by on February 8, 2010

Tragedy in Houston Ends with Modest Settlement

On March 30, 2009, Leigh Boone was standing at a street corner with her bicycle, when a Houston Fire Department ladder truck responding to an alarm collided with an engine company, and within a split second rolled on top of her. She died from her injuries two weeks later on April 11, 2009. She was 29 years old.

Boone’s estate filed suit against the Houston Fire Department for wrong death, and in particular cited the competitive manner in which fire stations rush to incident scenes as a contributing factor in the accident. A total of 11 people were injured in the crash, 9 of them firefighters.

The investigation revealed that the ladder truck had the red light, and the engine had the green light. However, additional factors appear to have been involved that tend make the color of the light less of an issue. Consider one report that noted the just prior to the crash the ladder was traveling at 18 mph, 12 mph below the speed limit, while the engine was traveling at 52 mph, 22 mph over the speed limit. This report and others cite the possible operation of the Opticom device by the engine company driver as a factor by changing the traffic light to give the engine the green light.

While the cause of the accident will remain of interest to firefighters and safety officers, the bottom line is that on January 27, 2010 the City of Houston settled the lawsuit in a somewhat responsible way by agreeing to pay $225,000 to Boone’s estate. The statutory damage cap limited the total damages to $250,000, so the city was able to save $25,000. Maybe its just me, but I have this image of some young city attorney proudly reporting to the city bean-counters that he/she saved the city $25,000… at the expense of Leigh Boone’s family.

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Posted in Apparatus, Civil Suit, Municipal Liability, Negligence

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3 comments Posted by on February 7, 2010

$40 Million Paid to Family of Deceased St. Louis Firefighter

Associated Press is reporting that the family of deceased St. Louis firefighter Derek Martin has finally received the money they were awarded by a jury in 2007, bringing to a close their suit against Survivair Respirators and its parent company, Bacou-Dalloz. Martin was killed on May 3, 2002 at a fire that also claimed the life of firefighter Robert Morrison.

The jury’s original verdict was $27 million, but was appealed to the Missouri Court of Appeals. After Survivair lost the appeal, the accrued interest brought to grand total to $40.4  million.

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Posted in Civil Suit, Product Liability

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No comments Posted by on February 4, 2010

Fire Victim Files Claim Against New York

One of four survivors of a fatal apartment fire in Queens last November, has filed a claim against the city alleging that a dispatching error contributed to his burn injuries. Shafin Ahhamed has incurred over $50,000 in medical bills for treatment of his injuries. The November 7, 2009 fire claimed the lives of three Bangladeshi nationals, and seriously injured several others.

The dispatching error was attributed to a typo sending units to 62nd Steet instead of 65th Street. Ahhamed’s is claiming the mistake led to a 15 minute delay, while FDNY reports indicate the mistake was promptly discovered resulting in a total response time of just under 5 minutes. He says that as a result he was force to try to rescue the trapped victims and was injured in the process.

Reports say that the occupants’ escape was blocked by construction materials, and smoke detectors in the building were non-functional. Ahhamed’s claim described the apartment building a nuisance and firetrap and accuses the Department of Buildings (DOB) of failing to inspect the building properly and the fire department for negligence in dispatching procedures and for failing to put out the fire quickly enough. The claim is essentially a procedural requirement to formally put the city of notice of the allegations prior to suit being filed. The city would have the option of settling the claim at this point, but as a matter of course that is not likely to happen.

It appears that the apartment building was illegally converted from a two family into a five-family dwelling by creating seven additional rooms out of existing space. The top floor was subdivided into two living units with a total of three bedrooms and the basement had four bedrooms. The three victims who died were in the basement at the time of the fire, which had only one way out. The tragedy caused the DOB to issue several violations.

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Posted in Civil Suit, Municipal Liability, Negligence

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No comments Posted by on February 4, 2010

Politicians Playing “Hacky Sack” with Fire Departments

Here is a very simple formula that my Public Sector Labor Law professor gave us many years ago in law school:

Union official + speaking on an issue of public concern + discipline for speaking = a lawsuit the city cannot win

That formula is being tested in the Village of Johnson City, New York, where Union President Marty Meaney was suspended for 30 days for statements he made to the Mayor and the Village Board. On January 28, 2010 Meaney and the Firefighters Union filed suit in state court accusing  Mayor Dennis Hannon of depriving Meaney of  his 1st and 14th Amendment Rights and violation of New York State Labor Laws. The suit states that Meaney was exercising his right to speak frankly about issues that are of public concern, and the suspension was willful and intentional retaliation for exercising his fundamental rights. The suit seeks actual and punitive damages.

Not surprisingly Mayor Hannon holds an altogether different view of things. To him, this is one small skirmish in a battle to protect the interests of the Village of Johnson City. He feels that the Firefighters union is not working for the good of the people, and that the suspension relates to three statements that Meaney made on three separate occasions that were “insubordinate”.

On January 6, 2009, Meaney accused Hannon at a public meeting of making use of the Fire Department as what he termed his private “hacky sack’. He also accused him compromising the safety of the residents of the village by doing away with minimum shift strength.  On September 11, 2009, Meaney stated publicly that Hannon was politically motivated when he investigated the destruction of the discipline records of the Fire Department. On November 17, 2009, Meaney accused the Village Board and mayor of risking public welfare and safety.

By the way, I have never heard this “hacky sack” metaphor used before – but I have to admit, I know exactly what Meaney meant. Some politicians do self-righteously believe that fire departments warrant a mean-spirited drubbing in an effort to save money. I wish I had an answer for how we get through to folks like that.

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Posted in Civil Suit, First Amendment, Labor Law

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No comments Posted by on February 3, 2010