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Former Fire Chief Charged in AFG Related Theft

The American Fire Grant (AFG) program administered by the Department of Homeland Security/FEMA, has been one of most important Federal programs to support the fire service. Unlike many other Federal programs, it has been remarkably free from controversy – except for the occasional whining from this group or that about their fair share… but that's another story.

Depending on how you look at these things, a recent case from New Jersey represents either a problem with AFG – or it shows that safe-guards built into the program work to prevent problems.

The Clayton Fire Department in Gloucester County received an AFG award in 2004, and applied for a second AGF award in 2008. As part of the 2008 application process, it was determined that the 2004 grant had not been closed out. An audit disclosed irregularities, and a subsequent investigation led to the arrest of Harry J. Simpson Jr., who was the fire chief in 2006-2007.

Prosecutors allege that Simpson stole $11,900 from the volunteer department between January and February 2006. He was charged with third-degree theft and second-degree official misconduct. The offenses carry a maximum penalty of five to 10 years in jail.

The charges were served on Simpson last Friday.

For more on the story.

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Posted in Criminal Law, Theft in the Volunteer Fire Service, Volunteers

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No comments Posted by on May 31, 2010

Special Master Appointed to Oversee FDNY Hiring

The ongoing saga of the FDNY employment discrimination case took another turn yesterday, when  Federal District Court Judge Nicholas G. Garaufis appointed Robert M. Morgenthau as a special master to address the FDNY’s  hiring practices.

In remarkably blunt terms, Judge Garaufis explained why he appointed Morgenthau, who recently retired after 35 years as the district attorney of Manhattan: “The city does not appear to understand that it already lost this case, and that its obligation now is not to fight tooth and nail against the possibility of change, but to move with alacrity to cure its illegal practices. Put bluntly, the constitutional rights of thousands of its citizens are at stake.”

In January, Judge Garaufis concluded that the city had intentionally discriminated by continuing to use an exam that it knew had a disparate impact on black applicants. Since that time, the judge’s patience with city lawyers has been strained. For example, he threatened to sanction the city after lawyers suddenly produced thousands of documents related to the case more than two years late. In appointing the special master, Garaufis hopes to provide “steady, vigilant, immediate and comprehensive oversight” to effect the needed changes.

For more on the story

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Posted in Civil Suit, Discrimination

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No comments Posted by on May 27, 2010

Male on Male Sexual Harassment Suit Dismissed in South Bend

The male-on-male sexual harassment lawsuit filed by a South Bend, Indiana firefighter in February, 2009 has been dismissed. Firefighter John Banacki claimed that a male firefighter rubbed up against him in a sexual manner on at least three occasions in 2007 while the two worked together at Station 6.

Banacki alleged that when he complained to superiors about the inappropriate behavior, he was further discriminated against and transferred. He filed suit in Federal District Court claiming that the behavior and retaliation created a sexually hostile work environment.

Magistrate Christopher Nuechterlein dismissed the suit law week, concluding that:

"In light of the admittedly bawdy humor and practical jokes that Banacki and other firefighters at Station 6 engaged in … it is hard to accept Banacki’s claim that he found the particular incident directed at him to be so beyond the pale of accepted conduct that the incident changed the conditions of his work environment, or that he actually found it offensive."

Magistrate Nuechterlein also found that the department responded appropriately to the complaint by promptly investigating the allegations. He rejected the retaliation allegation, finding that Banacki was content with the transfer and suffered no financial loss.

Read the decision: Download Banacki v South Bend – Copy

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Posted in Civil Suit, Sexual Harassment, You Can't Make This Stuff Up

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No comments Posted by on May 25, 2010

Chicago Fire Discrimination Case – Another Fire Service Case Sets Precedent

Another in a long line of precedent setting cases involving the fire service was decided today by the US Supreme Court. The case, Lewis v. Chicago, involved alleged discrimination against African American applicants for the Chicago Fire Department who took a test in 1995.

The department set a passing score of 64 on the exam. Applicants who scored at least 64 but below 89 were informed that they passed the test, but would probably not be hired given the number of candidates who scored 89 or above.  Applicants scoring 89 and above were classified as “well qualified”.

The majority of “well-qualified” applicants were white. Only 11 percent were black. The first class of trainees began in May, 1996, and ten more classes followed over the following five years using the same list.

Under Federal law, someone who alleges employment discrimination is required to file a complaint with the Equal Employment Opportunity Commission (EEOC), or the designated state law employment commission, within 300 days of the employment action they seek to challenge. Filing with the EEOC is a procedural pre-requisite to filing a lawsuit. The first EEOC complaint about the 1995 Chicago Fire Department entrance examination was filed in March, 1997.

(more…)

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Posted in Civil Suit, Discrimination

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4 comments Posted by on May 24, 2010

Copy Machines Pose a Major Risk of Confidentiality Breaches

A recent CBS News expose on the potential security problems associated with copy machines should be of concern to every fire and EMS organization in the country. The potential for violations of patient and employee confidentiality are enormous, not to mention the risk of identity theft. A big thank you to John Murphy for finding this for us.

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Posted in Confidentiality

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4 comments Posted by on May 20, 2010

Pelham Firefighters Claim FLSA Violation

Firefighters in Pelham, Alabama have filed a lawsuit against the department alleging that their work schedule violates the Fair Labor Standards Act (FLSA). The act requires that firefighters who work more than 52 hours per week, or on average more than 212 hours in an 28 day (4 week) stretch, receive either overtime compensation or compensatory time off.

According to the suit, Pelham firefighters work a typical three shift schedule of 24 hours on, 48 hours off, which averages 56 hours per week. The problem is the city requires the firefighters to take compensatory time in lieu of overtime, and then restricts their opportunities to use that time when they request it.

The FLSA mandates that employers who use comp time in lieu of overtime (1) obtain the agreement of employees to accept comp time and (2) allow the employee to use the accrued time within a reasonable period of time after it is earned, provided it would not unduly disrupt operations.

The suit seeks class action status for all current and former firefighters in Pelham since 2003.

For more on the suit.

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Posted in Civil Suit, FLSA, Wage and Hour

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8 comments Posted by on May 20, 2010

Release of Random Drug Testing Results Raise HIPAA Challenge

Fire Lieutenant Shawn Baptist was fired last year from the Zephyrhills, Florida Fire Department after he allegedly failed a random drug test on February 23, 2009. He is challenging the termination as well as the results of the test through grievance arbitration. In addition he filed suit last week alleging the public release of his medical tests violated HIPAA and state medical privacy laws.

Baptist claims that both Fire Chief Keith Williams and City Manager Steve Spina at various times told the media that he was fired because he failed a random drug test.

Spina is quoted as saying "When you are a public safety officer and you get fired for a certain reason, that's the public's business…. There was no intent to violate his privacy… But when you work for a public agency in a high-profile position, those things are public record."

Apparently Spina is not familiar with HIPAA, which even protects celebrities and public figures. He further seems to confuse the law related to medical confidentiality with the unrelated legal principle of  defamation, which sets a higher standard when dealing with public figures. Finally, he is wrong about state public record laws, which universally provide an exception to the public's right to know when it comes to the confidentiality of medical information.

And did I happen to mention that Baptist is also the President of the Zephyrhills Firefighter Union?  How much that is impacting the case is hard to say, but the parties are reported to be at an impasse in negotiations. As a fire lieutenant, Baptist makes $34,534 a year.

According to Baptist "If they wanted to make a comment that I was terminated, that's one thing…. But to say why, that's against federal and state law." I’d say that Baptist has a much better handle on the law than Spina.

For more on the case.

And more.   And More.

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Posted in Civil Suit, Confidentiality, Disciplinary Action, Municipal Liability, Open Records Laws

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3 comments Posted by on May 15, 2010

Village Escapes Liability for Sex Abuse By Chief

On May 7, 2010, the US Court of Appeals for the 7th Circuit ruled that a fire department would not be held liable for sexual abuse committed by a former fire chief. The suit was one of two brought by a former cadet at the Village of Thornton, Illinois  Fire Department alleging that Fire Chief John Klaczak physically and sexually abused him in 2001.  Chief Klaczak was fired in July, 2002, and pled guilty to sexual abuse charges in 2005.

Former Cadet Steven Wragg filed one suit in Illinois state court alleging assault, intentional infliction of severe emotional distress, and negligence by town officials for not investigating previous allegations about Chief Klaczak’s behavior, which included hosting alcohol and drug parties that cadets attended, and rumors of inappropriate behavior. The second case was brought in Federal court alleging a constitutional violation of Wragg’s substantive due process rights under color of law (42 USC §1983), claiming that town leaders failure to act constituted deliberate indifference. The US District Court of the Northern District of Illinois ruled in favor of the Village, and Wragg appealed to the 7th Circuit.

In reaching its conclusions that the Village was not liable, the 7th Circuit  found that “Wragg presents no evidence from which a reasonable jury could find that either the board of trustees or [Village President] Swan knew that maintaining Klaczak in employment would pose a “substantial risk” of a constitutional violation”.

The entire decision can be downloaded here.  Download XM1A3E66  It provides a good review of the law related to the liability of a municipality under 42 USC §1983. More information about what fire departments can do to manage the risks associated with junior or cadet programs can be found in the February, 2010 issue of Firehouse Magazine in my article: How Old is Old Enough: Legal Considerations for Junior Firefighter Programs.

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Posted in Civil Suit, Junior firefighters, Municipal Liability, Volunteers

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2 comments Posted by on May 13, 2010

Alberta Babysitter is Both Hero and Defendant

A Canadian teenager who saved two children from a trailer fire in 2007, is now a defendant in a lawsuit over responsibility for the fire. Aaliyah Braybrook, of Alberta, was 12 years old at the time of the fire, and was baby sitting for two young boys. She is now 14.

One of the boys is alleged to have been playing with a cigarette lighter in the bathroom, starting the blaze that destroyed the trailer, and spread to an adjacent house. The house, owned by the grandparents of the boys, was heavily damaged. Aaliyah was able to evacuate both boys and a family pet, and was considered to be a hero by local fire officials and family members alike.

The suit was brought by Kendall and Diane Mills, the grandparents of the boys, against Aaliyah and Douglas Mills, son of the plaintiffs. It alleges negligence in that Aaliyah was too young to be babysitting. However, according to attorneys involved in the case, the suit is actually the result of the insurance companies who insure the various parties being unable to reach agreement on responsibility.

For more on the case.

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

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No comments Posted by on May 11, 2010

NY Volunteer Charged with Drunk Driving While Responding to Fire

A volunteer fire captain in New York state was arrested early this morning when his car struck a police officer directing traffic at the scene of a house fire he was responding to. The captain was accused of drunk driving, and is alleged to have had a blood alcohol level of .15. More on the story.

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Posted in Criminal Law, You Can't Make This Stuff Up

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2 comments Posted by on May 7, 2010

Mandatory Brush Clearing Leads to Tax Sale in San Diego

A California man is fighting efforts by San Diego county officials to auction off his property after he refused to remove combustible vegetation from around his home, and then refused to pay the expenses of the private contractor who performed the work. Joseph Diliberti, a Vietnam Vet who lives alone deep in rural eastern San Diego County, has until July 1, 2010 to pay the charges, plus interest.

State and local fire officials, reeling after years of tragic wildland fire losses, are stuck in the middle of this pitched battle.

 

 

Predictably, the media has characterized the battle as one of individual rights versus the big bad government bureaucracy, but fundamentally there is a serious question of individual rights versus individual responsibility. Whether it is the risk from wildland fires, or the threat of an approaching hurricane – people demand the freedom to ignore a dangerous situation until it is too late, and then complain (and often sue) when help doesn’t come fast enough.

The reality is that government doesn’t enough fire trucks to place hose streams between every home and the combustible vegetation around it, nor enough helicopters to rescue everyone who ignores hurricane evacuation orders. That is where individual responsibility comes in.

While part of me is sympathetic to Diliberti's plight, somewhere a balance needs to be struck. Perhaps this case will help better define the line between individual rights and individual responsibility… at least when it comes to safe practices in the WUI.

Here is a link to more on the story.

Here is a link to Diliberti's Facebook Support page.

The NPFA's Firewise program.

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Posted in Civil Suit, Wildland

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4 comments Posted by on May 5, 2010

Halifax Fire Facing 18 Suits & $10 Million in Claims for 2009 Wildland Fire

A Canadian fire department is facing 18 separate lawsuits seeking a total of $10 million in damages arising out of a wildland fire that occurred last spring. Halifax Regional Municipality and the Halifax Regional Fire & Emergency Service were sued in the Nova Scotia Supreme Court on April 28, 2010.

The suits were filed by insurance companies seeking to recoup claims paid to homeowners after a wildland fire on April 29-30, 2009 drove 1,200 people from their homes, destroying eight homes and damaging 10 others homes. The suits allege negligence in fighting the fire.

The plaintiffs claim that the fire department left hotspots unattended during which time the winds picked up spreading the fire. They also allege that effective command was not established, requests for resources were delayed, and air support was not requested soon enough.

Halifax fire spokesman Dave Meldrum is quoted as saying "We're concerned with all the allegations. We think that they're wrong, and they're incorrect, and we will defend them in court… That day was a tragic circumstance. Our firefighters put themselves on the line, they worked long hours, they trained hard hours, to protect life and to protect property."

For more on the story.

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Posted in Civil Suit, Municipal Liability, Negligence, Wildland

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4 comments Posted by on May 2, 2010

Dekalb County Fire Rescue Sued for Fire Death

In what should be of no surprise to anyone, the family of Ann Bartlett filed suit yesterday against Dekalb County Fire Rescue. Bartlett died on January 24, 2010 when the crews that were dispatched to her home for a reported fire, failed to find any fire or smoke in the area, and left the scene without checking the house – only to be called back hours later when the house was well involved.

Named in the suit were Dekalb County Fire Rescue, William J. Greene, Lesley Clark, Tony Motes, Sell Caldwell III, and Bennie Paige. Greene and Motes were acting officers, Caldwell was a captain, and Clark was a battalion chief, all of whom were dispatched on the initial alarm. Paige was the acting shift commander that night. All five named defendants were terminated by the fire department in the aftermath of the fire.

The suit alleges negligence in the performance of a ministerial act; willful negligence and malfeasance; and abandonment by the fire crews. It seeks punitive damages because the conduct constituted “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise a presumption of conscious indifference to the consequences”.

The family also asked the court to order an independent third party to evaluate and review the fire department’s policies and procedures to ensure that such an event does not occur again.

Here is a copy of the complaint. Download DekalbComplaint

One interesting aspect of this case involves the advisability of being forthcoming when you know you have made a mistake. Old school lawyers shudder at the thought of admitting liability, instead preferring to deny, stall, delay and force a plaintiff to prove every aspect of their case. The more modern approach recognizes that in many cases it is better to admit wrongdoing up front. The modern approach was taken by Dekalb officials who from nearly the beginning accepted responsibility for the blunders that led to Mrs. Bartlett’s death. Only time will tell if “honesty is the best policy” is truly the best policy when it comes to liability.

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Posted in Civil Suit, Municipal Liability, Negligence, Wrongful death

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5 comments Posted by on May 1, 2010