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More Fallout Over Prank In Macon-Bibb County, GA

An additional disciplinary action has been announced by the Macon-Bibb County Fire Department following the YouTube video shooting prank that occurred on September 18, 2011. Yesterday, Fire Chief Marvin Riggins increased the punishment for Fire Captain Stephanie Burke from a 2 day suspension to a demotion and 20 day suspension.

The reason for the increase was the disclosure of text messages between Capt. Burke and firefighter Chris Hughes that showed she was much more deeply involved in planning the prank than was previously believed. Hughes was the only member terminated. A total of 8 firefighters have been disciplined.

Burke was demoted to Lieutenant, and based on Macon-Bibb’s schedule her 20 day suspension equates to roughly two months off without pay.  Burke, Hughes and the other disciplined personnel still have the right to contest their penalties.

More on the story.

 

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Posted in Disciplinary Action, Social Media, You Can't Make This Stuff Up

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2 comments Posted by on September 30, 2011

Kentucky Court Denies TRO to Keep Fire Company Open

Another court has refused to block a fire company closing that a community claims is necessary in order to address its financial difficulties.

On Tuesday, Kenton Circuit Court Judge Gregory Bartlett refused to grant a temporary restraining order against the city of Covington, Kentucky. The suit was brought by Covington Professional Firefighters, IAFF Local 38 on Monday when the city implemented a brown-out of Pumper 1, and a staffing reduction of 3 firefighters per shift, from 30 per shift to 27.

Fire Chief Chuck Norris told the press that he chose Pumper One, which is housed with a ladder, rescue truck and ambulance, because doing so would not require closing a station.

Judge Bartlett was quoted as saying that courts should not be in the position of evaluating how communities address their financial difficulties. Although he went on to conclude that the union failed to prove irreparable harm, that reasoning is unfortunate. If courts will not stand in judgment of parties who evade their contractual obligations, who exactly will?   

In this case, the very existence of a financial crisis in Covington is in dispute. According to Mayor Denny Bowman, the city is not in a financial crisis, but instead chose to create a shortfall by spending more on capital improvements. Bowman submitted his resignation Tuesday and is stepping down Friday.

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Posted in Civil Suit, Labor Law, Politics, Staffing

No comments Posted by on September 29, 2011

More Litigation in Johnson City, NY

The president of the Johnson City Firefighter’s Local 921 has filed suit against the village over his demotion last May. Marty Meaney was demoted from captain to firefighter allegedly because he made false statements to a police detective. The detective was investigating complaints about someone tampering with Meaney’s PPE.

Fire Chief Stephen Hrustich reported that Meaney told him in March 2010 that his breathing equipment had been tampered with, but Meaney denied it when questioned by the detective. Meany claims he answered the detectives questions honestly, and should not have been demoted.

Perhaps the bigger story is the volume of litigation coming out of Johnson City in the past two years. I count six civil suits and an unfair labor practice charge filed since 2009 – involving the department and I’m not sure I have captured all the litigation. That’s a lot for a relatively small department with two stations. Its hard to make progress when you spend all day in court (that goes for fire chiefs or union officials). Small departments do not have extra administrative staff to keep things running smoothly while the chief is tied up!!!

More on the latest lawsuit.

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Posted in Civil Suit, Disciplinary Action, Labor Law

No comments Posted by on September 28, 2011

US Supreme Court Accepts Fire Service Case on…. Lawyer’s Liability

Another fire service case is headed to the US Supreme Court, this one involving a California attorney hired to investigate sick leave in the Rialto Fire Department.

Firefighter Nicholas B. Delia was off-injured and department administrators were suspicious given the circumstances and his disciplinary history. He was placed under surveillance and filmed purchasing building supplies including rolls of fiberglass insulation.

As part of an investigation Delia was called to appear for an interview conducted by attorney Steve Filarsky. Filarsky was not a public employee but rather had been hired by the city as a contractor. That subtle point is the focus of the appeal.

As the interview unfolded, Delia acknowledged buying the supplies, but claimed they were still at his home and still in their original packaging. After several brief adjournments where Filarsky met with fire department officials, Delia was asked if he would consent to allowing Battalion Chief Mike Peel to enter his house to conduct a warrantless search. Delia declined.

According to the 9th Circuit’s decision “Unable to get Delia to volunteer, Filarsky orally ordered Delia to produce the rolls of insulation from his house. Adams, Delia’s attorney, questioned Filarsky’s legal authority for issuing such an order and requested that the order be in writing. Following a lengthy break, Delia was presented with a written order to produce the insulation for inspection signed by Chief Wells. The interview then concluded.”

Chief Peel and Battalion Chief Frank Bekker then followed Delia to his house where they waited outside as Delia produced the requested rolls. The investigation seemly ended when Delia produced the rolls.

Several months later Delia filed suit alleging a violation of his Fourth Amendment Right to be free from unreasonable searches. The suit named the Rialto Fire Department, Fire Chief Stephen C. Wells, Battalion Chief Peel, Battalion Chief Bekker, and Steve Filarsky. The District Court dismissed the complaint concluding that all parties had qualified immunity. The 9th Circuit affirmed the District Court as to all defendants except for Filarsky ruling that his status as a contractor make him ineligible for qualified immunity.

That will be the issue for the US Supreme court. The Delia case is one of seven cases that the Court accepted for the upcoming term.

Here is a link to the 9th Circuit’s decision.

Here is more on the story.

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Posted in Civil Suit, Constitutional Rights, Disciplinary Action, Labor Law, Municipal Liability

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3 comments Posted by on September 27, 2011

News Video from Toledo: Fire Inspector Accused of Shooting

A civilian fire inspector whose father was the fire chief in Toledo until a few months ago, has been arrested and charged with firing into a occupied fire station Saturday night. Kevin Wolever was arrested in the vicinity of the shooting carrying a 9 mm handgun and 2 clips of ammunition. He was under suspicion of being involved in a series of prior fire station shootings the past week.

Of even more concern, he was wearing a ballistic vest and had a handcuff key in his mouth when apprehended.

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

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No comments Posted by on September 26, 2011

Boston Local Sues Over 7 EMT Related Resignations

Boston Firefighters, IAFF Local 718 filed suit against the city today following the forced resignation of seven probationary firefighters who failed to obtain then EMT license within their first year of service.

The local alleges the EMT requirement has been in place for over 15 years and has never been enforced. They are seeking an injunction to reinstate the seven firefighters.

Boston Fire Commissioner Roderick Fraser said in the aftermath of the EMS scandal the department sought to enhance the scrutiny of EMS training, and as part of that required 50 recruits hired in 2010 to agree in writing that they would be fired if they did not obtain EMT certification within one year.

The department provided EMT training for the members and has offered them additional tutoring as well to help them pass the state exam. According to Commissioner Fraser, by the members resigning rather than being terminated, they may reapply and be reinstated once they obtain their EMT. Had they been terminated, they would have had to re-enter the application process.

A hearing on the injunction request is scheduled in Suffolk County Superior Court on Wednesday, September, 28, 2011.

More on the story.

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Posted in Civil Suit, EMS, Labor Law, Training, Wrongful termination

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1 comment Posted by on September 26, 2011

Alleghany Port Authority Settles With Pennsylvania Firefighter

Here is today’s burning question: I was in the process of extinguishing a car fire when a city bus drove over our hose line. The hose got snagged, knocking me down, and now I have $58,000 worth of medical bills. Can I recover any damages from the bus company?

As a matter of fact you can, but the suit may take a while. Henry Greenawald, a firefighter with the Central Volunteer Fire Company in Elizabeth Township, Pennsylvania, was injured in 2003 when an Alleghany County Port Authority bus drove over and snagged a hose in its rear wheels. Greenawald was thrown from his feet permanently injuring his right arm. He filed suit in 2005.

On Wednesday, the Port Authority agreed to settle the case for $110,000. Incidentally, that number seems a bit low for someone with permanent injuries and $58,000 in medical bills. However, it is likely that tort claims protection combined with the fireman’s rule may have contributed to the low figure. More on the story.

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Posted in Burning Question, Civil Suit, Negligence, Volunteers

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No comments Posted by on September 23, 2011

Los Angeles Fire Truck Stars in Porn Film

Los Angeles Fire Department officials are investigating how one of their fire trucks found its way into a porn movie.

View more videos at: http://nbclosangeles.com.

The department has launched an investigation into the matter. More on the story.

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Posted in Apparatus, Disciplinary Action, Humor, Sexual misconduct, You Can't Make This Stuff Up

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3 comments Posted by on September 22, 2011

FDNY Captain Sues For Injuries

An FDNY captain has filed suit against the city alleging negligence following an in station accident involving the decon unit.

Captain Frank Sorito was injured on December 10, 2010 when the Decon Shower Unit housed at Engine 160 suddenly moved and pinned him. According to reports he was crushed, suffering numerous lower back fractures.

The decon unit was apparently not chocked and was being serviced at the time. Captain Sorito’s suit includes an allegation that the mechanic was not properly trained, and that the unit was not properly secured.

Most negligence suits by employees against their employer and/or co-workers are prohibited by a principle known as workers compensation exclusivity. In essence, workers compensation benefits are considered to be the “exclusive remedy” for injured workers. New York recognizes an exception when the negligence is associated with the violation of a statute. (more…)

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Posted in Civil Suit, Municipal Liability, Negligence, Workers Compensation

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No comments Posted by on September 21, 2011

California Captain Asks for $500k Because He Was Hazed

Here’s today’s burning question: “I’m a fire captain and I was assigned to work at a station in a different fire department as an observer for a day. While I was there the guys played a series of mean pranks on me. Can I sue them?”  

Ask Rialto Fire Department Captain Joshua Gilliam, who filed a claim for $500,000 against the city of Long Beach. On February 10, 2011 he worked at Long Beach Fire Department Station 11 as an observer. He was welcomed with a series of pranks including the venerable:

  • Hot ball of tin foil
  • Water dump (down the station’s sky-light onto him… here in the Northeast it would be a water drop down the pole hole)
  • Fire crackers into the bathroom stall while he was on the throne

According to news reports the claim states that Captain Gilliam suffered “discrimination, harassment, retaliation, intentional infliction of emotional distress, emotional distress, battery.”

Here is more on the story. Speaking of more to the story, is there? Anyone know? There always is….

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

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2 comments Posted by on September 21, 2011

Texas Refinery Firefighters File FLSA Suit for Overtime

Two former industrial firefighters at the port of Corpus Christi, Texas have filed a Federal lawsuit alleging they were wrongfully not paid overtime for all hours worked in excess of 40 hours per week.

Joe Dale Martinez and Fidencio Lopez Jr. worked for a privately owned firefighting cooperative group named Refinery Terminal Fire Co.  and owned by industrial companies including Calpine Corp., Citgo Corpus Christi Refinery, Diamond Shamrock’s Corpus Christi facility, Elementis Chromium, the Lyondell Chemical Corpus Christi plant, El Paso Corp., Koch Pipeline Co., Flint Hills Resources, the Port of Corpus Christi Authority and Valero Refining.

The suit seeks damages for all hours worked in excess of 40 hours per week, plus compensation for time they were required to be on-call, citing the Fair Labor Standards Act (FLSA). Most firefighters are familiar with the fact that the FLSA allows fire departments to exceed the 40 hour requirement for firefighters. In fact, firefighters can be required to work up to 53 hours a week prior to triggering the overtime requirement.  The little known provision that permits this is 29 USC §207(k).

The little known part of this little known provision is that it ONLY applies to public sector firefighter. Industrial firefighters and firefighter who work for private sector employers fall under the normal 40 hour per week requirements.

Here is a copy of the complaint.RefineryTerminalFireCo_Complaint_pdf

Here’s news cover of the suit.

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Posted in Civil Suit, FLSA, Wage and Hour

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No comments Posted by on September 20, 2011

How Long is Too Long: Civil Suit in Ohio

An Ohio widow is suing the City of Northwood claiming the fire department took too long to respond to her 911 call for EMS assistance for her husband.

On March 3, 2011, Ellen Mix called 911 three times over a 22 minute period to get help for her husband, Tim, who was having difficulty breathing. It took 28 minutes for an EMS unit to arrive. By then Tim had stopped breathing. He died 2 days later.

The suit alleges not only that the EMS response was slow, but that local officials “knew or should have known that the City’s emergency response capability failed to meet the standard of care, was grossly deficient, and created a grave risk of serious harm or death to citizens who relied on its response capability for emergency medical assistance.”

The suit names Fire Chief Tim Romstadt, Mayor Mark Stoner, City Administrator Dennis Recker, as well as a lengthy list of John Does including dispatchers, supervisory personnel, administrative employees, elected officials, and consulting contractors.

Some of the quotes from the law suit:

  • “Its deficiencies placed citizens at great risk of death or other serious harm”.
  • “Defendants’ knowing disregard for this risk was wanton and reckless.”
  • The defendants “failed to establish, enforce or adhere to policies, procedures, and practices in order to ensure a timely response to requests for emergency medical assistance.”
  • Mr. Mix’s death was “a direct and proximate result of the defendants’ knowing, reckless and wanton acts and omissions.”

I am working on getting a copy of the complaint, and will post it here if I get it.

Here is more on the story.

October 1, 2011: Here is the complaint, courtesy of attorney Paul Belazis: Mix v Romstadt

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Posted in Civil Suit, EMS, Municipal Liability, Negligence

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4 comments Posted by on September 19, 2011

Oklahoma Fire Chief Arrested in New Mexico

The missing fire chief from the Terlton Volunteer Fire Department in Pawnee County, Oklahoma has been arrested in New Mexico. Chief Charles Badgwell is wanted in connection with the embezzlement of fire company funds.

Chief Badgwell was arrested last Friday along with his girlfriend, Janet Kirby, by police in Luna County. They are awaiting extradition back to Oklahoma.

 

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

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No comments Posted by on September 19, 2011

Fire Service Court Radio

Here is the latest edition of the Fire Service Court web radio show.

Listen to internet radio with fireengineeringtalkradio on Blog Talk Radio

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Posted in Fire Service Court Radio, First Amendment

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2 comments Posted by on September 18, 2011

DNR Tattoos: Are You Kidding Me?

Here is one for all the paramedic legal eagles out there: You arrive on the scene of an unconscious 80 year old female. During the course of your patient assessment you notice a tattoo on her chest stating “Do Not Resuscitate”. Do you have to honor that request?

We have discussed DNR orders here quite a bit, but this case is a bit different. Not that 80 year olds should be prohibited from getting inked, nor that people should be limited in their decisions on the extent to which their lives should be prolonged, but seriously? A DNR tattoo?

That is how an 81 year old grandmother from the UK, Joy Tomkins, has chosen to make her last wishes known to emergency responders and hospital personnel. That’s not all. Tomkins also had the letters “PTO” tattooed on her back along with an arrow directing viewers to her front. Click here for the photos.

Tomkins was quoted by Mirror.com as saying: “I do not want to be half dead, I want to be fully dead. I’m afraid the medical profession will, with the best of intentions, keep me alive when I don’t want to be alive. …I don’t want to lie for hours, months or even years before dying. I do not want to end up as a vegetable. I don’t want my family to remember me as a lump. That is why I got the tattoo.”

The news article reports that a British General Medical Council spokesperson said most UK doctors would ignore the tattoo. I would have to agree. Here in the US she would still have to comply with what ever state law requirements were applicable for a DNR request to be honored. The tattoo alone would not cut it. However, the tattoo should serve as notice to check further.

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Posted in Burning Question, Duty to Act, EMS, Humor, International, You Can't Make This Stuff Up

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13 comments Posted by on September 17, 2011

Change in Pension Contributions Challenged in Alabama

Today’s burning question: Can a city unilaterally increase the amount that firefighters pay each week toward their pension while reducing their own contribution by the same amount?

That is the issue in a case filed Thursday in Federal District Court in Gadsden, Alabama by seven members of the Gadsden Fire Department. On August 23, 2011 the City Council of Gadsden voted to increase the firefighters’ pension contributions from 6% of their salary to 8.25%, and reduce the city’s contribution.

The suit alleges that the city’s action violates the U.S. Constitution and the State of Alabama’s constitution by being an “unlawful impairment of contractual obligations.” The so-called contact clause states:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

With the key language being

No State shall … pass any … Law impairing the Obligation of Contracts

As interpreted, the Contract Clause prohibits a state, or political subdivision of a state, from retroactively changing a contractual right through a legislative act. The firefighters allege that because they were vested members of the state pension system the city’s decision to increase their contribution is unconstitutional.

The plaintiffs- Joe Taylor, Jeff Mayben, Lecil Harrelson, Jeff Morris, John A. Colvert, David Putman and Derrick Sherrill – are seeking class action status and are represented by Birmingham attorney Raymond Fitzpatrick.

Here is a copy of the complaint. Gadsden Complaint

More on the story.

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Posted in Burning Question, Civil Suit, Constitutional Rights, Pensions

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No comments Posted by on September 17, 2011

Use of Prisoners as Firefighters

A friend of mine sent me this story about the use of prisoners as firefighters in Georgia. Apparently it is old news to many, but it is such a radical idea to me that I felt it was worth airing this issue here.

What do you think, good idea, bad idea?

My concern is over the opportunity that firefighters have to enter into buildings in the absence of the owner, having access to keys, security code information, etc. Is the cost of a firefighter’s salary that outrageous that responsible officials would subject citizens to such a threat? Or is it the Tea Party mindset gone off the deep end?

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

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13 comments Posted by on September 16, 2011

1st Amendment Dilemma: Can a Patient Video Their Own Treatment?

In response to our discussions about the 1st Amendment and the right of the media and citizens to photograph emergency scenes, I received a great question from Firehrguy. We will turn that into today’s burning question:

One of our Paramedics asked if there was any rule on a patient recording and filming their treatment. He had a patient that was recording the Paramedic as he was taking vitals and assessing the patient and the patient recorded all this with his phone.

I am not aware of any law or case that even remotely begins to address this issue. The closest analogy I can think of would be whether or not an arrestee has a right to film his/her arrest, but that analogy is admittedly not a good one.

While certainly a doctor, nurse or medical provider in private practice (as a non-governmental employee) could insist that a recording device be turned off as a condition of rendering treatment, I am not so sure the same can be said of a public employee rendering aid in a public place. Public employees must respect the Constitutional Rights of patients.

What we have are competing interests. From the patient’s perspective there is the right to capture and memorialize information pursuant to the 1st Amendment. The fact that the patient is the one doing the recording eliminates a host of privacy concerns that might otherwise arise.

Against those rights comes the needs of the situation. Certainly to the extent that photo taking could interfere with the ability of EMS personnel to deliver care, they would have a right to order the filming be stopped. However, to the extent that the filming is a mere annoyance, I think the patient may be on solid ground.

There are a host of factual issues that may limit a patient’s photo taking, such as where the filming is taking place (public place versus private place – many states prohibit photo taking in certain private places), whether there are other patients in the area (filming may violate their rights), and whether the filming includes an audio component (some states have stronger laws for audiotaping without the consent of all parties to the conversation).

Let’s open this up to the legal scholars out there. What do you think?

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Posted in Burning Question, Constitutional Rights, First Amendment

20 comments Posted by on September 14, 2011

Not Again: Volunteer Theft and 1st Amendment Violation Caught on Tape

Two New York cases are in the news today, both of which raise the same frustrated response: not again!

In Charlton, New York, the treasurer of a volunteer fire department is accused of stealing between $400,000 and $500,000. Virginia DeCapria, 50, who served as treasurer of the Charlton Volunteer Fire Department was charged with grand larceny and several related charges for writing checks totaling nearly a half-million dollars to herself.

DeCapria’s  husband Dean served as the Charlton fire chief and she was secretary and treasurer from 2005 until January 2011.

The department’s attorney, Terry Hannigan, was quoted as saying “Since we became aware of this situation, the board has completely revised the procedures that they use to monitor expeditures and purchases.” Incidentally, Terry is a firefighter-lawyer and we did a mock trial together a few years back.

Thus far Chief DeCapria has not been implicated. More on the story.

In Suffolk County, an EMS officer was filmed trying to wrestle a video camera out of the hands of a newsman. Dave Statter is all over this one – but it leaves me wondering – how do we get the word out about this kind of non-sense. The law could not be more clear. We have no right to interfere with people taking photos at incidents scenes. Worry about the incident and forget about the cameras!!!!

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Posted in Constitutional Rights, Criminal Law, First Amendment, Theft in the Volunteer Fire Service, Volunteers

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8 comments Posted by on September 13, 2011

Arizona Fire Chief Sues City Over Pension Denial

Today’s burning question: If you were hired as a fire chief by a city who promised you eligibility for a state managed pension, and it turned out the state pension board ruled your were ineligible, what would you do? An Arizona fire chief is taking steps to sue his employer over that very issue.

Fire Chief Thomas Solberg left the Lee’s Summit, Missouri Fire Department in 2009 to become the fire chief in Peoria, Arizona. At the time he was told that he would be eligible for membership in the Arizona State Retirement System, and would vest after 5 years of service.  

However, after accepting the job, moving his family to Arizona, and paying into the ASRS for 14 months Chief Solberg was informed by ASRS that he was ineligible for their pension. ASRS said Chief Solberg belonged in the Public Safety Personnel Retirement System. There are two problems with that suggestion.

First, PSPRS requires a minimum of twenty years of service to vest, which is a lot to expect out of a 52 year old. It is the kind of thing that could make a fire chief pass on an otherwise decent job offer. Second, and of even greater concern, PSPRS considers Chief Solberg to be ineligible for their pension because he is not assigned to hazardous duty.

Chief Solberg is appealing the ASRS decision, and has placed the city of Peoria on notice that he plans to sue for $3.4 million.

Solberg was quoted by AZCentral.com as saying: “I’m just so disappointed that this kind of thing could happen to anybody… It’s almost like ‘well we’ll all just play this legal game of finger-pointing and forget that we’re talking about a real person.’ “

More on the story.

 

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Posted in Burning Question, Civil Suit, Municipal Liability, Pensions, Politics

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1 comment Posted by on September 12, 2011

Second Suit Filed Against Pennsylvania FD Over Train Accident

A second lawsuit has been filed against a Pennsylvania volunteer fire department in the tragic deaths of a mother and son who were struck by a train.

Sheila R. Singer, 37, and her son, John Smart, 2, were crossing the railroad tracks on October 30, 2009 when Smart’s stroller got stuck in the tracks. Singer was able to get her two other children ages 5 and 1 away off the tracks, but was struck as she was trying to free her son. According to news reports, a friend had just given Singer $50 and she crossed the tracks to buy groceries.

The boy’s father, Elmer Smart, filed a wrongful death suit against the Norfolk Southern Corp. and the Derry Volunteer Fire Department on August 2, 2011 alleging negligence. The fire department’s property abuts the tracks and has a hole in the fence which people use to cross the tracks.

Singer’s lawsuit, filed by her estate, similarly names the Norfolk Southern Corp. and the Derry Volunteer Fire Department as defendants. The allegation in the complaint is that the department was negligent in failing to properly maintain its portion of the fence.

Here is more on the suit. This link contains more about the accident.

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Posted in Civil Suit, Negligence, Volunteers, Wrongful death

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1 comment Posted by on September 10, 2011

Bridgeport FD Hit with $3.4 Million Verdict for Apparatus Accident

The Bridgeport Fire Department has been found liable for an apparatus accident that claimed the lives of two women in 2007.

The accident occurred on July 31, 2007, as Ladder 5, driven by Firefighter David Otero, was responding to a reported smoke condition.  Ladder 5 allegedly proceeded through a red traffic signal at Congress Street and Housatonic Avenue, colliding with a car driven by Gwendolyn Little, 58, and occupied by her mother, Essie Williams, 76. Both Little and Williams died as a result of their injuries.

The trial was held before Judge Theodore Tyma sitting without a jury. In an 18 page ruling issued yesterday, the judge found Otero negligent, and awarded roughly $3.4 million in damages to relatives of the deceased. The decision stated:

“The plaintiffs have proven by a fair preponderance of the evidence that Otero was negligent in failing to keep a proper lookout as he drove Ladder 5 into and across the intersection of Congress Street and Housatonic Avenue…. There is no plausible reason, notwithstanding Otero’s explanatory testimony, why he stopped looking to his left and right as he proceeded through the busy and heavily traveled intersection while continually accelerating his approximately 37 ton truck.”

No word yet on whether the city plans an appeal. More on the story.

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Posted in Apparatus, Civil Suit, Municipal Liability, Negligence

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3 comments Posted by on September 9, 2011

Portland Retirees Sue to Block Withholding

 

Five retired Portland, Oregon police officers and firefighters have filed a class action lawsuit against the Portland Fire and Police Disability and Retirement Board seeking to block a plan to recoup roughly $3 million in claimed overpayments to retirees going back 13 years.

 

The suit was filed August 25, 2011 in state court on behalf of roughly 850 retirees affected by the action. The retirement board discovered they had been overpaying retirees by an average of 2.38%, and is seeking to recover the overpayments by deducting the amounts from retirees present checks.

 

The legal theory behind the challenge appears to be straightforward: breach of contract. However the case will likely prove to be anything but straightforward. According to retirement board trustee Justin Delaney, “we have to stay in compliance with IRS rules or else we’ll imperil the whole system. If somebody is overpaid, you’ve got to pay it back.”  Board member Jeffrey Robertson similarly indicated that the IRS advised the board that they had to address the matter.

 

Portland Fire Fighters Association IAFF Local 43, Portland Police Association’s and Portland Police Commanding Officers Association are reported to be considering a separate class-action lawsuit to challenging the withholding.

 

More in the story.

 

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Posted in Civil Suit, Pensions

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No comments Posted by on September 9, 2011

Williamsport Firefighters File Due Process Suit

Three Williamsport, Pennsylvania firefighters have filed suit in Federal court alleging that their civil rights were violated when the city’s Civil Service Commission refused to grant them a hearing.

Mark Webster, Noel Ferari and David Weaver applied to take a promotional examination for Platoon Chief scheduled for May 5, 2011. On May 4th they were informed by telephone that they lacked the required certifications and could not take the exam. Each firefighter requested a hearing before the Civil Service Commission, and were informed that the Commission “unanimously voted with the opinion of counsel to deny your request for a hearing”.

The suit filed in US District Court for the Middle District of Pennsylvania on August 29, 2011 claims the city and Civil Service Commission violated the due process rights of the three firefighters. The complaint pointed to a Pennsylvania statute, Section 53 P.S. 39865 of the Third Class City Code, that requires cities such as Williamsport to afford personnel a public hearing when they are denied the opportunity to take an examination. The statute reads as follows:

If any applicant feels himself aggrieved by the action of the commission in refusing to examine him, or, after and examination, to certify him as eligible, as provided in this section, the commission shall, at the request of such applicant, appoint a time and place for a public hearing, at which time the applicant may appear, by himself or counsel, or both, and the commission shall then review its refusal to make such examination or certification, and testimony shall be taken.

The complaint indicates that the firefighters’ attorney,  Thomas W. Jennings, Esquire, put the Civil Service Commission on notice of the statutory requirement of a hearing prior to filing the suit. The commission did not reply to Jennings’ demand letter.

Following the filing of the suit Commission Member Raymond Danneker told a Sun-Gazette reporter “I don’t know anything about it”, and asked “Why would they file a civil lawsuit?”

Here is a copy of the complaint. WilliamsportComplaint

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Posted in Civil Suit, Constitutional Rights

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No comments Posted by on September 7, 2011

Scottish Firefighter Lost the Plot

“Lost the Plot”…. No its not a typo.  I usually do not cover legal matters from other countries, but there was something intriguing about this story and the common language that separates the US from the UK. A senior firefighter from Hamilton, in Scotland, is in trouble with the law for directing threatening and abusive behavior towards his girlfriend.

Steven Aitchison of Strathclyde Fire and Rescue, was arrested and charged earlier this year with choking Shauna McManus, and tearing up her home. In March the case was deferred pending Aitchison’s remaining on good behavior for six months. He appeared for final sentencing today and got off with an “admonishment” by the Sheriff. The lack of a serious penalty has McManus seeing red. She was quoted by the media as saying:

“He really frightens me. I have had to live with this for months, and to find out that he has only been admonished sickens me.  The judicial system is all wrong. I have been left to pay for all the damage to my home that night. I have had to renew doors, replace flooring, lamps, ornaments and a side board, not to mention picking up the pieces in my own life”.

Take a look at how she explained the violent episode:

“We had gone out for a Christmas night out together and had such a brilliant night. We came home to my house and he went out for something to eat. I decided that I would go up to bed. When he got back, he came up to the bedroom and tried to wake me. When I am sleeping I just want to sleep, so I didn’t wake up straight away… I thought I better get up and went downstairs and sat on the couch…. It was then that he just lost the plot”.

McManus alleges that Aitchison then grabbed her by the throat and smashed up her furniture. Aitchison, a watch commander, remains suspended from Strathclyde Fire and Rescue facing internal disciplinary action.

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

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11 comments Posted by on September 6, 2011