A career fire captain with the Rancho Adobe Fire Protection District in Sonoma County, California has been charged with stealing more than $63,000 from the firefighters’ union. Michael Bechtold, 39, was arrested last Wednesday on charges of embezzlement.
Bechtold was the treasurer of the Rancho Adobe Firefighters Association, from whom the funds were stolen. Sheriff’s investigators claim he used the money on season tickets for the San Jose Sharks and a trip to Disney Land.
If you have been following this blog for a while, you no doubt realize the fire service is having a serious problem with theft in the volunteer service. Consider this story. We are not talking about theft from the homes and businesses of citizens we serve – but rather we are talking about the embezzlement of large sums of money from volunteer fire organizations.
The Rancho Adobe case is a reminder that the embezzlement problem is in no way limited to the volunteer service. However, the root cause is probably the same: the trust we put in a brother or sister firefighter. In the immortal words of President Ronald Reagan: “Trust, but verify”.
A deputy chief who was laid off by the Topeka Fire Department in 2010 due to budget cuts, has filed a claim for $1.3 million alleging that the elimination of her position, and the refusal to rehire her for a training position, was gender based and retaliatory.
Kathy Petty was one of Topeka’s first female firefighters, and the first to reach the rank of deputy chief. She had been in the cross-hairs of the union, with 86% of the rank and file having expressed their dissatisfaction with her performance in a 2006 poll.
Her position was eliminated in February, 2010. The city claims the position was eliminated to save money, but Chief Petty disputes that fact. She also claims she was fully qualified for a training officer position that became available in 2011, but was passed over.
Chief Petty’s $1.3 million claim is an administrative request for payment filed in advance of filing a suit. The city council will consider the claim at its next meeting but is expected to deny it, forcing her to file suit.
Does the headline really say that? Yes it does. The Fairmount Volunteer Fire Department and two men, Ryan Miller and James Taylor, pled guilty to criminal charges of unlawful burning after they burned Miller’s demolished house in Westover, Maryland, without getting clearance from the Somerset County.
Miller had filed a request for a permit to burn down his house but it was denied by Somerset County because the house was already in a demolished condition. As such it constituted solid waste and was subject to solid waste disposal laws. Taylor, who was an assistant fire chief for Fairmount VFD, conducted the burn along with Miller on December 10, 2010.
Following County investigation, Fairmount, Miller and Taylor were charged with a criminal offense of conducting an open fire without a permit, which carries a maximum sentence of one year in jail and a $25,000 fine. Each defendant was ordered to pay a fine of $2,000 to the Maryland Clean Air Fund, and Miller was ordered to 30 hours of community service.
I received an interesting question – for today’s burning question: If an EMS crew is called to the home of an off-duty firefighter and she is drunk, suicidal and threatening to harm her husband, can the crew inform a supervisor? If she goes so far as to threaten the crew, can the crew disclose the threat to the police and a supervisor?
Answer: wow… you guys are killing me. The obvious issue that arises in this situation is that of medical confidentiality. There may also be a duty to report law for domestic abuse that may be triggered – based on state law.
Both HIPAA and state medical confidentiality laws apply to information that is exchanged between a provider and patient during the course of medical care and treatment. But not every piece of information that is exchanged between a provider and a patient is confidential. As I watch the World Series – an example came to me: if a medic asks a patient during the course of treatment for the score in the game, the answer is not confidential. It has nothing to do with medical treatment.
The problem is…. if a medic asks a patient a simple question such as what day is it…. for the purpose of assessing the patient’s orientation – the fact the patient knew (or did not know) the answer would be protected.
The observation of a patient’s overt behavior can be considered to be protected information, particularly when the behavior is embarrassing (loss of bladder control, bowel movement, etc.). When it comes to the observation of a patient making threats toward third parties, an argument can be made that the threats have nothing to do with medical treatment and thus are not protected. The argument can also be made that the medics have a “qualified privilege” to report their observations to law enforcement and their superiors that supersedes any rights to confidentiality the patient may otherwise have.
What makes this a VERY VERY close call… is that the patient’s behavior – including the threats – can be characterized as symptoms of underlying psychotic issues.
On balance, I would think the medics would have a qualified privilege to inform the police and their supervisors. It would be a very narrow privilege – because certainly if one of the medics discussed what happened publically or on Facebook it would violate confidentiality.
I would also reach out to the other fire lawyers out there for their considered opinion.
The owner of a large commercial structure in Union City, Pennsylvania that was destroyed by fire last December, has filed suit against a volunteer fire company and the Borough of Union City.
Carl Boone, owner of a 210,000 square foot building that formerly was a furniture manufacturing facility for Ethan Allen, claims that firefighters failed to do enough to extinguish the fire, and failed to use the building’s built in fire protection system (which I assume means the sprinkler system).
The fire was reported to have been started by workers using a torches, but the lawsuit alleges it was actually started by vandals using cutting equipment to steal scrap metal.
The suit was filed on October 21, 2011. GOErie.com reported that the complaint stated: “There was a predetermined decision by the Union City Fire Department that if the building ever caught on fire, Union City Fire Department would not attempt to extinguish the fire but would instead operate as a ‘controlled burn structure fire.’”
It is unclear if the suit was filed by Boone’s insurer as a subrogation action or by Boone himself. I am trying to get a copy of the complaint so stay tuned. More on the story.
A captain and a firefighter from Portland, Maine have been suspended following a marine mishap with a fire boat that resulted in approximately $38,000 worth of damage.
Captain Christopher Goodall and Firefighter Joseph Murphy were operating The City of Portland IV on October 15, 2011 when it ran aground. Murphy was piloting the vessel at the time, received a 3 day suspension, while Captain Goodall received a 10 day suspension.
Meanwhile, the US Coast Guard has initiated an investigation into the incident, and why the accident was not reported. According to a city spokesperson, officials were not aware they had to report vessel accidents to the Coast Guard.
The Supreme Court of Pennsylvania has upheld the widow of a Philadelphia firefighter in her claim that her husband’s Hepatitis C was contracted in the line of duty.
Joseph Kriebel served as a Philadelphia firefighter from 1974 until 2003. He passed away on October 25, 2004, from liver disease caused by Hepatitis C. Patricia Kriebel, filed a workers’ compensation claim following his death claiming that his disease and death were job related.
The Pennsylvania Workers’ Compensation Act identifies Hepatitis C as an “occupational disease” for career and volunteer firefighters, and section 301(e) of the Act creates a rebuttable presumption that an occupational disease is causally related to employment.
The city countered Mrs. Kriebel’s claim with evidence from her husband’s military medical file dating back to 1969 indicating that he suffered “serum hepatitis from drug usage”. Unable to produce the doctor who made the note, the city found an expert witness, Dr. Stephen J. Gluckman, M.D, who concluded that Kriebel’s hepatitis was due to intravenous drug usage not exposure as a firefighter.
The Workers Compensation Board concluded Dr. Gluckman’s opinion was based on pure speculation from the note and lacked a factual basis. The city appealed, and a lower Pennsylvania court agreed with the city.
On Mrs. Kriebel’s appeal the Pennsylvania Supreme Court agreed with the Workers Comp decision, concluding “This Court has stated that reliance on a “presumption on a presumption,” as Employer’s expert has done herein, must be condemned as the height of “irresponsible speculation.”… Accordingly, we find that Dr. Gluckman’s opinion, which lacks an adequate factual foundation, constitutes nothing but conjecture and speculation.”
Without Dr. Gluckman’s testimony, the statutory presumption was enough for Mrs. Kriebel to prevail on her claim.
The son of a Tennessee woman who died in a house fire last year, has filed a $10 million lawsuit against the Blount County Fire Protection District, Blount County Sheriff’s Office, Blount County 911 Center, and the man who allegedly set the fire.
Cheryl Quinn died in an October 14, 2010 fire that was allegedly set by her ex-boyfriend Thomas Henderson. Ms. Quinn discovered the fire and dialed 911. She told dispatchers that Henderson set the fire, was present outside her house acting “crazy”, and that she was afraid of him.
Her son, William Quinn, alleges the fire department, sheriff’s office, and 911 dispatchers were negligent in handling the incident. He alleges the dispatchers triaged the fire as a “medium” priority incident resulting in a delayed response.
Quinn also alleges that one of the responding volunteer firefighters arrived on the scene six minutes prior to the arrival of the first engine, but remained in his personal vehicle. Quoting from the complaint “Instead of attempting to render assistance or to attempt to rescue Quinn from the home, he did not make an attempt to get out of his vehicle, but negligently waited for others to arrive.”
The complaint also makes some general allegations about negligence by the sheriff’s office and firefighters in failing to timely rescue Ms. Quinn. Neither the suit nor the news coverage indicates whether the first arriving firefighter was an adult or junior member, was qualified as an interior firefighter, had PPE, or was permitted by fire department policy to take any action until another member was on scene.
There are a number of factors that will influence the legal analysis of the firefighter’s conduct – not the least of which is whether a firefighter in such circumstances has a legal duty to act. The duty to act is a question of law that comes before the analysis of whether the firefighter met the standard of care (what would the reasonably prudent firefighter have done). A judge would have to find that a firefighter under such circumstances has a legal duty to act before the jury could consider whether the firefighter breached the standard of care.
Not sure what the other lawyers out there think, but I think it is a stretch to expect a single firefighter with no backup and probably no SCBA, to enter a potentially violent, unsecured crime scene, to conduct a primary search. But, shades of Alameda… who knows what the public and a non-firefighter judge might decide.
For the second time in 3 years a volunteer fire department in Washington state has taken on the US Forest Service over the use of a rural road across Federal property to respond to emergencies.
The Kittitas County Fire District No. 8 claims that the US Forest Service’s refusal to allow use of approximately 1500 feet of Stampede Pass Road, adds as much as 30 minutes to its responses to parts of its first due district.
The problem is primarily limited to the winter months when snow blocks the road. It is at that time of the year that snowmobilers, dog sledders, and cross country skiers use the road, creating a situation that the Forest Service considers to be unsafe if vehicular traffic was to be permitted.
Kittitas sued in 2009 over the same issue, and an agreement was reached allowing the firefighters to use the road. However, according to the fire district’s complaint, the agreement became unworkable in part because snow plowing was prohibited in 2009 and all vehicular traffic was prohibited in 2010.
The lawsuit seeks an injunction and temporary restraining order allowing the fire district to plow and use the Forest Service’s section of Stampede Pass Road all year. From a legal perspective, the theory of the fire district’s case is that the Forest Service is violating federal law by prohibiting emergency vehicles from using the roadway, and its interpretations of law are “irrational, arbitrary, capricious, vindictive, and sought to treat the Fire District in a manner differently than all other emergency response agencies”.
The family of a Chicago firefighter killed in 2010, has filed a wrongful death lawsuit against the property owners of the vacant building where the fire occurred.
Firefighters Edward Stringer, 47, and Corey Ankum, 34, were killed in a collapse on December 22, 2010 at a fire at the former Sing Way Cleaners, at 1744 East 75th Street. The fire went to three alarms and injured 19 other firefighters.
Today, Stringer’s daughter Jennifer and son Edward Jr. filed a wrongful death lawsuit against Chuck M. Dai and Richard Dai, the owners of building. They had been cited previously for code violations that had not been addressed prior to the fire.
According to Jennifer Stringer “Neither my father nor his comrade would have died that day if this building had been properly secured, or better yet, torn down… The owner’s negligence and his ignoring of citations created a tragedy … The owner’s negligence and his ignoring of citations created the tragedy, and I am here today to put the spotlight on him, and hold him accountable.”
One historical oddity about the story – the December 22, 2010 fire occurred 100 years to the day of the Chicago Union Stockyard Fire that killed 21 Chicago firefighters.
Several EMS and New York news sources reported today that a female EMS lieutenant with FDNY has filed a race discrimination suit against the city. Lt. Valarie Brancato actually filed the suit on June 24, 2011. What occurred recently (September 30th to be exact) was that the city of New York answered her complaint by denying all of her allegations and asserting 12 separate defenses.
The timing of the recent news interest in this four month old story is curious. It coincides with considerable media attention on the FDNY race discrimination case being handled by Judge Nicholas Garaufis. Judge Garaufis has ordered FDNY to hire 3 minorities for every 5 new hires, and awarded millions of dollars in reparations to past minority applicants.
Lt. Brancato’s suit consists of 14 counts, including allegations of Federal and state race discrimination, retaliation, hostile work environment, and disability discrimination under state law. Some of her allegations sound unfortunately all too familiar, in particular – fellow students, firefighters and EMS personnel engaging in hazing and harassment in the presence of instructors and officers, who did nothing to stop or punish the behavior.
Consider the following allegation from the complaint:
“15. While Plaintiff was in paramedic school she was subjected to harassment based upon her race by white male classmates, including but not limited to: being asked if she would go to their homes to clean their windows; being subjected to gestures that made fun of the size of the lips of African Americans; being subjected to a fellow classmate wearing a gorilla mask in class and saying that it was what African Americans looked like; being subjected to two fellow classmates wearing white hoods with cutouts for their eyes and nose.
16. The instructor was aware of the comments and treatment of Plaintiff and did nothing to stop it or alleviate it.”
That issue is a pet peeve of mine. Many officers believe that if the victim of pranks and hazing (whether friendly or mean spirited) does not complain, they do not have to intervene. WRONG! Observing such conduct and doing nothing is condoning the conduct!
Lt. Brancato’s biggest problem may be the 300 day rule for filing discrimination claims under Federal law. Allegations of discrimination must be filed within 300 days of their occurrence. Some of her allegations go back to 1986, when she was first hired. However, when discrimination is so pervasive that it constitutes “a continuous pattern and practice” a court may consider acts that occurred outside the 300 days under the continuing violation doctrine.
On Friday, a Camden, New Jersey fire captain pled guilty to larceny charges for having stolen an undetermined amount of “house funds” that belonged to firefighters. Captain John Merklein was placed on probation as part of a plea agreement that prohibits him from future public employment in New Jersey.
Merklein had been a Camden firefighter for more than 20 years, and was in charge of a fund intended to take care of fire house expenses like food, supplies and other items that are not budgeted by the department. Each firefighter contributes $30 per month through payroll deduction to fund the account. The theft was discovered when Merklein was transferred and a new firefighter was assigned to be in charge of the fund.
An investigation could not determine on long the larceny had been happening, but Merklein paid restitution of $27,000 shortly after the discrepancies came to light. He was also dismissed from the department.
However, after working in Peoria for over 14 months, the state pension system refused to permit him to join leaving the Chief and the city without a viable alternative to what was promised. Chief Solberg resigned earlier this month, and filed a $3.6 million damage claim against his former bosses.
The Arizona Republic is reporting that the chief has agreed to accept $150,000 to settle the matter. As part of a settlement, the city does not admit fault and Chief Solberg has agreed not to publically discuss the fact that the city promised him the pension benefit.
The family of Raymond Zack who drowned himself by walking into the San Francisco Bay while Police and firefighting personnel watched, filed a civil claim against Alameda City and County stating that first responders were negligent and “breached their mandatory duty and a duty of ordinary care”. The claim is a necessary step to filing a lawsuit.
Zack, 52, was mentally ill and suicidal when he waded into the cold waters near Bay Crown Beach on May 30, 2011, Memorial Day. Dozens of onlookers, including police and firefighters, remained on the shoreline and watched for nearly an hour until Zack succumbed. His body was pulled ashore by a civilian passerby.
The firefighters were prohibited by policy from entering the water, following budget cuts that eliminated their water rescue program. Police and fire officials were waiting for the Coast Guard to arrive. The circumstances were heavily debated here in June in a number of different posts. Here’s one and here’s another.
On the whole, first responders bore the brunt of the public criticism with surprisingly little criticism of the financial aspect of the decision to eliminate the water rescue program. Following the incident City Police and Fire department launched a series of changes. An independent inquiry was ordered by the city, and the report submitted by former State Fire Marshal Ruben Grijalva outlined suggestions for improved coordination between departments and training for fire and police department personnel. It is reported that 21 Alameda firefighters have undergone training as rescue swimmers and two shallow water rescue boats are in service.
Last March, I had blogged about former Palm Beach fire chief William Amador suing the Town of Palm Beach and Town Manager Peter Elwell, alleging wrongful termination and a violation of his due process rights. Chief Amador was terminated for his involvement in the “construction and maintenance” of a web site, www.palmbeachpensions.com, that supported the protection of pensions for public safety employees.
Now Battalion Chief Jason Weeks, 39, faces discipline after an internal investigation accused him of engaging in “unauthorized conduct of personal or other non-employment related business during assigned hours of work while on town property.”
Director of Public Safety Kirk Blouin wrote to Weeks that “As a result of the information contained in the investigative report and in light of the most recent and prior instances of either poor judgment and/or violations of policy, it is my intention to relieve you of your duties as supervisor resulting in a demotion to Firefighter/Paramedic and you will be suspended without pay for a period of 240 hours,”
It is reported that Weeks who was promoted to Battalion Chief in 2008 was drawing a salary of $104,093 which could reduce to $82,043 if he is demoted to firefighter. Weeks is scheduled to meet with the Public Safety Kirk Blouin on October 18, 2011. More on the story.
Paramedic Patty Greer was placed on indefinite suspension without pay after she fell asleep last Saturday night at a patient’s home while entering the patient’s information into her laptop. Greer says that she bent down to enter the patient’s details and fell asleep.
Greer blames the department’s excessive mandatory overtime for causing fatigue at work. She also told reporters “I want people in our service not to be tired. I don’t want everybody to be mean and nasty and horrible anymore.”
In the past, the department has told the media that members who are too exhausted to work are allowed to go home, but that claim is disputed by employees. Paramedic Teresa Johnson showed reporters a copy of a written reprimand she received in June for not accepting mandatory overtime. ”We’re being forced to work overtime when we’re vastly too tired to do that”.
The Los Angeles Fire Department has been in the news lately over the appearance of an apparatus in porn movies. Fire Chief Brian Cummings launched an investigation that resulted in no disciplinary actions after it was discovered that the porn movies were made in 2008, outside the two-year statute of limitations on acts of misconduct established by the city charter. It also appears that the department has not been able to identify the firefighters who took part in the movie.
Meanwhile Chief Cummings came out with a startling revelation of his own: 13 years ago, when he was a Captain of a four man rig, he allowed himself to be photographed while on duty with a bikini-clad woman on Venice Beach, along with other firefighters under his command, in front of the fire truck.
The Chief informed the Mayor about the incident, produced the photo, apologized and self-imposed a punishment of 120 hours of community service. He said that he wanted to be accountable for his actions and build the public trust in him.
Chief Cummings said that he would have a relook at the City charter and introduce a new Code of Conduct to the LA Fire Commission. He also plans to provide training to all firefighters regarding ethics.
Kansas City, Missouri reached a $280,000 settlement with Hope Nkani and Gift Nkani, parents of 7-year-old boy Obarimomoya Nkani who was struck and killed by a responding city fire truck in 2009.
Obarimomoya was returning home from Woodland Elementary School on March 2, 2009 when he when he ran into the street and was struck by a fire truck. It is reported that a moving truck belonging to Father and Son Moving and Storage company blocked fire truck driver’s view of the boy.
There were conflicting reports about whether the fire truck’s siren and lights were activated at the time of the accident. In addition, the truck’s brakes failed an initial test following the accident, but subsequently passed two closer examinations.
The lawsuit was filed alleging negligence on the part of the city, Father and Son Moving and Storage, the Kansas City School District and Securitas Security Service. The suit claimed the apparatus driver failed to use the highest level of care while driving through an known and marked school zone route at 3.30 pm rather than taking an alternate route.
The claim against Father and Son Moving and Storage Company was settled by its insurers for $720,000. The school district and security company were dismissed from the lawsuit, although the parents have indicated they plan to re-file their claim against them. A report following the accident claimed the boy was urged by another child to cross in front of the oncoming apparatus.
A Florida firefighter has filed a wrongful termination suit claiming he was illegally fired last March in retaliation for his support for a union. John Carter was fired from the Freeport Fire Department on March 17, 2011 allegedly because he committed sexually harassment.
Carter’s lawsuit refers to the sexual harassment allegation as “contrived”, and claims it was a pretext for retaliation against him for his efforts to bring certain misconduct to light, and as a response to his discussions on organizing a union.
Carter also claims that Fire Chief Ben Greenslait secretly recorded firefighters discussing union activities, and was opposed to the creation of a union in Freeport. According to the complaint: “Defendant GREENSLAIT was openly hostile toward employees forming a union, such hostility evidenced by, among other comments, a statement that if the word “union” was used within the Fire Department, that Department of the City would thereafter become a volunteer station.”
The suit alleges a violation of Carter’s First Amendment Rights pursuant to 42 U.S.C. § 1983 as well as violation of the Florida Public Employer Whistle-Blower Act.
Oddly enough, no due process allegation, nor a privacy violation allegation for the secret recording (Florida is one of the 12 states that requires the consent of all parties to a conversation for it to be recorded).
Two firefighters from opposite ends of the country pled not guilty to serious criminal charges this week. In Hawaii, a Maui County firefighter was arraigned on Tuesday on drug charges related to the search of his fire station that uncovered crystal methamphetamine.
Juanito Dudoit, 48, a 21 year veteran firefighter, was indicted on drug charges last month. He appeared in 2nd Circuit Court on Tuesday and pled not guilty. Dudoit resigned following a search at the Kahului Fire Station on July 16, 2011 where the drugs were uncovered.
In Mashpee, a firefighter was placed on paid administrative leave following his arrest on rape and “indecent assault on a child over the age of 14 “charges. Stephen Bold pled not guilty to the charges yesterday. Bold’s attorney, Drew Segadelli, told reporters that the female victim was 17 years old and that no criminal activity occurred. He was quoted by CBSBoston.com as saying “I think we will be able to prove the allegations are false.” Bold was freed on $500 bail.
A Revere, Massachusetts man was injured last Friday when he was struck by hose that had dislodged and was being dragged by a passing engine company. The video below shows the man being struck. While not a legal issue per se (yet anyway) – much of the law is directed at redressing accidents and injuries. There are so many parallels between the law of negligence and safety that we need to discuss this case to hopefully get the word out.
The Revere case sounds eerily familiar to the case that occurred in Cambridge, Massachusetts on January 26, 2010 when Gertrude King, 82, of Somerville, was struck and killed by a fire hose that dislodged from a passing engine company. In both the Revere and Cambridge cases, the hoses were attack handlines that came from crosslays (Mattydales).
These two cases are similar to yet another case, this one from Pennsylvania. On August 19, 2004, 10 year old Erin Schmidt was struck and killed by a hose being dragged by an engine from the Coraopolis Volunteer Fire Department. That hose was an attack hoseline that came from a crosslay.
Following the Coraopolis incident, the NFPA required all new apparatus to be delivered with devices to restrain hose in the hose bed. At present, there is no requirement that older trucks be retrofitted. Of great concern to me is the fact that many fire departments (and firefighters) are removing the restraint devices from newer apparatus because firefighters find them to be “inconvenient”.
Probably like many of you, I have heard the rationalizations that firefighters are prone to give for defeating safety features like hose restraints. “How could hose possibly come out of there”. “They must not have packed it right”. “Its never happened to any fire department around here”. “I always check my mirrors”. Firefighters being firefighters.
However, what should be clear is we have a problem with crosslays. The Cambridge and Revere cases demonstrate that Coraopolis was not a fluke. A quick check of the Near Miss Database shows several additional cases have occurred. The NFPA technical committee for apparatus or perhaps occupational safety and health committee may be moved to make the restraint requirement retroactive.
Rather than make an impassioned plea for firefighters to “do the right thing”, let me simply offer some free legal advice: If a truck comes in with a safety feature, live with it. If some genius decides to remove it, and someone is killed – the genius may very well be facing criminal manslaughter or negligent homicide charges. While he is sitting in jail one of the few highlights of his stay will be getting to take a “field trip” to court for the inevitable civil liability trial. The Coraopolis case settled for roughly $5 million after several years of wrangling. When the genius gets out of prison (2 to 15 years later), he can start paying off the portion of the judgment that was not covered by insurance.
“Do the right thing”. And let’s get the word out about hose restraints.
The Memphis Fire Department is launching an investigation into comments that a firefighter and union representative made on Facebook earlier this year. Robert Kramer stepped down from Local 1784’s Executive Board and issued apologizes for the comments.
Kramer, who was assigned to a station in Frayser, allegedly posted “The only gold in Frayser is in people’s mouth.” He also made a reference to his having to go to “one of the retarded schools in Frayser tomorrow”. The department transferred Kramer on Tuesday, but elected officials are saying that is not enough.
The Los Angeles City Fire Department has completed its investigation into the use of a LAFD engine company in a porn video, and the result is that no members will be disciplined. According to Fire Chief Brian Cummings, a city charter provision imposes a two year statute of limitations on disciplinary actions against city employees. Apparently the video is roughly three years old.
Unmentioned in the news clip, California has a firefighter’s bill of right law that specifies a number of procedural protections for accused firefighters. That law establishes a one year statute of limitations, but is triggered by the “discovery” of wrongdoing.
Four more New York volunteer fire departments have settled age discrimination claims with the EEOC over their LOSAP programs. That makes at least 10 separate age discrimination lawsuits filed by the EEOC against New York volunteer fire departments since 2006.
The four departments are the East Amherst Fire Protection District and Fire Department, the Clarence Center Fire Protection District and Volunteer Fire Company; Harris Hill Fire Protection District and Volunteer Fire Company; and Swormville Fire Protection District and Volunteer Fire Company.
The four departments, their respective fire districts, and the town of Clarence agreed to pay $441,000 to eligible retired members, or their beneficiaries. According to Town Supervisor Scott A. Bylewski, the town began the LOSAP in compliance with a state law “unaware that several years later the EEOC would assert that this requirement of the state law was in violation of the Age Discrimination and Employment Act.”
Bylewski said it was “unfortunate that the EEOC has elected to pursue a litigation strategy that targets local towns and villages who were simply trying to comply with a state law.” However, according to the EEOC’s press release: “The EEOC filed suit in U.S. District Court for the Western District of New York, Civ. No. 1:11-CV-00286, on March 30 after first attempting to reach a pre-litigation settlement, following an investigation by the EEOC’s Buffalo Local Office.”
The press release further explains:
The EEOC’s lawsuit charged that the town and the fire departments refused to let volunteer firefighters over age 62 accrue service credit under their “Length of Service Award Programs” or “LOSAPs,” the equivalent of a retirement pension, because of their age. The suit further charged that the East Amherst Fire Protection District and Volunteer Fire Company prohibited volunteer firefighters over the age 55 from accruing credit. As a result, the senior firefighters kept working but did not receive credit for their service once they reached the maximum age. The EEOC said this age restriction constituted a violation of the Age Discrimination in Employment Act (ADEA), a federal law that protects workers age 40 and older from age discrimination.
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Curt Varone has over 40 years of fire service experience and 28 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011) and Fire Officer's Legal Handbook (2007), and writes the Fire Law column for Firehouse Magazine.