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St. Louis Residency Rule and Failing Schools Prompt Firefighter’s Suit

Today’s burning question: I am a firefighter and I am bound by the fire department residency requirement to live in the city. I cannot afford to send my children to private school and the city schools are terrible. Can I sue?

Answer: That is exactly what five St. Louis firefighters are doing, alleging that because the city’s schools have lost accreditation, state law allows them to send their children to an accredited school district at the city’s expense.

The state law in question is the Outstanding Schools Act of 1993, Missouri Revised Statutes, Section 167.131, that states as follows:  “The board of education of each district in this state that does not maintain an accredited school pursuant to the authority of the state board of education to classify schools as established in section 161.092 shall pay the tuition of and provide transportation consistent with the provisions of section 167.241 for each pupil resident therein who attends an accredited school in another district of the same or an adjoining county.”

The problem is the accredited districts are refusing to honor the application of St. Louis residents claiming the costs associated with the influx of students would cause them financial and logistical problems that would threaten their accreditation as well.

The five St. Louis Firefighters, supported by IAFF Local 73, filed suit against the city of St. Louis and three St. Louis County districts, namely Lindbergh, Kirkwood, and Webster Groves. The firefighters allege that they were turned away when they tried to enroll their children in the accredited districts. The suit also claims that since the city requires them to live in St. Louis, the city bears responsibility for the problem as well.  

More on the story.

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Posted in Burning Question, Civil Suit, Labor Law

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1 comment Posted by on January 31, 2012

Connecticut FD and Ambulance Company Sued for Wrongful Death

The estate of a former teacher convicted of sexual assault, has filed a wrongful death suit against a Connecticut fire department and a private ambulance company. However, the department claims the estate sued the wrong entity and is seeking to be dismissed from the suit.

Thomas Bavedas died in December, 2009 due to seizures while being transported between medical facilities. The lawsuit accuses Middletown Fire Department and Hunter’s Ambulance of Meriden of numerous counts of negligence.

Bavedas, 40, a teacher in Bridgeport, had been convicted of sexually assaulting a 15-year-old girl. He was awaiting trial on nine counts of voyeurism, nine counts of risk of injury to a minor, and child pornography charges after he secretly videotaped young female students in his classroom while they were undressing in the classroom closet for a Halloween pageant.  Thomas also faced a civil suit filed in Federal court by one of the girls he secretly videotaped.

Bavedas suffered a stroke in January 2009. He was in a coma and determined to be incompetent to stand trial. In early December, 2009 he suffered multiple seizures at Connecticut Valley Hospital, and died en route to Middlesex Hospital.

The Middletown Fire Department claims they did not respond to the incident, and therefore are not liable. The incident occurred in the response area of the South Fire District, not the Middletown Fire Department. The Plaintiffs’ attorney, Jeremy Virgil, alleges that Middletown Fire is liable because it oversees the South Fire District.

The suit seeks compensatory damages in excess of $15,000, and alleges both the fire department and ambulance company were negligent because personnel on the initial responding units were neither trained nor equipped to deal with someone suffering from seizures.

More on the story.

 

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

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No comments Posted by on January 30, 2012

Union Slams FDNY No Opinion Rule

The Uniformed Firefighters Association of New York has taken the unusual (if not unprecedented) step of ordering its membership to disregard a directive issued by the Fire Department that seeks to limit the posting of “opinions” in fire stations… Yes… no “opinions”… posted in fire stations…. anywhere in the city of New York…

The order in question, identified as DO 89, instructs members to comply with an already existing regulation (Section 19.2.2, 5th Paragraph). The language at the heart of the controversy reads as follows:

“Bulletin boards in facilities shall be used only for official Department business or important information relating to approved Departmental organizations. In addition to applicable EEO restrictions, material presenting opinions or viewpoints is not permitted anywhere in quarters. It does not matter whether such opinions or views concern Department matters or non-Department matters. NO articles/material may be posted from any publications, internet or other sources.”

Here is the Original DO 89: FDNYOrder89

Here is the union’s memo: UFA Memo

The Fire department subsequently released a new policy, but the controversy seems only to have grown. new-fdny-posting

The situation raises some significant First Amendment issues, as well as collective bargaining issues (concerted activities, unilateral changes to working conditions, etc.). Here’s a link to a video on the story, including some interesting comments by the union’s First Amendment lawyer.

What do you think. Will the no posting of opinion rule fly? Or how soon before the rule is overturned? 

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Posted in Constitutional Rights, First Amendment, Labor Law, Politics, You Can't Make This Stuff Up

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10 comments Posted by on January 26, 2012

Union Treasurer Accused of Embezzlement

The treasurer of IAFF Local 1695, Clovis (California) Firefighters has been accused of embezzling more than $150,000 from the organization. Captain John Watson has allegedly confessed to the theft and resigned from the Clovis Fire Department.  

Criminal charges have yet to be filed in the case as Captain Watson has made efforts to repay all of the amounts in question.

 

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Posted in Criminal Law, Disciplinary Action, Labor Law

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No comments Posted by on January 26, 2012

Anti SLAPP Laws and the DC LT OT Debacle

Last week Dave Statter asked me to look into a case out of Washington, DC, where a fire lieutenant accused of working excessive overtime sued a local TV station claiming its coverage defamed him. The case was recently dismissed under a law called an Anti-SLAPP law.

I’m going to do my best to explain the issues – but please understand that this is a complicated area of the law. It also is a lesson to us all in how well intentioned laws enacted to protect the “little guy”, can end up being manipulated by big corporations to protect their interests.

Let’s start with the facts. DC Fire & EMS Lieutenant Richard Lehan was the top overtime earner in the department between 2008 to 2010. When the story broke back in 2011, politicians were pushing each other out of the way to be the first to condemn Lt. Lehan and blame former Fire Chief Dennis Rubin for allowing him to work so many hours.

I have a different take. As a shift commander in Providence, I was the one who had to make the phone calls to fill empty spots on fire trucks. I did it for over 8 years as a deputy chief, and for 9 years prior to that I did it occasionally as a battalion chief filling for the deputy.

Like many fire departments, Providence had a lot of overtime because the city leaders realized it was cheaper to pay firefighters overtime than hire enough firefighters to eliminate it. (Note: it is roughly a 25-30% savings for the community for every overtime hour worked compared with the hourly cost of hiring additional personnel with benefits – but that’s another story). As a result, we had so much overtime that on many days it was hard to find enough personnel willing to work. Friday and Saturday nights, Superbowl Sunday, Mother’s Day, Father’s Day, school vacation weeks, the holidays – the shifts when it was inconvenient for others to work – it was hard to find willing personnel. Those situations forced us to order firefighters to work – firefighters who expected to be able to go home, who wanted to go home, who’s family expected them to be home – including some who were under a court order to have visitation with their children – I had to order to work under threat of discipline in order to properly staff the trucks

When we found ourselves in that “ordering” situation, we had other firefighters who were willing to step forward and agree to work without being ordered. Some may have been at or over the maximum number of hours permitted – but the option was to order a firefighter who does not want to work, or allow a firefighter who does want to work. My assumption is that Lt. Lehan is the kind of firefighter who would work when ever needed, as often as possible, regardless of how many hours they have already worked that week. Because of folks like Lt. Lehan other firefighters got to go home when they were supposed to, to attend Christenings, little league games, visitation, and parents nights like normal parents.

Apparently when the story of Lt. Lehan’s overtime broke, Fox’s DC affiliate WTTG-TV covered it but left out the kind of background information I just provided. Instead, WTTG-TV portrayed Lt. Lehan in an unflattering light. The station also misstated some of the figures, and falsely claimed that Lt. Lehan and his brother controlled the assignment of overtime.

In an effort to clear his good name and set the record straight, Lt. Lehan sued WTTG-TV alleging defamation.  Defamation is a civil tort involving damage to a person’s reputation through the publication of false, harmful, and unprivileged statements made to others. While we could spend days talking about defamation – and the various defenses – keep in mind that definition: damage to a person’s reputation from the publication of false statements.

The news station responded with a somewhat unconventional defense: that Lt. Lehan’s suit was a SLAPP suit and should be dismissed under DCs Anti-SLAPP law.

SLAPP stands for strategic litigation against public participation. It is a term that refers to suits filed by powerful interests intended to intimidate or silence critics by burdening them with the high costs of litigation. SLAPP suits are filed not to win, but to raise the cost of a course of action as a way of silencing debate or criticism. The fact that powerful interests would utilize teams of lawyers to financially bury well intentioned advocates of public interest cases (who typically had less money) – prompted legislatures around the country to adopt Anti-SLAPP laws.

Essentially, an Anti-SLAPP law is a law that gives a defendant to a SLAPP suit a defense – one that allows a court to dismiss the case at a very early stage.  At its core, an Anti-Slapp law is intended to protect the Davids of the world from the Goliaths. Jurisdictions differ in the criteria for a SLAPP suit. Some states require that the defendant have recently filed a complaint or communication with a governmental entity over an issue of public concern. Other states consider a suit to be a SLAPP suit if the defendant has merely raised a concern to the public.

Back to Lt. Lehan and WTTG-TV. When Lt. Lehan sued WTTG-TV for defaming him, the news station claimed that the suit was a SLAPP suit intended to silence their efforts to expose wrongdoing in DC Fire & EMS. Despite the fact that it was Goliath who was claiming that David was being unfair, the court sided with WTTG-TV and dismissed the suit. The court concluded that Lt. Lehan’s suit was a SLAPP suit, which shifted the burden on to Lt. Lehan to establish a likelihood of success on the merits of the case if it were to go to trial.  In the court’s opinion, Lt. Lehan somehow failed to prove a likelihood of success… that he had been defamed.

I apologize for the length of this explanation – but in truth I have barely scratched the surface of the case, and the problems with SLAPP suits and Anti-SLAPP laws. Hopefully this explanation along with Dave Statter’s coverage provides you with a better understanding of the issues.

If you have questions, ask away in the comment section!!!

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Posted in Civil Suit, Constitutional Rights, First Amendment, Politics, You Can't Make This Stuff Up

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6 comments Posted by on January 25, 2012

NJ Firefighter Awarded $3.5 Million for Whistleblower Violation

A Ridgewood, NJ firefighter who claims he was denied a promotion because he reported safety violations at two incidents, has been awarded $3.5 million by a jury. The unanimous verdict was announced yesterday with the entire $3.5 million being awarded for emotional distress.

Kevin Reilly claims he was passed over for promotion to lieutenant because he reported that his superiors violated safety requirements. The two incidents were a structure fire in 2009 and a hazmat incident in 2007.

At the structure fire, Reilly claims a deputy chief ordered him to leave the structure when his low-air alarm went off, but required him to turn over his radio and flashlight. At the hazmat incident, Reilly claims he and other firefighters were told to clean up a spill that should have been left for a hazmat team.

Reilly claims that he reported his concerns to a deputy chief and the fire chief. When he later sought promotion to lieutenant, he was bypassed by less senior and less qualified individuals.

More on the story.

 

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Posted in Civil Suit, Municipal Liability, Occupational Safety & Health, Promotions

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1 comment Posted by on January 24, 2012

Seizing Evidence at a CO Incident

Today’s burning question comes from a reader concerned about our legal jurisdiction to seize evidence at a CO incident: We recently responded to a carbon monoxide emergency in a private dwelling. On arrival, there were ten (10) occupants exhibiting signs of CO exposure. The source of the CO was traced to a generator running in the basement. Power to the building had been cut by the local power company due to electrical code violations. The generator had been running unvented for eight (8) days on and off. The CO readings in the structure exceeded 800 ppm.

      Does the fire department have the authority by law, to seize the generator as part of the investigation? The concern by Command on scene was, if the generator is simply removed from the structure, what guarantee would there be that the landlord would not place the generator back in the basement. Does removing the generator outside satisfy the responsibility of the fire department in removing the hazard or addressing the safety of the occupants?

ANSWER: There are 2 issues

1.     Is there grounds for a seizure of the generator

2.     Does the FD to have jurisdiction to investigate the incident.

Let’s take them one at a time.

1.     Grounds for a warrantless seizure: at the scene of a fire the fire department can lawfully seize evidence of the cause and origin in order to preserve it. Unfortunately a CO incident is not a fire in the strictest sense of the word. Police can lawfully seize relevant evidence of a crime that is in plain view. However, seizing an item because someone may later use it improperly is not a lawful grounds for seizure. There may be certain circumstances where the presence of an object or appliance at a scene creates such a hazard to occupants, passers-by, or children (attractive nuisance) that we may need to secure it as a matter of public safety. Seizing the item may be one way of securing it to address public safety. Its probably a stretch in this case.

On the flip side of this, what are the consequences if we wrongfully seize the generator? We could be liable civilly for conversion, trespass to personal property or even a due process/civil rights violation. These actions are unlikely on the facts but they are possible.

2.     Jurisdiction: Most fire departments have a duty to investigate the cause and origin of fires, but beyond that have no legal responsibility/authority to investigate the causes of illnesses or injuries to people – beyond the extent necessary to ensure that the patients are treated and the danger has been mitigated. Assuming we have evacuated/treated the patients, identified the generator as the source of the CO, have it turned off, ventilated the building, and we have warned those involved of the risks – our job is done.

Some states and jurisdictions may grant fire departments greater latitude in investigating the cause of environmental/CO incidents – and if so – seizure of the generator may be authorized in order to preserve evidence relevant to the investigation. I do not think you need to seize the generator in order to prove it was the source of the exposure – but it would probably be valid justification – particularly if there were questions about whether it was running properly, had been modified, etc.

The running of the generator indoors may be a violation of local ordinances or building code regulations and as such the generator could be seized by the building inspector and/or the police as evidence in their investigation. Some states may assign their department of health or department of environmental protection to investigate these cases as well – so those agencies might be in a position to seize the generator as part of their investigation.

Probably the best ones to seize the generator would be the police – assuming they were so inclined. Certainly there is the possibility of reckless endangerment charges against those to set up the generator, particularly if children were present. If it was a landlord who did this to his tenants – he could be prosecuted. However, the police may not be inclined to take that kind of interest in the case in the absence of a death.

If we change the facts in this case slightly we may have a different obligation. Let’s say the generator was not simply unvented – but that it was improperly vented (ie. a contractor vented the exhaust but did so improperly). The generator may very well be relevant to the investigation and to a civil suit between the parties. If we were to disturb the generator and/or the venting by seizing it, we could compromise the ability of the parties to sue and/or defend themselves in court. The term used for destroying evidence is “spoliation of evidence” and if we seize the generator without preserving/addressing the evidentiary considerations we could find ourselves facing liability. This is a growing area of concern for fire investigators at fire scenes and would apply equally here.

Lastly, you mention that the IC didn’t want to leave the generator because the landlord might fire it up again. Obviously – if you leave the generator – the landlord and occupants need to be given a clear warning about the risks. Seizing the generator does not guaranty they won’t go get another one. For that reason, the cautionary warning should be made and well-documented.

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Posted in Burning Question, Evidence, Search and Seizure

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2 comments Posted by on January 23, 2012

Did New Maine EMS Protocols Play a Role in Sugarloaf Incident

We have been following a tragic case involving the death of a skier at the Sugarloaf Ski area. The victim’s widow claims she was left by the side of the road by the transporting ambulance as it was enroute to the hospital, and that the ambulance subsequently discontinued treating the victim and returned his body to the ski area.

David Morse of Nova Scotia died on January 12, 2012 after striking a tree and the incident remains under investigation by both the hospital based ambulance company, Northstar Ambulance, and the Carabassett Valley Police Department. The resulting media coverage has garnered near universal public condemnation of the medics from all corners of the country and Canada.

On December 1, 2011, Maine EMS, a division of the Maine Department of Public Safety, issued new EMS protocols that specifically allow personnel to discontinue CPR and ALS activities following 20 minutes of unsuccessful resuscitation efforts.

Those protocols read as follows:

TERMINATION OF RESUSCITATION

Resuscitation should be terminated under the following circumstances….

Witnessed Arrest…

2. When the patient is in asystole for greater than 20 minutes OR unresponsive to advanced cardiac life support with a non‐shockable rhythm after 20 minutes of resuscitation.

3. In the absence of ALS, when the same Maine EMS licensed crewmember has documented the absence of all vital signs for 20 minutes, in spite of BLS, except in the case of hypothermia….

2. IF DEATH OCCURS EN ROUTE TO THE HOSPITAL, the body need not be returned to the scene but can be brought to the hospital or other suitable storage place as determined by distances and needs of other patients in the ambulance. If the body is left anywhere other than the hospital or designated temporary morgue, the body should be tagged and the Office of Chief Medical Examiner should be advised.

It would therefore appear that if the widow’s allegations about Northstar’s stopping treatment are in fact true, they may have been permitted by Maine EMS Protocols. Left unexplained is the decision to leave Morse’s widow standing by the side of the road.

Here is a copy of the protocols. 2011MaineEMSProtocols

I would be interested to hear from readers about their state’s protocols for the termination of resuscitation. The traditional rule (old-school) was that resuscitation could only be discontinued when rescuers are physically exhausted, when equally or more highly trained health care personal take over, or when the patient regains pulse and respiration.

Over the years additional exceptions have been added (DNR, medical control, etc.) and as we have discussed here, society continues to struggle when it comes to making these kinds of decisions. It would seem that Maine’s new protocols go about as far as I have seen protocols go in allowing crews to stop resuscitation efforts.

Good idea, bad idea… what do you think? At a minimum by reviewing the protocols we can better understand what the Maine medics may have been thinking on January 12, 2012… (whether you agree with the protocols or not).

 

 

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Posted in Duty to Act, EMS, Negligence, You Can't Make This Stuff Up

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85 comments Posted by on January 19, 2012

New Jersey Community Places Fire Department Out of Service

A New Jersey community has taken steps to close its volunteer fire company, and contract with a neighboring district to provide protection. The Folsom Volunteer Fire Department had served Folsom Borough since 1946.

The Borough and the department had been at odds for years, and Borough officials attribute the move to close the department to the members’ refusal to submit to government oversight. The trucks and equipment were removed from the fire station last Thursday after the Borough entered a 10 year agreement with Collings Lakes Fire District.

The move apparently caught the Folsom VFD by surprise. While removing the equipment, Folsom Borough served the department with a lawsuit seeking to block the VFD from selling, removing or disposing of any equipment, property, or assets. The suit claims the property was bought with taxpayer funds.

According to the PressOfAtlanticCity.com, the agreement with Collings Lakes Fire District for fire protection requires a payment of $15,000 per year and states that all fire equipment used by the Folsom Volunteer Fire Department will be made available to the Collings Lakes Fire District.

More on the story.

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Posted in Apparatus, Civil Suit, Politics, Volunteers

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No comments Posted by on January 18, 2012

Widow Makes Stunning Allegations Against Maine Medics

A widow has made some stunning allegations about her treatment by a Maine ambulance crew that was transporting her dying husband to the hospital last week following a skiing accident at Sugarloaf Ski Area.

Dana Morse, a nurse practitioner from Nova Scotia, alleges that paramedics from Northstar Ambulance pulled over, let her out of the ambulance, and left her standing by the side of the road while they continued their transport of David Morse to Franklin Memorial Hospital in Farmington. She further alleges that when paramedics later determined David was dead, they discontinued transporting his body to the hospital and returned it to the ski area.

The bizarre story began when the Morse’s were skiing at Sugarloaf on January 12, 2012. David Morse lost control and struck a tree at around 3.30 pm. Sugarloaf Ski Patrol responded, packaged Mr. Morse and transported him to the Sugarloaf First Aid Clinic at the base of the mountain. NorthStar Ambulance took over Morse’s care as his condition steadily deteriorated. Dana Morse alleges that paramedics failed to properly assess and treat her husband, focusing more on a suspected elbow fracture than on his internal injuries and declining vital signs.

According to Dana, it took paramedics approximately 30 minutes to load David into the ambulance, during which time he went into respiratory arrest. Dana’s request to ride in the back of the ambulance with her husband was turned down and she was told to sit in the front passenger seat for the one hour ride to Franklin Memorial Hospital. During the journey Dana pleaded with paramedics to ride in the back with her husband. The driver of the ambulance allegedly stopped the vehicle, and once Dana exited the passenger’s seat, drove off without waiting for her to get in the back.

Dana claims she flagged down a car, went back to the ski resort to get her car, and then went to Franklin Memorial Hospital. Once at the hospital, Dana discovered that the ambulance had not brought David in. In fact, hospital personnel were unaware the Northstar ambulance had even initiated a transport of a critically injured patient. A nurse at the hospital contacted the paramedics and learned that because they concluded that David had died en route, the ambulance had taken the body back to the ski resort clinic.

Franklin Memorial Hospital, which owns NorthStar Ambulance, apparently learned of the story through media reports emanating from Dana Morse.  They have since launched an internal investigation into the matter. The Carrabassett Valley Police Department and the State Medical Examiner are also investigating.

More on the story.

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Posted in Duty to Act, EMS, Negligence, You Can't Make This Stuff Up

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16 comments Posted by on January 17, 2012

Florida Firefighters Sued for $1.4 Million in Fatal Accident

The driver and the officer of a Lake County, Florida engine company that was involved in a fatal Christmas day accident in 2009, have been sued for $1.4 million. The suit was filed on behalf of Gieco Insurance Company to recoup sums they have already had to pay out.

Driver Brian Dimond and Lt. Robert A. Armas were sued, along with Lake County. The suit alleges the firefighters were negligent when they attempted to make a U-turn on the Florida Turnpike while responding to a reported accident. That call turned out to be a false alarm and the crew was using the U-turn to return to quarters.

As the Lake County engine approached the turnaround in the high speed lane, it was struck in the rear by an SUV traveling northbound. The SUV was then struck by other vehicles, and in the process one of the passengers in the SUV, Virginia Sellito, 88, was killed.

Reports indicate that the engine company had its emergency warning lights on at the time of the accident. The turnpike authority has since prohibited emergency vehicles from using the U-turn openings.

Florida troopers ticketed FF Dimond after the accident for impeding traffic. It remains unclear what the outcome of that proceeding was.  Oddly enough, Troopers did not cite the driver of the SUV for failure to yield to an emergency vehicle, failure to keep a lookout, failure to maintain distance between an emergency vehicle, failure to “move-over”, or any of a host of possible charges that could have been brought. Florida law requires motorists to stay at least 500 feet behind an emergency vehicle. Here is a link to Florida’s “Move Over Slow Down” campaign.

More on the story.

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

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1 comment Posted by on January 16, 2012

Velarde Fire Chief Takes Aim At Sheriff and EMA Director

The strange case of the New Mexico fire chief who was arrested at an incident scene as a way to relieve him of command, is in the news again - this time with an entirely new twist.

Fire Chief Eddie Velarde, of the Velarde Fire Department, was arrested by Rio Arriba County Sheriff’s Lieutenant Adam Archuleta on March 29, 2011 and charged with disorderly conduct. At the time Chief Velarde was the incident commander at a 3.2 acre interface fire that damaged 3 structures and 3 vehicles.

According to the headlines at the time of the arrest, Archuleta claimed Chief Velarde was out of control and his arrest was done in the interests of public safety. Archuleta later charged Chief Velarde with concealing his identity and obstructing a sheriff’s officer. The allegations made national news and caused considerable embarrassment, humiliation, and stress for Chief Velarde personally and the Velarde Fire Department.

Chief Velarde and his attorney, Diego Zamora, vehemently contested the criminal charges. At his trial last July, Chief Velarde was acquitted of all three charges. According to Zamora, under cross examination Archuleta was at a loss to explain how someone he had known for over a decade could attempt to “conceal his identity” – the basis for 2 of the 3 charges.

Also at issue in the case is the role played by county EMA director Mateo DeVargas, with whom Chief Velarde has had past run-ins. DeVargas was assigned to coordinate evacuation of the fire area, establish perimeter control, and track arriving resources. Chief Velarde claims that following his arrest, he heard Archuleta state “Mateo, you got what you wanted, you are now incident commander.”

The case entered an entirely new phase this week when Zamora and co-counsel Patrick Brito filed a civil suit against Archuleta, DeVargus and Rio Arriba County alleging false arrest, false imprisonment, malicious abuse of process, defamation, and conspiracy. The allegations, if proven, are a serious indictment of law enforcement in Rio Arriba County.

The suit was filed on Wednesday. Here is a copy of the complaint: Complaint-VELARDE

It is a good read. The case raises a number of important concerns – not the least of which are the ICS implications of subordinate law enforcement authorities arresting an IC because they question his actions. For news on the story.

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Posted in Civil Suit, Criminal Law, Municipal Liability, Police-Fire, Politics, Volunteers, Wrongful Arrest, You Can't Make This Stuff Up

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3 comments Posted by on January 13, 2012

Georgia Supreme Court Weighs in On DeKalb Termination

The Supreme Court of Georgia has issued an important ruling that orders the reinstatement of a fire captain terminated two years ago. DeKalb County Fire Captain Sell Caldwell was one of five firefighters terminated after the fire death of 74-year-old Ann Bartlett on January 24, 2010.  Recall that companies dispatched to Bartlett’s home for a structure fire claimed they could not locate the address. An investigation revealed that none of the arriving firefighters bothered to get out of their apparatus to investigate before crews returned in service. They were called back to the scene several hours later when the hour was fully involved.

Caldwell contested his termination claiming he was in charge of water supply, and therefore wasn’t tasked with inspecting the home.  He also chose to retire to preserve his pension benefit. A hearing officer ordered  click herehim to be reinstated. (For the previous story).

The County appealed the hearing officer’s decision to the Merit System Council, asserting that the hearing officer’s factual findings were not consistent with his conclusion. The Merit System Council unanimously upheld the hearing officer’s decision to reverse Caldwell’s termination.

The County refused to reinstate Caldwell, prompting him to file a lawsuit to compel his reinstatement. The trial court upheld the administrative ruling, and the County then appealed to the Georgia Supreme Court. Among the arguments the County made was that Captain Caldwell surrendered any right to reinstatement when he elected to accept retirement benefits.

The Supreme Court upheld the trial court order that required the County to reinstate Caldwell with back pay.  The court found that Captain Caldwell’s acceptance of retirement benefits did not prevent his reinstatement, but acknowledged that the County could deduct retirement benefits paid from the backpay award. The Supreme court also directed to reimburse Caldwell for his attorney fees and  costs.

Here is a copy of the decision. Ellis v Caldwell

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Posted in Civil Suit, Disciplinary Action

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3 comments Posted by on January 12, 2012

Louisiana Chief Sued for Accident

A fire chief in Louisiana has been sued for an accident that occurred in 2010. Fire Chief Marty Thibodeaux of the Little Caillou Volunteer Fire District was responding to a call in a department-owned SUV when he rear-ended a boat trailer being pulled by a pickup truck.

The accident occurred on October 18, 2010, under rainy and foggy conditions. The suit alleges there were four passengers in the pickup, and that one of them, Kevin Picou, suffered “serious, painful, permanent and disabling injuries.”  According to the suit the impact was so violent that it caused the pickup to  “spin out of the southbound lane and come to rest facing northbound on the center line.”

Chief Thibodeaux disputes the severity of the accident, claiming the weather conditions required reduced speeds, and that collision was so minor that the airbags in his vehicle did not deploy. The police report at the time of the accident indicated there were no injuries.

The lawsuit named Chief Thibodeaux  and Little Caillou Volunteer Fire District seeking damages.

More on the story.

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Posted in Civil Suit, Negligence, Volunteers

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No comments Posted by on January 11, 2012

FDNY Fire Inspector charged in Day Care Scam

An FDNY Fire Inspector has been charged in a massive bribery scheme involving Brooklyn day care centers.

Inspector Carlos Montoya was arraigned last Friday in Federal District Court in Manhattan, and released on $100,000 bond. The investigation, dubbed “Operation Pay Care”, involved a joint investigation led by the U.S. Attorney’s Office for the Southern District of New York and New York City Department of Investigation. It exposed a 1 million dollar scam affecting a city subsidized day care program.

Montoya’s role in the scheme was to ignore safety violations so that permits for the day care centers could be issued or renewed. He worked for the FDNY as a Fire Protection Inspector since 1993 and served as Supervising Inspector since 2003. He oversaw fire inspections of all day care centers in the City.

Montoya has been charged Federally with conspiracy to commit mail fraud and conspiracy to receive bribes in connection with a federally-subsidized program. No word if he will be charged with any state law crimes.

More on the story.

US Attorney’s press release on Montoya.

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Posted in Criminal Law, Disciplinary Action, Fire Prevention

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No comments Posted by on January 10, 2012

Bizarre Coverup Alleged in West Virginia

The West Virginia State Police are investigating what appears to be a failed attempt by one or more volunteer firefighters to cover up for an accident involving their fire chief.

On December 17, 2011 Beverly Volunteer Fire Department Fire Chief Jeffery Pritt was involved in an accident that police believe was alcohol related. Chief Pritt was allegedly driving on the wrong side of the road, lost control, and wrecked his truck on the Files Creek Road. The fire department responded to the call, and Cody Daniels, a firefighter who also happens to be an off-duty Randolph County Deputy Sheriff, reportedly told the investigating trooper that he was the driver of the truck. Chief Pritt was not at the scene.

Police have charged Chief Pritt with leaving the scene of an accident, driving left of center, and failure to report an accident. Daniels has been suspended without pay from the Sheriff’s Office. He apparently already pled guilty to charges of driving on the wrong side of the road for the December 17th crash.

The West Virginia State Police, Randolph County Sheriff, and the Beverly Volunteer Fire Department are continuing to investigate the alleged cover-up. More on the story.

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Posted in Criminal Law, Disciplinary Action, Police-Fire, Volunteers, You Can't Make This Stuff Up

No comments Posted by on January 9, 2012

Former Prosecutor to Investigate Cleveland Overtime Scandal

The city of Cleveland has hired former Assistant U.S. Attorney Ronald Bakeman to head up the investigation into the Cleveland Fire Department’s overtime scandal. Bakeman’s appointment was announced earlier this week as the department struggles to address allegations that some personnel work only a few days per month, and overtime is out of control.

Incidentally, Cleveland is not alone in trying to address the problem. Buffalo, NY and Clark County, Nevada top a list of departments trying to correct abuses stemming from improper use of substitutions, sick leave fraud, and in some cases pension escalators tied to overtime. [Note the video does not show on the homepage - please click through to the story specific page to see the video.]

 

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Posted in Criminal Law, Disciplinary Action, FLSA, Labor Law, Pensions, Politics

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1 comment Posted by on January 7, 2012

Connecticut Paramedic Facing Rape Charges

A Connecticut paramedic is facing felony rape charges after a patient alleged she was sexually assaulted during a transport. Paramedic Mark Powell, 49, turned himself in to police yesterday.

The incident allegedly occurred at 3:00 am on Christmas morning. A 22 year old woman who had fallen and suffered a concussion claims she awoke in the ambulance during the assault.  The victim was being transported to Yale-New Haven Hospital and allegedly was strapped down at the time.

Powell worked for American Medical Response, and has been place on administrative leave. He is free on$25,000 bond. According to police, no further arrests are anticipated.

The police and media seem to have already concluded that Powell is guilty. I would be remiss if I did not acknowledge that fact that other paramedics and EMTs accused of this type of misconduct were later cleared when the allegations turned out to be the result of total fabrications. The legal system will have to work out the details in this case and we should not prejudge what occurred without all the facts. Having said that – here is a news video that pretty much assumes he is guilty.

Woman claims she was raped in ambulance: wtnh.com

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

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7 comments Posted by on January 6, 2012

Omaha Firefighters Lose Bad Faith Bargaining Claim

The Nebraska Commission of Industrial Relations has ruled that the city of Omaha did not commit an unfair labor practice in bargaining with its firefighters. IAFF Local 385 filed a complaint with the Commission last August accusing the city of bargaining in bad faith.

The case arose when the Omaha city council refused to ratify a negotiated agreement between Mayor Jim Suttle and Local 385, and sought additional concessions including a shorter term and changes in health care. The firefighters alleged that the city engaged merely in “surface bargaining”, as opposed to bargaining in good faith.

While admitting the facts presented a “close case”, the Commission concluded on Tuesday that the firefighters did not present “sufficient evidence to establish that the City Council acted to hinder, delay or string out the process or to frustrate or bypass the union.”

In a statement that goes to the general state of collective bargaining in the US fire service, the commission wrote: “the most telling aspect of the case before us is the amount of acrimony between the parties. Rather than engage in meaningful negotiations with an eye toward reaching an agreement, the parties are interacting in an atmosphere of distrust, frustration, acrimony and almost constant litigation.”

Here is a copy of the Commission’s ruling.

More on the story.

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Posted in Labor Law

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No comments Posted by on January 5, 2012

Springfield Fire Cited By State Civil Service Commission

The Massachusetts Civil Service Commission has handled down a decision that harshly criticizes the selection process used by the Springfield Fire Department to hire 21 new firefighters. The Commission was responding to the complaints of four candidates who claimed they were improperly bypassed.

To fully understand the decision, it is important to understand that in Massachusetts, municipal hiring decisions are governed by the state’s civil service commission. The multitude of decisions that go into  the hiring process must all be done in accordance with state requirements, creating a bureaucratic nightmare for those unfamiliar with the system.

The thrust of the commission’s ruling had to do with the role played by Deputy Chief Jerrold Prendergast in the selection process. Chief Prendergast’s son Zachary was among those hired by the process. While Chief Prendergast was not involved the interview process or in making the final appointments, he was involved at various points in assessing the qualifications of candidates to advance to the interview process.

The commission’s decision stated: “Deputy Chief Prendergast’s direct involvement in the review and selection process compromised the Fire Department’s ability to ensure open consideration of all candidates for the position of firefighter… To ensure that all candidates were given open consideration and to remove any appearance of impropriety, Deputy Chief Prendergast should have removed himself from this particular hiring round.”

The commission ordered that all non-selected candidates be contacted to determine their interest in being added to the “top of the next Certification” list where they will “remain… until such time as they receive at least one consideration for appointment.” They will also be granted retroactive seniority to same date as the 21 hired.

Here is the commission’s decision: Springfield-Fire-Department-Investigation

Springfield’s Fire Commissioner Gary Cassanelli issued a written statement concluding “I very much disagree with opinion of Chairman Bowman regarding his review of the Springfield Fire Department’s 2010 firefighter hiring process.”

Here is the official Springfield Fire Department response to the decision: Springfield FD Response

More on the story.

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Posted in Discrimination, Ethics, Labor Law, Politics

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No comments Posted by on January 5, 2012

Frivolous Michigan Accident Case Settled for $47,000

A settlement has been reach in a controversial case of a Michigan man who lost control of his pickup, slammed into the back of a fire truck at an accident scene, and then sued. The 2009 accident occurred in Frenchtown Township where the driver, Nick Otter, had to be extricated from his pickup truck and transported by helicopter to a trauma center.

Many were shocked last year when Otter sued Frenchtown Township and one of the firefighters who helped save his life. A TV news station exposed Otter feigning injuries, harboring a horrendous driving record, and having drugs in his system at the time of the crash. Yet rather than incurring the expense of taking the case to trial, the Township and its insurer have decided to settle the case for $47,000.

According to news reports, Otter himself will not receive any of the $47,000. $20,000 will be placed in a trust fund for his children and $27,000 will go to his attorneys.

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

4 comments Posted by on January 3, 2012

Fire Bloggers and the 1st Amendment

Today’s burning question comes from a firefighter blogger who is in college studying fire science, and will be looking for a full-time job in the near future:

Burning question: Could blogging become an issue during the hiring process? Could I be passed over for a job just because my background check shows that I blog and for whatever reason, they don’t like the content. Is that legal? I’ve always assumed that what I say on the Internet is covered by my 1st Amendment right to freedom of speech, but is it really?

Answer: It all depends. The 1st Amendment does offer some degree of protection to folks who blog, but it does not protect people from all forms of adverse employment actions, including employment hiring decisions.

First of all, blogging is an exercise of free speech and is entitled to the same protections as any other form of speech. If an applicant is rejected solely because he blogs, that would be a 1st Amendment violation.

First Amendment protection is broadest when someone discusses things that have no relationship to their employer, prospective employer, or their employment. For example, if you go on a blogging campaign to advocate making chess an Olympic sport, or have golf declared a non-sport, it has no connection to the fire service and should not be grounds for a fire department to take an adverse job action against you (note – a private sector employer could use that against you because they do not have to respect the 1st Amendment rights of their employees or applicants). People have a right to advocate what they choose to advocate.

The issue becomes more complicated when someone blogs about a topic unrelated to an employer/job, but that has an impact on the person’s fitness for a given position. There was a US Supreme Court case, Roe v. San Diego, involving a San Diego police officer who was terminated for making and selling X-rated videos in his off-duty time. The officer claimed his termination violated the 1st Amendment because it was a form of speech and had nothing to do with his employer or employment. The US Supreme Court held that while arguably the videos had nothing to do with his employment (although in his case there may have been some factual question that it did), an employer can take an adverse job action against an employee when off-duty “speech” impacts the discipline, morale and reputation of the organization.  

First Amendment protections are also quite broad when speaking as a private citizen about a matter of public concern. For example, speech that relates to public safety, corruption in government, or the need for ethical reforms would all be matters of public concern – and are protected by the 1st Amendment even when they impact an employer. However, the problem a blogger may find is that even when speaking about a matter of public concern a prospective employer might make a decision not to hire them based on the content of a blog, and attribute the decision to some other factor. In that case even though the 1st Amendment may apply in theory – it is of little use because there is no way to prove that the employer violated your 1st Amendment rights.

The best advice is to be careful what you blog about. I am not talking about self-censorship out of fear – but rather out of thoughtfulness and respect for others. Think through what you have to say – say it in a respectful way, and you should be fine. You do not want to have to sue to get a job!!!

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Posted in Burning Question, Constitutional Rights, First Amendment, Social Media, Web/Tech

5 comments Posted by on January 3, 2012

2011 A Fire Law Year in Review

Happy New Year!!!! Its time to take a look at the most important and most bizarre fire service legal cases of 2011.

First, the three most important cases:

Westmoreland v. Sutherland, was a 1st Amendment case handed down by the US 3rd Circuit Court of Appeals upholding an Ohio firefighter’s right to appear at a city council meeting during an open forum and speak critically about a matter of public concern without fear of retaliation or punishment. The court restated the key considerations for determining if a firefighter’s speech is protected: the firefighter must be speaking as a private citizen (off duty and not as a spokesperson for the department) on a matter of public concern. In Westmoreland, the matter of public concern was the financially driven decision to eliminate a dive rescue team, and its impact on the drowning deaths of two children in separate incidents.

Marcelin v. City of West Palm Beach, decided by the US 11th Circuit Court of Appeals, was the latest effort to clarify a firefighter’s right to remain silent during an administrative investigation. Marcelin held that a firefighter who is ordered to answer employment related questions as part of an administrative investigation must answer the questions even if the answers would tend to incriminate him/her in an active criminal case. The protection afforded by the Fifth Amendment’s self-incrimination provision is satisfied by the fact that the statements cannot be used by law enforcement in any way. However, the questions must be answered.

NAACP v. North Hudson Regional Fire & Rescue, was a US 3rd Circuit Court of Appeals decision involving residency and discrimination. The NHRFR in New Jersey required applicants to be a resident of one of the five communities making up the regional district. The district was 69.6% Hispanic, 22.9% white, and 3.4% African American. The department was 79.5% white, 19.2% Hispanic, and .6% African American. The NAACP sued claiming the residency requirement created a disparate impact on African Americans. NHRFR’s defense was that opening the process up to non-residents would disadvantage Hispanics and other minorities by allowing more white applicants from other towns to apply. The court noted that some New Jersey fire departments use residency requirements to enhance minority employment opportunities. The court even referenced a 1977 race discrimination case brought by the Federal government against twelve NJ municipalities, where the jurisdictions entered into consent decrees that mandated the use of residency requirements to enhance minority recruitment. Those consent decrees remain in effect today, some 30+ years later. But the 3rd Circuit rejected the use of a residency requirement by NHRFR in this case finding that it served to limit African Americans from applying to become firefighters, and thereby caused the disparate impact. The court further concluded that the use of the residency requirement could not be justified as a business necessity.

 

The most bizarre cases:

in re Estate of Thomas Araguz, was one of the most bizarre fire service cases ever, and involved a tragic LODD. A Texas judge ruled that a purported marriage between a male firefighter and a transgendered woman was void under Texas law. Judge Randy Clapp held that the marriage between Wharton Fire Department Captain Thomas Araguz III, who died in the line of duty on July 3, 2010, and Nikki Azagus, was void because Nikki was born a man. As a result, over $600,000 in survivor’s benefits were awarded to the firefighter’s children, not Nikki. The ruling made it unnecessary for the court to consider an even more contentious issue: whether Captain Azaguz knew his wife was transgendered when he married her, or whether (as his mother alleged) he was the victim of fraud.

Bernstein v. Village of Piermont, et al, is a New York suit brought in 2011 by Mark Bernstein, father of 16 year old Adam Bernstein, alleging that Adam was sodomized by other firefighters as part of a ritualized hazing of new members in the Piermont Fire Department. An adult firefighter and two juveniles have been charged criminally in connection with the case.

Otter v. Frenchtown Township et al, is another suit brought in 2011, where the driver of a pickup truck in Michigan who rounded a corner at a high rate of speed and slammed into the back of a fire truck parked at the scene of a previous accident, is suing Frenchtown Township, MI and one of the firefighters who helped extricate him. The accident was caught on videotape. The driver/plaintiff has a long record of driving infractions and was observed by a TV news crew to be feigning injuries he claims were attributable to the accident.

The Otter case shares some similarities with the first runner up for most bizzare, a case out of Colorado where a convicted arsonist, Joel  Ledermann, filed a notice of intent to sue 13 fire agencies, the Colorado State Forest Service, and the cities of Loveland and Fort Collins, that responded to the fire he set. Ledermann was a property owner who’s careless burning led to the 750 acre Reservoir Road fire that destroyed two homes and cost over $3 million to battle. He pled guilty to 4th degree arson, and was sentenced to three years of unsupervised probation and 450 hours of community service. According to his lawyer, the firefighters used questionable tactics and responded too slowly.

You can’t make this stuff up!!! 

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Posted in Civil Suit, Constitutional Rights, Disciplinary Action, Discrimination, First Amendment, Historical, Humor, Negligence, You Can't Make This Stuff Up

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No comments Posted by on January 1, 2012