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Two Firefighters Accused Of Bookmaking On Duty

“These weren’t nickel-and-dime guys.” That a quote from Genesee County Sheriff’s Chief Deputy Jerry Brewster last week referring to two Batavia, New York firefighters accused of running a bookmaking operation.

Firefighters Gregory Phillips, 39, and Brian Bordinaro, 43, have been formally charged with possession of gambling records, although authorities have made claims that additional charges will be forthcoming as the investigation unfolds. Philips was also charged with possession of cocaine discovered during a search of his home. Both have been suspended from the Batavia Fire Department.

Police allege the operation took bets on professional and college sports, and that some of the activities took place in Batavia’s fire stations while the defendants were on duty. A total of four search warrants were executed during the investigation including one at a fire station.

In an effort to keep the allegations in perspective, defense attorney Larry Andolina made a point of telling reporters: “As I was leaving the Sheriff’s Department today, there’s a sign with an arrow that says Batavia Downs racetrack and casino, and points that way. If you drive down that way there’s lottery tickets at every corner. There’s Powerball everywhere. I just don’t understand it.”

Incidentally, they are not the first firefighters to be caught bookmaking on duty. Remember in 2010 a South San Francisco BC was charged with taking bets from battalion HQ.

More on the Batavia story.

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Posted in Criminal Law, Disciplinary Action

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No comments Posted by on February 29, 2012

Fire Department and Chief Indicted for Insurance Fraud

A volunteer fire department and its fire chief from Ohio have been indicted for defrauding an insurance company.

Hopedale Volunteer Fire Department and Fire Chief Michael Moore were arraigned last week in Harrison County Court of Common Pleas. They were named in a secret indictment handed down on February 9, 2012.

The Ohio Insurance Fraud Division alleges that the department filed an insurance claim for damage to equipment following an October 14, 2011 incident. The claim totaled $21,000, which was allegedly paid by the insurance carrier. The indictment alleges the equipment was not damaged.

No word on what type of equipment was involved. The chief was released on personal recognizance.

More on the story.

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Posted in Criminal Law, Volunteers

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No comments Posted by on February 28, 2012

Fire Inspector Alleges Race Discrimination in Norwalk, Connecticut

Today’s Burning Question: I am a firefighter who did not get a promotion because of my race and its not right. I was senior to the guy who they gave the promotion to. I scored 9 points higher on the written exam – which I consider to be a truly objective measure since race can’t be factored in. Not surprisingly the fire chief says he did better than me on the oral exam – enough to overcome a total of 14 points from seniority and exam scores but that is so subjective. On top of that the panel for the oral had two members of “his” race and only one of mine. Do I have a case?

Answer: In my twenty-seven years of practicing law, I have been asked a question like this dozens of times. In each and every case the person who claimed to have been discriminated against was white. That is not the case in Norwalk, Connecticut where Fire Inspector Broderick Sawyer claims he was passed over for promotion to deputy fire marshal because he was black. The promotion went to Chris Hansen, who is white. Sawyer scored an 83 on the written exam to Hansen’s 74. Sawyer is senior. But Hanson apparently did substantially better on the oral exam… enough to overcome the 14 point advantage Sawyer had going in. That prompted Sawyer to file a complaint with the EEOC.

Norwalk Councilman David A. Watts seems to have taken up Sawyer’s cause, and even predicted the matter will be resolved soon. The number of minorities on the department has dropped from 14 in 2001 to 6 today, raising additional concerns about racial conditions in the department.

Sawyer was quoted in the Norwalk Patch as claiming he’s also been the victim of racial harassment within the fire department, but those claims sound a bit less than conclusive. Sawyer told a reporter that someone left a paper plate on his desk in 2010 saying “You da man” after he asked for a performance evaluation. He also claims someone left a baby’s pacifier on his desk. Sounds like stretch there… Geeze kid, you have a pretty solid prima facia case of race discrimination. Forget the small stuff - stick with your strongest argument and above all don’t go shooting yourself in the foot by saying too much… oh … wait a minute, did you say you had a problem with the oral exam?

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Posted in Burning Question, Civil Suit, Constitutional Rights, Discrimination, Promotions

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No comments Posted by on February 27, 2012

NH Supreme Court Limits Scope of Fireman’s Rule

The New Hampshire Supreme Court released a decision yesterday on a case brought by a firefighter who was injured in 2008 at the scene of a fire against the owner of the property.

On January 29, 2008, Epping firefighter Jason Antosz responded to a fire at Doree Allain’s house. The fire was in a water heater and while retrieving a fire extinguisher, Antosz slipped on accumulated ice and snow in Allain’s driveway and was injured

Antosz sued Allain claiming she was negligent in the maintenance of her premises. Allain sought to have the case decided in her favor as a matter of law based on the Fireman’s rule. The trial court agreed with Allain, prompting Antosz to appeal.

NH is one of the states where the Fireman’s Rule has been enacted into law. It reads as follows.

RSA 507:8-h  Firefighters . . . shall have no cause of action for injuries arising from negligent conduct which created the particular occasion for the [firefighter’s] official engagement. However, this section does not affect such [firefighter’s] causes of action for unrelated negligent conduct occurring during the [firefighter’s] official engagement, or for other negligent conduct . . .

In reversing the trial court, the NH Supreme Court ruled that Allain’s alleged negligence did not “create the particular occasion for the [firefighter’s] official engagement”. On the contrary the court ruled that her failure to clear her driveway was more in the nature of “unrelated negligent conduct” under the statute.

The case has been sent back to the trial court for further proceedings and possible trial.

Here is a copy of the decision. Antosz v. Allain NH

Incidentally, take a look at more on Jason Antosz 

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Posted in Civil Suit, Firemen's Rule, Negligence

1 comment Posted by on February 25, 2012

When Is a Raise Not A Raise?

Question: Is a step increase a raise? I suppose to the public and politicians, a step increase most certainly is a raise. One day a firefighter receives X for compensation, then next he receives X + Y. It looks like a raise, it quacks like a raise, therefore it is a raise…. Right?

So why am I am struggling to find common ground with them on this issue. A step increase is different from a “raise”. A raise is an increase in pay… no wait, that doesn’t explain it. … mmm.  How do I explain it.  A step increase is a raise that occurs over and above the increases that other employees receive… hummm… no, that doesn’t seem like a good enough explanation either.  A step increase is earned…. There. That’s it. A step increase is earned… But wait, isn’t any raise earned?

My gut tells me there is a difference… a huge difference between a step increase and a raise…. What do you think?

Here is a story about a lawsuit in Massachusetts by a local seeking to enforce contractual step increases despite a wage freeze.

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Posted in Civil Suit, Labor Law, Politics, Wage and Hour

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1 comment Posted by on February 25, 2012

PA Medic Claims Termination Over Supervisor’s Cursing Is Religious Discrimination

A Pennsylvania paramedic who was terminated last May, has filed a discrimination lawsuit alleging he was fired due to his religion.

Medic Paul Newell claims a supervisor’s use of vulgar language prompted him to file a complaint, which in turn led to his termination from the Lower Valley Ambulance Service.  Newell claims the supervisor’s use of profanities was offensive to his religious beliefs, and the termination was retaliation for his legitimate request for the cursing to stop.

According to the complaint, Newell was told he was fired for “misprioritizing” ambulance runs.  Newell disputes that he made an error in judgment claiming he responded to a patient not breathing call before handling a routine transport that was called in first. He also cites an instance where a medic who made a similar choice was not terminated. The complaint characterizes the “misprioritizating” allegation as  a pretext his termination.

The suit was filed Wednesday in Federal District Court for the Western District of Pennsylvania.

Here is a copy of the complaint. Newell v Lower Valley Ambulance

More on the story.

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Posted in Civil Suit, Constitutional Rights, Disciplinary Action, EMS, Wrongful termination

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3 comments Posted by on February 23, 2012

Erie Seeks Reversal of Verdict in Favor of Wolski

The city of Erie, Pennsylvania is asking a Federal court judge to reverse a jury verdict in the wrongful termination/discrimination case of female firefighter Mary Wolski. Recall two weeks ago the jury granted Wolski $206,000 in back pay and reinstatement finding her termination to violate the Americans with Disabilities Act.

Wolski was terminated in 2007 following her attempted suicide in December, 2006 by setting a fire. The city’s motion asks the court to find as a matter of law that the evidence was insufficient for a jury to rule in Wolski’s favor.

More on the motion.  For a recap of the case.

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Posted in ADA, Arson, Criminal Law, Disciplinary Action, Discrimination, Municipal Liability, Wrongful termination, You Can't Make This Stuff Up

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No comments Posted by on February 23, 2012

Judge Rules County Not Liable for Discrimination But Union Is

A Federal court judge in Florida has overturned a jury verdict against Pasco County in a discrimination suit filed by two firefighters. The two firefighters, Anthony Booth and Jerry Brown, claimed their captain discriminated against them on the basis of their race and religion. Booth is a firefighter/EMT, who is Hispanic,  and Brown is a driver/engineer, whose wife’s family is Jewish.

They later sued the county and IAFF Local 4420 claiming they were retaliated against for filing the initial complaint.  On January 31, 2012, a Federal court jury agreed, awarding the pair $189,000.

This week, Judge James Moody concluded that the county was justified in sending the firefighters for a psychological evaluation prior to allowing them to return to duty, a point that the jury felt was discriminatory.

Judge Moody agreed with the jury as to the union’s liability for posting a notice in the stations that referred to Booth and Brown by name, and indicated the possibility that union dues would go up as a result of the ‘frivolous” lawsuit. The judge rejected the union’s argument that the notice was protected “free speech”. He referred to the notice as “an implicit call for reprisal, and thus a retaliatory act.”

The union has been ordered to pay each firefighter $83,000, and the case has been continued on the issue of legal fees.

More on the story.

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Posted in Civil Suit, Constitutional Rights, Discrimination, First Amendment, Labor Law

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1 comment Posted by on February 22, 2012

LA County Firefighter Wins Comp Claim for Hedge Trimming Injury at Home

Today’s Burning Question: I was on duty as a firefighter and was at my house doing some paper work. On my way back to the station, my wife asked me to trim some wisteria bushes, and in the process I fell off a ladder injuring my back and neck. The fire department denied me workers compensation coverage. Shouldn’t I be able to recover?

Answer: According to the Second District Court of Appeals in California, an on duty firefighter who is injured while engaging in activities that his employer allows him to engage in, is covered by workers compensation under the dual purpose doctrine even when done at the request of his wife.  This unusual case arose in LA County involving a firefighter, Richard Warner, who is assigned under fairly unique conditions to Catalina Island.  

The facts of the case are fascinating, and rather than me trying to summarize the details, please read the court’s description… it is quite informative:

“The county maintains Fire Station 55 on Catalina Island that is staffed by a captain and a firefighter specialist.   In 1993, the county recognized the need to increase fire staffing on the island.   The increased compensation is designed to compensate the firefighter for:  higher housing costs, including taxes;  moving and transportation expenses;  and other living expenses.   Since 1993, petitioner has served as a firefighter specialist at Fire Station 55.   The work schedule is unique.   Both the captain and petitioner are required to live on Catalina Island to respond to emergency incidents 24 hours per day.   The captain and his family live at Fire Station 55.   The captain, sometimes with help from petitioner or a relief captain, cleans and maintains the lawn, gardens, bushes and trees at the fire station.   Petitioner and Captains Richard Harp, Michael Lewis, David Gillotte and Mitchell Charles Brown, testified their firefighting duties include maintenance of the fire station’s grounds.   The maintenance tasks include mowing the lawn, clearing brush, trimming bushes, and removing trees.   Because petitioner is not provided housing, he receives a stipend equivalent to an 11 percent increase in salary to offset the high cost of living on the island.   The rate of pay is “four schedules higher” than that for a typical firefighter’s compensation.

“Petitioner works scheduled times at the fire station during weekdays.   But petitioner is not at the fire station on weekends or when he is on call.   Unless relieved in advanced by the captain, petitioner is required to be available 24 hours per day in order to respond to emergency incidents.   Petitioner responds to calls from his home 26 weekends per year.   Petitioner is on call from his home after work hours because there is no place for him to stay at the fire station.   He responds to calls from his home more than from the fire station.   In the event of a major incident, petitioner is required to respond from his home.   Ninety percent of the calls for assistance come from locations closer to petitioner’s home than to the fire station which is at the end of a road through town.   Catalina Island residents know petitioner is a firefighter and sometimes go to petitioner’s house to request assistance when they see the fire truck parked on the street outside his home.   When the residents go to petitioner’s house for assistance, they have to walk through a wisteria-laden path.   Island residents will go to petitioner’s house for assistance if they live nearby or if an injury occurs near his home.   The county has no ownership interest or control over petitioner’s residence or input regarding its particular location.   The county neither inspects petitioner’s residence and equipment at his home nor provides maintenance guidelines.” …

“Our Supreme Court explained:  ’[A]n employee is in the ‘course of his employment’ when he does those reasonable things which his contract with his employment expressly or impliedly permits him to do. ’”…

“It is undisputed petitioner was on duty at his residence when he injured himself.   Petitioner is required to work at home every other weekend because there is no place for him to stay at the fire station.   Before he was injured, petitioner had just finished some paperwork in his home office and was on his way to inspect the equipment on the fire truck.   On his way to the fire truck, petitioner’s wife asked him to help her trim the wisteria.   The wisteria grows in front of his house and in the pathways;  it will hit everyone in the face if it is not trimmed.   It is uncontested that Catalina Island residents sometimes go to petitioner’s home for help when they believe he is at home because they know he is a firefighter.”

“Here, trimming the wisteria ensures residents have safe access to petitioner’s house and allows him to reach his fire truck in a safe and timely manner when responding to emergency calls.   No doubt, petitioner trimmed the wisteria at his wife’s request.   But this does not negate that the activity was impliedly authorized by the county because it is undisputed that island residents sometimes go to petitioner’s home for help.   By trimming the wisteria, petitioner was engaging in an activity that benefited both himself and his employer.   Referred to as the dual purpose doctrine, the Court of Appeal has explained:  “ ‘[W]here the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly [nor] indirectly could he have been serving his employer.’ … the injury is compensable if received while the employee is doing those reasonable things which his contract of employment expressly or impliedly authorized him to do.” …

 “We conclude petitioner’s act of trimming the wisteria was incidental to his employment even though it was done at his wife’s request.”

The case was decided on December 27, 2011 and is now starting to peek some interest in the law and workers comp blogs.

Here is the decision. Warner v Workers Compensation Appeals Board

Here is a recent blog. And another.

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Posted in Burning Question, Civil Suit, Workers Compensation, You Can't Make This Stuff Up

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2 comments Posted by on February 20, 2012

Someone Created A New Fire Department In My Backyard

Today’s Burning Question: Can someone just create a fire department? We have a person in our response district that purchased a used fire truck, and he has now approached the mayor about responding to alarms. The fire districts in our area have all turned him down but we are concerned about what will happen if he just shows up at emergency scenes. He calls himself a fire chief, has painted the name Independent Fire Department on his engine, and he even has  a badge and a uniform.  We have no idea about his credentials and are concerned that he may simply start responding to alarms. Can we stop him?

Answer: You can’t make this stuff up. Chances are you can stop him, but the final answer will vary from state to state, and jurisdiction to jurisdiction. In some states, fire departments must be approved by the state fire marshal – so that right there would stop him in his tracks. In some states, fire protection services have been delegated to the counties – so in such a state the county would have to approve or authorize the “Independent Fire Department” to respond.

However, in most states – there are a hodge-podge of laws, regulations, charters, and authorities that control who can deliver fire protection services. Responsibility for firefighting may be delegated or assigned to a given fire department by law. For example, a city charter may assign firefighting within the corporate limits to the municipal fire department or to certain volunteer fire companies. A township may be created specifically to provide fire and police protection to a given area… or perhaps a fire district or fire protection district may be created to provide fire protection. In any of these cases, the entities would have clear legal authority to regulate who fights fires within their corporate limits.

But in some places there is no specific law that authorizes anyone to provide firefighting services. It just sort of happened. 100 years ago, 75 years ago, 50 years ago, some guys got together, bought a fire truck, and started a fire department similar to what the self-appoint fire chief of IFD is doing. In many places the local volunteer fire companies even pre-dated the existence of a local government. Once the town was created, the town may have provided funding for the fire company. The point here is that these fire departments just sort of happened without any laws or express legal authority. Let’s call these “ambiguous jurisdictions” where it is not clear who authorized the fire departments to provide firefighting… it just sort of happened.

Back to your question – the ability to stop the Independent Fire Department from responding will turn on whether there is clear legal authority to regulate fire departments, or if you are in one of those ambiguous jurisdictions.

In your question, you indicated there are fire districts in your area. If that is the case, then it would be up to the fire district to approve or disapprove any new volunteer fire departments. The same would go for a municipal fire department, or a county fire department. Having clear legal authority would allow the fire district to prohibit him from responding and if push came to shove, have him charged with impersonating a firefighter, interfering with firefighting operations, or similar offenses.

In an ambiguous jurisdiction… we’ll leave that for another blog… but it would much more complicated.

Note: Name, department and state withheld to protect the innocent.

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Posted in Burning Question, Volunteers, You Can't Make This Stuff Up

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4 comments Posted by on February 19, 2012

Atlanta Jury Finds Problem with Investigation of Promotional Exam

Yesterday, a Fulton County jury found that Atlanta Fire Rescue failed to fully investigate allegations of cheating on a 2010 promotional exam. The suit was brought by three Atlanta firefighters claiming that certain black firefighters were coached and given access to exam materials prior to the test.

The three plaintiffs, two white and one black firefighters, filed a class action lawsuit on behalf of all of the firefighters who took the lieutenant’s exam in April, 2010. They alleged that one study group of five firefighters were provided with answers, and that the city’s Human Resources department performed a superficial investigation that simply covered-up the cheating.

The five accused firefighters all scored within the top 8 on the exam. The city’s attorney criticized the ruling and the plaintiffs’ case  claiming it “basically centered on the idea that you couldn’t be an African-American in 2010 and do well on a test.”

Promotions based on the test results have been on hold, and it is unclear at this point whether a retest will be required. The parties are due back in court of March 8, 2012.

More on the story.

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Posted in Civil Suit, Constitutional Rights, Disciplinary Action, Discrimination, Promotions, training-development

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4 comments Posted by on February 18, 2012

Huntsville Fire Faces Sexual Harassment Quandry

Today’s Burning Question: I am a fire chief and two of my firefighters, a male and a female, were in a relationship that appears to have ended badly. They continued to work together until recently when they filed sexual harassment charges against each other. The EEO investigators were not able to verify either side’s allegations. What is evident is that they cannot continue to work together so I transferred them both. Now the woman is claiming I retaliated against her for filing her sexual harassment complaint. What should I have done?

Answer: Chief, you were (and are) in a no win situation where no matter what you do, one or both of them will be upset… maybe even upset enough to sue.

In the real life version of the story, Hunstville, Alabama firefighter Donna Grimwood is now asking the city council to intervene on her behalf following her transfer from the city’s hazmat team. Grimwood complained that her ex-boyfriend propositioned her for sex, belittled her in front of other personnel, and grabbed her breasts, while the ex-boyfriend made counter allegations of sexual harassment.

Following an investigation that was inconclusive, Fire Chief Mike Sublett opted to transfer both members out of the hazmat team. The move cost each of the firefighters a 5% special assignment pay.

Last night, the Huntsville City Council debated the matter, prompting one councilman, David Showers to state  ”A person – man or woman – ought not be penalized for coming forward.” Great… thanks for that bit of enlightenment, Councilman. So following your logic the fire chief should do nothing and leave  them to work together?

I am sorry for the sarcasm – but an oversimplistic approach to these complicated cases is not limited to politicians, and is part of the problem. All too often attorneys who represent parties in cases like this have a similarly narrow focus that tends to make it impossible to reach a solution that is mutually acceptable to all parties. Lawyers call it zealous representation – but it can create an obstacle for fire service leaders seeking to do the right thing.

Chief Sublett – I feel your pain. Assuming your investigators did a reasonable job of investigating the allegations, I don’t know what else you could have done.

More on the story.

Note: Chief Sublett did not ask this question – the info came from the news stories on the case.

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Posted in Burning Question, Constitutional Rights, Disciplinary Action, Discrimination, Municipal Liability, Politics, Sexual Harassment, Sexual misconduct, You Can't Make This Stuff Up

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No comments Posted by on February 17, 2012

Nebraska Suit Seeks to Force Appointment of a Fire Chief

Today’s Burning Question: My fire department is currently without a fire chief. The city had an interim chief but civil service rules limit interims to four month terms and that time has expired. Can I sue the city to force them to appoint a fire chief?

Answer: You can in Nebraska! Scott Kuehl, a fire captain with the Grand Island Fire Department, and president of IAFF Local 647, filed suit on February 15, 2012 to force the city of Grand Island to appoint a fire chief. The suit is based on a Nebraska statute which reads as follows:

16-222.02. Employment of full-time fire chief; appointment; duties.

Not later than January 5, 2009, each city of the first class with a population in excess of thirty-seven thousand five hundred inhabitants shall employ a full-time fire chief with appropriate training, credentials, and experience and for whom firefighting or emergency medical first response is a full-time career. The fire chief shall be appointed by the mayor with the approval of the city council or by the city manager in cities that have adopted the city manager plan of government. The fire chief shall have the immediate superintendence of the fire prevention, fire suppression, and emergency medical first response services and the facilities and equipment related to such services of the city. The fire chief shall promulgate, implement, and enforce rules governing the actions and conduct of volunteer members of the department so as to be in conformity with the personnel policies of the city.

The action was filed in Hall County District Court and seeks a writ of mandamus ordering the city to appoint a fire chief “with all deliberate speed.” The city is claiming it is awaiting an ICMA public safety study.

More on the story.

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Posted in Burning Question, Civil Suit, Politics

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5 comments Posted by on February 16, 2012

Command to Planning, Did Our Legal Unit Do A Title Search on This Property?

Today’s Burning Question: My fire department got an acquired structure to use for some hands-on training. The owner gave us a formal release and hold harmless agreement. Is there anything else we need to do?

Answer: Yes… make sure you do a title search to be certain that the person who claims to be the owner actually is the owner.

That is what a property owner in Oak Park, Illinois is claiming the fire department should have done back in 2008 before allowing its personnel to train in a house he owned.

This “you can’t make this stuff up” case arose when a developer, Bernard O’Reilly, agreed to buy the house from its owner, James Bogard. Because O’Reilly’s plans called for the house to be demolished he agreed to allow the fire department to use it for training. When the real estate market crashed, O’Reilly backed out of the deal but the fire department had already completed the training leaving the property badly damaged.

To add salt to Bogard’s wounds, the Village of Oak Park began assessing housing code fines against the property because of its deplorable condition…. which incidentally was largely attributable to the demolition/training work performed by the fire department. Those fines ended up being in excess of  $200,000.

The situation has prompted Bogard to file two lawsuits against the Oak Park Fire Department, the department’s upper echelon, and O’Reilly. Bogard’s first suit was filed in Federal Court alleging the fire department and the developer conspired to deprive him of his property without due process, (aka a taking of his property without just compensation). That case was dismissed in July 2009 because the court concluded Bogard had not exhausted his state law claims.

Bogard then filed a second suit in state court alleging “outrageous and willful and wanton actions and conduct” by the fire department. The suit further claimed that “No reasonable person would have believed the conduct described was lawful or constitutional.” The suit seeks damages and a ruling that Bogard should not have to pay the housing code fines.

More on the story.

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Posted in Burning Question, Civil Suit, Constitutional Rights, Municipal Liability, Negligence, Training, You Can't Make This Stuff Up

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2 comments Posted by on February 16, 2012

Chicago Settles Wrongful Death Suit for $1.75 Million

The city of Chicago has agreed to settle a wrongful death lawsuit brought by the family of an 13 year old girl who died in 2002 from an asthma attack.

Arielle Starks died when paramedics allegedly failed to properly intubate the youngster, got in an accident enroute to the ER, and then failed to recognize the mistake in the airway. The settlement is reported to be $1.75 million.

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

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

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3 comments Posted by on February 14, 2012

Buffalo Firefighters Awarded $2.5 Million in Reverse Discrimination Suit

Not sure how we missed this last week, but twelve white firefighters from Buffalo were awarded $2.5 million in a reverse discrimination suit that was filed back in 2007. The suit alleged that the city purposely allowed promotional lists to expire so that new lists with more African Americans on it could be used.

State Supreme Court Justice John A. Michalek ruled in favor of the firefighters on the merits of the case back in October, 2010, citing testimony by a city official who said the decision to let the list expire was based on concerns about a possible suit by MOCHA (Men of Color Helping All Society).  The judge did not consider damages at the time.

MOCHA has challenged tests in the past, in particular the tests for 1998 and 2002. In 2005 a Federal judge concluded that there was not enough evidence to find that the city intentionally discriminated against African Americans.

On February 7, 2012, Judge Michalek awarded the damages to the twelve plaintiffs, who will receive between $49,000 and $500,000 plus an award of between $20-30k each of emotional distress.

More on the story.

 

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Posted in Civil Suit, Constitutional Rights, Discrimination, Municipal Liability, Promotions

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2 comments Posted by on February 14, 2012

RI Supreme Court Issues Long Awaited Rule on Non Lawyer Union Rep

Last Thursday, the Rhode Island Supreme Court issued a long awaited ruling on the legality of non-lawyer union officials representing local unions in grievance arbitrations. In In re Town of Little Compton, the court concluded that it is permissible for union officials who are not lawyers to represent the union.

The case arose in 2009 when Little Compton Firefighters, IAFF Local 3957 filed a pair of grievances over minimum staffing.  After negotiations failed to resolve the dispute, Local 3957 filed for arbitration and designated Vice President Joseph Andriole of the Rhode Island State Association of Firefighters (RISAFF)  as their representative.

Seeking to gain a tactical advantage (and certainly not because they were genuinely concerned that the firefighters’ might be denied a fair hearing), the town filed suit in superior court to block the arbitration and have the court declare it illegal for the union to use a non-lawyer to represent it. The court refused to restrain the local’s use of Mr. Andriole. The town later filed a complaint with the Supreme Court’s Unauthorized Practice of Law (UPL) committee alleging Mr. Andriole had unlawfully practiced law in the state.

In 2010, the UPL committee concluded that Mr. Andriole had committed a technical violation of the statute prohibiting the practice law without a license, but concluded that since the violation had been consistent with a widespread practice in labor, it would defer to the Supreme Court for guidance in how to proceed.

In reaching its conclusion, the Supreme Court seemed to struggle with what should have been a relatively simple and common sense approach of allowing a union representative to … represent the union. Instead the court referred to the matter as “an exquisitely close case” – despite the fact that no other jurisdiction in the United States has ever ruled that labor unions cannot have non-lawyer union representatives handle grievance arbitrations.

Nevertheless, the court concluded that Mr. Andriole was not guilty of the unlawful practice of law. The court stopped short of declaring that unions may engage non-lawyers to represent them and limited the holding by suggesting that the issue may be reconsidered in the future.

Here is a copy of the decision. In re Town of Little Compton (Opinion)

What concerns me about the decision (besides the fact that the court struggled to justify something that the rest of the country has been uncharacteristically unanimous about) is the lack of discussion about the right of employees to engage in concerted activities. If the court came out the other way, where exactly would that right of employees to work together for their common good start and end? If only a lawyer could represent the union at a grievance hearing, what about steps that occur prior to the hearing that – if not handled properly – could jeopardize the ability of the union to take a grievance to arbitration? Could a non-attorney union steward be prohibited from giving advice to a union member? After all, the steward might be giving “legal advice”… interpreting the contract, or even legal terms such as past practice or substantive arbitrability. Could a non-attorney union rep be prohibited from processing a grievance at the next to the last step, or the 2nd to the last step, or maybe even the first step – if legal arguments must be made, or evidentiary matters arise? Would union representatives be prohibited from negotiating with an employer without an attorney by their side? Where would the line be drawn?

Fortunately the RI Supreme Court got it right, but it certainly is less than encouraging that they seemed to struggle with what should be an obvious ruling.

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Posted in Civil Suit, Labor Law

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No comments Posted by on February 13, 2012

Union Free Speech and Insubordination

Today’s burning question involves the right of an IAFF firefighter to speak his mind at a union meeting… and whether he can later be bullied by a ranking officer over what he said.

Today’s Burning Question: At a union meeting, two members (a captain and a lieutenant) have a disagreement regarding an issue being debated.  Some words are exchanged but it is nothing out of the ordinary for a union meeting.  A few weeks later while at work the captain asks the lieutenant to step outside the fire station to talk.  Once outside, the captain tells the lieutenant he didn’t appreciate being “called out” at the union meeting and told the lieutenant not to do that again. The two begin to argue, but the lieutenant decides to end it by saying  “$@k off”, and goes back inside the firehouse. The captain brings departmental charges against the lieutenant for insubordination.  The fire chief backs the captain and issues the lieutenant a written reprimand.

In your opinion, does the lieutenant have any recourse?

Answer: That is a great question and one that goes beyond just a dispute between a captain and a lieutenant. It shows the kinds of tension that can exist when supervisors are in the same bargaining unit as subordinates – something that is very common in the fire service. Keep in mind this is only an issue in the public sector because in the private sector supervisory personnel are excluded from the bargaining unit by the National Labor Relations Act.

There are several issues within the fact pattern that we need to elaborate on:

  1. The fact that the captain even brought the union meeting discussion up in a workplace context where he is in a supervisory role may be unfair labor practice and possibly a 1st Amendment violation. There might be a question about whether he deliberately stepped outside of his role as a supervisor by asking the lieutenant to step outside the fire station – something I would have argued in defense of the insubordination charges. However, the fact that the captain then preferred charges and that the fire chief supported him would indicate that despite the request to “step outside” the fire station,  the captain was acting in his supervisory role…  as an agent of management. That means he (and the department) were infringing on a concerted activity and infringing on an exercise of the lieutenant’s 1st Amendment rights. The lieutenant has every right to engage in union discussions at union meetings without being subject to retribution by his employer and/or supervisors.
  2. The Lieutenant may have been insubordinate to the captain but the issue was over a protected activity – which the captain was illegally bringing up. It was the captain who instigated the discussion and in some ways provoked the response. In addition, the punishment is essentially management punishing a member over a concerted/protected activity – which is an unfair labor practice. An appropriate remedy for the unfair labor practice would be to remove the discipline imposed on the lieutenant.
  3. The IAFF Constitution and most, if not all, IAFF Local By-Laws or Constitutions contain a mechanism for members to charge other members with misconduct, including conduct unbecoming an IAFF member.  Abuse of supervisory status to retaliate against a fellow union member for purely internal union free speech will likely be deemed misconduct, and could lead to disciplinary penalties against the Captain, up to and including expulsion.

Many states prohibit supervisory personnel from being in the same bargaining unit as subordinates, and at its surface a case like this certainly seems to highlight the kind of tension that can occur. However, states that draw a line between supervisors and subordinates allow officers of differing ranks to be in the same bargaining unit, and this case involves two officers of differing ranks. It would seem, therefore, that simply grouping members into two groups, firefighters and officers, would not have solved the problem.

There is a long historical tradition in the IAFF and fire departments of officers and firefighters standing together in fraternal support. This is long recognized by state laws that permit these traditional allegiances in the organization of fire service bargaining units.  To the extent that there are individual instances of conflict between union members like the one identified here, that would seem to be best addressed through the normal grievance procedure (to the extent discipline is grievable) and, just as importantly, by internal union disciplinary intervention.

So to answer your question, the possible avenues of recourse are (a) grievance (b) unfair labor practice charge (c) union charges and (d) Federal court suit for 1st Amendment violation, with (a) and (c) being my recommended course of action.

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Posted in Burning Question, Constitutional Rights, Disciplinary Action, First Amendment, Labor Law

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9 comments Posted by on February 13, 2012

Evansville Captain Councilman Facing Backlash For Drinking

An Evansville, Indiana fire captain who is also a city councilman is facing termination after he was accused of drinking  following a council meeting, and before returning to duty with the fire department.

Evansville Fire Department Captain Al Lindsey, a Sixth Ward city councilman, was suspended and placed on unpaid administrative leave following the January 23, 2012 incident.  Fire Chief Mike Connelly suspended Lindsey, and has recommended termination to the fire merit commission.

Lindsey admitted to being in a bar following the council meeting, but denies he had anything alcoholic to drink. While in the bar he had a heated disagreement with another councilperson, Missy Mosby. Someone thereafter reported the incident to the mayor.

For video coverage

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Posted in Disciplinary Action, Ethics, Politics, You Can't Make This Stuff Up

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1 comment Posted by on February 10, 2012

Ohio Fatal Accident Case Raises Some Important Policy Questions

There is a case pending before the Ohio Supreme Court that raises some important considerations for fire departments, and in particular questions about a department’s policy for emergency response driving.

The case arose out of an apparatus accident in Canton, Ohio on July 4, 2007. FF James Coombs was responding to a house fire when the apparatus he was driving struck a vehicle in an intersection and killed the two occupants, Grace and Dale Burlingame.

At the time the apparatus’s siren was not functioning and the unit was responding with lights and sounding its air horn. According to court papers, the apparatus had a red traffic signal and proceeded through the intersection broadsiding the Burlingame vehicle at approximately 35 to 40 miles per hour. The estates of the deceased sued the City of Canton and FF Coombs.

At trial the court granted a summary judgment in favor of the fire department and the driver concluding both were entitled to immunity under Ohio law because at worst FF Coombs was guilty of negligence.  On appeal the Ohio Court of Appeals reversed finding that “reasonable minds could differ” over whether FF Coombs’ driving was “willful, wanton or reckless”, in which case he would not be entitled to immunity protection.

The Court of Appeals decision does an excellent job of explaining negligence, and distinguishing negligence from willful, wanton and reckless conduct.  At issue in the case is whether FF Coombs should have discontinued emergency response due to the loss of the siren, come to a complete stop at the red light, and whether his failure to do so arose to the level of “willful, wanton or reckless” behavior.

Also at issue before the Ohio Supreme Court will be the relevance of the Canton Fire Department’s internal policies and procedures to a determination of the standard of care, as well as the impact of state laws that require fire apparatus to slow down before proceeding through intersections. The trial court ruled that policies and state laws were not relevant to a determination of FF Coombs’ conduct. The Court of Appeals disagreed.

Among the key quotes:

  • Violation of departmental policy or of traffic laws may be a factor for the jury to consider in determining whether the conduct of the defendants rose to the level of wanton or reckless.
  • The laws and policies are designed to make emergency responses safer for the public. However, they also exist for the protection of the firefighters, who already face serious personal risks in their day-to-day jobs, and who must not be further imperiled en route to their humanitarian roles. We find violations of traffic statutes and departmental policies are factors a jury may consider in determining whether Coombs’ actions were reckless.
  • [N]egligence is mere inadvertence, incompetence, lack of skill, or failure to take precautions that would allow the person to cope with a possible or probable future emergency. Reckless consists in intentionally doing an act with knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The person does not intend to cause the harm that results from it but realizes or, from known facts, should realize that there is a strong probability that harm may result, even though the person hopes or even expects that the conduct will prove harmless. Intentional misconduct occurs when the person intends to cause harm.

This case is important because of a possible implication that some may draw from it. Some may interpret this case as calling into question the wisdom of having written policies if they can be used as a basis to find a firefighter and fire department liable. Do not fall for that trap.

One of the goals of having formal policies is to reduce liability – but not through some sort of magical legal hocus pocus (ie changing the name of SOPs to SOGs). That is nothing more than rearranging the chairs on the deck of the Titanic. The goal of having policies is to reduce the likelihood that an event such as a fatal apparatus accident is going to occur. Good, sound policies supplemented by training and enforced by officers who are unafraid of demonstrating leadership can prevent these types of accidents from occurring. That has to be our goal.

Misunderstanding this case as a call to eliminate or dilute written policies will make these kinds of tragedies more likely, not less likely.

The case was argued before the Ohio Supreme Court on Tuesday.

Here is the Court of Appeals decision. 2011-ohio-1325

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Posted in Apparatus, Civil Suit, Evidence, Immunity, Municipal Liability, Negligence, Occupational Safety & Health, Wrongful death

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3 comments Posted by on February 9, 2012

Texas Fire Chief and Family Members Charged with Embezzlement

A Texas fire chief, his mother, and his sister have been arrested and charged with embezzling approximately $40,000 from the Iola Volunteer Fire Department.  Fire Chief Earl Sword, his mother Wanda Sword (an accountant of the fire department)  and his sister Samantha Kimich (the secretary for the fire department) were arrested and charged with second-degree felony theft. The alleged embezzlement occurred over the last two years.

An investigation was started after the fire department’s assistant fire chief informed police about alleged misuse of department funds. A request for the department expense statement to the county auditor stated that the Fire Chief Earl Sword had reported that all the financial documents were stolen from the department. Investigations revealed that fire department funds were used to pay for non-fire department related expenses.

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

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2 comments Posted by on February 8, 2012

Erie Firefighter to Get Her Job Back

The Erie firefighter who was terminated from the department after she tried to commit suicide by setting fire to clothes in a bathtub, has won her job back. Mary Wolski, 45, the department’s first female firefighter, set the fire hoping that the smoke would kill her.

Wolski was suffering from severe depression and was under medical treatment at the time of the blaze. On December 28, 2006 she attempted suicide in her father’s vacant home by putting cloths into a bath tub and setting it on fire. She then tried to douse the fire with water and went on to cut her wrist. Meanwhile her family members found her and called for help.

Wolski underwent medical treatment, was able to recoup, and was later found fit for duty. In 2007 the district attorney opted not to press criminal arson charges against her. Wolski then sought to return back to duty, but instead the department terminated her. 

She appealed her termination to the Civil Service Commission, which upheld the city’s decision. Wolski then filed suit under the American with Disabilities Act (ADA) claiming stating that she was actually terminated by the city on account of her depression, and the city’s ungrounded fears that she might relapse into depression again.

Yesterday, an eight member Federal jury decided that that the city violated the ADA and Wolski’s rights. The city was ordered to pay back wages to Wolski and reinstate her with her seniority intact.

Assistant City Solicitor Gerald Villella said afterward that the city feared rehiring Wolski would impact the morale of the Fire Department, and that the City would consider filing an appeal.

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Posted in ADA, Arson, Civil Suit, Criminal Law, Disciplinary Action, Discrimination, Wrongful termination

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6 comments Posted by on February 7, 2012

Lying About Spotter Costs 2 British Firefighters Their Jobs

Two firefighters with the Greater Manchester Fire and Rescue Service are out of their jobs following a minor backing accident that damaged a wall. They were accused of lying about the use of a spotter.

David Woollam and William Lindfield were waiting with their apparatus while three firefighters investigated a flood damaged property. FF Woollam attempted to turn the vehicle around and while backing it struck the wall of a home. Brigade policy requires that a spotter be deployed whenever vehicles are backed.

FF Lindfield told investigators that he was serving as a spotter, while FF Woollam claimed he began backing before he realized a backer was not present on his backup camera. Woollam claimed he then mistakenly left the vehicle in reverse striking the wall.

Investigators concluded that the pair had lied. FF Lindfield was terminated and FF Woollam opted to take an early retirement.

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Posted in Apparatus, Disciplinary Action, International

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No comments Posted by on February 6, 2012

Morphine Pumps and Driving Apparatus

Today’s burning question: I am a firefighter paramedic in a volunteer fire department. One of our ambulance drivers  was recently put on a morphine pump, and many of us are concerned about whether he should be allowed to drive, or even respond at all. The fire chief and the fire board are allowing it because he has a note from his doctor. Is this legal?

Answer: Let me ask the same exact question, but in a different way:

I am a volunteer ambulance driver and unfortunately I have a morphine pump. It is a low dose – so low that my doctor has concluded I can still drive and more importantly still drive the ambulance. The fire chief and the fire board have reviewed my doctor’s note and are allowing me to drive. However some members are complaining and are trying to get the department to make me stop driving. If that happens can I sue them and the department for violating my rights?

Which of these two questions is the correct question?

All kidding aside – if his doctor knows he drives an ambulance and says he can safely do so with a morphine pump, I am not sure the department can stop him without violating the American’s with Disabilities Act, and probably state disability discrimination laws as well.

Personally I am astounded that a doctor would say that someone with a morphine pump can drive an emergency vehicle – but that being said – it is not the chief or the fire board’s role to overrule the doctor. One thought might be to have the department doctor (assuming you have one) contact the member’s doctor just to confirm the note is accurate and that the member’s doctor understands the demands of the position. NFPA 1582, Standard of Comprehensive Occupational Medical Program for Fire Departments, would be a good resource for the doctor to use in making the determination.

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Posted in ADA, Burning Question, Discrimination, EMS, Occupational Safety & Health, Volunteers

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9 comments Posted by on February 5, 2012

Pennsylvania Firefighter Charged With Indecent Assault on Junior

A 20 year old volunteer firefighter from Pennsylvania has been charged with indecent assault for sexually assaulting a junior firefighter last year.  Joseph Traino, of the Chambers Hill Fire Company, was in court yesterday on charges that date back to October, 2011.

He has been suspended from the fire company pending further investigation.

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Posted in Criminal Law, Disciplinary Action, Junior firefighters, Sexual misconduct, Volunteers

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No comments Posted by on February 3, 2012