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PA Attorney General Sues Fire Department

The attorney general for the Commonwealth of Pennsylvania has taken the drastic step of suing three emergency service organizations and their officers in an effort to seek an accounting of public and charitable funds and property.

Named as defendants in the suit are:

  • Aspers Fire Company,
  • Aspers Volunteer Ambulance Inc. and the
  • Aspers Volunteer Firefighters’ Relief Association
  • President, fire chief and EMS captain Lewis J. Alexander
  • Vice president and treasurer Alberta Alexander (wife of Lewis)
  • President and fire chief Donald Haines
  • President Sherrie Haines
  • Treasurer George Acevedo
  • Secretary Edward Kuntz
  • Membership secretary Joyce Kuntz
  • Board members Clair Showers and Barry Shealer

They are accused of:

  • Diverting funds intended for the purchase of a new fire truck,
  • Wasting charitable assets by abandoning a $10,000 down payment on a pumper
  • Applying for grant money to subsidize a personal boat
  • Paying individual’s medical bills,
  • Signing at least 32 blank checks by various board members
  • Comingling of funds
  • Conversion of assets from the sale of an ambulance.

Concerns about the finances of the organizations date back to 2010. The petition alleges that “the fire and ambulance companies and their assets allegedly became an “alter ego” of Lewis Alexander and members of his immediate family.”

Here is a link to the Attorney General’s Press Release on the case.

Here is a copy of the complaint, thanks to a chief from the area. AspersFC-Orphans-Court-Action-5-24-2012  

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Posted in Civil Suit, Theft in the Volunteer Fire Service, Volunteers, You Can't Make This Stuff Up

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No comments Posted by on May 31, 2012

Is It Cheating If Everyone Does It?

Today’s Burning Question: Is it cheating if everyone does it? I mean, if everyone taking an exam looks at the answer key, or helps each other then that can’t be cheating, right? It would only be cheating if a certain “select few” people cheated.

Answer: How did we reach this point… where the boundaries between right and wrong, fair and unfair, cheating and playing by the rules – become so… blurry.

Like a number of fire departments that have had to confront the quagmire of “what is cheating”, the Largo Fire Department in Largo, Florida is struggling with where to draw the line. An additional question to the already difficult challenge about where to draw the line  – is when should the line be drawn? Is it fair to draw a line at a given point in time by punishing offenders who did something that their peers before them had done… or should the new boundaries be clearly established first and implemented prospectively?

Five Largo firefighters were suspended without pay last month following an internal investigation into cheating on a promotional examination for a “squad driver” position. The suspensions ranged from 8 to 40 hours and cost the members as much as $680. According to the department, the members violated city policy by sharing too much information about the test. They are accused of sharing a copy of an old exam and discussing questions with those who had already taken the exam.

Fire Chief Mike Wallace thought the matter was closed when the five accepted their suspensions, and opted not to appeal. However, the firefighters union decided to grieve the discipline and what’s more – voted to reimburse the members for their lost wages out of union funds.

Chief Wallace was quoted in the Tampa Bay Times as saying “I’m disappointed…. This creates a sense of undermining the department’s authority over the employees … We’re trying to change a culture that says that’s acceptable.”

Union president Dale Rosko counters that the members did what others before then had always done, ”exercising a practice of sharing information that has been acceptable, allowed and even promoted by current and former fire administrations.” Members were ”never properly noticed of any change in regards to the testing procedure or that [their] actions were no longer allowable.”

Here is more on the Largo story.

And here is the White Paper on Reputation Management in the Fire Service: whitepaper

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Posted in Burning Question, Cheating, Disciplinary Action, Labor Law, Politics, Promotions

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3 comments Posted by on May 30, 2012

California Firefighters Sue for Retaliation

Threats, demotions, increased hours with no additional compensation, and numerous punitive changes in working conditions. That is what four California firefighters allege their fire chief did to them earlier this year upon learning they were forming a union. They have filed a civil rights action in Federal court.

Fire Captains Dustin Kuntz and Jeromy Nottingham and Fire Engineers Jason Keune and Frank Lee filed suit on May 16, 2012 against the Vacaville Fire Protection District and fire chief Howard F. Wood claiming the chief’s retaliation against them violated their 1st and 14th Amendment rights (freedom of association). The suit also alleges that the chief’s retaliation violated California Government Code §3502, and the California Firefighter’s Procedural Bill of Rights.

Section 3502 of the California Government Code states that “public employees shall have the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations” and that “[n]o public employee shall be subject to punitive action or denied promotion, or threatened with any such treatment, for the exercise of lawful action as an elected, appointed, or recognized representative of any employee bargaining unit.”

Section 3252, called the Firefighters Procedural Bill of Rights, provides that “A firefighter shall not be subjected to punitive action, or denied promotion, or be threatened with that treatment, because of the lawful exercise of the rights under this chapter…”

According to the complaint, after learning that the four firefighters were forming a union the chief:

  • Informed Captain Kuntz that he now had a “target on his back”, would suffer certain consequences, and would not be promoted to battalion chief as previously planned
  • Referred to Captain Kuntz as a “selfish union thug”
  • Removed Captain Kuntz as training captain, and reassigned him to report to a volunteer captain who was placed in charge of training
  • Demoted Wood was from Engineer to firefighter
  • Threatened to demote Lee from Engineer to firefighter
  • Threatened all four members saying he would eventually stop the union by getting rid of all of them
  • Increased their hours from 40 per week to 53 per week with no additional compensation
  • Initiated a disciplinary campaign over minor matters to create a pretext for further disciplinary measures, including discipline over the presence of dust behind a stove, and for a member removing his uniform shift while eating dinner.
  • Prohibited members from working out while on duty, a departure from a long standing practice
  • Issued numerous other threats including future discipline, changing hours and schedules, and worsening work conditions.

The suit seeks injunctive relief to prohibit future retaliation and restore conditions to the way they were prior to the chief learning about the formation of the union. The plaintiffs are also seeking compensatory damages, costs and attorneys fees.

More on the story.

Here is a copy of the complaint: Kuntz v Vacaville

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Posted in Civil Suit, Constitutional Rights, Disciplinary Action, Discrimination, First Amendment, Labor Law, Politics, You Can't Make This Stuff Up

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4 comments Posted by on May 29, 2012

Florida Local Seeks to Exclude Lieutenants from Bargaining Unit

It is an issue that firefighters and politicians can never seem to agree on: should officers be in the same bargaining unit as firefighters. That is the issue in Columbia County, Florida as the newly formed IAFF Local 4895 seeks to block the county’s efforts to include lieutenants in their bargaining unit.

Local 4895 was created on April 2, 2012, following a successful signature drive. The county then requested that a hearing officer from the Florida Public Employees Relations Commission who was assigned to  handle the initial bargaining unit certification, find that lieutenants share a community of interest with the firefighters sufficient for both to be in the same bargaining unit. The county further argued that having two unions would cause “unnecessary fragmentation” of the workplace. There are 25 firefighter/drivers in the bargaining unit presently, while there are five lieutenants.

The union claims the county gave the hearing officer, Suzanne Choppin, an inaccurate position description for lieutenants, one devoid of any supervisory responsibility. The union submitted a job description from 2008 that includes the following:

serves as a role model for subordinates; responsible for discipline within the assigned station and shift; serves as a liaison between subordinates and upper levels of management; listen to problems; assess training needs; interpret and administer department rules, regulations, and guidelines; train subordinates; conduct performance evaluations on subordinates and delegate assignments to subordinates.

The hearing officer has 45 days to rule on the county’s request. Here is more on the story.

I would be remiss if I did not point out that in many jurisdictions the firefighters’ union wants to include officers, while management  seeks to block the officers from joining. What doesn’t seem to change no matter where you go… is the fact that one side wants the opposite of what the other wants.

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Posted in Labor Law, Police-Fire

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1 comment Posted by on May 28, 2012

Alameda Drowning Suit Filed

As the anniversary of the Memorial Day 2011 drowning of Raymond Zack approaches, his family filed a wrongful death suit against the city and county of Alameda. The suit was filed Friday in Alameda County Superior Court alleging that officials should have done more to help the 52 year old suicidal man.

The action was brought by Bernice Jolliff and Robert Zack, the victim’s sister and brother.  It alleges that city firefighters did not have a rescue boat and were unable to enter the water because they were not certified in land-water rescue. It also alleges that county dispatchers failed to contact the proper agencies to respond in a timely manner.

The family filed an administrative claim for damages with the city and county last October. The complaint follows along the theories outlined in the administrative claim, and is an interesting read. Among the notable points contained in the suit are the following allegations relative to the city:

  • The response of the fire and police departments was negligent and/or reckless
  • A special relationship existed between the rescuers and Mr. Zack by virtue of:
    • Their efforts to organize the scene and contact Zack
    • The removal of civilians from the area and prohibiting them from effecting a rescue on their own
  • Funding for the rescue swimmer program that was cut in 2008, had been restored in 2009, but the training never occurred

The allegations against the county focuses on the dispatchers, claiming they were negligent, reckless, and wilful and wanton for their failure to promptly contact mutual aid resources with suitable water rescue capabilities.

Here is a copy of the complaint. Zack v Alameda

Let me point out to the legal eagles out there, the allegation of the existence of a special relationship between responders and Mr. Zack will likely become a critical part of the litigation. If a special relationship is found to exist, then it offers the plaintiffs a way around any immunity protection that the city and county may otherwise have. In addition, it gets plaintiffs around the application of the public duty doctrine.

More on the lawsuit.

Here’s our original post.

Here is the follow up.

PS – a big thank you to my friends in California for getting us the complaint!!!

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Posted in Civil Suit, Duty to Act, EMS, Historical, Municipal Liability, Negligence, Training, Wrongful death, You Can't Make This Stuff Up

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No comments Posted by on May 27, 2012

Massachusetts Strong Chief Weak Chief Battle in Dighton

What role should politics play in the fire service? Now there’s a question for the ages! That question is at the heart of a law suit filed last week by Dighton Massachusetts Fire Chief Antone Roderick Jr.  However the politicians in Dighton insist it’s got nothing to do with politics, it’s about “merit”.

Every state has a few unique laws relating to the fire service, and Massachusetts is no exception.  By state statute, Massachusetts has two types of fire chiefs, commonly referred to as strong chiefs and weak chiefs. The difference has to do with the mechanism available to local officials to remove a chief. A strong chief can only be removed for “cause”, while a weak chief is an “at will” employee. While the names given to the Massachusetts chiefs may come as a surprise to many across the country – the politics underlying the distinction should not.

Since 1971, the town of Dighton has been a strong chief community. However, the past few years, the town’s Board of Selectmen have been on a mission to put the fire chief under their thumb: they want to be able to remove him without justification. Of course they do not characterize what they are doing in quite those terms – they instead explain what they are doing in voter friendly terms.

Selectmen Chair Bud Whalon was quoted by the Taunton Daily Gazette as saying:

  • “(Roderick) thinks he has a job here until he retires. That’s not the case. It should be based on merit.”
  • “I don’t see why any employer, big or small, should have to be stuck with any employee that they are not happy with”.
  • “I don’t believe the legislation meant for a person to be in that position until they’re 65.” [interesting since Chief Roderick has over 20 years to go til he hits 65]

So let me get this straight – an elected official wants to be able to fire a public employee without cause (ie for no reason), but of course has the political savvy to realize he cannot cannot admit that to the public – so he rationalizes the move to eliminate the “cause” requirement as being necessary in order to ensure that employment is based on “merit”.  … Gotchya… merit. Yes, we are all in favor of merit. And elected officials would never play politics by firing someone for political purposes because they are really concerned about merit.

Here is the strong chief law, Massachusetts General Laws Chapter 48, Section 42:

Section 42. Towns accepting the provisions of this section and sections forty-three and forty-four, or which have accepted corresponding provisions of earlier laws may establish a fire department to be under the control of an officer to be known as the chief of the fire department. The chief shall be appointed by the selectmen, and shall receive such salary as the selectmen may from time to time determine, not exceeding in the aggregate the amount annually appropriated therefor. He may be removed for cause by the selectmen at any time after a hearing….

So how do elected officials go about getting rid of a strong chief who has not given them “cause” … so they can ensure things are “merit based”? About 2 years ago they decided to start negotiating a contract with Chief Roderick. They also set a deadline of June 30, 2012 for negotiations to be complete, and made it clear if they could not come to terms they would let him go.

According to Chief Roderick’s attorney, John Collins, “The terms of the contract have been pretty much worked out.” The sticking point is that the selectmen want the power to reappoint the chief when the contract is renewed, and are insisting that Chief Roderick agree that the Board can dismiss him with without a hearing. The problem is Massachusetts General Laws Chapter 48, Section 42 says otherwise. As a result, negotiations are at a standstill.

The suit was filed last Monday in Bristol County Superior Court against the Dighton selectmen, and seeks a preliminary injunction to prevent the selectmen from terminating Chief Roderick until the court rules on the suit. A hearing on the preliminary injunction is scheduled for June 19, 2012.

Meanwhile, in an act of almost unheard of support these days, the fire department’s unionized and call firefighters gave a unanimous vote of confidence for Chief Roderick.  I could count on one hand fire departments in the US where a fire chief has the unanimous support of his/her firefighters, and still have a few fingers left over. But employment needs to be merit based…

More on the story.

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Posted in At will employment, Civil Suit, Constitutional Rights, Disciplinary Action, Municipal Liability, Politics, Weekend Rant, Wrongful termination, You Can't Make This Stuff Up

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4 comments Posted by on May 26, 2012

Sacramento Explosion Suit Seeks Over $1 Million From Fire Department

A Sacramento homeowner whose vacant rental property was destroyed in a natural gas explosion in 2010, is suing the Sacramento City Fire Department for over $1 million.

Christopher Liu’s property was destroyed on July 5, 2010 in an explosion that occurred as firefighters were entering the structure to investigate the source of a gas leak. Four firefighters were injured in the blast, three seriously.

The leak was caused by a disgruntled neighbor, Robert W. Durst, who had previously done plumbing work for Liu. Drust was allegedly upset with Liu because Liu stiffed him $750 for the work.  

According to police, Drust admitted that he broke into the house, opened the gas valve in the kitchen, and left a candle burning in the living room distant from the gas leak. When firefighters arrived to investigate a strong gas smell coming from the house, Drust merely watched as the firefighters forced open the door of the house prompting the explosion. Witnesses said Drust acted disinterested as the event played itself out.

For his part, Liu was compensated by his insurance company $150,000 for the damage to his vacant structure. His suit, which he filed without the aid of an attorney, claims the firefighters were “irresponsible, negligent, and/or criminal” in the manner in which they responded to the incident. The guy who stiffed the plumber $750, and refused to hire a lawyer, is seeking $1,008,000 in damages, including $500,000 for “for personal distress for being implicated in the media as an arson suspect.”

Earlier this week, Drust was sentenced to 17 years in prison. Outside the courtroom, Lui was asked about why he filed his suit. His heartless reply: “They should have been more careful.  .. There was no fire going on… there was no reason for them to open the door. … I want them to realize they didn’t handle the situation properly.”  What a peach.

The lawsuit alleges the fire department should have secured the scene and waited for “experts” from Pacific Gas & Electric to respond because they were better equipped to handle gas leaks. The lawsuit hypothesizes that the firefighters somehow created a spark that prompted the explosion.

While most states have taken an aggressive approach to frivolous lawsuits, California is one state that appears to have lagged behind the rest of the country. Check out this article on the problem.

In most states, a Rule 11 sanction would likely await Mr. Liu. In states that follow the Federal Rules of Civil Procedures, Rule 11 reads as follows:

…

b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(c) Sanctions.

(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. …

 

Mr. Liu would have a very difficult time showing he had a good faith basis to support his allegations in a state that adopts Rule 11. Speculation would not cut it. He would need to have an expert witness willing to testify that it is more likely than not that the source of the spark that caused the explosion was something that the firefighters did rather than the candle or some other factor. He would also require expert testimony to show that the reasonably prudent fire department would have waited for PG&E to arrive on scene. I’m doubting as a pro se litigant he has experts lined up for either.

However, in California it looks to be just another frivolous suit tying up the legal system.

More on the case.

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

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3 comments Posted by on May 24, 2012

The Discipline Debacle in DC

It is almost beyond belief, even for someone who lectures regularly on the subject of “You Can’t Make This Stuff Up”. A fire chief, Kenneth Ellerbe, disciplining two chief officers who serve as hearing officers – administrative fact finders – because the fire chief feels they did not properly issue the correct “recommendation” to him in two disciplinary cases arising out of the same incident… Really?

Rather than rewrite the facts of the cases – Here are some links to the various stories – the Washington Times article does a great job of summarizing the facts.

 

While the facts are complicated and convoluted – one battalion chief, Richard Sterne, was demoted to captain because he “recommended” issuing reprimands to two firefighters instead of the 24 hour suspensions the chief sought, and another battalion chief, Kevin Sloan, was transferred from a line position to a desk job in supply because he recommended a finding of not guilty for a lieutenant.

Here is the bottom line: In DC the fire chief is the final decision maker on matters of discipline. If the fire chief does not like recommendations that his subordinate chiefs give him, he should IGNORE THEM. He is the fire chief and that is his prerogative to overrule their decisions by issuing what ever punishment he believes is warranted.

But to punish fact finders for disagreeing with him? What message does that send? Perhaps the chief “thinks” it sends a message that “my chiefs need to get tough”…. Unfortunately the message that is being sent is – If the chief thinks someone is guilty, best agree with him or else you will be next. That is just plan wrong. That is bullying, plain and simple. Why bother with the farce of even having a chief officer issue a disciplinary recommendation if the fire chief has already pre-determined how it should come out? And by the way… due process means an accused has the right to a neutral decisionmaker… how exactly does the DC Fire & EMS provide that given the present circumstances?

And perhaps the real question – has Chief Ellerbe finally imploded? Will this discipline debacle be the straw that finally breaks the camel’s back?

Dave Statter has some more info on this case.

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

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27 comments Posted by on May 22, 2012

Fired Illinois Firefighter Sues Police for Wrongful Arrest

A terminated Illinois firefighter has filed a rather unusual lawsuit following his dismissal. He is not suing his former employer, but rather is suing another community and one of its police officers alleging that he lost his job due to an unlawful arrest and malicious prosecution.

Justin Haskett, 26, was fired from the Mokena Fire Department following his arrest on June 19, 2011 for violation of a local public intoxication ordinance. At the time, Haskett was a probationary firefighter and had just proposed to his girlfriend at her house in the Village of Frankfurt.

When a Village police officer responded to the party for a report of property damage to Haskett’s sister’s car, Haskett allegedly had some words with the officer. The officer, Jay Sanders, then arrested him. As a result of the arrest Haskett was terminated from the Mokena Fire Department.

The charges against Haskett were subsequently dismissed by a Will County Circuit Court judge, but his termination remained unaffected.

Haskett took the bold step of suing Sanders and the Village of Frankfurt in Federal court, alleging false arrest and malicious prosecution. He also alleges that the ordinance is unconstitutional under the US and Illinois constitutions; the he was denied due process and equal protection; and the law and arrest violated the 1st, 4th and 14th Amendments.

Here is a copy of the complaint. Haskett v Frankfurt

More on the story.

 

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Posted in Civil Suit, Constitutional Rights, Criminal Law, Disciplinary Action, First Amendment, Police-Fire, Wrongful Arrest

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1 comment Posted by on May 21, 2012

Florida Chief’s Credentials Questioned

A Florida fire chief is being investigated by the state fire marshal’s office to determine if his firefighter certification has lapsed. Fire Chief Ben Greenslait of the Freeport Fire Department is under scrutiny based on a complaint filed by his predecessor, former Fire Chief Wayne Charles.

Chief Charles alleged that Chief Greenslait’s FF2 certification lapsed when he was inactive for over 3 years, and he should have been required to have taken a recertification exam when he was hired as fire chief back in 2008.

In response to the controversy, Freeport Mayor Mickey Marse had some colorful comments. He was quoted extensively in the media as follows:

  • “My attorney told me not to go and talk to Wayne Charles ’cause I wanted to talk to him this morning and choke the living hell out of him.”
  • “He is stirring crap as far as he can go. … Why is he in my grits?
  • “It’s BS, that’s the way I feel about it,”
  • “As far as I’m concerned, nobody’s notified me (of) anything. (Greenslait is) going to stay there until somebody tells me, ‘Hey, you can’t have him anymore.’ I’ve just about had it with this (expletive).”
  • “Trying to destroy him just cause he’s doing a good job…is that what’s happening?”
  • “I don’t know. Maybe some one else can tell me, but that’s the way I’m feeling right now.”

One final comment… let’s call it a weekend rant: does it ever cross people’s minds to consider the damage they do to an organization by making these kinds of allegations… (actually the damage extends to the fire service as a whole when these nasty disputes play out in public) …  and will the point being made (even if true) be more important than the damage done.

In my law practice I see an awful lot of vengeful, spiteful people seeking to use the legal system as a sword… Most times they are 100% justified in pursuing their ends and only occasionally are they not – but even when they are justified – they rarely are concerned about the big picture. Shouldn’t the big picture matter? Or is it all about “me” and what I want to see happen… My sense of justice must be vindicated even if the reputation of an organization and firefighters everywhere must suffer…

 

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

No comments Posted by on May 18, 2012

Details Emerge on Paris Fire Brigade Sexual Hazing

The Paris, France Fire Brigade is reeling following the revelation that a recruit on the department’s elite gymnastics team had been sodomized and sexually assaulted by teammates. The incident allegedly occurred May 6, 2012 as the team was returning from a gymnastics event. On top of it all, the incident was recorded on a member’s cellphone.

To put the incident into perspective, a bit of background on France’s largest fire department is in order.

The Brigade des Sapeurs-Pompiers de Paris, (BSPP) is a military fire department, and the firefighters are active duty military personnel. France has obligatory military service and as an alternative to serving one year in the army or navy, young men and women have the option of applying to serve a 5 year commitment in either Paris (army) or Marseilles (navy) as firefighters. Promising personnel may be offered the opportunity to re-enlist for additional 5 year terms, up to a maximum of 15 years of service. Personnel who are considered to show leadership potential may be admitted into the officers ranks, which is considered to be more of a permanent career.

Given the obligatory service requirement, the Paris Fire Brigade is in the enviable position of being able to recruit the brightest, most physically fit young men and women in the nation. Service in the department is physically rigorous and a premium is placed upon agility. Failure to maintain fitness levels is grounds for dismissal.

To understand just how important agility and fitness is, all fire stations in Paris have a shelf-like platform mounted on a wall at the 8 foot level, known as an etage. All members of the BSPP must be able to hoist themselves up onto the etage as a test of their physical agility and the failure to do so when requested by a superior is grounds for summary dismissal. From scaling ladders (pompier ladders) to rope rescue capability, the department has historically placed a premium value on firefighter agility.

It is not surprising then that while many US fire departments have elite softball or hockey teams, Paris has an equally elite gymnastics squad.

The sexual assault appears to have been part of a ritualized hazing that went too far. The story came to light when the 23 year old victim complained to authorities that he had been pinched and bitten on his buttocks, and sodomized with fingers and a plastic bottle. He claims that one teammate sodomized him as others held him down, and still others looked on. He also alleged that one of the on-lookers was an officer.

The incident occurred on a bus while the team was returning from a gymnastics event in the Alsace region of France. Allegedly it was an initiation of the victim onto the gymnastics team. Two investigations have been launched, one criminal and one internal to the fire department. From news reports, a total of fifteen firefighters were involved and have appeared before a police inquest.

At the present time, four firefighters have been charged with rape, and eight others have been charged with aggravated assault.

The BSPP’s commander, General Gilles Glin, has ordered the gymnastics team to be disbanded. He condemned the incident which he said was contrary to BSPP’s core values of “generosity, devotion to duty, and altruism”.

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

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1 comment Posted by on May 17, 2012

Two Virginia Departments Victimized By Insider Theft

Two volunteer fire departments from Virginia are in the news today, both victims of insider theft by high ranking officials. In Louisa County, fire chief Mark McGheen of the Trevilans Volunteer Fire Department stands accused of embezzling thousands of dollars from the department. McGheen is a former Louisa police officer and served as the acting police chief at one time.

In Hanover County, the treasurer of the Henry Volunteer Fire Department No. 6 has been arrested and charged with embezzling funds from the department.

Officials in both jurisdictions have declined to say how much was involved in either case.

More on the Trevilans and Henry cases.

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

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No comments Posted by on May 16, 2012

Texas FD and E-One Liable in LODD Suit

The jury in the first of two wrongful death lawsuits brought against E-One, E-One dealer Hall Mark Fire Apparatus, and the Kilgore Fire Department has concluded that the defendants were jointly responsible for the 2009 deaths of Kyle Perkins and Cory Galloway.

Perkins and Galloway were killed while training on January 25, 2009 with a 95 foot ladder tower on an 8 story building. The men were in the ladder’s bucket but were not wearing safety belts at the time. The platform became stuck against the roof of the building, and whiplashed violently when it broke free catapulting both men to their deaths.

The families sued E-One and Hall Mark on a products liability – defective design theory, as well as negligence, and gross negligence. The Kilgore Fire Department was also accused of negligence in allowing Perkins and Galloway to be in the bucket without safety harnesses, and without all personnel being properly trained on the truck.

The case decided yesterday was brought by the family of Kyle Perkins. The jury heard testimony over eight days, and deliberated for only four hours before awarding $800,000 in damages.  

The second suit, brought on behalf of Cory Galloway, is scheduled for trial in June.

More on the story.

NIOSH Report on the Deaths

 

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Posted in Apparatus, Civil Suit, Line of Duty, LODD, Municipal Liability, Negligence, Occupational Safety & Health, Product Liability, Training, Wrongful death

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3 comments Posted by on May 15, 2012

Decision in Miami-Dade Facebook Case

Statter911 just broke the story about Miami-Dade fire captain Brian Beckmann’s demotion to firefighter, and the requirement that he undergo a psychological examination and take diversity training.

Captain Beckmann created a furor after he posted comments on his personal Facebook page that were critical of the parenting skills of certain racial minorities. Following the decision, he told a news reporter that Mayor Carlos A. Gimenez wanted him fired, fire chief Shorty Bryson and the union stood up for him.

The union has promise to appeal the punishment. More on the story.

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Posted in Constitutional Rights, Disciplinary Action, Discrimination, First Amendment, Labor Law, Politics, Social Media, You Can't Make This Stuff Up

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4 comments Posted by on May 14, 2012

Another Facebook Question in Florida

Just a month after a Miami-Dade firefighter created a racially charged controversy with statements posted to his personal Facebook page, a second Florida firefighter finds himself under the microscope for comments he made about the citizens he serves.

Eric Johnson is a firefighter with the Hialeah Fire Department, and vice-president of the Hialeah Association of Firefighters, IAFF Local 1102. He is under investigation by the department for having posted a number of comments on his personal Facebook page that Mayor Carlos Hernández believes suggest a lack of sensitivity toward the people of Hialeah. Among the comments of concern:

  • A photo of a man riding a motor bike with a goat on his back, to which Johnson commented “only in Hialeah, LOL”.
  • “I have a system. Just add an ‘o’ to any English word and bam! It works. For example, how ya doin ‘o’ You wanna go to the hospital ‘o’ I just learned that you can’t do that when you say is this your home though. Ha Ha.”
  • “Ha Ha Ha… Jew forgot dat I hab da Medicare… Jew must talk me.”

Johnson claims the investigation is actually political retaliation for his criticism of the administration. He also defended his comments: “These aren’t stereotypes, this is reality. If anyone is stereotyped, it’s me in Hialeah… I’m married to a Cuban. My best friend is an African-American. Anything else?”

The investigation took an unexpected turn last week when someone viewing his Facebook page, observed photos of Johnson’s under-aged sons with alcohol, and forwarded them on to Hialeah police who have launched a separate investigation.

Part of my concern with this case, and with the case of Miami-Dade firefighter Brian Beckmann, is that the scope of First Amendment protection that public employees enjoy when making a social commentary on Facebook and other social media web sites, is actually quite a bit narrower than many people realize. It creates a challenging area for both firefighters and fire chiefs alike.

There is a saying that the First Amendment is intended to protect unpopular comments, because no one needs protection when they say something that everyone agrees with. However, when comments go beyond simply being unpopular and cross over into causing actual harm, there is no protection. In the middle is a vast grey area… a First Amendment “No-Mans Land”.

The challenge is – how are public employees supposed to manage that distinction BEFORE HAND… before they post? Courts are comfortable wrestling with these distinctions AFTER THE FACT, and judges often disagree where a particular case should come out. Given that reality, how are non-judges… non-lawyers… average folks including firefighters and fire chiefs supposed to navigate this thorny area BEFORE HAND?

We will be discussing these issues and more in the Strategies for Managing Fire Departments in The Digital Age class.

 

 

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Posted in Constitutional Rights, Disciplinary Action, Discrimination, First Amendment, Social Media, You Can't Make This Stuff Up

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7 comments Posted by on May 14, 2012

Hazing Leads to Arrest of Three Firefighters in Vermont

It is an occurrence that has become all too familiar: a group of young firefighters set out with the intention of hazing a younger member, but in the end the hazers end up arrested.

The latest occurrence was in Vermont involving members of the Hyde Park Town Fire Department and the North Hyde Park/Eden Fire Department. On March 23, 2012, Sydney Mclean-Lipinski, 25, Joshua Kapusta, 24, and Nate Jobe, 21, decided to haze a firefighter cadet by restraining him and shooting him with airsoft guns.

According to Vermont State Police, the trio intended to “restrain the juvenile with handcuffs and ropes, then take the juvenile for a ride in the back of a truck on bumpy roads where they would leave him in a remote part of the Town of Eden.” The plot came undone when the youth escaped. The three firefighters have been charged with unlawful restraint and simple assault. They are due in court on May 30, 2012.

Over the last few years we have seen cases of hazing result in arrests in numerous other states including Connecticut and New York, and as well as other cases where the members involved were disciplined/terminated. For that reason, many department have adopted a zero-tolerance policy toward hazing.

More on the story.

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

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3 comments Posted by on May 12, 2012

Country Club Sues US Forest Service Over Station Fire

A Los Angeles County golf course has filed suit against the US Forest Service for damage that resulted from firefighting efforts at the Station Fire in August 2009. The La Cañada Flintridge Country Club filed the suit in US District Court on Monday seeking $49,528.81 in damages.

The Station Fire burned an estimated 160,000 acres, destroyed more than 200 buildings and killed 2 LA County firefighters. The country club alleges that US Forest Service helicopters used golf course ponds to refill their water tanks, and in the process damaged irrigation pumps and piping. The suit also seeks reimbursement for water that the golf course had to purchase to refill their ponds, and for the cost of cleaning up sand that had been blown out of the sand traps by the helicopters.

The country club had filed an administrative claim with the US Forest Service in 2009, but that claim was denied last November. The suit alleges two basic counts: negligence and conversion. Here is a copy of the complaint:  La Cañada Flintridge Country Club v. US Forest Service

More on the story.

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Posted in Civil Suit, Wildland

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2 comments Posted by on May 10, 2012

Baltimore Settles Fatal Accident Case from 2007

Today, the City of Baltimore settled a wrongful death suit brought by the estates of three people killed in a SUV that collided with a ladder truck in 2007.

The accident occurred at 3:00 am on December 9, 2007, when Ladder 27 was responding to a report of smoke in an apartment building. It collided with an SUV killing Iryna Petrov, 49, her husband, Mikhail Petrov, 35, and Igor Saub, 24, and injuring all four of the firefighters aboard.

Investigators concluded the ladder was traveling at 47 mph at the time, while the SUV was traveling at 23 mph. The fire turned out to be food on the stove. No criminal charges were filed against the driver of the ladder.

The case was settled for the modest sum of $40,000. Alex Poberesky, attorney for the plaintiffs, said concerns about strong immunity protection afforded to firefighters and fire departments in Maryland factored into the decision.

More on the accident.

More on the settlement.

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

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No comments Posted by on May 9, 2012

Facebook ‘Likes’ Not Protected As Free Speech for VA Sheriffs



Facebook 'Likes' not protected as free speech, judge rules (via FCW)

U.S. District Judge Raymond Jackson issued the ruling in a case brought by six civilian employees of the Hampton, Va., sheriff’s department. One of the plaintiffs, Daniel Ray Carter, was fired after he “liked” his boss’ opponent on Facebook in a 2009 sheriff’s election. He filed suit, claiming the…

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Posted in Civil Suit, Constitutional Rights, First Amendment, Municipal Liability, Politics, Social Media, Wrongful termination

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11 comments Posted by on May 9, 2012

Father of Children Lost in Connecticut Fire Accuses City of Destroying Evidence

Today’s Burning Question: We are at the scene of a fatal fire that claimed the lives of five people. The building is unsafe and needs to be knocked down. Can we order the building to be demolished?

Answer: The authority to demolish fire damaged property is usually determined quite simply by researching state and local law. We now have to add a relatively new consideration: spoliation, and our potential liability for the destruction of evidence relevant to a possible legal proceeding.

In Stamford, Connecticut, the father of three young girls killed in a house fire on Christmas morning, 2011, announced plans to sue city officials for the intentional destruction of evidence when they ordered the demolition of the home on December 26, 2011.

Last Friday, attorney Richard Emery filed a notice of intent to sue Stamford and city officials on behalf of Matthew Badger. Badger’s three daughters died in a fire at the home of their grandparents on Shippan Avenue. The grandparents died as well.

The cause of the fired was rule accidental, and attributed to the careless disposal of fireplace ashes. Besides the spoliation claim, Badger accuses the city of negligence for failing to properly inspect the home, failing to ensure there were proper smoke detectors, and allowing the building (which he characterized as a “plain fire hazard”) to be occupied. The 3,350 square foot home was being renovated at the time of the fire.

Stamford’s Director of Legal Affairs, attorney Joseph Capalbo, was quoted by CTPost.com as saying  “While we believe the allegations against the city and its employees are baseless and without merit, we are mindful of the tragic loss suffered by the Badger family and continue to offer our deepest heartfelt sympathies.”

More on the story.

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Posted in Burning Question, Civil Suit, Duty to Act, Evidence, Municipal Liability, Negligence

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3 comments Posted by on May 8, 2012

Honolulu Captain Claims Whistleblower Violation

A veteran fire captain on the Honolulu Fire Department has filed suit against Fire Chief Kenneth Silva and the department alleging he was retaliated against for raising concerns about a fatal fire. Captain George Kaopuiki filed suit  last week in state Circuit Court alleging that his suspension and transfer were in violation of his free speech rights under the Federal and state constitutions and violate the Hawaii Whistleblowers’ Protection Act.

Captain Kaopuiki raised the concerns following a fire that claimed the life of 77-year old Karen Chikamori on December 14, 2011. Captain Kaopuiki found Chikamori and brought her out of the building alive and breathing, only to wait an extended period of time for EMS to arrive.

The Honolulu Star Advertiser reported that the concerns raised included:

  1. Not hooking up to the fire hydrant to ensure an ample water supply.
  2. Not initiating rescue search as soon as they could have if the water supply had been sufficiently ensured early on.
  3. EMS was not contacted for 19 minutes after the removal of the fire victim who was alive and breathing when Kaopuiki carried her out of the burning residence.
  4. The reasons these and other similar incidents are occurring is HFD’s lack of training.

The concerns were raised at a meeting that followed the fire. Shortly thereafter, the department initiated an investigation into Captain Kaopuiki’s treatment of a subordinate. The suit alleges the investigation was retaliation and orchestrated by Chief Silva.

More on the story.

 

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Posted in Civil Suit, Constitutional Rights, Disciplinary Action, First Amendment

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7 comments Posted by on May 7, 2012

Massachusetts Court Strikes Down Local Ordinance Requiring Radio Boxes

Today’s burning question: Can a fire department require commercial buildings to have a municipally connected fire alarm system that uses a radio box?

Answer: Yes … and no …  Actually it all depends on how you go about doing it.

Yesterday, the Massachusetts Supreme Judicial Court that held that municipalities cannot simply pass an ordinance mandating radio boxes when the state building code allows the property owner to use an alternative means of compliance.

The details of the case are a bit complicated. In fact I have read a number of articles online that don’t quite seem to fully grasp the ruling… Hopefully I can do better!!!! The predictions of doom and gloom for radio boxes is entirely unfounded!!! And the case has virtually no impact outside the state of Massachusetts!!!

The case arose in 2009 when the Springfield Fire Department cited St. George Greek Orthodox Cathedral  for having a fire alarm system that was not connected to the municipal fire alarm system via a radio box. The city sought to fine St. George’s $3,000.

Springfield had enacted an ordinance in 2006 that mandates that buildings such as the cathedral be municipally connected via radio boxes. When the cathedral was renovated in early 2009, a different type of system was installed that met the state building code, but did not meet Springfield’s radio box requirement.

The building code allows for four methods of alarm signaling:

“1. A UL listed or FM approved Central Station Service in accordance with NFPA 72 …

“2…. Approved propriety supervising station system, in accordance with NFPA 72 …

“[3.] Approved remote station fire alarm system supervising station in accordance with NFPA 72…

“[4.] Alarm signals to an approved Auxiliary Fire Alarm System in accordance with NFPA 72, with supervisory signals supervised by one or two above or at a constantly attended location approved by the local fire department, having personnel on duty trained to recognize the type of signal received and to take prescribed action. This shall be permitted to be a location different from that at which alarm signals are received.”

The code does not expressly state that local officials have the authority to specify one of the four methods nor prohibit others.

The Springfield ordinance enacted in 2006 is Section 7.13.035, which states:

“A. No Master Box shall be installed in the City of Springfield after the adoption of this ordinance.

“B. Any construction underway before or after the adoption of this ordinance calling for the installation of a Master Box shall instead have a City approved Radio Box installed.

“C. All Master Boxes located in the City of Springfield must be replaced with a City approved Radio Box by December 21, 2008. The owner(s) of the property where the Master Box is located shall be responsible for any and all costs of compliance with this ordinance.”

St. George’s initially appealed to the state Board of Building Regulations and Standards, who by state law has the authority to adopt a building code, issue variances, and hear appeals of enforcement actions. The Board agreed that the cathedral met the state code, but concluded it was powerless to override a stricter municipal ordinance. St. George’s then filed suit in Superior Court claiming the Springfield ordinance was invalid because it was pre-empted by the state code. When the trial court agreed, Springfield appealed to the Massachusetts Supreme Judicial Court.

While a number of side issues arose in the decision, the fundamental question came down to whether state law allows municipalities to enact ordinances that are stricter than the state building code, or whether state law pre-empts local law. Springfield claimed its home rule charter gave it the authority to go beyond what the state required. The Massachusetts Supreme Judicial Court (SJC) disagreed.

The court reasoned that the legislature gave the state Board of Building Regulations and Standards the exclusive discretion to decide how fire alarm systems should be connected to fire departments. The board saw fit to give building owners four choices, and in doing so did not authorize local fire officials or municipalities to limit those choices.

It appears that the court may have misunderstood the fact that municipalities differ greatly in the organization and capabilities of their dispatch centers. Consider the following quote from the decision:  “If all municipalities in the Commonwealth were allowed to enact similarly restrictive ordinances and bylaws, a patchwork of … regulations would ensue.” The context of the quote was that it would be an unreasonable burden if every municipality was free to choose how it handled its fire alarms… Imagine…

I suppose the judges had not realized that by striking down the Springfield ordinance, they in essence have required all fire departments in the state to be prepared to receive alarms in any of the four ways that the state code allows… and thus cannot choose one preferred method.  Undoubtedly, their decision was focused on a bigger picture – that if municipalities could change this provision of the code they could change others as well… However, the reasoning shows they are missing a detailed understanding that we would hope they have before making such a ruling on fire alarm systems.

The SJC was not entirely unsympathetic to the fire department – but recognized that the fire department had other options. Consider the following from a footnote:

“According to the city’s submissions, by mandating this “[c]ity approved Radio Box,” the city is attempting to circumvent third-party relay of fire alarms and thereby increase response times. We are not indifferent to the city’s concerns. The Legislature, however, has placed in the board the responsibility for determining, on a Statewide basis, what “fire protective signaling systems and automatic fire detection systems” are permitted in Massachusetts. The board has provided building owners throughout the Commonwealth with a choice from among four specified systems, a reflection of its judgment that all four options sufficiently protect public safety. Pursuant to the statute, the board has an obligation to “make a continuing study of the operation of the [code] ... to ascertain [its] effect upon the cost of building construction and the effectiveness of [its] provisions for health, safety, energy conservation and security." … The board, which by statute must include the State fire marshal and the head of a municipal fire department…  is best able to balance these objectives. Because of this expertise, the Legislature has delegated such decisions to the board, and we will neither second guess its determinations ourselves nor allow municipalities to do so.

“But the city is not without recourse. First, it could avail itself of the statutory mechanism described above … and request that the board allow it to utilize a more restrictive standard. Second, the city "may propose amendments to the state building code," which "shall" be considered at public hearings held twice annually. ... Third, the city could pursue direct action in the Legislature to change the code.”

In the end, municipalities seeking to limit alarm system connections to a specific type need to obtain approval from the Board of Building Regulations and Standards. Indeed, Massachusetts law allows the Board to grant such requests. In addition, the Board itself, could choose to change its code to allow municipalities to designate one alarm method over another. Lastly, the legislature could amend the law to give municipalities to ability to place additional restrictions on alarm connections.

Municipalities just cannot do it via ordinance in Massachusetts!

Here is a copy of the decision. St George Greek Orthodox Cathedral v Fire Department of Springfield

Any of our Mass friends out there – please feel free to add your thoughts.

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Posted in Burning Question, Civil Suit, Fire Prevention

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4 comments Posted by on May 5, 2012

Firefighter Sues Fire Chief for LODD Accident

The estate of a Virginia volunteer firefighter killed in a LODD roll-over accident has filed a wrongful death suit against the estate of the fire chief and another driver. The suit seeks $2 million in damages.

Firefighter William D. Altice and Fire Chief Posey W. Dillon, of the Rocky Mount Fire Department, died on July 26, 2010, while responding on mutual aid to a reported structure fire in a neighboring community. Chief Dillion was driving the engine at the time of the accident. Neither he nor Altice were wearing seatbelts and both were ejected.

Altice’s estate filed the action in Franklin County Circuit Court naming Chief Dillion’s estate and Teri Anne Valentine, who was driving an SUV that allegedly pulled out in front of the engine precipitating the accident. A grand jury convened in 2011 to determine if Valentine should be charged with vehicular manslaughter refused to indict her, and she has not been charged in connection with the crash.

The Altice suit alleges that both Chief Dillon and Valentine were ” negligent, grossly negligent, careless and reckless” in causing the accident.

Valentine has filed a cross-complaint against Chief Dillon’s estate claiming she had a green light, and that the engine “did not have its lights and sirens in use when entering the intersection.” She is seeking $275,000 in damages.

While often we think of accidents like this being the result of young, inexperienced drivers, at the time of the accident Chief Dillon was 59 and Altice was 67. They had a combined 80 years of service between them.

More on the story.

Here is the NIOSH report on the accident.

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Posted in Apparatus, Civil Suit, LODD, Manslaughter, Negligence, Occupational Safety & Health, Volunteers, Wrongful death

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1 comment Posted by on May 4, 2012

Use of Fire Truck In Funeral Procession Leads to More Trouble for Embattled New Mexico Fire Chief

Some stories never seem to go away… in fact they just seem to get better as time goes on.

And so it is with embattled Velarde, New Mexico Fire Chief Eddie Velarde. You may recall Chief Velarde was arrested last year at a wildland fire by a Rio Arriba County deputy sheriff who sought to take command of the incident. The deputy believed the chief was “out of control”, but Chief Velarde was later exonerated after a trial.  The Chief then filed a wrongful arrest and abuse of process suit against the sheriff and the county. He alleges that county officials have a political vendetta against him.

The county turned up the heat on Chief Velarde, suspending him from the fire department on allegations that he falsified documents and used someone else’s social security number. Now comes the latest turn of events.

One of the Velarde Fire Department’s founding members, George Montoya, passed away on April 18, 2012, and his coffin was placed aboard a Velarde engine for the funeral procession on Sunday, April 22, 2012. So what is the big deal?

County officials have responded with outrage that a fire truck would be used in such an irresponsible manner.  County Manager Tomas Campos was quoted in the press as saying “Let’s say the coffin fell off the truck” citing possible liability concerns. He continued: “What if someone injured their back while lifting the coffin”. His risk management concerns are truly touching.

Also related to the case: county officials are investigating allegations that Chief Velarde drove the engine. Chief Velarde has denied the allegations and other firefighters support his version of the events. Never the less, the controversy continues as the county is contemplating obtaining a restraining order against Chief Velarde to ensure he does not engage in any further activities. Meanwhile, a hearing on his suspension is scheduled for later this month.

More on the story.

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

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8 comments Posted by on May 3, 2012

Jacksonville Firefighters Hit With Second Discrimination Lawsuit

On the heels of a major discrimination lawsuit filed by the US Department of Justice against the Jacksonville Fire Rescue Department and Jacksonville Firefighters, IAFF Local 122, the US Equal Opportunity Employment Commission has filed separate discrimination suit against IAFF Local 122. The second suit was filed yesterday, April 30, 2012 in the same court as the previous case that was filed on April 23, 2012.

Both suits allege that written examinations used for promotional purposes within the department have a disparate impact on black candidates, and are “not job related and consistent with business necessity”. The second suit alleges that the union has “advocated for, acquiesced in, and in fact negotiated in favor of a promotional process that has had an adverse impact on black candidates”. The suit also contends that “the union has advocated for and negotiated in favor of the discriminatory promotional process each time a collective bargaining agreement was negotiated between 2004 and the present.”

Here is a copy of the two complaints.  DOJ Suit     EEOC Suit

I’ll throw this question out to the legal eagles out there: Isn’t the US DOJ and the US EEOC one party… the United States of America? Can one party maintain two separate lawsuits against the same entity over the exact same issue?

And perhaps the bigger question: what point is the EEOC trying to make? The DOJ lawsuit makes the point that the US government believes the union is partially responsible for the discrimination… but it appears that is not enough for the EEOC.

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Posted in Civil Suit, Constitutional Rights, Discrimination, Labor Law, Municipal Liability, Politics, Promotions

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4 comments Posted by on May 1, 2012