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Assistant Chief Accuses Chief of Embezzlement
Posted in Criminal Law, Disciplinary Action, Volunteers
Tennessee BC Suspended Over Sexting
A battalion chief with the Bradley County Fire Department has received a 2 day suspension for allegedly sexting a female co-worker while on duty.
Battalion Chief Don Tankersley, who was promoted last December, will be prohibited from carrying a personal cellphone for a year and must undergo sexual harassment training. The incident allegedly involved a personal cellphone and not county property.
An HR investigation was initiated after a female employee complained that Chief Tankersley texted her pictures of his genitals. The investigation stopped short of ruling it sexual harassment because it only occurred once, but concluded it was clearly “inappropriate sexual conduct”.
Update: January 31, 2013
Orange County Haircutting Hazing
A year long investigation into a haircutting hazing incident in Orange County, California has concluded with the announcement that 13 firefighters have been disciplined.
The story began in April of 2012 when a group of firefighter recruits in uniform went into a fastfood restaurant, In-N-Out Burger, sporting an assortment of extreme haircuts. The strange styles included reverse mohawks, missing clumps of hair, and one recruit whose head was painted bright red.
A concerned citizen in the restaurant at the time notified the fire chief setting off a major investigation. The investigation proved to be very unpopular with the rank and file, and was even characterized by one member as “the biggest morale-busting waste of money I have ever seen.”
Orange County investigators consulted with the Orange County District Attorney’s Office when it was determined that some of the firefighters were forcibly held down while their hair was cut. The DA looked at the facts but declined to prosecute the offenders, and the case remained simply an internal disciplinary matter for the fire department.
The specifics of the discipline meted out to the thirteen members has not been disclosed, although we do know that none were terminated and all received some days off. According to news reports all 13 were charged with “unprofessional conduct”.
Posted in Criminal Law, Disciplinary Action, Humor, You Can't Make This Stuff Up
Court Vacates Camden Arbitration Award
Camden Firefighters, IAFF Local 788 suffered a setback today when a New Jersey Appellate Division Court vacated an interest arbitration ruling that granted them modest pay raises in four of the five years covered by the award. The problem: the arbitrator concluded that while the city could not afford the raises, the state would have to step to the plate.
Camden has had financial trouble for quite some time. According to the decision, the state has been providing the city with “extraordinary payments of State aid” for over 10 years, although the amount of state aid had been decreasing.
When the union and the city could not agree on a new collective bargaining agreement (CBA) to replace the one that expired on December 31, 2008, the matter was submitted to binding arbitration pursuant to the Police and Fire Public Interest Arbitration Reform Act. In the court’s own words:
“The resulting arbitration award provided for salary increases for the firefighters which, it is undisputed, the City cannot pay from its own tax base. Stated briefly, the arbitrator’s means of accommodating that obstacle was to call the State of New Jersey a “fourth party” to the arbitration and conclude that the State is required to pay the shortfall.”
The award included wage increases of 2.5% on January 1, 2009; 2.0% on January 1, 2010; 2.0% on January 1, 2011; and 2.0% on January 1, 2012. It was issued on August 14, 2011.
The city appealed the award to the NJ Public Employee Relations Commission (PERC), who affirmed the arbitrator. The city then appealed to the Appellate Division of the New Jersey Superior Court. Again, in the court’s own words:
“The City contends that the arbitrator exceeded his authority by stating the State was a “fourth party” to the arbitration and by concluding the State must fund the City’s Fire Department budget, including salary increases. As a result, the City argues, PERC’s decision to affirm the award was arbitrary and capricious. We agree.”
The court also concluded that the arbitrator in ruling the way he did, “violated his duty of impartiality”, and agreed with the city that a new arbitrator should be assigned to hear the case.
Here is a copy of the decision handed down on Tuesday, January 29, 2013. a1244-11
Here is more on the ruling.
Posted in Civil Suit, Labor Law
Foolish Act in Ohio Creates New Nightmare for New Colorado Chief
The foolish act of sending an inappropriate photo in 2010 has come back to haunt a new Colorado fire chief.
Fire Chief Bryan Ware, 37, took the reins of the newly created Beulah Fire Protection and Ambulance District in Beulah, Colorado earlier this month following a fire-EMS consolidation. He was previously in charge of the Beulah Ambulance District dating back to when he was hired in 2010.
Coincidentally, Chief Ware resigned from the Huron (Ohio) Fire Department in 2010 in the midst of a criminal investigation for having sent a picture of testicles to a group of friends as a joke. One of the recipients of the photo was a 16 year old boy who was on a soccer team that Chief Ware coached.
Chief Ware was charged with disseminating matter harmful to juveniles, pled guilty, and was placed on probation. The probation ended in October, 2012.
The disclosure of the charge has prompted a division in the community and the department with a number of firefighters resigning. The district board reportedly knew about the charge and some other details about the chief, but felt he was doing an excellent job as chief.
Posted in Criminal Law, Disciplinary Action, EMS, Volunteers, You Can't Make This Stuff Up
Fatal Chicago High Rise Fire Prompts Early Court Action
The estate of a man killed in a high rise fire in Chicago last Tuesday, has filed a petition in Cook County Circuit Court to obtain access to 911 tapes and fire reports. The three alarm fire occurred in a 16 story building at 6730 South Shore Drive.
John Fasula, 50, a Chicago Transit Authority employee who worked part time in the building, died heroically in the blaze. He and a second employee, Jameel Johnson, rescued an elderly woman and were reportedly either firefighting the fire with extinguishers or searching for other victims when they were overcome. Johnson died as well.
The petition was filed by on Thursday by Patricia Fasula, the administrator of John’s estate. Besides records from the fire department, the petition also reportedly seeks records from the building’s owners and the police department
Here is more on the fire.
Here is more on the petition.
If there are any Illinois attorneys out there who can explain why it was necessary to file a petition in court 2 days after a fire in order to obtain the 911 and fire department records (that would appear to be public records anyway) please clue the rest of us in. Generally the only time petitions like this are used is when there is a concern that relevant evidence from the scene may be lost, discarded, or not preserved. Perhaps the news reports have the details about the petition wrong or perhaps there is something in Illinois law or practice that explains the reason for the petition.
Posted in Civil Suit, Discovery, Evidence
Wire Fraud Charges Against KCMO EMT Sparks Union Response
A Kansas City (MO) Fire Department EMT is facing federal wire fraud charges stemming from a wellness incentive program gone awry.
The program, known as Points to Blue, was organized by Blue Cross Blue Shield of Kansas City as a way to get employees to adopt healthier life styles. Instead seven employees have been indicted, Blue Cross claims it has been defrauded by over $300,000, the investigation appears to have the potential to widen, and IAFF Local 42 is smoking mad.
The video does a good job of laying out the complex issues. It is actually quite a mess.
Here is a copy of the indictment. HealthInsuranceFraudIndictment
Posted in Criminal Law, Labor Law, You Can't Make This Stuff Up
West Palm Beach Captain Loses Action Against Local 727
One of our frequent fliers here at fire law is back in the headlines. Former West Palm Beach Fire Captain Rick Curtis has lost what he appeared to have won in November: a ruling against his union for failing to represent him when he was fired in 2011.
Captain Curtis has been involved in a series of discrimination claims and lawsuits dating back at least to 2004. In 2011 he was arrested for drunk driving. Shortly thereafter, a video surfaced showing him going on a tirade against the arresting officers. He was convicted of drunk driving and terminated from the fire department. That seemed to end the case.
However, is a move worthy of Lazarus, Curtis showed that the judge in his criminal case had an undisclosed relationship with firefighters’ union vice-president Doug Greene, with whom he was at odds. Captain Curtis earned the right to a new trial, was then acquitted, and sought to be reinstated to the department.
He also filed a complaint with the state Public Employee Relation’s Board alleging that his union, West Palm Beach Association of Firefighters, IAFF Local 727, failed to properly represent him. Last November, a PERB hearing officer agreed and ordered Local 727 to reimburse him for back pay and attorneys fees.
However, his luck run out last week when the full PERB ruled in favor of the union, concluding that it acted reasonably given Captain Curtis’ disciplinary history, his verbal altercation with the officer, and his refusal to submit to testing.
The Palm Beach Post is reporting that Captain Curtis is continuing to allege racism, texting a reporter “white fire captains have kept their jobs for much worse offenses”.
At the present time, my database has 7 cases involving Captain Curtis… that is getting up there into Dennis Rubin territory!!!
Police Fire Wars – International Edition: South Africa
The facts are not all in, but it appears we have another instance of police fire wars, this time in South Africa. Dave Statter is on this so there’s no need to repeat it all here – but what we know is:
Paramedic Garth Andrew Van Zyl was arrested at the scene of a vehicle accident on Tuesday following a confrontation with police officers. Van Zyl was apparently questioning why one officer was refusing to address traffic control and the officer replied “you don’t come here and tell me what to do” and “this is my scene and you don’t belong here, I give the orders here”.
It went downhill from there….. Sounds SOOOoooooo familiar….
Posted in Criminal Law, EMS, Police-Fire, Wrongful Arrest, You Can't Make This Stuff Up
SC and MA YCMTSU Cases
Two employment related cases on the East Coast are in the headlines, and while we don’t have much in the way of details on either one they certainly appear to be YCMTSU cases worth following.
In Simpsonville, South Carolina, the former police chief who was fired after just 3 months on the job, filed a grievance to get his job back. What connection does that have to fire law? When the grievance was denied, former Police Chief Keith Grounsell allegedly told the media that he was fired in part because he exposed an inappropriate relationship between the fire chief and his assistant police chief.
Coincidentally, Fire Chief Wesley Williams and Assistant Police Chief Colleen O’Neil had been suspended earlier this month, although the reason for the suspensions had not been publicly released.
Chief Grounsell and Chief O’Neil competed for the police chief’s job last year with Grounsell winning. The two have allegedly been butting heads since. Grounsell claims that after he disclosed the Williams-O’Neil relationship to the city administrator, Russell Hawse, Hawse “turned on him”.
Hawse countered that Grounsell’s “challenging of the mayor’s manhood and religion”, and “questioning of the intelligence of City Council members” played a bigger role in his decision to fire him. More on the story.
On Nantucket, a problem of another nature has prompted a firefighter to file suit against two of his co-workers, accusing them of slander, intentional infliction of severe emotional distress, and assault.
Firefighter Charles Kymer claims that firefighters Nate Barber and Sean Mitchell, falsely told police that he had photographed a young girl, procured her email address and distributed a picture of her to other firefighters following a surf incident last summer.
Kymer was cleared of wrongdoing in the case. He filed suit in Nantucket District Court.
More Tragedy Flows From Fatal POV Crash in Ohio
The ex-wife of a firefighter is facing a lawsuit over comments she posted on a Facebook page about a fatal POV accident he was involved in. This is a long one… and a sad one with absolutely no winners.
Firefighter Timothy Johnson of the Portage Fire District, was responding to a mutual aid structure fire on July 16, 2010 when his personally owned vehicle collided with a car driven by Olivia Duty. Duty’s boyfriend, Ian Huffman, 24, was killed in the crash. Police estimated Johnson’s speed at between 96-98 miles per hour just before the collision.
Johnson was charged with aggravated vehicular homicide and aggravated vehicular assault, and ended up pleading guilty to one count negligent vehicular homicide and attempted negligent homicide. He was sentenced to 9 months in prison and his driver’s license was suspended for three years.
Parents of Ian Huffman, John and Maureen Huffman, and Olivia Duty, filed the wrongful-death and personal-injury lawsuit against Johnson and the Portage Fire District. It was settled for $1.57 million last fall.
In response to an online posting about the settlement on a Facebook account operated by a newspaper, The Blade, Johnson’s ex-wife, Christian Kinsler Johnson, posted the following:
“Lights and siren were on ! ! ! ! Clear fact in the trial ! ! “
” .. .It was proven that emergency lights can be seen for a very very long distance away . .. they did a test . .. they said there is NO way that she would not have seen them, esp if she said she looked that direction twice … Oh, but wait, she also said that she didn’t remember stopping either . . . Wow … Lets get our story right, Olivia Duty ! !”
” … It was never proven that was the speed … reconstruction showed one speed . . . black box another .. . pretty amazing that he was going that fast with a governor on his vehicle ! “
” … One, she pulled out, two Ian was not wearing a seatbelt. It does not matter if someone was doing 55 or higher which was never proven.”
“Lights were on as witnesses say, including a siren that was heard by several . .. Could this have been and {sic} accident of one young man not wearing his seatbelt and one young woman not paying attention and having two good of a time that night … There should have been then (sic) one to be punished for this incident … Mr. Johnson took this plea for the benefit of his children. My children ! ! They have suffered just as much as Ian and his family . .. “
“IF YOU ASK MANY and I mean MANY, you will see that people are [on] Mr. Johnson’s side … Olivia Duty not taking her responsibility of the accident is WRONG … but you know … she will have to live with herself knowing what was the real cause ! ! !”
” … And God bless Olivia Duty for being the great woman she is. Her parents should be so proud!!”
“Money cannot bring back a child but making others suffer for another persons fault is sicking (sic) … I hope you’re happy Olivia Duty ! You will have to live with your LIES for the rest of your life! No amount of money can erase the choices you made that night!”
“People who hold license are expected to follow the laws too!!!! Pulling out in front of a fire fighter with lights and siren, not stopping a stop sign and then pulling out into a southbound lane when you’re beading NORTH is illegal … Telling the patrolman that night you don’t remember stopping … and then telling them later that you stopped and looked 3 TIMES ! ! ! And saw nothing … which is plenty of time to see something Olivia Duty!!! But oh yeah wait a minute!!!!! You didn’t stop at the slop sign ….. yes or no … which is the story … “
“I am disappointed that it was someone else’s fault and she makes off with the money.”
“Do you know there was evidence showing Mr. Johnson was going 30 miles slower than indicated”
“There was more to the case in Mr. Johnson’s favor … and more evidence showing Olivia Duty was the main cause of the accident.”
” .. .I am disappointed that not one time you have even considered Olivia Duty at fault and to me that is sad and that is your problem .. . I an1 disappointed in a young woman’s decision to not take her part in the accident … to lie on the things she did.”
“Olivia Duty you are a LIAR!!”
In addition, Johnson’s children allegedly posted:
“Its OK mom, God will see them for their lies and then will be punished to burn in hell forever.”
” How dare you even lie in court, you are worthless ! ! ! ! !”
The two count complaint alleges intentional infliction of emotional distress and defamation. It was filed by John Huffman, Ian’s father.
Here is a copy of the complaint. FIREFIGHTER.LAWSUIT
More on the original story.
Posted in Civil Suit, Manslaughter, You Can't Make This Stuff Up
Fairfax County Lt. Named Worst Boss in US
The results of 2012 America’s Worst Bosses competition have been released, and the winner is a fire lieutenant from Fairfax County Fire Rescue in Virginia.
Lt. Timothy Young topped a field of 49 other bad bosses in eBossWatch’s annual review. He was accused of sexually harassing a female subordinate, Mary Getts Bland, over the course of several years. Bland sued and was awarded $250,000 by a Federal Court jury. She also sought $306,000 in attorneys fees. The case was settled in May, 2012 for $250,000.
According to Bland, Lt. Young repeatedly brought up sexual issues with her, including asking about her sexual preferences and making sexually explicit remarks. Young allegedly also asked Bland to accompany him to an adult sex-toy shop and made sexually explicit phone calls to her. For his conduct, Young received a written reprimand.
Lt. Young was not the only firefighter among the list of America’s Worst Bosses For 2012. Sitting at 47 was former Stockton Fire Chief, Ron Hittle. He was accused of creating a racially hostile work environment. In November, the city paid $30,000 to settle a lawsuit brought by Battalion Chief Ed Rodriguez. The organizers of eBossWatch apparently missed the other legal issues associated with Chief Hittle. Click here for more on Chief Hittle’s suit against Stockton.
According to eBossWatch “To date, the 2012 America’s Worst Bosses have cost their employers more than $41 million in monetary damages and lawsuit settlement payments. Of this amount, the worst bosses in the public sector have cost their respective taxpayers more than $21 million”.
Tampa Fire Inspector Fired For Taking Classes While On Duty
Posted in Disciplinary Action, Ethics, Fire Prevention
New Hampshire Legislature Tinkering With Fireman’s Rule
The New Hampshire legislature is considering a law to reverse a ruling last year by the state Supreme Court that limited the application of the Fireman’s Rule.
The Fireman’s Rule is a legal theory that limits the right of firefighters, EMS workers, and police officers to sue property owners and others for negligence for a line of duty injury. There are a number of variations on the Fireman’s Rule theme. Some states limit the application of the rule to negligent property owners, some to negligence that causes the emergency, and some to negligence that occurs prior to firefighters arriving on scene. There are also some states that adopt a blanket policy of prohibiting suits by emergency responders.
In New Hampshire, the Fireman’s Rule as currently enacted into law reads as follows:
RSA 507:8-h Firefighters, emergency medical technicians (E.M.T.’s), police officers and other public safety officers shall have no cause of action for injuries arising from negligent conduct which created the particular occasion for the officer’s official engagement. However, this section does not affect such officer’s causes of action for unrelated negligent conduct occurring during the officer’s official engagement, or for other negligent conduct . . .
Last year the New Hampshire Supreme Court ruled that a firefighter responding to a house fire who slipped on ice in the homeowner’s driveway could sue for negligence because the negligence which caused the emergency (the fire) was not the negligence which caused the injury (ice in the driveway).
Apparently upset with that distinction, five republican legislators have set about amending the law. Here is the proposed legislative text:
Firefighters, emergency medical technicians (E.M.T.’s), police officers and other public safety officers shall have no cause of action for injuries arising from negligent conduct [which created the particular occasion for the officer’s official engagement] related to the officer’s official duties. However, this section does not affect such officer’s causes of action for [unrelated negligent conduct occurring during the officer’s official engagement, or for] other negligent conduct, or for reckless, wanton, or willful acts of misconduct.
I am not a big fan of the Fireman’s Rule in any of its various forms, but I understand the role it plays in our society. One of the concerns underlying the rule was summed up quite well by David Lang, President of the Professional Firefighters of New Hampshire: “We do not want homeowners to wait and take a second thought before calling in an emergency because they haven’t shoveled a driveway or fixed a broken stair.” It is hard to argue with that reasoning.
However, changing the law may do a whole lot more than let a careless homeowner (and his homeowner’s insurer) off the hook in a slip and fall case. If firefighters are at the scene of a vehicle accident and an inattentive driver plows into them, is that driver’s negligence “related to the officer’s official duties”, or would it be considered “other negligent conduct”? The inattentive driver could argue that the injured firefighters cannot sue because the firefighters were there pursuant to their official duties.
What if a homeowner who knows of a dangerous condition present in a house, calls 911 for a house fire and when the firefighters arrive fails to warn them of a hidden hazard (hole in floor, missing stairs, chemicals, vicious animals, etc.), and a firefighter is thereby injured. It is not at all clear to me based on the proposed language – but what is clear is that in both of these examples (inattentive driver and homeowner without a conscience) an injured firefighter would be able to sue under the law as currently written.
There are a number of states that have gone the other way from New Hampshire and totally abolished the Fireman’s Rule. In such a state a firefighter is just like anyone else who comes upon someone else’s property. Firefighters can sue when the homeowner fails to act as the reasonably prudent person would have acted under the circumstances, breaches a legal duty owed to the firefighter, and causes injury.
The fact that we all can’t list the states that have abolished the Fireman’s Rule off the top of our head is a testament to the fact that folks in those states have not stopped calling 911, nor have firefighters clogged the courthouses with negligence claims.
Here is more on the NH story.
Posted in Civil Suit, Firemen's Rule, Negligence, Politics
Louisiana Discrimination Case Wraps Up 32 Years Later
How long is too long? When it comes to the duration of consent decrees intended to address discriminatory practices in fire departments, that is a question that many firefighters ask. In the case of Leesville, Louisiana it took 32 years for the city and the US Department of Justice to finally put an end to a discrimination suit.
The action dates back to December 9, 1980 when the DOJ filed suit alleging that the police and fire department’s’ hiring practices violated Title VII of the Civil Rights Act of 1964. The city and the DOJ entered into a consent decree intended to address concerns over the hiring of African Americans and females.
Last November the DOJ announced that it was lifting its demand for a consent decree noting that the hiring practices in both departments had improved significantly. Last Wednesday, the city announced that the case had been finally settled, ending the 32 years of court oversight.
Leesville’s mayor, Robert Rose, commended the work of both departments and the leadership of Police Chief Greg Hill and Fire Chief Dewaine Lawson, in bringing the matter to a close.
Facebook Arbitration Begins for Miami Dade Captain
It has been a long wait, but Miami Dade Fire Captain Brian Beckmann finally had his day in court… or more correctly his day before an arbitrator… to review his Facebook related demotion.
Last spring, Captain Beckmann posted a comment that sparked outrage in the community still raw from the tragic shooting incident of a young African American, Trevon Martin, in Sanford, Florida. Amidst demands for his termination, Captain Beckmann was demoted back to firefighter.
The arbitration began on January 14, 2013 and is expected to continue on February 5, 2103. Some interesting facts came out at the first hearing, raising some pretty tough questions.
First of all, Captain Beckmann’s comments were posted on his personal Facebook page while he was off duty using his home computer. At the time he was not identifiable as a member of the department. Can/should a firefighter be disciplined for comments posted in such a manner?
Second, the comments, while offensive, do not specifically reference or denigrate any minority group. Here is the text of his comments: ”I and my co-workers could rewrite the book on whether our urban youths are victims of racist profiling or products of their failed, (expletive), ignorant, pathetic, welfare dependent excuses for parents.” The lack of a direct reference to any minority group directly contradicts much that has been written about the case that refers to the remarks as blatantly racist.
Third, the comments were posted in such a way that they were only visible to roughly 300 of Captain Beckmann’s friends. The comments only became widely known after another firefighter took a screen shot of them and forwarded them on to a blogger who then publicizing them in an inflammatory way.
One would think based on these facts, that the firefighter who caused the posting to go viral should at least bear some responsibility for what happened. Captain Beckmann’s attorney, Matthew J. Mierzwa, Jr., made that very point to the arbitrator, laying the blame at the foot Captain Faye Davis. “We believe that the issue really arose here because of other employees, Faye Davis in particular, taking that herself in violation of county policy to publish it throughout the community. This is Faye Davis’ manipulation.” Captain Davis has not been disciplined for her role in the event.
The First Amendment aspects of this case are of enormous importance. To date, the US Supreme Court’s analysis of public employees’ right to free speech has been anything but coherent.
On the one hand are the numerous Court pronouncements that public employees do not surrender their basic First Amendment Rights by virtue of their employment, nor are they subject to a “watered down” version of protection. But all too often the end result of the cases belies the rhetoric.
Some of the First Amendment issues that are in play in Captain Beckmann’s case:
Was his speech work related or non-work related. Generally a public employee’s First Amendment Rights are the broadest when discussing matters unrelated to work. Arguments can be made both ways in Captain Beckmann’s case. There are cases that say that public employees do not have the right to “insult those they are hired to serve and protect.” Locurto v. Giuliani, 447 F.3d 159, 183 (2d Cir. 2006). Insulting the people you work for can take a case that would otherwise be non-work related and place it back under the realm of being work related.
There are also cases that say that the reason we have a First Amendment is to protect people who say things that will offend people (ie. we don’t need a First Amendment to protect people from saying things everyone agrees with). Consider this: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Isn’t punishing Brian Beckmann for saying what he said essentially telling him what is orthodox? …. Hard questions….
Then there is the question of whether his comments pertained to a matter of public concern. Some will argue yes, the cause of the shooting, problems with urban youth, racial profiling, etc. all are matters of public concern even if you disagree with his conclusion. Others will say no, racism or racial insensitivity has no place in public discourse… and should not be given protection under the First Amendment.
Next is the issue of whether Captain Beckmann made the comments as a private citizen. No doubt the captain believes he spoke as a private citizen when he posted his comments, but we have seen other cases where courts have found grounds to conclude otherwise on even less. See San Diego v. John Roe, 543 U.S. 77 (2004), and Locurto.
And then… if we get that far… we have the test of all tests… the Pickering Balancing Test. Stated as succinctly as humanly possible, that test states: If an employee is (1) speaking on a matter of public concern (2) as a private citizen, he must prove his interest “in commenting upon matters of public concern” outweighs the “interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees”. Got that? Clear as… mud…
And then there is the role of Captain Davis. Is an employee who is offended by a private comment made by a co-worker, who proceeds to make that comment widely known (in this case to millions of people), entitled to protection by the First Amendment? If so, how can Captain Beckmann be denied that same protection?
Are you starting see the problem we are facing with public employees and the First Amendment? Given the emerging role of social media and the internet – this First Amendment quagmire needs to be addressed. We are not living in the 1800s where someone needs to take out a newspaper ad in order to reach hundreds to thousands of people… nor the mid 1900s where someone would have to take out a television ad to reach thousands to millions. This is the age of the internet and anyone can instantly reach millions just by clicking “send”… or pressing “enter” on a keyboard. The law needs to catch up with the technology.
Captain Beckmann’s case may the be one to help us get some closure from the courts on some of these open questions… It almost makes me hope the arbitrator rules against him so the case can move forward through the courts…. but that would not be fair to Captain Beckmann.
Retired Pittsburgh Captain Settles First Amendment Case
The strange case involving retired Pittsburgh fire captain David Cerminara appears to have come to a close.
Captain Cerminara filed a lawsuit in Federal Court last summer alleging that the city wrongfully withheld his severance check in retaliation for his exercise of his First Amendment Rights. See the original post from July 6, 2012.
The crazy story began back on May 30, 2012, Captain Cerminara’s last official work day before he retired on June 1, 2012 at 08:00 hours. While on duty the captain observed a city crew paint lines on the roadway in front of his station. An hour later, a second crew came by and tore up the freshly painted surface in preparation for resurfacing.
Shortly thereafter a news crew in the area covering the story happened by and asked Captain Cerminara what he had seen. He told them, including referring to the work as a waste of taxpayer funds. The news station then ran a humorous story about line painting – repaving incident.
Apparently city officials didn’t think the story was as funny as everyone else did. In fact, Public Safety Director Michael Huss was so upset that he personally went to Captain Cerminara’s house on June 1, 2012 at about 2:30 pm to deliver an order rescinding his retirement and directing him to remain on duty until June 21, 2012 so he could be disciplined. According to the complaint: “When it was pointed out to Defendant Huss that he could not order a person who no longer worked for either him or the City of Pittsburgh to remain on duty, to attend a hearing, or indeed to not speak as a private citizen on a matter of public concern, he became enraged.”
According to the suit, the city and Director Huss refused to give Captain Cerminara his severance check, estimated to be approximately $20,000. In the settlement announced on Monday, the city agreed to release the captain’s severance check in the amount of $16,255.57, plus pay $7,500 for Captain’s Cerminara’s attorney fees.
LAFD and Allegations of Attorney Misconduct
The Los Angeles City Fire Department is in the fire law headlines again, this time over an unusual legal issue: a misconduct complaint filed against city attorneys… by an attorney… who works for the city… although not technically a “city attorney”… who claims that city attorneys are improperly denying him access to information he needs to do his job.
Stephen Miller is the LAFD’s Independent Assessor, a position created under a City Charter Amendment in 2009 to serve the Board of Fire Commissioners as an internal watchdog. The Board of Fire Commissioners are civilian overseers of LAFD.
Miller, who is an attorney, has been seeking access to confidential LAFD personnel records for two years. Miller claims he needs the records to do his job, which the LAFD’s web site describes as:
[to] … a) audit, assess and review the Fire Department’s handling of complaints of misconduct committed by employees; b) conduct any audit or assessment requested by majority vote of the Board of Fire Commissioners; and c) initiate any assessment or audit of the Fire Department or any portion of the Fire Department.
LAFD has thus far refused to provide the requested information citing advice from the city’s attorneys.
Last week, Miller filed a misconduct complaint with the California Bar Association against several members of the city attorney’s staff who he claims are responsible for the refusal to release the records. The LA Times is reporting that this is not the first time that Miller has asked the Bar Association to investigate the city’s attorneys. In February, 2012, he filed a complaint that was later dismissed.
News reports have thus far not divulged Miller’s specific allegations of wrongdoing. California attorneys are required to adhere to the Rules of Professional Conduct as well as the State Bar Act, so it could be something in either. Without more information it is hard to speculate.
William Carter, chief deputy city attorney for LA, claims that the disciplinary complaints are politically motivated representing “a meritless smear campaign against dedicated, career public servants.” He says he plans to file his own complaint against Miller. If only the story stopped there… but no. Here’s where the unusual story turns strange: Carter alleges that Miller’s complaints are discriminatory because many of the attorneys targeted in Miller’s complaint are minorities and women. YCMTSU… Lawyer’s Edition!!!
No telling where this one will end… Incidentally, the LAFD web site gives an overview of Miller’s background – which is quite impressive: former wildland firefighter, air medic, reserve deputy sheriff, federal magistrate, and state inspector general.
Armed Columbus Firefighter Arrests Armed Suspect and Sparks More Debate
Here’s another twist on the “armed firefighter” debate. An arson investigator in Columbus, Ohio is under investigation for pulling a handgun during an altercation described as a “road-rage” incident.
The incident took place on January 2, 2013 when investigator Jeffrey L. Smith, 49, began arguing with Michael J. Watkins, 35, while in traffic. Watkins brandished a firearm prompting Smith to exit his city-owned unmarked vehicle, draw his service weapon, and arrest Watkins. He then detained Watkins until police could respond and charge him with aggravated menacing, a misdemeanor. A black pellet gun was found Watkins’ car.
Smith is now on administrative duty and his city-issued weapon taken away pending the results of the investigation. Apparently Smith and Watkins have a history, although the scope of that history is not clear from initial reports.
As for the armed firefighter debate, the facts can be argued both ways: If Smith was unarmed there would be little he could do against someone brandishing a firearm. Some may say that makes him a sheep waiting to be slaughtered. Others may say having the firearm emboldened him to confront Watkins, creating a risk of injury to himself, Watkins and bystanders that otherwise would not have occurred.
What ever your take, the incident points out the need for serious thought about some of the ancillary issues that arise when guns are introduced into the workplace.
Another point was raised – perhaps inadvertently – by the Columbus Dispatch, who noted that in 2011 Smith was found to have engaged in a “heated altercation” with another firefighter, received a verbal warning and was placed on administrative duty for two months.
Does that mean that perhaps Smith should not have been issued a gun? That would seem to be the implication being made by the Columbus Dispatch in discussing Smith’s prior actions. Why else would they include that information in the story?
Does having a “heated altercation” become a disqualifier for possessing a firearm on duty? Should it? How many firefighters have never had a heated altercation with another firefighter at some point in their careers? Firehouse life is like a family. Arguments happen over promotions, overtime, vacations, politics, you name it….. One of my good friends and a mentor to me when I was a younger firefighter had the nickname of “Time-Bomb”… because he would go off on a regular basis. The only difference between him and everyone else was the frequency of his exchanges.
Will heated altercations become newsworthy events in departments where firefighters are armed? If a fire department allows firefighters to carry on-duty, should an exception be made for firefighters who have had a “heated altercation” ….or two? Or Three? What are the liability implications if a fire chief allows a firefighter with a history of “heated altercations” to carry while on-duty?
The debate continues.
Posted in Criminal Law, Disciplinary Action, Municipal Liability
Attack Ads Lead to Defamation Suit in Oklahoma
An Oklahoma fire chief who opted to retire in the face of relentless personal attacks by a self-appointed public interest group has filed a defamation action against the men he believes are responsible.
Fire Chief Dale Parrish retired last summer from the Skiatook Fire Department after being subjected to withering criticism by the group Skiatook Citizens for a Better Government. The attacks included newspaper ads proclaiming “The Fire Chief takes our Gold and gives us the Shaft. The Fire Chief Takes Much but Gives Little. The Fire Chief is known as the ‘Bully’. His Employees are Silent and Afraid to Speak. Heart attacks can Wait. The Fire Chief has more Important Matters. Mercy Ambulance Is Available.”
In his retirement letter Chief Parrish stated he was leaving due to the “toxic environment that has been established over the past several months, from influences outside the department… I had hoped to complete another ten years with the Town but feel this is not possible due to the current environment.”
Chief Parrish filed the action in Osage County District Court. The four defendants in the case, Victor Waters, Horace Paslay, Evert Hendrix and Billy Barnes, are also defendants in another case filed by former Skiatook town coordinator, Martin Tucker. Tucker was himself subjected to the group’s scorn and attack ads and sued for defamation.
The case raises several troubling questions in my mind: to what extent does the First Amendment require a public official to accept personal attacks without recourse? To some extent those in the public’s eye have to develop thick skin… but just how thick?
Skiatook’s Mayor Josh Brown referred to the folks who launched the ad campaign as an “impossible group.” I think we can all relate. Do fire chiefs have to put up with malicious lies, sneaky half-truths, and vicious character assassinations as part of the job? Was that what the framers of the Constitution intended or envisioned when the wrote they First Amendment?
The next question: why would any sane person willingly subject themselves and their family to this type of non-sense – where any imbecile can with impunity allege virtually anything … assassinate your character and impugn your integrity just for the demented sport of it. I go back to my good friend Dennis Rubin who continues to be attacked by folks who apparently have little better to do with their lives than viciously defame him… all the while claiming to be the victim – and doing the public good.
Dennis Rubin and Dale Parrish are not alone by any stretch. There are fire chiefs from departments large and small, career and volunteer, who find themselves the victims of such attacks. Whether the attackers believe they are fighting some noble battle against the forces of evil, are avenging some perceived wrong, or are mentally ill, these sorts of people are out there.
If the first two questions do not concern you, this one should: who will lead our public agencies… and our government in the future…. if these kinds of attacks can take place under the cover of the First Amendment without any recourse? The digital age offers the attackers an inexpensive forum and a near unlimited audience for their non-sense. If a sane person would be dissuaded from seeking such positions because of the ruthless attacks… well, the question begs the answer. What motivation could possibly be enough for the abuse they have to endure? It can’t be money… is it power, ego… that would make the job worth the cost of the abuse??? A sad commentary…
That leaves us with the question… who would willing put up with the abuse that Chief Parrish had to deal with in order to be a fire chief… be it Washington DC, or Skiatook, Oklahoma.
Grieving Mother Sues For Destruction of Home After FIre
A grieving mother who lost her three children and her parents in a tragic Christmas morning fire in 2011, has filed a federal lawsuit against the City of Stamford, Connecticut and local officials for the wrongful demolition of her home in the hours following the fire.
Madonna Badger barely escaped the blaze and had to be hospitalized for smoke inhalation. Local officials were quick to attribute the fire to accidentally discarded fireplace ashes, something Badger vehemently disputes.
The suit alleges that city officials illegally ordered the destruction of the home without giving Badger notice or even an opportunity to remove any of her valued possessions and mementos. Those possessions were lost forever when the city could not determine where the debris had been removed to. The demolition also foreclosed Badger from being able to conduct her own forensic examination of the fire scene to discover the true cause.
Here is the introductory statement from the complaint itself:
This is a claim in which the plaintiff seeks redress against the City of Stamford, Connecticut and two individuals, Building Official Robert D. DeMarco and Director of Operations Ernest Orgera, for the deprivation and denial of her Federal Civil Rights. Briefly, the plaintiff’s home was involved in a fire on Christmas Day December 25, 2011.
As a result of the fire the plaintiff lost her three minor daughters: nine-year-old Lily and her seven-year-old twin sisters, Sarah and Grace; along with her parents, Lomar and Pauline Johnson. On the morning of December 26, 2011, following the fire that claimed five innocent lives, without preserving the critical evidence necessary to conduct a competent objective forensic examination or notifying the plaintiff of their intended actions, the defendants intentionally, arbitrarily and recklessly demolished the plaintiff’s home and its remaining contents.
Immediately following the demolition and in the absence of exigent circumstances the defendants authorized the seizure and disposal of all the physical evidence from the fire. The defendants’ actions were carried out pursuant to one or more established municipal policies. Without any rational basis the defendants intentionally treated the plaintiff and her property differently than other similarly situated residents of Stamford who sustained property damage following a fire.
Here is a copy of the 45 page, ten count complaint: Badger v Stamford Complaint
Among the allegations are violations of Badger’s due process, equal protection, and 4th Amendment rights. The action was filed in US District Court for the District of Connecticut on January 3, 2013.
The suit does not allege wrongful death. Badger’s ex-husband, Matthew Badger, filed a wrongful death suit in state court last summer on behalf of his three daughters naming a host of parties including:
- Michael Borcina – a contractor
- Tiberias Construction
- Michael Foley
- Mike Foley’s Fine Carpentry, Inc.
- Robert Dean
- New Canaan Design Partners LLC
- Stephen Holt
- Shoreline Electrical Contracting LLC
- The City of Stamford
An additional wrongful death suit on behalf of Madonna Badger’s parents is expected.
Posted in Civil Suit, Constitutional Rights, Municipal Liability, Wrongful death
Illinois Chief Facing Attempted Murder Charges in Bizarre Attack
An Illinois deputy chief is facing serious criminal charges after a bizarre off-duty incident that occurred over the weekend.
Gary M. Swiercz, 49, of the Chicago Ridge Fire Department, is accused of breaking into a neighbors apartment, threatening to slit her throat, and attempting to sexually assault her. Police say Swiercz was wearing a ski mask and carrying a knife, rope, zip ties, duct tape, a sexual device, and lubricant at the time.
The incident allegedly occurred early Saturday morning. Swiercz reportedly struggled with the victim, then ran out the back door where he was apprehended by the police. He is facing charges for:
- attempted first-degree murder,
- home invasion,
- aggravated unlawful restraint,
- residential burglary and
- attempted aggravated criminal sexual assault
Chicago Ridge Fire Chief Bob Musynski has announced that Swiercz opted to retire from the department effective yesterday. Following his arrest he had been placed on administrative leave.
Denver Race Discrimination Case Closer to Trial
A Denver fire lieutenant who claims he has been subjected to race discrimination and retaliation since 2006 will finally have his day in court.
US District Court Judge R. Brooke Jackson ruled on January 2, 2013 that Lieutenant Thomas R. Lewis has presented enough evidence to get his case to a jury. Lt. Lewis claims that beginning in 2006 he has been harassed and retaliated against on the basis of race, and that it culminated his demotion from the rank of lieutenant. He also complains that he was punished with a transfer, and subjected to a malicious criminal prosecution.
According to the complaint: “At all times material hereto, Mr. Lewis satisfactorily performed his job duties, including receiving a commendation in December 2006.” His problems began in 2006 when he stood up to a white assistant chief on behalf of another African American firefighter who was wrongly denied an assignment despite being senior. He claims the chief threatened “to look into pursuing disciplinary actions against” Lt. Lewis.
Lt. Lewis alleges that the chief then falsely and without justification accused him of shoving a white subordinate firefighter. When those charges proved unfounded the same chief falsely accusing him of “engaging in intimidating, threatening, or hostile behaviors, physical assaults, or other acts of this nature”. Lt. Lewis received a written reprimand ostensibly because he sang a pop song in the station.
Lt. Lewis filed a discrimination and retaliation complaint with the EEOC and then filed suit against the department and the white chief on January 5, 2009.
According to a Denver based employment blog, the very next day, January 6, 2009, Lt. Lewis was wrongly transferred and demoted. Shortly thereafter he was accused of engaging in a verbal altercation with an employee of a Verizon store. The department initiated an investigation which Lt. Lewis claims unlawfully resulted in criminal charges being filed against him, charges that were later dropped.
The blog continues:
Mr. Lewis appears to have strong evidence of unlawful employment practices by the Denver Fire Department. It appears that the Denver Fire Department subjected Mr. Lewis to retaliation soon after complaining about race discrimination, and then went out of its way to falsify evidence in a sustained effort to procure Mr. Lewis’s criminal conviction for a crime it knew that he did not commit. We applaud Mr. Lewis’s determined efforts to overcome the largely infinite resources of the government in order to have his day in court.
Here is a copy of the complaint. Lewis Complaint
Complaints typically present a one sided version of the allegations, as do some blogs from time to time. Fortunately in this case we also have a court ruling that lays out the facts a bit more objectively. Here are some of the details that the complaint conveniently omitted (italics is quoted material):
- Prior to 2006 Mr. Lewis had several disciplinary complaints. He was late to work and received a 12 hour suspension. In 2001 Mr. Lewis was seen entering a residence that was known by Denver police to be a crack cocaine house. After leaving the house Mr. Lewis was pulled over by Denver police for failing to stop at a stop sign. At the time, Mr. Lewis was driving a vehicle owned by the Denver Fire Department, and he did not have a driver’s license. There was also some speculation as to whether Mr. Lewis had been drinking. Mr. Lewis was not cited by the Denver police officers, but the incident was reported to the Denver Fire Department. Mr. Lewis received an 80 hour suspension from the Manager of Safety.
- The transfer on January 6, 2009 was necessitated in order to separate Lt. Lewis from the accused chief, who was named as a defendant in the suit.
- On February 13, 2009 Mr. Lewis, while off duty, was involved in an altercation with a Verizon store employee. During the altercation, the Verizon employee, Todd Strong, asked Mr. Lewis what he did, and Mr. Lewis responded that he worked for Denver Fire Department. Mr. Strong sent an email to the Denver Fire Department requesting an apology from Mr. Lewis and the Denver Fire Department. The facts of what occurred during the altercation are disputed by the parties. The next day, February 14, 2009, Mr. Lewis came to the fire station agitated and yelling. …Mr. Lewis [was placed] on administrative leave and informed … that the Denver Fire Department’s internal affairs office would investigate the complaint from Mr. Strong.
- After the investigation, Deputy Chief King determined that Mr. Lewis should be demoted.
- [T]he Notice of Final Disciplinary Action… explained that the Verizon incident showed a pattern of “being rude to, intimidating and threatening people.” [It] cited that over the past four years at least six firefighters requested transfers from being under Mr. Lewis’s supervision because of his behavior towards them.
Here is a copy of the court’s ruling from January 2, 2013. Lewis Order
So it appears that we have a some facts in contention – facts that a simple reading of the complaint would not otherwise indicate. A quick search of the US District Court docket for the state of Colorado also shows that Lt. Lewis filed a civil suit against Mr. Strong and Verizon for race discrimination. That case was dismissed in 2010 following a ruling that granted the defendants summary judgment.
One final note for the legal eagles out there: you may note from the complaint that Lt. Lewis’s attorney filed suit as a civil rights action against the Denver Fire Department. For those who slept through Civil Procedure and Federal Courts: “After Monell courts have dismissed § 1983 claims that have sought to impose liability directly upon municipal and county departments rather than the municipalities themselves. … The City and County of Denver, not the Denver Fire Department, is the proper defendant under § 1983. Accordingly, summary judgment is granted for the Denver Fire Department.”
Ouch… but the case against the individual defendants continues.
And a final note for even the non-legal eagles out there: taking a case like this to trial can easily run into the tens of thousands of dollars… perhaps even over $100,000… for each side. Then there is the uncertainty of how a jury will view the facts. It is why cases often settle on the eve of trial.
We know that race discrimination continues to rear it ugly head and when it is found to occur, it needs to be addressed. We also know it is easy to play the race card. In Lewis v. Denver FD, it would appear to be one or the other – and maybe this case is one that needs to go all the way in order to give both sides some measure of closure.
Ten Most Ridiculous Lawsuits of 2012
I came across this humorous story from the U.S. Chamber of Commerce’s Institute for Legal Reform, and while I do not share their views on the need for legal reform… and am certain there is more to each of these stories that would put them in an entirely different light… they are pretty funny. Enjoy:
The Top Ten Most Ridiculous Lawsuits of 2012 are:
- Intoxicated Florida driver pleads guilty to manslaughter, then sues victim he killed.
- Michigan woman files $5 million suit for the leftover gas still in her repossessed car.
- 13-year-old Little Leaguer sued by spectator who got hit with baseball.
- Maximum security inmate who went to jail with five teeth sues prison for dental problems.
- Anheuser Busch sued when longneck bottle used as weapon in bar fight.
- National Football League fan sues Dallas Cowboys over hot bench.
- California restaurateur sued for disabilities act violations in parking lot he doesn’t own.
- Colorado man wins $7 million blaming illness on inhaling microwave popcorn fumes.
- $1.7 billion suit claims City of Santa Monica wireless parking meters causing health problems.
- Bay Area parents sue school after their son was kicked out of honors class for cheating.
Incidentally, while there were no fire department suits in the 2012 listing, we have had our share of stories over the years. Recall the 2011 case from Frenchtown Township, Michigan where an impaired driver with a sordid driving history drove into the back of a fire truck parked at a previous accident, had to be extricated with the jaws of life, and then had the audacity to sue the fire department and firefighters who helped save his life.
You can’t make this stuff up…. dot net.
Posted in Civil Suit, Humor, You Can't Make This Stuff Up
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