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YCMTSU PA Fire Department Sues… Oh You’ll Just Have To Read It

We have seen firefighters sue fire departments. We have seen fire departments sue firefighters. We have seen fire districts sue fire departments and fire departments sue municipalities. We have even seen fire departments sue other fire departments.

But here is a first: a fire department suing itself… sort of…

The Macungie Volunteer Fire Department in Macungie, Pennsylvania has filed suit against the Macungie Fire Company over what it claims are nearly $17,000 in bills paid and repairs made to the fire station they both share. While the two organizations share the same building (ie. a fire station), the Fire Company is simply a “social organization” that runs a social club and bar… in the fire station’s hall… while the fire department is… well… a fire department.

According to news reports the two entities were originally a single non-profit corporation until 2008, when a decision was made to split off the firefighting function from the social organization. The Fire Company kept the liquor license and a brand new entity was created: the Fire Department.

It is me? Maybe I just cannot get my brain around how a fire department and a fire company that share the same facility, practically the same name… and might I venture a guess… many of the same members…  can’t get along to the point that a lawsuit must be filed. It’s like one shift suing another shift because they didn’t leave enough milk in the fridge at shift change… (BTW … true stories from the firehouse…. sorry C Group).

Trust me… the lawyer in me get’s it… it’s the firefighter in me that is struggling with this one.

Here’s more on this crazy story… and certainly if anyone from PA can fill in the blanks, I’d love to hear from you!

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Posted in Civil Suit, Humor, Volunteers, You Can't Make This Stuff Up

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4 comments Posted by on February 28, 2013

Cal Fire Chief Charged with Vehicular Manslaughter Over Texting Related Crash

A chief with the California Department of Forestry and Fire Protection (CAL FIRE) has been charged with vehicular manslaughter for an accident that occurred last August.

Unit Chief Timothy John McClelland, 48, was charged yesterday in connection with the August 1, 2012 accident that caused the death of Gregory Francis Kirwin, 48. Chief McClelland was driving a Cal Fire pickup truck that collided with the rear of Kirwin’s vehicle, causing it to crash into the rear of a third vehicle. Kirwin died at the scene.

Prosecutors allege that Chief McClelland was texting at the time of the accident.

California law handles manslaughter in a rather unconventional way, dividing it into three categories in the same statute: voluntary, involuntary, and vehicular. Here is the statute:

California Penal Code 192.  Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:

   (a) Voluntary…

   (b) Involuntary…

   (c) Vehicular– (1) …driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.

   (2) Driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence. …

California Penal Code Section 193 allows a vehicular manslaughter defendant to be charged with either a felony (Section 192 (c) (1) with gross negligence) or a misdemeanor  (Section 192 (c) (2) without gross negligence).

In Chief McClelland’s case, the news reports are somewhat conflicting in that they claim he was charged with vehicular manslaughter with gross negligence, but was only charged with a misdemeanor. He is scheduled to be arraigned on April 10, 2013 in Superior Court in San Bernardino.

Among his likely defenses will be that his texting was lawful under California’s texting while driving law because he was operating an authorized emergency vehicle.

California Vehicle Code Section 23123 and 23123.5 state:

23123.  (a) A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving. …

(d) This section does not apply to an emergency services professional using a wireless telephone while operating an authorized emergency vehicle, as defined in Section 165, in the course and scope of his or her duties.

and

23123.5.  (a) A person shall not drive a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication, unless the electronic wireless communications device is specifically designed and configured to allow voiceoperated and hands-free operation to dictate, send, or listen to a text-based communication, and it is used in that manner while driving.

(b) As used in this section “write, send, or read a text-based communication” means using an electronic wireless communications device to manually communicate with any person using a text-based communication, including, but not limited to, communications referred to as a text message, instant message, or electronic mail….

(e) This section does not apply to an emergency services professional using an electronic wireless communications device while operating an authorized emergency vehicle, as defined in Section 165, in the course and scope of his or her duties.

If the state cannot establish that Chief McClelland’s texting was unlawful, the manslaughter charge under CPC 192 (c) (2) would (in the absence of another unlawful act) most likely fail. Among the probable issues that will be in contention: was the pickup an authorized emergency vehicle (likely yes); was the text personal or job related; if the text was personal does the provision “in the course and scope of his or her duties” pertain to the nature of the text… or whether he was engaged in a work related activity while driving the vehicle. One could make the argument that to be guilty of texting while driving an authorized emergency vehicle both the subject of the text message AND his purpose for driving the vehicle would have to be personal. Of course the prosecution will likely argue the opposite… that in order to have a defense under 23123.5(e) both text message and the purpose of driving the vehicle have to be job related.

Lots to ponder….

More on the story.

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Posted in Apparatus, Criminal Law, Manslaughter, Occupational Safety & Health

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1 comment Posted by on February 27, 2013

Illinois Firefighter Sues Fellow Firefighter for Injuries

An Illinois firefighter injured during a controlled burn has filed a negligence suit against a fellow firefighter and his fire department.

William J. Wirtel was injured on January 29, 2011 during a controlled burn in the Village of Washington Park when a pumper driven by Odell Smith drove away while still connected to a hydrant. Wirtel was struck by the hose.

The complaint alleges: “As a direct result of defendant, Odell Smith’s, operation of The Fire Engine, the hose line became taut and disconnected from the hydrant” and “As a direct result of defendant, Odell Smith’s, operation of The Fire Engine, the hose line struck plaintiff William J. Wirtel.”

The suit was filed in St. Clair County Circuit Court and also names the Washington Park Volunteer Fire Department. Wirtel claims his medical bills alone exceed $200,000, and is seeking an award “in excess of $100,000”.

More on the story.

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Posted in Apparatus, Civil Suit, Municipal Liability, Negligence, Occupational Safety & Health, Volunteers

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1 comment Posted by on February 26, 2013

Stamford Volunteer Fire Departments Sue to Challenge Consolidation

Three volunteer fire departments in Stamford, Connecticut have filed suit to challenge the city’s efforts to consolidate them into a single, unified fire department that includes the city’s career firefighters.

The three departments, Turn of River, Long Ridge and Springdale Volunteer Fire Departments, are seeking to challenge the validity of recent charter changes adopted last November by the voters. The suit was filed last month in Superior Court.

Attorney Mark Kovack, who represents the three plaintiff departments, was quoted by the Stamford Advocate as saying “We do have bona fide, serious legal reservations as to whether the changes are constitutional… If the changes, all or some or part, are found to be unlawful … then we would ask the court to declare those particular amendments legally null and void.”

Two other volunteer fire departments in Stamford, Belltown and Glenbrook VFDs, opted not to join the suit.

More on the story.

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Posted in Civil Suit, Volunteers

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2 comments Posted by on February 26, 2013

LA County Assistant Chief Filmed Drinking On Lunch Break

An LA County Fire official is facing some tough questions following a “gotchya” undercover surveillance team filmed him drinking on his lunch break. The man, identified as Assistant Chief Vic Mesrobian, appears to actually be a civilian employee in charge of the department’s information management program.

Dave Statter has more details, and here is the “gotchya” news piece.


 

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Posted in Disciplinary Action

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2 comments Posted by on February 25, 2013

Cyberbullying – The Ugly Side of Social Media

We have all seen the comical photos of Walmart shoppers in various modes of dress and undress. One performer has even made several humorous music videos depicting the weirdos and crazies.

Facebook itself had its origins by showing photos of college students and allowing people to rate them as “hot or not”. It’s all in good fun, right? No harm, no foul.

So what is going on in Emmitsburg, Maryland, home of the US Fire Administration and the National Fire Academy, where a mother has declared war on cyberbullying after a firefighter posted photos of her daughter on line accompanied by unflattering comments.

Sherry Myers is furious about photos of her daughter Jayden that were posted online by a Pennsylvania firefighter that mocks her shoes, and asks people to guess whether Jayden is a boy or a girl.

It’s the other side of the laughter… the painful side… the ugly side of social media.

Here is a link to Sherry’s Facebook page, which she has aptly named Justice for Jayden. Spend some time there and read some of the comments from those who have been hurt by cyberbullies.

Here is more on the story itself.

While all the facts have yet to be sorted out in the Myers case – let me make a few points about where we are law wise on cyberbullying.

Here in the US, the laws are way behind the times. While some states have enacted laws to address cyberbullying, most states rely upon tort privacy laws developed in the 1800s and 1900s. These laws did a decent job until fairly recently. Today they are being asked to address an entirely new problem… and it may be a task they are not up to.

Is it really an entirely new problem? Bullying has always been around and always will be – but when it comes to spreading hurtful information on a massive scale – I say what we are facing is an entirely new problem.

In the late 1800s, how would one go about spreading embarrassing rumors, malicious falsehoods, or even breach a person’s right to privacy on a massive scale? The options were pretty limited and usually required large sums of money to take out newspaper ads, or influence reporters and editors in order to spread a story very far. The spreading of the story would be relatively slow compared with today – and the courts did offer some remedies that could address those mean spirited activities. Newspapers also had to be concerned about such suits and thus had an incentive to do some self-policing of what was published.

The 1900s brought us new means of mass communications through radio and later television. Still these methods of communication were beyond the financial means of most people and the law offered realistic remedies to address any wrongdoing that did occur. Like the newspapers, radio and television stations themselves had good reason to watch what was said out of fear of becoming the target of such a suit.

But what about spreading malicious information in the Internet Age – where virtually anyone can communicate with thousands, even millions, for free and virtually instantly? What about the fact that people who have no financial footprint to speak of can spread malicious information to an unprecedented degree with little to no risk of legal consequences? No self-policing… they are judgment-proof… or close enough to make the cost of a civil suit unrealistic for most people.

How exactly does the law – developed originally to address problems back in the Pony Express days, give Sherry and Jayden Myers some measure of comfort, some justice?

And just as importantly, how do we, as members of the Internet community, draw our own lines about what is and is not fair game when it comes to humor, satire and parody?

The two issues are linked… or at least they should be.

Can we protect Jayden and still have our funny Walmart photos? Is there a line that can be drawn that makes one OK and the other not?

The law should reflect the ethical choices we as a society believe in.

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Posted in Ethics, First Amendment, Humor, Municipal Liability, Social Media, You Can't Make This Stuff Up

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29 comments Posted by on February 25, 2013

YCMTSU New Jersey Secretary Claims Officer Made Death Threat

A fire district secretary in New Jersey has filed suit against the district, a volunteer fire company, a former commissioner, a current commissioner and a deputy chief alleging she has been sexually harassed and had her life threatened, all because she reported the former district official for watching child pornography and masturbating in her office.

The bizarre suit was filed by Deborah Nelson, 53, last week. It names the Board of Commissioners of Franklin Fire District 1, the Millstone Valley Fire Department, former Fire Commissioner Robert R. Scheer Jr., Fire Commissioner James Wickman and Millstone Valley Deputy Chief Douglas Walp as defendants.

The suit is Nelson’s second harassment suit against the district. She filed the first one back in 2009, shortly after former Commissioner Scheer was accused of watching child pornography and other inappropriate conduct. In 2011 as part of a settlement, Scheer resigned and Nelson received a $150,000 settlement .

The second suit was prompted by what Nelson claims is a workplace that continues to be sexually hostile and retaliatory against her. Principal among the specific allegations is a death threat allegedly made by Deputy Chief Douglas Walp in December 2011.

According to myCentralJersey.com, Chief Walp was accused of saying: “The (expletive deleted) better watch her (expletive deleted) or I’ll put a bullet in her head and burn the place down.” Chief Walp was a captain at the time.

Nelson reported Chief Walp’s threats to the Franklin Township Police Department, who investigated and declined to press charges.

More on the story.

UPDATE: Here is another story about the case. It includes a number of additional disturbing details that I won’t go into here – but read them for yourselves.

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Posted in Civil Suit, Constitutional Rights, Criminal Law, Disciplinary Action, Discrimination, Municipal Liability, Sexual Harassment, Sexual misconduct, Volunteers, You Can't Make This Stuff Up

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No comments Posted by on February 21, 2013

Family Ties and Chain of Command

Here is today’s burning question: I have been volunteering with a small rural fire district for about 11 years. I was promoted to lieutenant by the previous chief, but since he left 7 years ago I have had nothing but trouble with the new chief. I won’t bother you with the details, but my problem is this: My wife joined the department last summer. Last week out of the blue my chief told me that although she is allowed to volunteer, she is not allowed to respond to incidents where I play a supervisory role! I make about 60% of all of calls and was hoping this would allow my wife and I to spend more time together.  Now she can only respond to calls that I cannot make. Is it legal to deny someone to volunteer based on marital status / family relationships?

Answer: You need to get some local legal advice. To fully answer your question an attorney will need to look at your state laws, perhaps local ordinances, fire district regulations, fire department rules and regulations, etc. In addition, whether your department is a municipal entity (fire district) or a volunteer fire company funded by a fire district could make a huge difference. Without knowing all of that – any advice I could give you would be half-baked at best.

I agree, given your strained relationship with the chief, it sounds like he may be using your martial status as a way to harass you – but there may be a valid reason for it as well – such as nepotism laws that prohibit a person from reporting to an immediate family member. Most of those nepotism laws apply to paid employees, and you did not indicate if you are paid on call, or fully volunteer. Again the devil will be in the details.

You would be completely within your rights to ask the chief for some additional information on the martial status rule, such as when the rule was adopted and what it was based on (state law, local ethics commission ruling, attorney’s advice, etc.). If he is bluffing, these questions may be a way to smoke him out. On the other hand if he is sincere, acting on advice of counsel and trying to do the right thing it offers a way that you can be assured he is not out to make your life difficult.  You would also be within your rights to ask that the rule be put in writing  (if it has not yet been) to make sure it is applied to everyone equally.

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Posted in Burning Question, Conflicts of Interest, Ethics, Volunteers

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No comments Posted by on February 21, 2013

Texas Firefighter Claims ADA Discrimination Due To PTSD

A Texas firefighter has filed a federal lawsuit against the City of Georgetown alleging the fire department failed to reasonably accommodate his line-of-duty post traumatic stress disorder (PTSD).

Danny Tucker alleges that he developed PTSD following a motor vehicle accident in 2011 where a teenager was trapped in a burning vehicle on I35. During the rescue, the victim was pinned and screaming for help.

The victim, who was 17 at the time, survived with burns over 30 percent of his body, and 17 broken bones.

Tucker claims his PTSD developed shortly after the incident, causing him to have anxiety, nightmares, intrusive thoughts, and an inability to concentrate. The suit claims city officials refused to reasonably accommodate his condition by finding him a suitable position that he could perform. He also accused Georgetown Fire Chief Robert Fite of saying “Bad things happen, get over it.”

Here is a copy of the complaint. Tucker v Georgetown

Two points stuck out in my mind after reading the complaint and the news articles about the suit. First, Tucker’s attorney, John Judge, told reporters that his client observed but did not participate in the rescue. Let me quote the Statesman.com so I get it right: “Tucker did not participate in the rescue but watched from the firetruck, Judge said.”

The reason for Tucker remaining at the truck is unclear. The complaint itself is eerily silent about Tucker’s role in the rescue effort. It did say he had been a firefighter since 2000, so he was not a rookie.

Second, the complaint states that in early June Tucker’s doctors and counselors recommended that he stay away from the fire service, and that a separation would be necessary and beneficial to his recovery.  Despite these clear recommendations, complaint then goes on to allege:

On or about June 15, 2011, Plaintiff read an email that was sent out to all of Fire Service Department. The email was congratulating the firefighters that saved the teenager’s life on May 20, 2011. It also mentioned that the firefighters were honored at the City Council meeting on June 14, 2011. Plaintiff was not mentioned at all in any of the honors. This exclusion was personally devastating and set back his recovery. The exclusion was in retaliation for Plaintiff having sought professional assistance, rather than “getting over it” as Chief Fite had ordered.

Putting the two points together, I am confused.  The complaint claims that Tucker needed to stay away from all fire service activities. On that point the complaint is crystal clear, and rightfully so: it is what justifies his demand to be given other employment by the city as a “reasonable accommodation”. Yet the complaint also implies that the department wrongfully excluded him from the awards ceremonies, and in doing so further damaged his recovery. Can both allegations be true? Can one be medically required to stay away from the fire service and yet still participate in an awards ceremony… an event where the incident will inevitably be recounted in excruciating detail?

Perhaps the point that the complaint should have argued is that even though he could not attend, Tucker still should have been honored for his role in the rescue. However, that raises another thorny question: did Tucker do anything at the emergency scene that was award worthy? Hard questions for sure, but questions that are going to have to be answered before a federal court judge before very long.

More on the story.

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Posted in ADA, Civil Suit, Discrimination

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2 comments Posted by on February 20, 2013

Staffing Now At Center Of Columbus Georgia Criminal Probe

Additional details are emerging about the police investigation of the Columbus Fire & EMS that we posted about last week. It appears the primary focus of the investigation relates to the staffing level of the first in engine at a fatal daycare fire in 2010, and whether documents were either falsified or removed.

The fire occurred on February 26, 2010, and claimed the life of 23-month-old Michael Dubard. Firefighters made numerous heroic rescues of other children during the blaze. A total of nine children were in the day care at the time of the fire, which was only allowed to care for six under state law.

The first arriving apparatus, Engine 7, was supposed to be staffed with five firefighters, but responded to fire with only three members. The reason for the discrepancy appears to be at the heart of the Georgia Bureau of Investigation (GBI)’s  search.

An internal Columbus Fire & EMS investigation concluded Engine 7 was missing two firefighters because the lieutenant was out with an injury, and minutes before the fire a battalion chief picked up a crew member to take him for a random drug test.

However, the GBI’s search warrant affidavit alleges that Engine 7 was understaffed because both missing firefighters had been taken for drug testing. The affidavit claims that fire department records were altered to show that only one was being drug-tested, while the second was out sick.

More on the story.

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Posted in Criminal Law, Disciplinary Action, Evidence, Occupational Safety & Health, Open Records Laws, Staffing

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4 comments Posted by on February 18, 2013

Wildland Firefighter LODD Prompts OSHA General Duty Citations

The death of a wildland firefighter in 2012 has prompted two administrative actions by OSHA, one a $14,000 citation against the Clearwater-Potlatch Timber Protective Association (CPTPA), and the other a Notice of Unsafe or Unhealthful Working Conditions issued to the U.S. Forest Service.

Firefighter Anne Veseth, 20, was killed on August 12, 2012 while battling the Steep Corner Fire near Orofino, Idaho. She was struck in the head by a falling tree and died instantly. Veseth was a college student working her second summer as a seasonal firefighter for the US Forest Service.

The Steep Corner Fire was being managed by CPTPA, but being fought through an interagency effort that included the US Forest Service. According to the Steep Corner Fire Serious Accident Investigation Report issued by the US Forest Service, CPTPA is a private sector entity described as follows: “Idaho law allows forest landowners to form timber protective associations to provide wildfire protection on their land. Timber protective associations are subject to rules established by the state. Each year, the State Forester certifies, and the State Board of Land Commissioners confirms, their qualifications to provide adequate protection. The associations’ objectives are to stop fires while small through quick and effective initial attack.”

The Serious Accident Investigation (SAI) report states: “After considerable review of the incident, including the leadership, qualifications, interagency cooperation, fuels, weather, incident management organization, and local policies, the SAI Team concluded that the judgments and decisions of the firefighters involved in the Steep Corner Fire were appropriate. Firefighters performed within the leaders’ intent and scope of duty, as defined by their respective organizations. The Team did not find any reckless actions or violations of policy or protocol.”

OSHA’s investigation into Veseth’s death reached a different conclusion, finding that both the US Forest Service and CPTPA violated the general duty clause. The general duty clause is an OSHA requirement that employers provide employees with a workplace that is “free from recognized hazards”.

While employers are expected to comply with all OSHA standards, the general duty requirement is a bit more complicated. Employers are required to take affirmative steps to mitigate recognized hazards even if those steps are not specifically mandated by an existing OSHA standard. This would include mitigating hazards that are recognized in the applicable industry as posing a safety concern to employees.

The CPTPA citation imposed $14,000 in fines for three related issues, each considered by OSHA to be serious general duty clause violations.

  • The first citation faulted CPTPA for not ensuring a safe working environment by allowing 8 of the 10 Standard Firefighting Orders for wildland fires to be violated, and for failing to mitigate 11 of the 18 Watch Out Situations. A $4,900 penalty was assessed.
  • The second violation alleged that employees were exposed to being struck by “hazard trees” while constructing fire line, a recognized hazard that was not mitigated. It also carried a $4,900 penalty.
  • The third violation alleged that firefighters constructing the fire line did not have fire shelters readily available, and that personnel constructing the fire line were wearing denim and work pants not rated as fire resistant. The associated penalty for these violations was $4,200.

OSHA also issued a Notice of Unsafe or Unhealthful Working Conditions to the US Forest Service, citing:

  • one serious violation for violating 7 of the 10 Standard Firefighting Orders and not mitigating 9 of the 18 Watch Out Situations; and
  • a second charge characterized as a “Repeat – Serious” violation for allowing employees to work in a location that exposed them to “recognized hazards …  likely to cause death or serious physical harm from falling hazard trees”.

Here is the OSHA citation for CPTPA: OSHA_CPTPA_Citation

Here is the OSHA Notice to the US Forest Service: OSHA_USFS_notice1

Here is the SAI report: Steep-Corner-Fatality-SAI

Incidentally, the SAI report is a good read even for structural firefighters. It confirms the widely reported account that the Montana based Flathead Hotshots refused to fight the Steep Corner Fire citing concerns over unsafe operations that their supervisors observed when they arrived. Among the concerns noted were: “communications, tactics, and hazard mitigation. …the need for better radio communications and professional fallers for hazard tree removal. They also question[ed] the gaps in the fireline as well as the lack of medevac sites and a medical plan.” The Flathead Hotshots informed the Steep Corner IC of their concerns and their decision to refrain from engaging in the firefight one day prior to Anne Veseth’s death.

The reply from CPTPA: “We’re doing the best we can with what we’ve got.”

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Posted in LODD, Occupational Safety & Health, Wildland

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1 comment Posted by on February 18, 2013

Iowa Firefighter Suspected in String of Fires

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Posted in Arson, Volunteers

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No comments Posted by on February 17, 2013

Hartford Investigating YouTube Video

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

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Posted in Disciplinary Action, Social Media, You Can't Make This Stuff Up

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No comments Posted by on February 15, 2013

San Diego Firefighters Score Victory In Pension Battle

‘The City breached its duty to meet and confer in good faith with the … San Diego City Firefighters Association, Local 145… when it failed and refused to meet and confer over the Mayor’s proposal for pension reform. By this conduct, the City also interfered with the right of City employees to participate in the activities of an employee organization of their own choosing and denied the [union] their right to represent employees in their employment relations with a public agency…’

With those words, a hearing officer for the California Public Employment Relations Board (PERB) found that the City of San Diego committed unfair labor practices by blatantly orchestrating a voter initiative that purported to implement major changes to the employees pension benefits without negotiations. Administrative Law Judge Donn Ginoza issued the ruling last Monday.

The action was the result of unfair labor practices filed by four San Diego public employee unions: San Diego Municipal Employees Association; Deputy City Attorneys Association of San Diego, American Federation of State, County and Municipal Employees AFL-CIO, Local 127; and San Diego City Firefighters Local 145 seeking to block the passage of so-called Proposition B. That law was adopted by the voters in June 2012.

The 58 page decision is a difficult read for anyone interested, but one of the key questions in the case is whether a mayor, who serves as the “lead negotiator” for the city with labor unions, can aggressively pursue a pension reform voter referendum as a “private individual” and still bargain in good faith?

Here are some of the highlights from the ruling:

The Mayor’s statements to the press that he was pursuing pension reform as a private citizen are insufficient to overcome the reasonable conclusion … drawn from his actions undertaken for the benefit of the City. …

PERB has explained that the duty to bargain includes the “concomitant obligation to meet and negotiate with no others, including the employees themselves [and) actions of a[n] employer which are in derogation of the authority of the exclusive representative are evidence of a refusal to negotiate in good faith.” …

Bypassing occurs when the offending party’s intent is to achieve bargaining objectives while circumventing the negotiations process. It takes the form of conduct seeking to influence a party not involved in the negotiations, typically either the governing board of the employer or rank-and-file employees in the exclusive representative’s bargaining unit. …

The Mayor’s choice of a citizens’ initiative as a vehicle to implement his policy determination is not privileged because it amounts to bypassing of the unions. The absence of case precedent holding that a duty to meet and confer attaches to a citizens’ initiative does not constitute an affirmative license for the Mayor to deprive a union of its right to meet and confer. Though he characterized his initiative campaign as the activity of a private citizen, the Mayor pursued pension reform in his capacity as an elected official, and could not disown his statutory obligation to comply with the MMBA. …

Conclusion

The Mayor under the color of his elected office, supported by two City Councilmembers and the City Attorney, undertook to launch a pension reform initiative campaign, raised money in support of the campaign, helped craft the language and content of the initiative, and gave his weighty endorsement to it, all while denying the unions an opportunity to meet and confer over his policy determination in the form of a ballot proposal. By this conduct the Mayor took concrete actions toward implementation of the reform initiative, the consequence of which was a unilateral change in terms and conditions of employment for represented employees to the City’s considerable financial benefit. Seal Beach requires negotiations when a public agency, acting through its governing body, makes a policy determination that it proposes for adoption by the electorate. By virtue of the Mayor’s status as a statutorily defined agent of the public agency and common law principles of agency, the same obligation to meet and confer applies to the City because it has ratified the policy decision resu1ting in the unilateral change, and because the Mayor was not legally privileged to pursue implementation of that change as a private citizen. These conclusions make it unnecessary to address any other contentions urged by the unions. …

The City will be ordered to cease and desist from its unilateral action, restore the status quo that existed at the time of the unlawful conduct, and make employees whole for any losses suffered as a result of the unlawful conduct… [including an] order that the City rescind the provisions of Proposition B now adopted…

The ruling must be adopted by the full PERB. Parties have twenty days to file objections from February 11, 2013. If no objections are filed, the ruling will become effective automatically.

Here is the full case… happy reading…. San Diego Pension Ruling PERB

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Posted in Labor Law, Pensions, Politics

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2 comments Posted by on February 14, 2013

Long Saga Ends In West Palm Beach

It would appear that the long saga of West Palm Beach Fire Captain Rick Curtis is finally at an end with a settlement announced today that will resolve all outstanding suits and complaints.

Captain Curtis has been featured here at Fire Law Blog on at least five occasions, the most recent being last month when the Florida Public Employee Relation’s Board denied his claim that his union failed to adequately represent him during his termination over an off-duty drunk driving incident.

During his DUI arrest, Captain Curtis was video taped directing an expletive filled tirade at police officers. That video was later made public, he was convicted of DUI, and terminated from the department.

However, Captain Curtis was able to get the conviction thrown out by proving that the judge in his case had an undisclosed relationship with firefighters’ union vice-president with whom he was at odds. Captain Curtis was then acquitted, and sought to be reinstated to the department.

West Palm Beach Mayor Jeri Muoio announced the settlement today which calls for the city to pay Captain Curtis $200,000 in exchange for him dropping all pending lawsuits and claims. According to Mayor Muoio, “He has dropped his claim to be reinstated as an employee and dropped all lawsuits and pending lawsuits.”

More on the story.

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Posted in Civil Suit, Disciplinary Action, Discrimination, Wrongful termination, You Can't Make This Stuff Up

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No comments Posted by on February 13, 2013

Georgia Fire Department Is The Focus Of A Major Investigation

The Columbus, Georgia Fire Department is at the center of a probe being conducted by the Georgia Bureau of Investigation (GBI). Search warrants have been executed and WTVM is reporting that the investigation is related to a fire in a daycare center that killed a one year old child.

The District Attorney’s Office released the following statement:

“On Tuesday, February 12, 2013 GBI agents served a search warrant for specific records and documentation maintained at Columbus Fire Department Headquarters in Downtown Columbus, Georgia with the assistance of investigators from the Chattahoochee Judicial Circuit District Attorney’s Office. Agents also began conducting interviews with specific department employees and members of the command staff.

“These actions were taken as part of an ongoing GBI investigation being conducted at the request of District Attorney Julia Slater. District Attorney Slater requested GBI assistance after receiving information indicating that department employees may have committed criminal acts involving the creation, maintenance and accuracy of official reports and documents.

“The search and interviews are part of an ongoing effort to establish what occurred if criminal conduct was involved. The investigation is active and no other information is being released at this time.”
WTVM.com-Columbus, GA News Weather

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Posted in Criminal Law, Evidence, Open Records Laws, Politics

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1 comment Posted by on February 12, 2013

Alameda Not Liable for Drowning Suicide

The lawsuit brought against the city of Alameda for not rescuing a suicidal man who drown himself in San Francisco Bay two years ago has been dismissed. Raymond Zack, 52, committed suicide by wading out into the frigid waters off of Crown Beach on Memorial Day, 2011.

Firefighters and police were unable to rescue him due to the lack of water rescue equipment and the fact that personnel had been ordered not to enter the water because their water rescue training had lapsed.

In a five page ruling issued yesterday, Judge George Hernandez Jr. concluded that Zack’s family failed to establish that firefighters and police officers had a legal duty to do more than they did.

Here are some of the more notable quotes from the judge in reaching his conclusion:

Liability may only be imposed on rescue personnel if “an officer voluntarily assumes a duty to provide a particular level of protection, and then fails to do so, or if an officer undertakes affirmative acts that increase the risk of harm to the plaintiff.”

Plaintiffs have not alleged any facts that show the officers responding to the 911 call at Crown Memorial State Beach on May 30, 2011 assumed any duty of care to Mr. Zack or undertook affirmative acts that increased the risk of harm to him.

[T]he Supreme Court … set forth seven factors for a court to consider in determining whether a duty of care is owed to a particular plaintiff, including (1) the foreseeability of harm to the injured party; (2) the degree of certainty that the injured party suffered harm; (3) the closeness of the connection between defendant’s conduct and the injury suffered; (4) the moral blame attached to defendant’s conduct; (5) the policy of preventing future harm; (6) the extent of the burden to defendant; and (7) the consequences to the community of imposing a duty. Balancing these factors, the court finds that Plaintiffs have failed to allege facts supporting a duty of care to decedent

Here is a copy of the ruling. Dismissal

Here is more on the story.

 

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Posted in Civil Suit, Duty to Act, EMS, Wrongful death, You Can't Make This Stuff Up

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2 comments Posted by on February 12, 2013

I’m Suing, You’re Suing, We’re All Suing In Utica

A new lawsuit has been filed in the aftermath of a fire in Utica, New York in 2009 that claimed the lives of four people. By my count, this is at least the sixth suit to come out of the blaze… and I freely admit I may have missed a few.

The fire at 102 James Street on September 20, 2009 killed Bruce Bush, 41; Douglas Crane, 24; Glenard Drake, 44; and Terry Singh, 28.

The first suit was filed by the landlord, Timothy Klotz, who alleged the fire department was negligent in fighting the fire, defamed him, and caused him to have a stroke and PTSD. Klotz is seeking $4.5 million in damages. In the second suit, Klotz  sued his insurance company.

The third suit was filed by the city of Utica against Klotz for the cost of demolishing his building after the fire, an estimated $130,000.

The fourth suit was filed by the families of three of the deceased victims against the city and Klotz in state court. The fifth suit was brought last September by the families of all four deceased victims who filed a federal civil rights suit against the city and Fire Chief Russell Brooks alleging a denial of due process (deliberate indifference).

The sixth and most recent suit was brought in state court by the last remaining victim’s family.  Here is more on the story.

 

I knew I should have taken the New York bar exam…. I wonder if Brad Pinsky has a spare office….

 

Footnote: Unfortunately I could not ascertain which of the families filed the latest suit… Apparently it was not “newsworthy” enough to be included in the news reports… Isn’t it amazing the details some reporters choose to leave out… For the record I spent 2 hours trying to track down that “minor detail” – if even the names of the three families who filed suit previously was listed somewhere – to no avail.

I did find two complaints for the complaint junkies out there:

Bush, et al v. City of Utica, et al Bush v City of Utica

Klotz v. City of Utica, et al Klotz v City of Utiica

Second footnote: the six cases listed above are not numbered in the order in which they were actually filed – they are listed in the order that I added them to my database. Sorry for any confusion. I have no way to determine the order they were filed in.

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Posted in Civil Suit, Constitutional Rights, Municipal Liability, Negligence, Wrongful death, You Can't Make This Stuff Up

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1 comment Posted by on February 11, 2013

Alameda Drowning Suit and the Legal Duty to Render Aid

The tragic death of Raymond Zack in Alameda, California on Memorial Day, 2011 is back in the news again as the family’s wrongful death lawsuit winds its way through the court system.

According to news reports – at issue is whether the city of Alameda and the firefighters who responded to the scene had a legal duty to render aid to Zack, or whether they had immunity.

While the news reports do not indicate whether the public duty doctrine is at issue, it would certainly appear so. The duty to render aid and the applicability of immunity protection are not mutually exclusive. Someone could have a legal duty to render aid AND have immunity from civil damages for negligence. It is not an either or situation. That leads me to wonder if perhaps the media has it wrong.

More likely what is being argued is the public duty doctrine – the legal theory that government cannot be held liable for negligence when it breaches a duty to a particular person unless the duty owed to that person is greater than the legal duty which government owes to all members of the public. Under the public duty doctrine, in order for someone like Zack or his heirs to prevail against a public entity such as the city of Alameda, they must show that the governmental entity was negligent and owed them a “special duty”.

A special duty can arise in a number of ways – but it usually requires a promise of help made by the governmental entity that is reasonably relied upon by the victim. It requires more than just a request for help and the fire department responding – to create a special duty. In one of the classic cases a woman called 911 for an ambulance for her husband, and was assured that a fire department ambulance was on the way. When it did not arrive as promised she called again and was again assured it was on the way. This went of for 4 calls and over 40 minutes before the ambulance arrived. The court concluded that the dispatcher’s assurances to the woman, along with his suggestions that she go out on the porch and listen for the siren when he knew a unit had yet to be dispatched created a special duty.

If indeed the public duty rule is applicable to the Zack case – a key point in the case will likely be the role that the fire and police departments played in preventing others from attempting a rescue. The family’s attorney makes that point in the following video clip. Can preventing others from attempting a rescue CREATE a special duty to act on the part of rescuers?

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No comments Posted by on February 9, 2013

AWOL Firefighter Cost $350k and 8 Years to Fire

It took eight years, a total of forty days of testimony before an arbitrator, and cost taxpayers $350,000, but the termination of a Windsor, Ontario firefighter for being chronically AWOL has finally been upheld.

It is the kind of story that gives firefighters everywhere a black eye… It is exactly the kind of epic tale that the public loves because it confirms their worst fears about government mismanagement….  how we as public servants are the root cause of the current economic crisis… why pensions and benefits ought to be reduced… why “get tough” candidates get elected.

Kim Elliott was reportedly good at his job, but he had a serious and long term problem showing up when he was supposed to. By all accounts I have read the department went way beyond what any private employer would have tolerated – and what any public employer should have tolerated.

By the time he was terminated in 2004 he had repeatedly been warned, cautioned, and progressively disciplined… what else could a reasonable employer have done for the guy? He needed to go, he deserved to go and the department pulled the trigger. So how did his termination and subsequent arbitration drag on for eight years and cost $350,000?

I would like to see an explanation for that myself.

The news media seems content to dump the problem at the feet of Kim Elliott and his union.  But a guy fighting for his livelihood and a union doing its due diligence does not add up to eight years and $350,000. That is a system failure that goes beyond one man and one union. Blaming the firefighter and blaming the union may make some folks feel like the real problem has been exposed, but not in my mind.

And now that the arbitration has ended… will the litigation begin? Perhaps that is just the American way.

More on the story.

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Posted in Disciplinary Action, Labor Law, Politics, Wrongful termination, You Can't Make This Stuff Up

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3 comments Posted by on February 8, 2013

Texas Chief and Wife Plead Guilty to Embezzlement

The former fire chief of a Texas volunteer fire department pled guilty to embezzling $20,000 from the department.  So did his wife.

Ernest Roland Chapman and his wife, Donna Kay Chapman, pled guilty this week to the charges in 42nd District Court. Chief Chapman was the fire chief of the Novice Volunteer Fire Department, and his wife served as secretary.

The department has since changed its name to the Rough Creek Volunteer Fire Department.

Police allege the couple stole roughly $30,000, but the exact amount appears to be in dispute. The plea deal includes an 8 year prison sentence for both defendants that is deferred pending repayment of $20,000. District Attorney Heath Hemphill reportedly told reporters that he would prefer to see the stolen proceeds repaid than see the Chapmans sit in jail.

More on the story.

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

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2 comments Posted by on February 6, 2013

NY Audit Discloses a Huge What???

A New York fire district is facing an unusual problem: what to do with a $5.2 million undesignated surplus uncovered in a state audit.

The headache (to the extent a surplus can be a headache) belongs to the Brentwood Fire District, on Long Island. The surplus was uncovered by the state of New York’s Office of State Comptroller, who cited the district for unsound budgeting practices.

The audit, issued in December, 2012, contains a list of recommendations for the district, including improvements in budget development, tighter controls over credit card expenditures, improvements in ethics monitoring, and better controls over  managing their LOSAP.

Michael Poveromo, chairman of the BFD’s Board of Fire Commissioners, was quoted by Newsday.com as saying “There was a reserve fund we had for [renovating] outlying firehouses. … They were wondering why we had so much money put aside.” He also said  “We’ve taken a lot of their recommendations seriously, and we’re continually working on their recommendations as of today,”

Here is the auditors report. brentwood

More on the story.

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Posted in General legal issues, Politics, Volunteers, You Can't Make This Stuff Up

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2 comments Posted by on February 5, 2013

Ohio FF Loses Monocular Vision ADA Case

An Ohio firefighter/paramedic who lost an eye in an off-duty fireworks accident, today lost a federal court lawsuit to get his job back.

Anthony Rorrer was injured in a bottle rocket incident of the 4th of July, 2008. Afterwards, he sought to return to work at the Stow Fire Department, but the department refused claiming Rorrer could not perform one of the essential functions of his position, namely driving emergency vehicles.

Rorrer filed suit in 2011 claiming the department violated the American’s with Disabilities Act by failing to provide him with a reasonable accommodation, namely: allowing other firefighters to drive. He also alleged a violation of the Ohio Civil Rights Act and unlawful retaliation.

The key issues in the case came down to whether driving was an essential function of being a firefighter in Stow, and whether granting Rorrer permission to not drive would be a reasonable accommodation. The court ruled in the city’s favor on both questions finding that the ability to drive is an essential function, and allowing a firefighter the right not to drive would constitute an undue burden on Stow and Rorrer’s co-workers.

In the court’s own words:

While Rorrer opines, without evidentiary support, that it is highly unlikely that the need for him to drive would arise, the Court concludes otherwise. The very nature of Rorrer’s occupation mandates that he be able to immediately respond to emergency situations. In fact, lives depend on the ability of him and his crew to respond quickly to life threatening situations. Those situations involve risk not only to members of the general public, but also direct risks to those Rorrer works with on a daily basis. To the Court, it is clear that Rorrer’s admitted inability to drive in an emergency situation would place an undue burden on Stow and ultimately enhance the risk of harm to Rorrer’s co-workers. Further, the function at issue is clearly a business necessity. With three-man crews working, Stow must be ensured that all three firefighters can drive under emergency circumstances.

The good news is that Rorrer continues to serve as a firefighter in another department in Ohio.

Here is a copy of the decision. Rorrer v Stow Decision

More on the story.

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Posted in ADA, Civil Suit, Discrimination, Municipal Liability, Occupational Safety & Health

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No comments Posted by on February 4, 2013

Detroit Firefighters Press City in Court

The headline says “Detroit fire union sues city for negligence”, but it’s not a new suit… nor is it a negligence suit. The suit was filed last summer claiming the city was failing to comply with a city charter requirement to provide “adequate” fire protection to all citizens.

The case is in the news because the union won its request to be able to depose city officials. As the saying goes, the wheels of justice grind slowly.

Philadelphia News, Weather and Sports from WTXF FOX 29

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Posted in Civil Suit, Negligence, Politics

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No comments Posted by on February 4, 2013

Sanity Finally Prevails in Chambersburg

Its been a long year for Greater Chambersburg Area Paid Fire Fighters IAFF Local 1813, but a hearing officer for the Pennsylvania Labor Relations Board has finally added some sanity to what had been a series of labor setbacks.

Stating “it is hard to reach any other conclusion”, hearing officer Thomas P. Leonard, found the Borough of Chambersburg committed an unfair labor practice by disciplining the union president and vice president for asking IAFF members in other fire departments to not volunteer in Chambersburg.

Apparently the legal principles Leonard relied upon were not as obvious to borough officials and even a Count of Common Pleas judge who concluded that union president Patrick R. Martin and vice president Scott McNew acted illegally in sending letters to other IAFF members. President Martin received a suspension and VP McNew was terminated.

The point of contention between the parties was whether the act of asking union members not to volunteer constitutes encouraging a “secondary boycott”, something that is clearly illegal under most labor relations laws. As a student of labor law… in fact as a college instructor who teaches classes on collective bargaining, I am struggling to understand how a “secondary boycott” would apply in this situation… if anything it is a primary boycott… but it is not really even a boycott per se – it is one union member engaging in concerted activities with another union member. Same union, different local. If anyone out there see’s it as a secondary boycott – then by all means help us out and post an explanation below. I cannot help but see the previous decisions in this case (prior to the Leonard decision) as part of a long line of anti-employee anti-labor decisions that seem all too common these days. If someone is anti-labor to begin with then it is easy for them to say sure… yeah… secondary boycott. I like it. Close enough!!!! But when you get into the details, its not really there on the facts.

As part of Leonard’s proposed order, which will become effective in 20 days absent a reversal by the full PLRB, the borough has been ordered to “cease and desist” from “interfering with, restraining or coercing employees in the exercise of the rights guaranteed in the PLRA” as well as “discriminat[ing] against employees in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.”

The borough has been ordered to rescind President Martin’s suspension and reimburse him for back pay. No word on whether VP McNew will be reinstated.

More on the story.

Here is an earlier posting on the case, before the secondary boycott argument became the prominent issue.

February 4, 2013 UPDATE: Here are the hearing officer’s decisions. The secondary boycott decision does help clear up the issue somewhat – and explains that basis for the conclusion it is not a secondary boycott.

123806398-Hearing-Examiner-Decision-Interference-Charge

123806426-Hearing-Examiner-Decision-Secondary-Boycott

 

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Posted in Disciplinary Action, Labor Law, Politics, Volunteers

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No comments Posted by on February 3, 2013