Skip to content


Archives for

See all posts in the network tagged with

Pennsylvania Fire Company and Driver Sued for Apparatus Accident

A volunteer firefighter and his fire company have been sued over a vehicle accident last summer that severely injured an 8 year old boy.

Timothy and Jennifer Kolodychak filed suit last week in Westmoreland County Common Pleas Court against Rostraver Township, Rostraver Central Volunteer Fire Department, and Assistant Chief Justin Shawley alleging negligence.

Eight-year-old Logan Kolodychak suffered traumatic brain and facial injuries hat required reconstructive surgery and left him permanently scarred. His mother Jennifer, who was driving at the time, was also injured in the crash. Logan’s 11 year old sister was also in the vehicle and is alleged to have been traumatized but was physically uninjured.

The accident occurred on July 4, 2012 as Chief Shawley was driving a ladder truck on a run. The firefighters on board stated their emergency lights and siren were activated. According to police reports, the ladder approached the intersection where the accident occurred cautiously due to a red traffic light. When traffic was stopped Chief Shawley proceeded slowly through the intersection and was halfway through when the Kolodychak’s vehicle collided with the ladder.

The Kolodychak’s suit claims that Chief Shawley was driving at an unsafe speed, failed to maintain proper lookout, and failed to properly control the vehicle. They also allege the ladder was not responding to a fire or emergency at the time, and failed to use audible warning devices.

Neither driver was cited by police for the accident.

More on the accident.

More on the suit.

Posted in Apparatus, Civil Suit, Municipal Liability, Negligence, Volunteers

Tagged , , , , , , ,

RI Supreme Court Issues Setback to North Kingstown Firefighters

The Rhode Island Supreme Court has dealt the firefighters in North Kingstown a serious setback in their battle with the town over an unprecedented increase in their hours from 42 to 56 per week.

The case has been in the news here on several occasions, beginning last year when the town unilaterally increased the hours that firefighters work each week from 42 hours to 56 hour per week.

For those not familiar with labor law 101, any unilateral change in “wages, hours, or other terms and conditions of employment” (unilateral meaning one side imposes the change without negotiating it) is illegal and an unfair labor practice. Changes to  mandatory subjects must be bargained – and wages and hours are two subjects that are about as mandatory as it gets.

The union challenged the move on a number of levels and not surprisingly has prevailed at each. Last December, Superior Court Judge Brian Stern “directed the town to “‘unring the bell … as to wages, hours, and other terms and conditions of employment [and to] go back to the state that existed pre-unilateral implementation.”

Facing a multi-million dollar bill to compensate the firefighters for all the extra hours they were forced to work, plus adding back an entire fourth shift that had been eliminated, the town appealed.

In a ruling last week the Rhode Island Supreme Court reversed Judge Stern on three grounds. First, the court concluded that Judge Stern’s order to “unring the bell” was – and I quote – “an unrequested mandatory injunction”.

The court did not elaborate on how it reached that conclusion the injunction was “unrequested” stating only in a footnote that “At the time the hearing justice issued his decision, the union had not yet filed an answer to the town’s amended complaint. This Court has consistently stated that ‘a party should not be granted relief that it did not request.’”

The court’s other two grounds for the reversal were that Superior Court lacks jurisdiction “to determine what, if any, agreement is in force between [management] and [a] union”, and that Judge Stern’s order was issued without requisite findings and notice to the town.

Did you ever find yourself in a school yard controlled by bullies, and it doesn’t matter what you do, the bullies are going to have their way?

Here is a copy of the ruling for anyone so inclined. Town of North Kingstown v IAFF Loacl 1651

The case has been returned back to Judge Stern for additional proceedings. The State Labor Board is also expected to rule on the town’s unilateral action.

Posted in Civil Suit, Labor Law, Politics

Tagged , ,

Thirteen Cleveland Firefighters Indicted in Subbing Scandal

Thirteen Cleveland firefighters have been indicted in the subbing scandal we first reported last year. Recall in January, 2012 a former federal prosecutor was named to investigate charges that members were paying other members to work their shifts. Then in March of 2012 firefighter Timothy Debarr was sentenced to 60 days in jail and fined $1,000 dollars for paying co-workers to substitute 4,336 hours for him, dating from January 1, 2009, through December 31, 2010.

Tagging on to Dave Statter’s extensive coverage of the latest Cleveland indictments.


 

Posted in Criminal Law, Disciplinary Action

Tagged , , , , ,

Fire Law Headlines in FDNY and Dallas

Its been a busy few days from the Fire Law perspective and I am trying to catch up with some of the major headlines from across the country.

The city of New York received a favorable ruling from the 2nd Circuit yesterday in the historic FDNY race discrimination lawsuit. The FDNY had been crucified for the past three years in Federal District Court by the trial judge, Nicholas Garaufis.

Judge Garaufis ruled that not only had the city committed unintentional discrimination (disparate impact… ie. statistical discrimination) in its selection process for FDNY, but that by continuing to use a selection process that showed a disparate impact over the course of decades the city committed intentional (disparate treatment) discrimination.

Based on the unintentional (disparate impact) discrimination, Judge Garaufis invalidated the use of tests that showed a disparate impact, and ordered the appointment of a Special Master to oversee the hiring process. Due to the intentional (disparate treatment) discrimination finding he ordered a more “robust” array of remedial actions, including racial preferences/hiring quotas, $128 million in damages to be paid to minority applicants who were not selected, and the creation of an oversight monitor for 10 years to ensure necessary changes were implemented.

The city did not appeal the disparate impact finding, but rather focused narrowly on Judge Garaufis’ disparate treatment finding. The city also alleged that the judge had lost his objectivity in the case.

The 2nd Circuit agreed with the city that the finding of intentional discrimination (disparate treatment) was improper, and sent that part of the case back for a trial on the merits. The court concluded Judge Garaufis had not lost his objectivity, but ruled he should not preside over the trial.

The court reversed all of Judge Garaufis’ remedies associated with the disparate treatment finding, although the court agreed the oversight monitor should remain in effect for five years.

Since the ruling both sides have been declaring victory. New York City Corporation Counsel Michael A. Cardozo released a statement saying: “We are extremely pleased that the Second Circuit recognized significant problems in the manner in which the District Court handled the case.”

An attorney for the plaintiffs, Dana Lossia, countered that “The court monitor will oversee the FDNY’s hiring practices until 2017. That type of order is only issued and affirmed if there is a true serious issue.”

Here is a copy of the ruling. US v City of New York

More on the story.

 

And briefly…. Dallas Fire-Rescue reached a settlement in the 2009 sexual harassment suit filed by Leanne Siri-Edwards. Siri-Edwards was the civilian executive who was brought in to help newly hire Fire Chief Eddie Burns manage the department.

The lawsuit claimed that “Pervasive, severe, outrageous and obscene acts of discrimination, hostility, disrespect and harassment by [Dallas Fire-Rescue] leaders have slowly dismantled [Siri-Edwards’] reputation and her spirit."

The settlement calls for Siri-Edwards to be paid $390,000.

More on the story.

For my homies… I will get to the North Kingstown ruling by weeks end.  I am still trying to digest the ruling… despite the sense of nausea I get reading it… I keep telling myself "we are a country of laws, not men"… but all too often we see judges who let their political ideology corrupt their reasoning… but I digress.

Posted in Civil Suit, Constitutional Rights, Discrimination, Municipal Liability, Politics, Sexual Harassment

Tagged , , , , ,

Facebook Post Prompts Discipline for Five DC Firefighters

Five DC firefighters are in hot water over some controversial comments they posted on Facebook.

The controversy began when a firefighter posted a photo of a DC police officer who had just issued the firefighter a traffic ticket. Along with the photo the firefighter included a comment to the effect "This is why we should be careful and take our time getting to incident scenes."

The comment was understood to refer to a March, 2013 incident where an injured DC motorcycle police officer had to wait 20 minutes for an ambulance. Following the initial post, four other firefighters added their thoughts.

Due to the inflammatory nature of the posts, Fire Chief Kenneth Ellerbe transferred the five members to desk jobs while the matter is investigated.

 

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

 

This will be an interesting case to follow as both the First Amendment and the right of unionized employees to engage in “concerted activities” in social media, are implicated. We will have to await more detail to be able to fully analyze both aspects.

The following is taken from the NLRB’s August 18, 2011 memo on social media, outlining the approach it applies when looking at whether employee speech in social media is protected under either of two tests it applies in such cases: Atlantic Steel and Jefferson Standard. The case involved a car salesman who posted photos and comments about his dealership that his employer took offense to.

Although the employee posted the photographs on Facebook and wrote the comments himself, we concluded that this type of activity was clearly concerted. We found that he was vocalizing the sentiments of his coworkers and continuing the course of concerted activity that began when [coworkers] raised their concerns at the staff meeting. Further, we concluded that this concerted activity clearly was related to the employees’ terms and conditions of employment. …

Atlantic Steel is generally applied to an employee who has made public outbursts against a supervisor, while Jefferson Standard is usually applied where an employee has made allegedly disparaging comments about an employer or its product in the context of appeals to outside or third parties.

Applying Atlantic Steel, we found that the employee’s Facebook postings … were not so opprobrious as to lose the Act’s protection. The activity concerned a subject matter protected under Section 7. Further, although the activity was not provoked by any unfair labor practice committed by the Employer, the nature of the outburst was much less offensive than other behavior found protected by the Board. …

Under Jefferson Standard, the inquiry is whether the communication is related to an ongoing labor dispute and whether it is not so disloyal, reckless, or maliciously untrue as to lose the Act’s protection. Here, the employee’s postings were neither disparaging of the Employer’s product nor disloyal. The postings merely expressed frustration with the Employer’s choice of food at the sales event. They did not refer to the quality of the cars or the performance of the dealership and did not criticize the Employer’s management. We found it irrelevant that the postings did not clearly indicate that they were related to a labor dispute given that they were neither disparaging nor disloyal.

UPDATE: May 15, 2013

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

Tagged , , , , ,

Former Alabama Chief Charged with Theft

The former fire chief from Bangor, Alabama was arrested today and charged with two counts of first degree theft arising out of his misuse of department funds while in office.

Michael Claude Watson, 45, was the fire chief of the Bangor Fire Department until last year. He allegedly used fire department funds for personal expenses such as cell phones and plans for family members, and personal electronic devices. Allegedly approximately $3,000 worth of cellphones and plans, and $5,000 worth of electronics were involved.

Watson is being held at the Blount County Correctional Facility in lieu of $90,000 bond.

More on the story.

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

Tagged , , ,

Bizarre Tucson Sexual Harassment Claim Settled for $125k

A bizarre male-on-male sexual harassment claim made by a paramedic against a captain in the Tucson Fire Department has resulted in a $125,000 settlement.

Paramedic firefighter Cody Jenkins claims that he was physically assaulted and harassed three times by Captain Roger Tamietti on November 9, 2012 while working at Station 7.  The three incidents were:

  • At about 10:00am when Jenkins returned from a run, Tamietti tackled him knocking him onto a couch where he "forcibly humped and ground" against Jenkins while holding him on a couch.
  • Jenkins claims after the first incident, he felt dirty and violated so he took a shower.  He claims that while walking back to his room wrapped in a towel, Tamietti swatted him on his buttocks.
  • The third incident allegedly occurred when Jenkins was working on the computer in Captain Tamietti's office. Jenkins said Tamietti came up behind him and rubbed his groin against the back of Jenkins’ head. When Jenkins pulled his head away Tamietti allegedly pulled it back against his groin.

Jenkins filed a complaint against Captain Tamietti and an investigation was initiated. Tamietti claimed he was merely engaging in “horseplay”, denied committing any lewd acts, and said he was just trying to make Jenkins feel like one of the guys.

According to the Arizona Daily Star, the investigation concluded that:

  • “Homophobic and racial slurs [are] used frequently by TFD employees.
  • “Tamietti once jumped out of the shower naked and surprised a firefighter. He called the firefighter a "meat-gazer" for looking at him.
  • “Tamietti exposed himself to another firefighter for no apparent reason.
  • “Tamietti and two other firefighters did a gyrating dance in their underwear two to three inches from a firefighter who was making a salad dressing for dinner.
  • “Butt-slapping was common.”

Tamietti was demoted to firefighter for acting “inappropriately”.  He is appealing the demotion claiming the penalty is “excessive” and based on exaggerations by Jenkins. He has also been charged criminally with three misdemeanors alleging assault and harassment.

Last February, Jenkins filed a $500,000 civil claim with the city, alleging he "sustained serious and ongoing psychological damages and injuries" and "sustained a loss of earnings and is psychologically unable to go back to work due to his fear of further retaliation."

The claim also alleges Jenkins was bullied and harassed several years ago at Station 7 while on probation. Jenkins claims he was duct-taped to a pole, intentionally tripped by other firemen, and subjected to verbal abuse.

While normally a civil claim is merely a procedural formality necessary before someone can file a lawsuit against a governmental entity, the Tucson city council took up the matter and agreed to compensate Jenkins $125,000

The Arizona Daily Star quoted Councilman Steve Kozachik as saying "These guys need to act like professionals and not adolescents. … It's not summer camp. That childish behavior is costing taxpayers $125,000."

More on the story.

 

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

Tagged , , , , , , , , , ,

Pennsylvania Treasurer Accused of Stealing $129k from Fire Company

The treasurer of the Hershey Volunteer Fire Department has been charged with stealing $129,864 from the fire company over a little more than a year’s time.

Thaddeus Lee Austin, 30 was arraigned today on charges of theft by deception and theft by failure to make required deposits. He remains in prison in lieu of $60,000 bail.

The fire company president noticed the problem in March and police were able to figure out what happened through a forensic audit. The audit revealed that Austin wrote fire department checks payable to himself and opened a debit card account from which he paid personal debts.

Austin was elected treasurer in January, 2012, meaning that he stole the money in just 14 months time. Fire Company President David Stough, who first discovered the financial irregularities, told the media:

"We would like to ensure the public that we have taken steps to secure our finances, and have implemented, and will continue to implement, more stringent financial controls. In the past, we have been a close-knit organization and extended trust to our officers as our brothers.

"This incident has brought the department together in the desire to continue our primary mission of serving our community, while at the same time instituting these tighter controls. We are fully insured for this loss, and will be working with our carrier to recover the missing sums in the near-term. We thank the community for their continued support or our operations and fundraising efforts."

More on the story.

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

Tagged , , ,

Former Velarde Acting Chief Indicted on Weapons Charges

The former acting fire chief from Velarde, New Mexico has been indicted on seven felony counts associated with his brandishing a firearm at a fire company meeting last August.

Darwin Yazzie, 28, has been charged with five felony counts of aggravated assault with a deadly weapon and two felony counts of child abuse. The child abuse charges appear to relate to the fact that children were present when the behavior took place.

Yazzie faces the possibility of 13 years in prison.

More on the story. Note: the news outlets inaccurately state the incident occurred in August 2011… it was last August, 2012.

BTW – There are somewhere around 32,000 fire departments of various sizes in the United States. Fire Law Blog regularly features cases from large departments like FDNY, DCFD, or LAFD, which is to be expected. However, this headline represents the SEVENTH time that the Velarde Fire Department has been featured in a law related story. Here are the listings.

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

Tagged , ,

Jury Awards Two Camden Firefighters $596k for Discrimination

Two Hispanic firefighters from Camden have been awarded $596,000 by a New Jersey jury for discrimination.

Firefighters Andres Nieves, 48, and Samuel Munoz, 34, claim they were subjected to a hostile work environment and they were unfairly passed over for promotion to captain in 2009 because they are Hispanic.

Back in 2009 Nieves and Munoz were next up on the promotion list when it expired. There were vacancies at the time but the promotions were not made until a new list was established.

Among the other allegations according to Philly.com, Munoz claims at fires he was unfairly required to spend too much time on the nozzle without a break. [Did I really say that with a straight face…]

Last Thursday, a state court jury awarded Nieves $390,000 in damages and Munoz's $206,000. The awards were intended to compensate the firefighters for lost wages, compensation for retaliation, and damages for having to work in a hostile environment.

More on the story.

 

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

Tagged , , , , ,

Texas Firefighter Sues For Comp Disability

A Texas firefighter who was terminated while recuperating from a back injury has filed suit seeking $1 million in damages.

University Park Fire Department Paramedic Brad Tucker, 31, was injured on October 20, 2011 while lifting a patient. He had been on workers compensation recuperating until February 2012 when the City of University Park stopped both his compensation and medical coverage.

According to the lawsuit, the city acted “unilaterally and without any legitimate basis”. The city is self-insured for comp purposes.

Tucker retained an attorney who appealed the decision to the Texas Board of Insurance, Workers Compensation Division.  The Workers Comp Division ordered the city to reinstate both Tucker’s compensation and health benefits.

Thereafter Tucker was ordered to report to fire department headquarters, where he was told he had to either report for full duty by November 2, 2012, or face termination. Unable to return to full duty he was terminated on November 2, 2012.

Tucker promptly filed a claim of disability discrimination with the EOOC and the Texas Workforce Commission, who issued a right to sue letter in April. His lawsuit was filed last week alleging disability discrimination under federal and state law, wrongful termination, and retaliation.

Here is a copy of the complaint. Brad-Tucker-v-University-Park


 

Posted in ADA, Civil Suit, Discrimination, EMS, Municipal Liability, Workers Compensation

Tagged , , ,

Chicago Settles Sex Discrimination Suit Over Abilities Test

 

A settlement has been announced in the 2011 gender discrimination case involving the Chicago Fire Department.

The suit, Vasich v. City of Chicago, alleged that the department’s physical abilities test unlawfully discriminated against women because it had a disparate impact on women candidates and was not sufficiently job related.

The lead plaintiff, Samantha Vasich, claims she rigorously prepared for the test, including hiring a personal trainer to assist her, to no avail. The class action suit was filed in federal court.

Attorney Marni Willenson, who represents the plaintiffs, said that under the settlement 138 women who previously failed the physical abilities test will be allowed to reapply or receive a portion of a $2 million payment.

As part of the settlement the city has agreed to adopt the Candidate Physical Ability Test (CPAT), developed by the IAFF.

Despite the fact that the settlement still must be approved by the city council and the judge, the women have been informed that may reapply beginning Monday, May 6, 2013

It is unclear from the news reports whether this settlement will resolve the 2012 suit Godfrey vs. City of Chicago. That suit was brought by twenty African-American female firefighters who where granted a preference under the Lewis v. City of Chicago (race discrimination) settlement, but failed the physical abilities test. All twenty Godfrey plaintiffs are plaintiffs in the Vasich case.

More on the Vasich case.

Posted in Civil Suit, Constitutional Rights, Discrimination, Municipal Liability, Negligence, Politics

Tagged , , , , , , , , ,

Oklahoma Firefighter Arrested for Facebook Threats to Cop

 

A firefighter from Ada, Oklahoma has been arrested for allegedly directing threats on Facebook at a police officer who arrested his wife.

Vincent Jason Smeltz, 42, was arrested Tuesday on charges that he used a computer system to inflict fear of injury or death to Police Officer Brad Rhoads. Smeltz was released on $5,000 bond.

On April 24, 2013, Officer Rhoads arrested Laura Smeltz for public intoxication.  FF Smeltz allegedly went to the scene of the arrest and attempted to intervene. Officer Rhoads asked him to leave the scene 21 times. FF Smeltz then followed Officer Rhoads to the Pontotoc County Justice Center where he asked Sergeant Jason Potter to intervene.

Between the arrest on April 24 and April 28, FF Smeltz alleged made a number of posts directed at Officer Rhoads and Sergeant Potter. Among the posts listed in the media were:

  • “I want brad Rhoads head. I'm just getting started. I want your job Rhoads." [Sic]
  • "Fire brad Rhoads." [Sic]
  • "ada pd do not park across the street from my house for your speed trap. I don't want to be associated with your corruption. Stay away or I'll push you down the street."

According to the police affidavit, Officer Rhoads claims that the posts placed him in fear of physical harm or death.

Ada Fire Chief Marion Harris was quoted as saying "The firefighter in question has been placed on dispatch duty assignment and that's just a precaution until we can figure out what's going on and determine the allegations."

 

 

 

Posted in Criminal Law, cyber-casualty, Disciplinary Action, Police-Fire, Social Media, You Can't Make This Stuff Up

Tagged , , , , ,

Court Upholds $3 million Cut From New Jersey Firefighter’s Verdict

A New Jersey firefighter who was awarded $3.5 million by a jury last year for a whistleblower violation will have to settle for $500,000, according to a three judge panel from the Superior Court Appellate Division.

Ridgewood firefighter Kevin Reilly claims he was passed over for promotion to lieutenant because he reported that his superiors violated safety requirements. In 2012 a superior court jury agreed he was retaliated against, and awarded him $3.5 million in damages.

That verdict was subsequently reduced to $500,000 by Judge Menelaos Toskos who characterized the award as “shockingly high.”

Reilly appealed the reduction and yesterday the Appellate Division affirmed Judge Toskos’s decision calling it “comprehensive and thoughtful.”

More on the story.

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

Tagged , , ,

Settlements Announced in Virginia Double LODD Accident Case

A civil suit arising out of a double LODD apparatus accident in 2010 in Rocky Mount, Virginia, is one step closer to being resolved as two of the three parties have resolved their claims.

The accident occurred on July 26, 2010 when an engine driven by Fire Chief Posey W. Dillon, of the Rocky Mount Fire Department collided in an intersection with a vehicle driven by Teri Anne Valentine. The apparatus was responding on mutual aid to a reported structure fire in a neighboring community.

Chief Dillon and Firefighter William D. Altice died in the accident. Neither were wearing seatbelts and both were ejected. A Virginia State Police investigation concluded that Ms. Valentine had the green light at the time of the accident.

Last year FF Altice’s estate sued Ms. Valentine and Chief Dillion’s estate for $2 million alleging both were grossly negligent in driving their respective vehicles. Chief Dillon’s estate and Ms. Valentine filed cross-claims against each other, each alleging the other was responsible..

The settlement announced today involves the cross claims between Chief Dillon’s estate and Ms. Valentine. The terms of the settlement have not been released.

FF Altice’s suit remains on schedule to be tried in September, 2013.

More on the story.

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

Tagged , ,

State OSHA Citations Resurface Against Buffalo Fire

State OSHA citations issued against the Buffalo Fire Department six months ago have resurfaced as collective bargaining heats up between the city and the firefighters’ union.

The citations include two serious violations:

  • emergency escape and self-rescue components not being inspected monthly
  • lack of annual medical exams for hazmat techs

According to WIBV.com, the city has been accruing fines of up to $200 per day for the last six months for these violations. The citations were issued by the New York Department of Labor, Division of Safety & Health.

Firefighter union reveals violations

Posted in Labor Law, Occupational Safety & Health, Politics

Tagged , , , , ,

Captain Facing Charges for Exposing Himself to Coworker

A volunteer fire captain from Rhode Island is facing criminal charges for allegedly exposing himself to a female firefighter.

Captain Adam Lee of the Pascoag Fire District was arraigned last week. He was released on personal recognizance.

The incident allegedly occurred on March 27, 2013 at Captain Lee’s apartment. According to news reports the female firefighters was with her fiancée, also a firefighter, when the exposure occurred.

The Pascoag Fire District and Captain Lee are already facing a sexual harassment suit by another female firefighter.

ABC6 – Providence, RI and New Bedford, MA News, Weather
 

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

Tagged , ,

First Amendment, Fire Scene Photos and Road Closures

 

Today’s burning question: I live in a rural area where it is common practice at vehicle accidents and fire scenes for the road leading to the scene to be shut down by fire police (members of the fire department who are peace officers). Because this is a rural area the road may be shut down a mile or more away from the incident so that traffic may be diverted onto an alternative routes.

Do fire police (or anyone for that matter) have the authority to stop someone from passing them for the purpose of photographing the incident in cases like this (they do not let the public through typically)? Would this be considered a legitimate exclusionary zone, considering the distance from the incident or would it violate the photographer’s First Amendment Rights?

Answer: Great question in light of our recent First Amendment discussions.

If the road is closed and traffic is diverted a mile from the scene, but local traffic is allowed to proceed past the fire police, then it would probably violate the photographer’s First Amendment Rights to exclude him/her from being allowed to proceed closer to the scene.

If the road is closed to ALL traffic (even local traffic) due to safety concerns – or even due to operational work zone concerns such as congestion, hose lines, tanker shuttle operations, etc., then photographers could be prevented from proceeding by vehicle. The fire police would not be able to stop them from parking outside the traffic exclusion zone and proceeding on foot, unless there is a safety issue or work zone concern.

Where a department could get themselves in trouble is if they use safety or the work zone exception as a pretext to exclude photographers, reporters, or even members of the public from covering a newsworthy event.  The First Amendment’s protections to extends to everyone, not just photographers or the media.

Posted in Burning Question, Constitutional Rights, First Amendment, Volunteers

Tagged , , , , , , ,

Arbitrator Overturns Demotion in Miami Dade Facebook Rant Case

 

Miami Dade’s Brian Beckmann is once again a captain, courtesy of a long awaited arbitrators ruling handed down today.

Just about a year ago, the case made news when Captain Beckmann posted some remarks about the Trayvon Martin shooting case that many took to be racist. The remarks themselves did not reference race but in the context of the thread were understood by some to be offensive. For the record those remarks were:

"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."

While the remarks were initially shared with a limited number of his Facebook friends, an “offended” co-worker of Captain Beckmann’s forwarded the post to others causing the statement to go viral.

Riding a wave of public anger over the posting, Miami Dade Mayor Carlos Gimenez directed Fire Chief William W. Bryson to terminate Captain Beckmann.  Chief Bryson felt a 14 day suspension was more in order but relented to the demotion when he realized his own job was on the line.

The arbitrator’s ruling issued today reversed the demotion and imposed a 14 day suspension concluding that the Mayor exceeded his authority in dictating the punishment which by law was delegated to the Fire Chief.

The Mayor made the decision to demote Mr. Beckmann, and Chief Bryson carried out the Mayor’s decision by signing the demotion letter. Chief Bryson did so only because he believed that he had no discretion to do otherwise. …

The Arbitrator deems it self-evident that the [city’s personnel] directives – that [dictate that] the demotion decision must be made by a Department Director – refers to who must make the decision and not to who must sign the paperwork. The latter without the former would be an empty clerical gesture, unworthy of memorialization in the CBA. …

Under CBA Article 4.8, Chief Bryson alone was to have made the decision to demote…

[T]he Arbitrator finds that Chief Bryson believed that if he did not fire or demote Captain Beckmann, he would be discharged. That constraint upon Chief Bryson’s independent judgment constituted a violation of the parties’ CBA contractual intent….

In reinstating Captain Beckmann the arbitrator also awarded him back pay for the nearly eleven months he was paid at firefighter’s rate.

Here is a copy of the ruling: Arbitrator's Decision – Beckmann Facebook Posting Demotion

I have to admit, I am somewhat disappointed that the case focused solely on the role of the mayor in overreaching the fire chief, and not on what is a more important issue: the First Amendment rights of an off duty firefighter to discuss a non-work related matter of public concern as a private citizen.

Perhaps that will have to await a civil suit.

video platformvideo managementvideo solutionsvideo player

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

Tagged , , , ,

Ohio Fire Chief Wins Court Battle

 

Fire Chief David Fulmer has won a major battle with the West Licking Joint Fire District, who sought to terminate him last fall. Chief Fulmer was terminated allegedly because he violated the district’s Internet-use policy.

Common Pleas Judge Thomas Marcelain ruled last week that the district’s Board of Trustees “offered no substantial evidence” that Chief Fulmer actually violated the policy.

The alleged violation involved computer files that were placed on his computer that pertained to Chief Fulmer’s prior position as chief of the Miami Township Fire Department. According to Chief Fulmer the files included policies that may have some applicability to West Licking Joint and correspondence with professional associations.

Hopefully Chief Fulmer’s esteemed legal counsel, Chip Comstock, will be able to provide us with a copy of the ruling over the next day or so. Perhaps he will also be so kind as to explain the origins of the name West Licking Joint.

The West Licking Joint Fire District Board of Trustees are vowing an appeal. More on the story.

Incidentally, Chip, Brad Pinsky, John Murphy and I will be presenting at FDIC see week. We hope to see you in Indy!!!!

 

UPDATE FROM INDIANAPOLIS: Here is the decision, courtesy of Chip: Judgment Entry

We are still waiting impatiently for the West Licking Joint explanation….

Posted in Civil Suit, Disciplinary Action, Wrongful termination

Tagged , , , ,

Illinois Sexual Harassment Suit Removed to Federal Court

 

An Illinois sexual harassment case originally filed in state court, is now headed to federal court along with some nasty allegations.

Lieutenant Terri Simone Lorenz of the Orland Fire Protection District claims that her sexual harassment problems began shortly after Fire Chief Bryant Krizik and Deputy Chief Joe Madden were placed on administrative leave in May, 2011. She alleges that the newly appointed acting fire chief, Raymond Kay, and Battalion Chief Nicholas Cinquepalmi embarked on a malicious campaign to drive her from the department.

Quoting from the complaint:

Defendants subjected Simone Lorenz to a long standing pattern of discrimination based on her sex (female), retaliation because she complained, and created and perpetuated a hostile work environment, including but not limited to the following:

a.Maintaining pornographic, sexually graphic, and other inappropriate material in the women’s bathroom and in other places in the fire house;

b.Making derogatory comments about women, including about Simone Lorenz, other women firefighters, and other women generally;

c.Singling Simone Lorenz out on drills;

d.Shunning and ostracizing Simone Lorenz and encouraging other firefighters to do the same, which for a firefighter can be a safety issue on fire calls, which are inherently dangerous;

e.Spreading malicious and sexually based rumors about Simone Lorenz;

f.Subjecting Simone Lorenz to unwarranted scrutiny, criticism, and false allegations;

g.Subjecting Simone Lorenz to a notice of interrogation based on false and malicious accusations and without cause, when other employees were not subject to interrogation for similar or more egregious allegations against them;

h.Subjecting Simone Lorenz to unwarranted disciplinary action, and discipline for which male employees were not subjected to for far more egregious allegations made against the male employees; and

i.Denying Simone Lorenz assignments and special projects that she had previously done.

The six-count, 46 page complaint includes some 199 paragraphs, alleging gender discrimination under state and federal law, hostile work environment, retaliation under the Illinois Human Rights Act, discrimination on the basis of union affiliation, and Constitutional violations (42 USC 1983) of the Equal Protection Clause and the First Amendment.

Included in the specifics of the claims:

  • Chief Kay initiated an unwarranted investigation into whether Simone Lorenz cheated on her promotional exam even though she was promoted in 2009, two years before he became the acting chief. The investigation did not result in charges and Simone Lorenz insists the allegations were fabricated.
  • Simone Lorenz received a one day suspension for “giving the finger” to another lieutenant while both were off duty at a union function. The charge was later reversed by an arbitrator who heard testimony that included:
  • [Chief Kay] admitted that he had never recommended or issued discipline for that kind of conduct – except for against Simone Lorenz.
  • Defendant [BC] Cinquepalmi gave “the finger” to Simone Lorenz’s entire crew during roll call, and was never disciplined
  • Defendant [BC] Cinquepalmi instructed [the other lieutenant] to document the incident, so that Defendants could then charge Simone Lorenz with misconduct and discipline, demote her, or fire her from the District
  • Management  admitted that  giving “the finger” to one another commonly occurs “on duty” in the firehouse
  • Simone Lorenz was suspended for 1 day for sending an email to “all users” (subsequently reversed by an arbitrator after it was revealed there was no rule that prohibited it and that others who did the same thing were not disciplined).
  • Repeated requests for help from human resources went largely ignored.

The case was originally filed in Cook County Circuit Court, and was removed to federal court at the request of the Fire Protection District.

Here is a copy of the complaint. Complaint

While there are a number of troubling aspects to the allegations in the compliant, there is one issue that stands out to me that is worth discussing from a leadership perspective: Lt. Simone Lorenz made repeated allegations that male subordinates were rude and disrespectful towards her, and that Chief Kay and Cinquepalmi did nothing to address the insubordination when told.

Who bears the responsibility for this, Lt. Simone Lorenz or the chiefs? Is it enough for a lieutenant in this situation to claim that “they” know about it?

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

Tagged , ,

New Jersey Borough Settles Siren Suit

 

A New Jersey borough has settled a contentious lawsuit over the location of two new fire sirens.

Gerard Misk, an attorney and an Englewood Cliffs school board member, filed the suit against the borough of Englewood Cliffs last December seeking to block the installation of the sirens. The sirens are used to notify volunteer firefighters of an alarm.

Misk claimed the sirens violate the state’s Noise Control Law, and that the awarding of the contract to install the sirens was improper.  His home is adjacent to the location where one of the sirens was planned.

The settlement calls for the relocation of the sirens and for the borough to pay Misk’s legal fees, totaling $9,819. According to Fire Chief George Drimones, the department still needs the sirens due to concerns over the reliability of their pagers.

More on the story.

Posted in Civil Suit, General legal issues, Politics, Volunteers

Tagged , ,

Ohio YCMTSU

A fire lieutenant with the Springfield Township, Ohio Fire Department has been terminated for a number of infractions, including showing a female colleague a lewd photo of his penis, and having pornography on his fire department computer.

Lt. Jason Bowman was terminated on April 16, 2013 for conduct unbecoming, dereliction of duty, and sexual harassment. Besides showing the female firefighter the photo (which occurred while on duty), he also allegedly sent her a sexually explicit text while off duty, and had pornographic videos on his fire department computer.

The Blade reported that Lt. Bowman had a troubled disciplinary record, including past discipline for:

  • failing to complete required equipment inspections,
  • failing to complete reports on time,
  • open arguments with officers about firefighting tactics,
  • failing to show for a scheduled shift,
  • tardiness,
  • sharing of his concerns about disciplinary decisions with subordinates, and
  • aggressive driving

More on the story.

Posted in Disciplinary Action, Sexual Harassment, Sexual misconduct, You Can't Make This Stuff Up

Tagged , , ,

Cases in the Fire Law News

I am not sure what is up with our blog platform, but I am truly sorry for the interruptions you may be experiencing. It has been a few days now and things are still not right. In the past we have been attacked by cyber-pests from places like Russia and China so perhaps that continues to be the problem.

At any rate, there are a few stories in the fire law news today. In New York, career firefighters in Garden City have filed suit alleging that the layoff of six firefighters has posed a safety threat to the remaining personnel. More on the story.

In New Hyde Park, New York  a citizen blasted the New Hyde Park Fire Department for “wasting” $11,500 on an “unwarranted” disciplinary hearing of two members. The case involved a commissioner, Michael Dolan Sr., who received a donation of smoke detectors, and claims he took a large number of them to his home for safekeeping. His son. Michael Dolan, Jr., assisting him in moving the detectors.

When asked about the detectors Dolan returned them, but Fire Commissioners Richard Stein brought the matter to the police. While the police declined to press charges, internal charges were brought.  Here’s more on that story.

And in Florida a volunteer fire department has closed its doors following unsuccessful negotiations with the county. The Keystone Heights Volunteer Fire Department, organized in 1925, ceased operations on April 15, 2013. More on the story.

Posted in Civil Suit, Disciplinary Action, Labor Law, Municipal Liability, Politics, Staffing, Volunteers

Tagged , ,

Jacksonville Fire Facing Wrongful Death Suit

The Jacksonville, Florida Fire and Rescue Department is facing a wrongful death lawsuit over the death of a 15 year old baseball player.

On May 15, 2010 Andrew Cohn was playing at Dinsmore Park when he collided with a runner at first base. The collision is believed to have caused an irregular heart rhythm leading to cardiac arrest.

His family claims that Jacksonville Fire and Rescue was negligent in their response. Crews were initially delayed due to a train blocking their route, and failed to promptly notify dispatch. Crews then allegedly wasted vital time due to a locked gate and inexplicably standing in the outfield before attending to Andrew.

According to Andrew’s father, Harold Cohn, "The crowd was just shrill, yelling at them to jump the fence, go around, hurry. There were two or three occasions I look up in the outfield and saw two people standing there with medical bags just standing there looking and peering out here."

Harold also claims the crews did not bring a defibrillator with them, and then lied on a report about using one. Since the accident, the Cohns have been very active is fundraising to support AED purchases for schools and recreational areas. The have told reporters that any damages they receive will go toward purchasing more AEDs.

video platformvideo managementvideo solutionsvideo player

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

Tagged , , , ,