A female firefighter and her husband have filed a $7 million suit against the City of Utica, two city attorneys, and a firefighter over what they claim was an attempted rape in a fire station.

The sordid details were set forth in the complaint filed in federal court last month by Julianne and Christopher Burns. The story did get some news coverage in early December, but I only got a copy of the complaint today.

The Burns allege that the city failed to properly investigate their allegations against FF Michael Knaff, and what’s more, that a city attorney, Armond Festine, played a major role in skewing the investigation.

Here are the key allegations taken from the 18 page complaint:

• While working the 24-hour shift in the spring of 2010, Plaintiff Burns was awakened by defendant Knapp, who worked the same shift operating an ambulance out of a different station. 
• Plaintiff Burns awoke to hear Defendant Knapp calling her name. Knapp exposed his erect penis to plaintiff and urged her to have a sexual encounter with him. When Plaintiff expressed her shock and rejection, Knapp put his hand over her mouth, pulled the covers off plaintiff, pulled down her sweat pants and attempted to climb on top of her. Burns screamed at him. Plaintiff Burns managed to fight him off and Knapp left.
• At the time of the assault, the key card system at Station 3, where the assault occurred, was not functioning properly, making it impossible to ascertain that Knapp gained entry. In addition, at the time of the assault, Utica Fire Department did not have GPS systems installed in their ambulances, which would have made it possible to trace Knapp’s whereabouts on the night in question.
• Plaintiff Burns, embarrassed and fearing that she would be ostracized by her fellow firefighters, did not immediately report the assault. The following morning her partner, Ryan Marchese, noticed that Plaintiff Burns was acting differently and asked her what was the matter. She did not tell him about the assault at that time, but finally broke down and, during their next shift together, told her partner what had happened. He insisted that she needed to confront Knapp about the incident. At his urging she sent Knapp a series of text messages referencing the incident. At no time did Knapp ever deny that the incident had taken place; in fact his messages displayed his guilt. 
• Shortly after the incident Plaintiff began experiencing symptoms of what has since been diagnosed as Post-Traumatic Stress Disorder, including becoming constantly fearful and withdrawn and suffering from nightmares and insomnia.
• The symptoms worsened throughout the summer and by late August the symptoms were severe enough to be noticed by her husband. When her husband persisted in inquiring what was bothering her, she finally told him what had happed with defendant Knapp. With her husband’s assistance she recorded a telephone conversation with Knapp wherein she explicitly described the actions she was accusing him of. Again, no denial from Knapp was forthcoming. In fact, Knapp makes incriminating admissions on the tape.
• Her husband contacted the Chief of the Fire Department, Russell Brooks and provided Chief Brooks with a copy of the tape. Brooks was sympathetic and promised a full investigation. At all times Brooks’s had two main concerns, Julianne Burns’s health and well-being and the possibility of disciplinary action against Knapp.
• On September 8, 2010. plaintiff Burns filed a formal, written complaint. Chief Brooks contacted attorney Mary Roach to advise him on how to handle the matter. Upon information and belief Chief Brooks, Public Safety Commission Daniel Labella and then-mayor David Roefaro supported hiring attorney Roach to handle the matter. It has always been custom and policy for the Fire Chief to oversee any such investigation, and that was the policy Chief Brooks attempted to follow in the instant case.
• After Attorney Roach recommended that plaintiff Burns receive any support and help she needed to get through the crisis, defendant Fatata made the unilateral decision not to hire attorney Roach and to hire attorney Andrew LaLonde instead, since Fatata and Festine both acknowledged a conflict of interest on the part of Festine that would make it improper for him to be involved in the investigation in any way. Fatata so informed Chief Brooks, whose concern was in conducting an investigation into defendant Knapp’s conduct. By the Corporation Counsel’s office, in particular attorney Armond Festine, taking over the investigation instead of allowing the Fire Chief to conduct the investigation, the city deviated from custom and policy for the sole purpose of discriminating against Plaintiff Julianne Burns in retaliation for her claim of sexual harassment by firefighter Knapp at the workplace.
• Plaintiff Burns received counseling from Dr. Julia Grant, PhD, who diagnosed her as suffering from chronic Post Traumatic Stress Disorder. Although Chief Brooks authorized payment for counseling (a determination that was normally his to make in such situations) after several months Defendant Festine directed that the city no longer pay for those services before the Independent Medical Examination report by Dr. Farago. It subsequently was discovered that, at Festine’s direction, the city had refused to pay Dr. Grant from the beginning of Burns’s treatment, this despite the fact that the city later paid Dr. Lawrence Farago in excess of $8,000.00 to disprove Plaintiff Burns’s claim.
• After Dr. Grant diagnosed plaintiff as suffering from PTSD, on October 12, 2010, Plaintiff Burns filed an application for disability benefits pursuant to General Municipal Law §207-a, which provides benefits for firefighters injured in the course of their employment.
• The investigation of Julianne Burns’s sexual harassment claim against Knapp that had been promised never ensued. Instead, defendant Festine, attempting to shield the City from any potential civil liability, and because of an admitted animus against Burns’s husband, usurped Chief Brooks’s authority and took over all aspects of the investigation, despite an uncontroverted conflict of interest for the sole purpose of retaliating against defendant Julianne Burns for her sexual harassment claim.
• The general practice within the fire department is for the Chief to direct an investigation into any conduct which might lead to discipline. The Corporation Counsel’s Office only gets involved at the request of the chief, a request which was never made in this case. Notwithstanding the City’s general practice, Chief Brooks was immediately and without explanation removed from the investigation, which was then taken over by defendant Festine, who had had a series of disputes with Burns’s husband Chris when he was a member of the City of Utica Police Department.
• Plaintiff’s then-attorney Mimi Satter specifically complained in writing about the conflict of interest, and such concerns were voiced by Plaintiff Chris Burns as well. Plaintiff Burns was informed by both Defendant Fatata and Public Safety Commissioner LaBella that they acknowledged the conflict and that defendant Festine would not be involved in the proceedings. Despite this assurance, Festine handled every phase of the proceedings on behalf of the city, attending and participating in all hearings and presiding over internal conferences regarding how the situation would proceed. 

The allegations raise two additional discussion points.

First, when it comes to secretly recording telephone conversations (aka wiretapping), New York is a one party state. That means that Burns was within her rights to record the phone call with Knapp without his knowledge or consent. Some states require the consent of all parties to a call in order for anyone to lawfully record it. In fact in some of the all-party consent states Burns would herself be facing felony wiretapping charges for recording her call with Knapp. In addition to the criminal offenses, several states would prohibit the recordings from being used as evidence.

Second, any type of allegation of wrongdoing against a fire department (or any organization for that matter) creates an inevitable conflict for leaders and attorneys. On the one hand, there is a concern about the validity of the complaint and the need to do something about it. On the other hand there is the legitimate concern about the potential liability for the department/organization posed by the complaint. An organization’s ability to honestly look at complaints and fix problems can become hijacked if liability concerns are allowed to predominate. That paradox is one of the challenging topics we tackle in Fire Service Leadership: the Law and Legal Issues. We presently have classes scheduled in Oklahoma in February, Indianapolis in March, and Knightdale, North Carolina in April.

Here is a copy of the complaint: Burns v Utica