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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

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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.

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

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Will Leaves $140k to Small Minnesota Fire Department

A small Minnesota fire department has received an early Christmas present, courtesy of a bequest from a local resident who was grateful for the hard work and thoughtfulness of the firefighters.

Eleanor Sanford, 99, of Dakota, died in September and her will has left $140,000 to Dakota Fire Rescue. The gift equates to roughly eight times the department’s annual budget.

Dakota Fire Chief Scott Hoeg, who was Sanford’s neighbor, was reported to have been speechless when informed of the bequest. He said the money will likely be put toward a new fire truck.

More on the story.

Posted in General legal issues, Volunteers

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Firefighter’s Right of Entry

This month in Firehouse Magazine, my Fire Law column Can a Homeowner Just Say No focused on the right of firefighters to enter onto someone’s property with or without their permission to investigate and extinguish a fire.

From the phone calls, emails and comments I have received, the column touched on a topic of great interest to many firefighters.

A number of you have written to me asking for your state’s laws on the subject. I spent four hours yesterday doing that kind of research for several states and it only scratched the surface.

The problem is – there is only so much time in the day – so here is what I propose: Send in your state’s right of entry law – post it here as a comment and we will have a solid collection of them here for ready reference to share with brother and sister firefighters.

As the article pointed out, many states have statutes that authorize entry by firefighters. In other states the right is authorized on a local level by ordinances. In addition – in many states the right is recognized by case law.

Here is Rhode Island’s Law. Let’s see how many states and jurisdictions we can locate.

RIGL § 23-37-1 Police authority of fire company officers at fire – Right of entry. The chief, chief engineer, assistant engineer, captain, lieutenant or any other executive officer of any…organization organized or created for the purpose of extinguishing fires and preventing fire hazards…in response to an alarm for such a fire shall, in the absence of the chief of police, have the power to suppress any tumult or disorder and to command from the inhabitants of the city or town all needful assistance for the suppression of fires and in the preservation of property exposed to fire; the officers above enumerated shall also have authority to go onto and enter any property or premises and to do whatever may reasonably be necessary in the performance of their duties while engaged in the work of extinguishing any fire or performing any duties incidental thereto.

Whether it is a statute, ordinance or case – let us know what your state says about a firefighter’s right to enter.

Posted in Collection of Laws, General legal issues, Historical

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Montana Fire District’s Accident Response Fee Challenged

A Montana resident has filed suit to block a rural fire district from charging an accident response fee to owners of vehicles involved in accidents to which the fire department responds. The Polson Rural Fire District, a fully volunteer operation, has been contemplating imposing such a fee for some time to help offset some of its operating expenses.

Accident response fees, which also go by other names such accident recovery fees or crash fees, are charged by many fire departments as a way to offset some of their expenses. Fees are commonly based on the length of time personnel are needed on scene, if vehicle extrication is required, and if consumables (foam and absorbents) are utilized.

Polson’s fee structure ranges from $500 to $1750. In most cases, automobile liability insurance will provide coverage of the charge.

Last week, resident Tom Eddy filed suit to block the fees. Eddy’s suit alleges that the district’s enactment of the fee structure violates Montana statutes, the state constitution and the fire district’s own bylaws. The suit seeks a declaratory judgment finding the imposition of the fee to be illegal.

More on the story.

Posted in Civil Suit, General legal issues, Politics

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Four Cases From Todays News Headlines

Its been a busy day news wise, and four stories caught my attention. In San Francisco, two fire department applicants have filed suit in state court alleging they were discriminated against because they have diabetes. From the write up, it appears there is more to the story as both were career firefighters Presidio Fire Department, one serving as union president and the other as secretary treasurer. However, the suit is focused on the narrow issue of disability discrimination.

In New York, a firefighter has filed suit against FDNY alleging that the department is not following safe maritime practices. Firefighter Frederick Domini seeks a court order grounding the department’s newest vessel, The 343, until the department complies with all Coast Guard and maritime requirements. Domini alleges a crash between two fire boats in January proves his point.  

In Jeffersonville, Indiana, a lawsuit filed by Fire Marshall Jason Sharp over a demotion has been settled with Sharp retaining his rank of major and the city paying his legal fees. Sharp originally alleged political retaliation in the demotion but the case was settled on the basis of language in the  collective bargaining agreement.

And lastly, the Union Fire Company in Bensalem Township, Pennsylvania has been reopened following successful negotiations between local officials and the company. Recall last week the company was closed because they failed to comply with township requirements. The company alleged that the closing was political retaliation and threatened a civil suit. As a condition of reopening, the company agreed to accept new leadership.

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

Fire Department Administrative Investigations and Discipline

PATC has scheduled me to teach two Fire Department Administrative Investigation classes this summer. The first class is being held at PATC Headquarters in Indianapolis on July 26-27, 2011 and the second is August 2-3, 2011 in Las Vegas at the Station Casino.

The class takes students through everything they need to know about conducting a fire department administrative investigation, from due process to a firefighter’s right to remain silent.

The target audience includes chiefs and fire officers who must conduct the investigations as well as union officials who need to be equally knowledgeable about how an investigation should be conducted. Attorneys who prosecute or defend firefighter discipline cases should also consider attending. Attorney John Murphy, who attended the class in Las Vegas last summer, was able to get it approved for CLE credit in the State of Washington, and it can probably be approved in your state as well.

The concept of a professional standards program is introduced and emphasized throughout the course. The professional standards approach is widely recognized in law enforcement as being a fair and progressive method for addressing internal and external complaints. It offers firefighters and fire departments a reasonable and proven method that respects the honorable service that firefighters provide, while at the same time recognizing that misconduct cannot be ignored. Want more proof? Go to www.youcantmakethisstuffup.net, or take a look at this: The Problem

Students receive a 300+ page manual complete with cases, sample forms, checklists, and copies of the bill of rights laws from all states with a firefighter bill of rights.

To register for either Indianapolis or Las Vegas, contact the Public Agency Training Council toll free at 1(800) 365-0119. These are the only FDAI classes currently scheduled this year.

Here are some more details on the program:

The course will cover:

  • Five common complaints about fire service disciplinary processes
  • Six steps to create the ideal professional standards system
  • Three key questions to be answered in any due process proceeding
  • The challenges associated with “Conduct Unbecoming” allegations
  • Five steps in the investigative process
  • Four policies that every fire department needs (but probably don’t have)
  • Enhancing interviewing skills
  • Firefighter Bill of Rights laws

Course Objectives:

  • Respecting the Weingarten and Garrity Rights of firefighters
  • Three important rules for interviewing the complainant
  • Tips for dealing with a hostile or angry witness
  • 7 Essential components of due process
  • The Code of Silence: Addressing it in a reasonable manner
  • Three necessary components for establishing the chain of custody of evidence
  • Seizure and documentation of evidence
  • Use of photo and video to document evidence
  • The law governing workplace search & seizure, including the US Supreme Court decision in Quon v. City of Ontario.
  • Chemical testing of employees: pitfalls and precautions
  • Drafting the investigative report
  • The two major disciplinary models, and knowing when to use each
  • Understanding what the pre-disciplinary hearing is and isn’t
  • The three burdens of proof
  • The corrective action balancing act: determining what penalty is appropriate for a particular individual
  • How to prevent disciplinary actions from being overturned
  • Use of last chance agreements
  • How to handle resignations and retirements in lieu of disciplinary action
  • Effective use of pro-active tools to help firefighters avoid rule violations

The program includes practical exercises to reinforce the lessons learned, including exercises on conducting a preliminary investigation, developing an investigative plan, interviewing skills, complying with firefighter bill of rights laws, and determining the appropriate type of disciplinary hearing.

Posted in Disciplinary Action, Fire law training, General legal issues

OSHA’s Top Ten List

Firefighters have a special relationship with OSHA. We share a common goal of reducing death and injury. Firefighters respond to incidents where we see first hand the consequences of OSHA violations from a perspective that few others witness. We comply with OSHA requirements such as the respiratory protection standard (two-in two-out, medical surveillance, fit testing), hazardous materials, confined space rescue, infection control programs, etc.

Maybe it’s just the old safety officer in me, but when I saw that OSHA has an annual top 10 list, it struck a cord. So here it is – OSHA’s top 10 list of the most frequently cited violations for fiscal year 2010.

  1. 1926.451 – Scaffolding
  2. 1926.501 – Fall Protection
  3. 1910.1200 – Hazard Communication
  4. 1910.134 – Respiratory Protection
  5. 1926.1053 – Ladders
  6. 1910.147 – Lockout/Tagout
  7. 1910.305 – Electrical, Wiring Methods
  8. 1910.178 – Powered Industrial Trucks
  9. 1910.303 – Electrical, General Requirements
  10. 1910.212 – Machine Guarding

For more information on the top 10 see the OSHA web site.

Posted in General legal issues, Occupational Safety & Health

Who Owns The Photo: the Firefighter or the Fire Department

I received an interesting question concerning the ownership of photos taken by on-duty firefighters and thought the subject was worth discussing here in Fire Law Blog. The question: who legally owns a photo taken by an on-duty firefighter, the firefighter or the fire department?

When we talk about the ownership of photos, we are really talking about Copyright Law! Copyright protections apply to any original work of authorship/art and that includes photos, videos and digital imagery. The general rule is that a person who takes a photo owns the copyright UNLESS the photo was taken as a “work made for hire”, or in other words unless the photo was taken under the order of, or commissioned by, another person.  

In the case of a photographer who is an independent contractor, the photographer owns the copyright unless he/she agrees otherwise in writing. In an employer-employee context (the typical firefighter scenario), the law is a bit more complicated. The general rule is that a photo taken by an employee within the scope of his or her employment belongs to the employer. When it comes to firefighters, the million dollar question is:  is photo taking within the scope of the firefighter’s employment?

(more…)

Posted in General legal issues, Historical, Social Media, Web/Tech

Weekend Random Thoughts on Fire Service Legal Challenges

Fire Law blog is all about the connection between the fire service and the law. Virtually every aspect of what firefighters do – is impacted by the law and legal issues.

Legal services are expensive, and not everyone has friends or relatives who are attorneys that can answer basic legal questions for free, let alone represent them in court. As a result many people choose to go without access to good, competent legal advice until it is too late. Even then the advice and representation comes at great expense.

Is there a solution? Well, actually yes, there is. Legal insurance. Low cost and affordable, legal insurance offers peace of mind. In a business such as ours where legal issues arise daily, low cost legal insurance makes sense.

In the right hand column of my blog you will see an advertisement for “Equal Justice”. Take a moment to look at what is available and see if there is a program that is right for you and your family. There is a video that explains what programs are offered and why we all need the protections of legal insurance.

Posted in General legal issues

2010 Review: Is there a Seasonal Variation in Legal Decisions?

Over the past few weeks, I have been working on a fire-law year in review article and I was blown away at how many major legal decisions were handed down in January and to a lesser extent February of 2010. Four of the 10 most interesting and important fire service cases in 2010 were decided in January and two more were decided in February. Many of the runners up for the top 10 were also decided in January.

That brings up todays burning question: Was it just a fluke? Why would 60% of the major cases be decided so early in the year in 2010?  Perhaps it was a coincidence, but maybe not. Perhaps the holiday season gives judges an opportunity to catch up on some of the legal writing and decisonmaking they have been putting off, resulting in a large number of decisions being issued in January. Perhaps judges prefer not to render bad news before the holidays… no doubt when a decision is rendered there’s always bad news to one party or the other… and withhold decisions they actually made in late November and December until after the holidays.

Does anyone out there have another perspective? In any event, we eagerly await the decisions for January and February 2011. And what were those top ten cases for 2010?

 

Posted in Burning Question, General legal issues, Historical

Dash Cams and Firefighter Liability

Change comes hard to the fire service. We all know the worn out saying about 200 years of tradition unimpeded by progress. So it is understandable that firefighters in Orange County, Florida sought to block attempts by the fire department to install dash mounted video cameras on apparatus.

The details of the Orange County issue are covered quite well in the video at this link. However, the story raises a question that I am asked about regularly – whether dash cams are advisable from a legal perspective.  I am in favor of dash cams for several reasons. First, they document what happened. For better or for worse, they serve as objective evidence about such matters as: what color was the light, was the apparatus being operated responsibly, and was the other driver not paying attention (a pet peeve).

Second, dash cams force firefighters to recognize something they should already be assuming: they are being videotaped. Not that you need me remind you, but video cameras are everywhere. On virtually every response we go on, someone can be seen taking photos or video of the apparatus as it passes by. Traffic cams and security videos are everywhere. The presence of dash cams are just additional video documentation of firefighters’ activities.

Third, the knowledge that people are being video taped changes people’s behavior…. usually for the better.  I was in a law enforcement class today watching the Rodney King beating video and the inescapable conclusion one get’s from analyzing the video is that the officers involved had no clue that their outrageous behavior was being filmed. In fact, had the officers been aware their misdeeds were being recorded, the entire episode may never have occurred.

Will dash cams result in firefighters being held liable in some cases? Yes, absolutely undeniably yes…  but that alone should not be a deterrent to the use of dash cams. Firefighters should only be held liable when they SHOULD be held liable, when the video evidence shows they were at fault. The more likely scenario – and the one that should cause firefighters to embrace dash cams – is when the video evidence helps to exonerate a firefighter from baseless charges.  The reality is that it has already occurred.

On January 12, 2010, EMT Jason Fait of Penn Township, PA was acquitted of vehicular homicide based in large measure on the dash cam video from the ambulance he was driving in a 2006 accident. There are numerous documented cases of police officers being cleared of groundless accusations based on dash cam evidence.

So that’s my perspective. I think on balance dash cams will help firefighters more than hurt them. Here’s the link to the Orange County video.

 

 

Posted in Apparatus, Civil Suit, Evidence, General legal issues, Labor Law, Negligence

Fire Service Court Radio: Tennessee Subscription FD – Refusual to Respond

This week's Fire Service Court Radio discusses the recent decision by the City of South Fulton Fire Department – not to respond to a fire in a non-subscriber's home. Listen as attorneys Brad Pinsky, Chip Comstock, John Murphy and yours truly debate the issues! 

Podcast.

 

 

Posted in Duty to Act, General legal issues, Municipal Liability, Negligence, You Can't Make This Stuff Up

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Mayor Trying To Evict Fire Company From Firehouse Owned By Fire Company

There are a number of nasty disputes going on around the country between volunteer firefighters and local politicians. Perhaps these types of disputes are inevitable. Lord knows that well over 90% of the career fire departments I come in contact with seem to be at war with their local politicians.

Mayor Randy George of North Haledon, New Jersey who stopped the North Haledon Fire Company No. 1 from responding to alarms earlier this year, fired another broadside at the fire company by sending them a 90 day eviction notice. According to the letter dated September 10, 2010, if the fire company does not vacate the building, the borough will file suit to force the eviction.

The funny thing is, the fire company owns the firehouse.

The media is reporting that there is a restriction on the property’s title that if the fire company is unable to operate, ownership will revert to the borough. I somehow doubt that when the reversion provision was written that anyone envisioned a political battle whereby the borough would first stop the company from operating, and then try to take advantage of that to trigger the reversion.

There is already at least one pending law suit between the warring factions. I have a feeling we have not heard the last from North Haledon. More on the story.

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

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Voters Turn Out To Support Firefighters Despite Misdeeds

In these difficult economic times, the average taxpayer does not appear to be inclined to tolerate too much in the way of misconduct from public employees. So firefighters in Key Peninsula, Washington were bracing for the worst last week when the fate of a $1 million tax levy to provide paramedic service was in the hands of taxpayers. Fortunately the public looked past the problems and approved the levy on August 17, 2010 by a large margin

The vote came on the heels of two highly publicized disciplinary incidents involving seven firefighters that provided plenty of fodder for the anti-levy advocates and the media. A failure to pass the levy vote would have striped the department of more than $1 million in taxes and trigger layoffs of 14 staff members, including nine paramedics. Read here.

Five firefighters were disciplined over an incident that occurred on June 11, 2010 when personnel attended a training conference in Wenatchee. The five went to the hotel lounge where a firefighter is alleged to have gotten drunk in the company of two battalion chiefs, a lieutenant and an administrator. He later passed out or fell asleep in the shower at the hotel room with the water running, resulting in extensive flooding. The hotel did not press charges saying that there was no permanent damage.

The firefighters decided not to report the incident, but when the chief found out he took disciplinary action by terminating the firefighter, demoting one of the battalion chiefs and the lieutenant, and reprimanding the administrator. Charges against the other battalion chief are still pending.

Earlier this year two off-duty firefighters were disciplined following an incident at a bar in Tacoma. An investigation concluded that a firefighter put a woman in a choke hold while the other firefighter scuffled with another patron. Both were disciplined but retained their jobs.

For more on the story.

Posted in Disciplinary Action, General legal issues

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FD Resistance to Merger in PA Leads To A Different Merger and a Lawsuit

The hard financial times of the past few years have led many jurisdictions to consider restructuring,  consolidating, and merging their fire departments. Nationwide, parts of the country that never considered regionalization before have taken bold steps in an effort to provide a more economical level of services.

According to the Pennsylvania Department of Community and Economic Development there have been approximately 75 consolidations and mergers of fire and EMS departments in Pennsylvania since 1998, affecting roughly 162 fire and EMS organizations.  The movement to consolidate goes against not only the classic resistance to change that has long been a hallmark of the fire service, but in many locales it goes against the grain of a long history of independent fire companies, making the transition that much harder to accomplish.

Against this backdrop, a 105 year old Pennsylvania volunteer fire company finds itself embroiled in a lawsuit with local government officials who forced it to stop responding to alarms…. sort of.

Stowe Township was served by three volunteer fire departments: West Park Volunteer Fire Department, Fleming Park Volunteer Fire Department and Presston Volunteer Fire Department (aka Independent Hose Co. No. 5). When the township sought to merge the three department in 2006, Presston balked citing (among other things) the accumulated debt of the other two companies.

According to Presston officials, the West Park and Fleming Park companies owe $700,000 for the purchase of two fire trucks, and neither the township’s payments, nor the companies’ fundraising efforts and donations are enough to cover the expenses.

After a long administrative battle with the township, Presston decided not to merge with the newly formed Stowe Township Volunteer Fire Department, leading the township to end the fire company’s right to respond.  In Pennsylvania, a fire department must be sponsored/certified by a municipality for it to operate.

In a very interesting move reminiscent of a great chess match, the Presston Volunteer Fire Department opted to officially become a part of the McKees Rocks Volunteer Fire Department. McKees Rocks, a neighboring borough in Allegheny County, has seemingly welcomed the fire company with open arms. McKees Rocks Councilman Robert DiCicco boasted in March that the move doubled the size of their community’s fire department and may lower insurance premiums for area residents.

The latest move in the chess match came last week on August 13, 2010, when Stowe township filed a lawsuit against Presston VFD seeking payment of $119,523 for fire suppression equipment that Stowe says Presston VFD won't hand over after it changed the its affiliation to McKees Rocks. The lawsuit alleges that the  equipment belongs to Stowe township.

For more on the story.

And more.

Posted in Civil Suit, General legal issues, Volunteers

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New Haven…. AGAIN!!!!!

I know a lawyer should never complain about too many law suits, but at some point you have to ask when is enough going to be enough.

Another group of New Haven firefighters have filed suit over the 2003 promotional examination.  Eleven firefighters filed suit on July 2, 2010 challenging the promotional list created by the 2003 exams. Those are the same examinations for captain and lieutenant that  gave rise to the US Supreme Court decision in Ricci v. DeStefano. By my count that makes 5 suits (some may count differently) over the 2003 promotions including:

·     Ricci, et al

·     Tinney, et al

·     Briscoe

·     Broadnax, et al (arguably a separate issue but it ties back into discrimination)

·     Luschenat, et al

Not to mention suits by Ismael Hernandez and John Brantley alleging discrimination against NHFD during the same time period.

A story today by William Kaempffer in the New Haven Register does an exceptional job of explaining the Luschenat allegations, so I won’t repeat it all here.  My question is – is there really that much discrimination going on in New Haven, or is it just a litigation “free for all” where folks in the various racial and ethnic factions are trying to gain an advantage any way they can? And perhaps the bigger question is: how would we even know? I have had plenty of clients who feel they have been wronged – who have convinced themselves (sometimes against the weight of the evidence) that they are the victim in a great conspiracy. Who is to say who has a valid case or not until the justice system plays itself out? Certainly not me.

If we can leave the micro issue of who is right and who is wrong in each of the seven or so cases in New Haven for a moment – there is a macro issue that needs to be considered: how does a fire department mired in litigation – move forward. The piecemeal litigation focuses too much attention on the micro issues of each case at the expense of the macro issues.

New Haven is not alone in this regard. Dozens of other cities are under assault by various single issue plaintiff employees who see the world through their own “I’m the victim” kaleidoscope. How can a fire department confronted with multiple – and often conflicting – challenges possibly hope to move forward?

When a police department is accused of engaging in a “pattern or practice” of violating the law or the US Constitution, the US Department of Justice can step in and force the necessary reforms. Through authority granted by Congress shortly after the 1991 Rodney King case, the DOJ can essentially file suit against the department and force the changes necessary. The local Federal District Court reviews all major decisions and resolves disputes that cannot otherwise be worked out. In the process the DOJ can sort out fact from fiction (ie. address those pesky little micro-issues) while addressing the more important macro issues. The law is 42 USC § 14141, and its authority is limited to law enforcement organizations.

Might something like that work for fire departments that are paralyzed by multiple racial, ethnic and gender based lawsuits? I recall a salty-old captain who once remarked “Kid, we either keep our own house in order, or somebody’s gonna come in here and do it for us”. He was not referring to daily housework!

Any thoughts?

Posted in Civil Suit, Constitutional Rights, Discrimination, General legal issues

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New Firefighter Residency Law Challenged

On June 25, 2010, Missouri Governor Jay Nixon signed a bill into law that eliminated the residency requirement for St. Louis firefighters. On July 1, 2010, the City of St. Louis filed suit to challenge the law.

The law was enacted by the state at the request of St. Louis Firefighters, IAFF Local 73. It is scheduled to go into effect on August 28, 2010, and would eliminate the residency rule imposed on firefighters. Oddly enough, St. Louis has a residency requirement for firefighters, but not for police, teachers, and certain other city employees.

St. Louis Mayor Francis Slay has been threatening all along to challenge the law as violating the city’s charter and the rights of St. Louis residents to set their own employment requirements. "We are a charter city and unless there's a compelling state interest, this is none of their business" said Jeff Rainford, Mayor Slay's Chief of Staff.

Local 73 President Chris Molitor is quoted as saying "All this bill does is gives employees of the Fire Department the exact same residency rules that the Police Department operates under."

To view the new law: Download SB739FirefightersResidency

 

Posted in Civil Suit, General legal issues

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Fireground Photos, Facebook, and Discipline

I received a great question today, and wanted to add it to the online discussion: Have there been any cases or instances of firefighters receiving reprimands or disciplinary action for posting fire pictures on their Facebook page?

Answer: Yes there have been disciplinary actions taken against firefighters for posting fire photos and videos on line. The cases I am aware of occurred in fire departments that had policies on taking and/or posting digital images, and the discipline was over violations of the policies.

In departments that do not have digital imagery policies, most of the discipline cases involve EMS related photos, not fires. The EMS cases involve personnel being disciplined for breaches of confidentiality.

There is a much bigger problem out there that most firefighters have not stopped to consider, called spoliation. When someone who is involved in a law suit or criminal matter has evidence relevant to the proceeding, he/she is under an obligation to preserve that evidence. The destruction or loss of relevant evidence is called spoliation – and is a HUGE potential problem that most firefighters are completely unaware of. If a party to a law suit/criminal proceeding destroys or fails to preserve evidence (commits spoliation) the judge may instruct the jury they may infer that the spoliation was committed because the evidence was favorable to the other side.

A scenario will help explain the problem. Let's say a FD responds to a building fire, and FF Jones (who is on-duty) takes 10 photos at the scene. The next day he posts 5 photos on Facebook, but deletes the others. Later, Mr. Smith is charged with arson for the fire, and his attorneys discover the Facebook photos. They also learn that FF Jones actually took 10 photos but deleted 5 of them. FF Jones has arguably committed spoliation – which could compromise the arson case against Smith. Smith’s attorneys will argue for a jury instruction to the effect that the jury can infer the deleted photos would have shown that Smith was not guilty. The same problem occurs if the building owner were to sue the fire department for negligence in fighting the fire. The destruction of the photos by FF Jones could be held against the fire department. These are just two examples – but hopefully the potential for spoliation problems is evident.

This is a very challenging and emerging area of the law and we cover it in detail in two of the programs I teach through LLRMI, Fire Service Leadership: the Law and Legal Issues, and Managing Fire Service Liability & Safety Best Practices. The bottom line is that all fire departments need a digital imagery policy so that photos and videos can be taken for training and documentation purposes, but concerns over spoliation can be addressed.

Departments should also have a social media policy so that both the fire department administration and the firefighters themselves know what is and is not permissible. Most of the social media discipline cases we see are due to the fact that the line between permissible conduct and “conduct unbecoming” is not clear to everyone beforehand!

Posted in Evidence, General legal issues, Social Media, Web/Tech

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Widow Instrumental in Passage of Florida Law to Extend Line of Duty Death Benefits To Firefighters Killed During Training

An important piece of legislation was passed in Florida last month, and signed into law on June 1, 2010 to close a loophole in Florida law that treated the death of a firefighter during training as not “in the line of duty”.

This issue came into prominence in 2007 when Volusia County Firefighter John Curry died during a wildland fire training exercise. Personnel were cutting a tree that fell in an unexpected direction, landing on FF Curry, who was 30 years old at the time. His wife and young son were ineligible for state death benefits and her health benefits were also terminated because the training death was inexplicably not considered to be a line of duty death under Florida law.

Oddly enough the law at the time provided line of duty death benefits for a firefighter killed while engaged in firefighting activities, or one who was otherwise acting within the scope of employment of a firefighter, yet somehow that description was interpreted to not include training. (One can only wonder…..)

The new law clarifies the loophole, and was enacted after years of intense lobbying by John Curry’s widow, his IAFF local, and other public safety organizations. The amendment was approved without opposition by both the House and the Senate and was made retroactive to November 1, 2007. John Curry died on November 27, 2007, so his family will be eligible.

For more on the story, including a video

And more

Posted in General legal issues, Wildland, Workers Compensation

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DeKalb Fatal Fire Report Released

The DeKalb County Fire Rescue released the report on why the initial crews dispatched to a reported house fire just after 1:00am on January 24, 2010, failed to find the fire, and returned in service. Crews were sent again to the same address at 6:18 am, and found the house well involved. One person died in the fire.

To download the report: Download DeKalb Fire Investigation Report N Houghton Court

To see the video report on the incident CLICK HERE.

Posted in Disciplinary Action, General legal issues

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Four DeKalb County Firefighters Placed on Leave – Answers Sought

Four DeKalb County firefighters are on paid administrative leave following a fatal fire Monday. Questions are being asked about why crews did not find the fire when first called to the scene shortly after 1:00am, and returned several houses later to find the home well involved.

Posted in Disciplinary Action, General legal issues

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Lemon Law for Emergency Vehicles

A “lemon law” for emergency vehicles. When I first saw the headline, my reaction was: why didn’t I think of that? The concept of a lemon law for emergency vehicles is now a reality in New Jersey, believed to be the first state to adopt such a law.

Typical lemon laws cover non-commercial (passenger) vehicles, and require the manufacturers of covered vehicles to replace or buy-back “lemon” vehicles that have experienced either repeated mechanical problems or long periods of being in the shop. States differ on the specifics of lemon law coverage and conditions.  New Jersey’s law applies to a new vehicle that has one or more defects that continue to exist after three repair attempts or after the vehicle has been out of service for a total of 20 days, during the first two years or 24,000 miles, whichever comes first. New Jersey’s previous “Lemon Law” exempted emergency vehicles from coverage.

The new law was originally introduced in the New Jersey legislature in 2008 after an ambulance purchased by the Flanders Fire Department and Rescue Squad in Mount Olive Township, encountered persistent problems with its drive train, leading to long periods in the shop. Working with legislators, emergency responders across the state rallied the necessary support, and the bill was signed into law by Gov. Jon Corzine on January 19, 2010. The bill covers fire trucks, ambulances, police cars and other emergency vehicles. It includes a provision requiring manufacturers to cover the cost of rental vehicles for vehicles that are out of service for a covered lemon law “nonconformity” (problem).

Congratulations to everyone involved in this effort.

Download NJ Lemon Law Emerg Vehicles

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Posted in General legal issues, Product Liability

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Beaufort Fire Given New Assignment

There are many reasons why the fire service has such a strong connection to the law, but a recent story out of South Carolina brought that connection home to me once again in a way I had not expected. In Beaufort, they have been having a difficult time enforcing their nuisance codes which govern things like overgrown grass and shrubs, trash and other safety and health violations.

Beginning Monday, January 11, 2010, the Beaufort Fire department will take over enforcement responsibility for the nuisance code. What at first blush may seem like a strange assignment actually has a pretty logical basis. First of all, overgrown lots, accumulations of rubbish, and abandoned automobiles pose fire hazards. Second, many of the residents responsible for these lots do not have the physical ability to do anything about it, nor the financial way with all to hire someone to help them or pay the fines.

After the announcement, city comptroller  Mack Cook was quoted in the local paper as saying "These (firefighters) are the guys with the muscles who will help residents remove trash and hazards. They would rather do that now than come back and put out a fire later." Fire marshal Lt. Daniel Byrne concurred with Cook’s comments, saying the department preferred to correct violations, not focus on writing tickets and collecting fines.

In this time of economic hardship, keeping firefighters employed and productive in novel ways makes a lot more sense than layoffs and closing fire stations. It may mean less time for training and inspections, but the big picture is that these firefighters will still be there when an alarm comes in.

Posted in General legal issues

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Identity Theft: Jury Duty Scam

If you are like me, you are tired of the internet hoax emails claiming such rubbish as "in 1987 Oliver North testified before Congress that Osama bin Laden was the most evil person alive”,  or that "cut flowers can remove oxygen from the air". But every once in a while you get a spam email that is legit, and I got one today relative to a scam involving jury duty.

The scam goes something like this: You receive a call from someone claiming to be a jury commissioner who says you were told to report for jury duty, that you did not appear, and that an arrest warrant has been issued for you. When you complain that you did not receive any notice, the caller makes an effort to appear helpful and asks you to confirm your Social Security Number and birth date to verify the information and cancel the arrest warrant. Once you provide this information, your identity has been stolen.

According to Snopes.com, this scam is not new, but it is real. The scammers sometimes use bullying tactics to get people to divulge information. It is something that is definitely worth passing on to friends and family.

http://www.snopes.com/fraud/identity/juryduty.asp

Posted in General legal issues

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