Boston Fire Chief Steve E. Abraira who last week threatened to sue 13 of his deputy chiefs, has opted to resign. Chief Abraira tendered his resignation today effective Friday, June 7, 2013.
Last Friday the chief’s threat to sue was met by counter threats to counter sue by the attorney for the deputies.
Posted in Politics, You Can't Make This Stuff Up
Boston Fire Chief Steve E. Abraira has threatened to file suit against the 13 deputy chiefs who criticized him in a letter to Mayor Thomas M. Menino following the Boston Marathon bombing.
The threats were contained in a letter was sent last week by Attorney Louis M. Ciavarra to the deputies. Among the quoted parts of the letter:
Ciavarra’s letter characterized the letter sent by the deputy chiefs to Mayor Menino on April 26, 2013 as defamatory and threatened to file suit “should any further such conduct occur.”
The letter sparked a strong rebuke by the attorney for the deputy chiefs, Joseph G. Donnellan, who today characterized Ciavarra’s letter as an effort to prevent them from testifying at a Boston City Council hearing scheduled for June 18, 2013.
According to Donnellan, “Each and every one of them saw it that way… They saw it as a direct attempt to make sure [the deputy chiefs] don’t go to that hearing and don’t speak their mind.”
Donnellan issued a threat of his own: “Most assuredly, if the chief’s lawyer follows through on his threat to sue the deputy chiefs of the Boston Fire Department, we will react very strongly and very swiftly.”
Note: If any of my friends from Boston can supply a copy of the letters, I’d be much obliged.
Seven firefighters from Pullman, Washington have been awarded $1 million in damages in a mind-boggling case worthy of a novel, if not a movie. The case included allegations of a workplace affair, vindictive retaliation, sexual harassment, an officer asking subordinates to provide naked photos of their wives, and counter allegations of a vengeful witch hunt by city officials against union officials.
The lawsuit was brought by Captain Eric Reiber, president of Pullman Firefighters IAFF Local 1892, and six other members who claim they were wrongly disciplined for standing up for Captain Reiber. The suit alleges due process violations, First Amendment violations, conspiracy, defamation, false light privacy violations, intentional infliction of severe emotional distress (outrage), and a state law retaliation claim.
Captain Reiber alleges that one of his subordinates, a female, was having an affair with a married firefighter and that the relationship was creating turmoil in the workplace. When he reported the affair, the pair fabricated allegations of misconduct by Captain Reiber. The fire chief and the city allegedly seized on the allegations as an opportunity to weaken the union’s bargaining position and retaliate against Captain Reiber for his past union activities.
The 28 page complaint can be downloaded here – in two parts. It is a very interesting read.
Part I Reiber v Pullman -1.pl
Part 2 Reiber v Pullman -2.pl
Between the allegations and counter allegations, we will never know where the truth lies. However, the case points out the importance of conducting a thorough and impartial investigation when firefighters are accused of misconduct.
Among the mistakes made by the Pullman Fire Department in investigating the allegations and imposing discipline – at least according to the complaint:
The six day jury trial in US District Court ended with a verdict in favor of Captain Reiber for $325,800 and $135,000 each to Rudy Fisher, Christopher Volk, John Gollnick, Jason Wilkins and Christopher Wehrung. The jury delivered the verdict on April 2, 2013.
The city of Pullman and the estate of Fire Chief Pat Wilkins were held liable. Chief Wilkins passed away last year while the case was pending. Other city officials, including the city’s HR director who served as the primary investigator, were not held personally liable.
For those who have been through the Fire Department Administrative Investigations and Enforcing Discipline Program, this case is certainly one to study for your ongoing professional development. Many of the best practices we discuss in class were not followed and the consequences are evident in the verdict.
Two employment related cases on the East Coast are in the headlines, and while we don’t have much in the way of details on either one they certainly appear to be YCMTSU cases worth following.
In Simpsonville, South Carolina, the former police chief who was fired after just 3 months on the job, filed a grievance to get his job back. What connection does that have to fire law? When the grievance was denied, former Police Chief Keith Grounsell allegedly told the media that he was fired in part because he exposed an inappropriate relationship between the fire chief and his assistant police chief.
Coincidentally, Fire Chief Wesley Williams and Assistant Police Chief Colleen O’Neil had been suspended earlier this month, although the reason for the suspensions had not been publicly released.
Chief Grounsell and Chief O’Neil competed for the police chief’s job last year with Grounsell winning. The two have allegedly been butting heads since. Grounsell claims that after he disclosed the Williams-O’Neil relationship to the city administrator, Russell Hawse, Hawse “turned on him”.
Hawse countered that Grounsell’s “challenging of the mayor’s manhood and religion”, and “questioning of the intelligence of City Council members” played a bigger role in his decision to fire him. More on the story.
On Nantucket, a problem of another nature has prompted a firefighter to file suit against two of his co-workers, accusing them of slander, intentional infliction of severe emotional distress, and assault.
Firefighter Charles Kymer claims that firefighters Nate Barber and Sean Mitchell, falsely told police that he had photographed a young girl, procured her email address and distributed a picture of her to other firefighters following a surf incident last summer.
Kymer was cleared of wrongdoing in the case. He filed suit in Nantucket District Court.
The ex-wife of a firefighter is facing a lawsuit over comments she posted on a Facebook page about a fatal POV accident he was involved in. This is a long one… and a sad one with absolutely no winners.
Firefighter Timothy Johnson of the Portage Fire District, was responding to a mutual aid structure fire on July 16, 2010 when his personally owned vehicle collided with a car driven by Olivia Duty. Duty’s boyfriend, Ian Huffman, 24, was killed in the crash. Police estimated Johnson’s speed at between 96-98 miles per hour just before the collision.
Johnson was charged with aggravated vehicular homicide and aggravated vehicular assault, and ended up pleading guilty to one count negligent vehicular homicide and attempted negligent homicide. He was sentenced to 9 months in prison and his driver’s license was suspended for three years.
Parents of Ian Huffman, John and Maureen Huffman, and Olivia Duty, filed the wrongful-death and personal-injury lawsuit against Johnson and the Portage Fire District. It was settled for $1.57 million last fall.
In response to an online posting about the settlement on a Facebook account operated by a newspaper, The Blade, Johnson’s ex-wife, Christian Kinsler Johnson, posted the following:
“Lights and siren were on ! ! ! ! Clear fact in the trial ! ! “
” .. .It was proven that emergency lights can be seen for a very very long distance away . .. they did a test . .. they said there is NO way that she would not have seen them, esp if she said she looked that direction twice … Oh, but wait, she also said that she didn’t remember stopping either . . . Wow … Lets get our story right, Olivia Duty ! !”
” … It was never proven that was the speed … reconstruction showed one speed . . . black box another .. . pretty amazing that he was going that fast with a governor on his vehicle ! “
” … One, she pulled out, two Ian was not wearing a seatbelt. It does not matter if someone was doing 55 or higher which was never proven.”
“Lights were on as witnesses say, including a siren that was heard by several . .. Could this have been and {sic} accident of one young man not wearing his seatbelt and one young woman not paying attention and having two good of a time that night … There should have been then (sic) one to be punished for this incident … Mr. Johnson took this plea for the benefit of his children. My children ! ! They have suffered just as much as Ian and his family . .. “
“IF YOU ASK MANY and I mean MANY, you will see that people are [on] Mr. Johnson’s side … Olivia Duty not taking her responsibility of the accident is WRONG … but you know … she will have to live with herself knowing what was the real cause ! ! !”
” … And God bless Olivia Duty for being the great woman she is. Her parents should be so proud!!”
“Money cannot bring back a child but making others suffer for another persons fault is sicking (sic) … I hope you’re happy Olivia Duty ! You will have to live with your LIES for the rest of your life! No amount of money can erase the choices you made that night!”
“People who hold license are expected to follow the laws too!!!! Pulling out in front of a fire fighter with lights and siren, not stopping a stop sign and then pulling out into a southbound lane when you’re beading NORTH is illegal … Telling the patrolman that night you don’t remember stopping … and then telling them later that you stopped and looked 3 TIMES ! ! ! And saw nothing … which is plenty of time to see something Olivia Duty!!! But oh yeah wait a minute!!!!! You didn’t stop at the slop sign ….. yes or no … which is the story … “
“I am disappointed that it was someone else’s fault and she makes off with the money.”
“Do you know there was evidence showing Mr. Johnson was going 30 miles slower than indicated”
“There was more to the case in Mr. Johnson’s favor … and more evidence showing Olivia Duty was the main cause of the accident.”
” .. .I am disappointed that not one time you have even considered Olivia Duty at fault and to me that is sad and that is your problem .. . I an1 disappointed in a young woman’s decision to not take her part in the accident … to lie on the things she did.”
“Olivia Duty you are a LIAR!!”
In addition, Johnson’s children allegedly posted:
“Its OK mom, God will see them for their lies and then will be punished to burn in hell forever.”
” How dare you even lie in court, you are worthless ! ! ! ! !”
The two count complaint alleges intentional infliction of emotional distress and defamation. It was filed by John Huffman, Ian’s father.
Here is a copy of the complaint. FIREFIGHTER.LAWSUIT
More on the original story.
Posted in Civil Suit, Manslaughter, You Can't Make This Stuff Up
An Oklahoma fire chief who opted to retire in the face of relentless personal attacks by a self-appointed public interest group has filed a defamation action against the men he believes are responsible.
Fire Chief Dale Parrish retired last summer from the Skiatook Fire Department after being subjected to withering criticism by the group Skiatook Citizens for a Better Government. The attacks included newspaper ads proclaiming “The Fire Chief takes our Gold and gives us the Shaft. The Fire Chief Takes Much but Gives Little. The Fire Chief is known as the ‘Bully’. His Employees are Silent and Afraid to Speak. Heart attacks can Wait. The Fire Chief has more Important Matters. Mercy Ambulance Is Available.”
In his retirement letter Chief Parrish stated he was leaving due to the “toxic environment that has been established over the past several months, from influences outside the department… I had hoped to complete another ten years with the Town but feel this is not possible due to the current environment.”
Chief Parrish filed the action in Osage County District Court. The four defendants in the case, Victor Waters, Horace Paslay, Evert Hendrix and Billy Barnes, are also defendants in another case filed by former Skiatook town coordinator, Martin Tucker. Tucker was himself subjected to the group’s scorn and attack ads and sued for defamation.
The case raises several troubling questions in my mind: to what extent does the First Amendment require a public official to accept personal attacks without recourse? To some extent those in the public’s eye have to develop thick skin… but just how thick?
Skiatook’s Mayor Josh Brown referred to the folks who launched the ad campaign as an “impossible group.” I think we can all relate. Do fire chiefs have to put up with malicious lies, sneaky half-truths, and vicious character assassinations as part of the job? Was that what the framers of the Constitution intended or envisioned when the wrote they First Amendment?
The next question: why would any sane person willingly subject themselves and their family to this type of non-sense – where any imbecile can with impunity allege virtually anything … assassinate your character and impugn your integrity just for the demented sport of it. I go back to my good friend Dennis Rubin who continues to be attacked by folks who apparently have little better to do with their lives than viciously defame him… all the while claiming to be the victim – and doing the public good.
Dennis Rubin and Dale Parrish are not alone by any stretch. There are fire chiefs from departments large and small, career and volunteer, who find themselves the victims of such attacks. Whether the attackers believe they are fighting some noble battle against the forces of evil, are avenging some perceived wrong, or are mentally ill, these sorts of people are out there.
If the first two questions do not concern you, this one should: who will lead our public agencies… and our government in the future…. if these kinds of attacks can take place under the cover of the First Amendment without any recourse? The digital age offers the attackers an inexpensive forum and a near unlimited audience for their non-sense. If a sane person would be dissuaded from seeking such positions because of the ruthless attacks… well, the question begs the answer. What motivation could possibly be enough for the abuse they have to endure? It can’t be money… is it power, ego… that would make the job worth the cost of the abuse??? A sad commentary…
That leaves us with the question… who would willing put up with the abuse that Chief Parrish had to deal with in order to be a fire chief… be it Washington DC, or Skiatook, Oklahoma.
A defamation suit filed against Wilkes-Barre Township Fire Chief John Yuknavich for statements he had at a council meeting in 2009 has been settled.
Joseph Naperkowski claimed that Chief Yuknavich defamed him on June 1, 2009. He claims that Chief Yuknavich told others that Naperkowski said “I’ll kill you, I’ll kill your mother, I’ll kill your family and I’ll even kill the mayor if he don’t straighten you out.” Naperkowski filed suit seeking $50,000 in damages alleging the statements were “false and defamatory”.
Chief Yuknavich contended that Naperowski’s claim should be barred because it was made during a public meeting and as fire chief he is immune from the lawsuit. A jury trial began earlier this week but was abruptly terminated yesterday when the parties reached a settlement. There is no word on the terms of the settlement.
As for Chief Yuknavich’s immunity defense, most jurisdictions recognize a number of absolute and qualified privileges against claims of defamation. Legislators enjoy absolutely immunity for statements made during their sessions. The exact scope of that immunity varies from jurisdiction to jurisdiction, but it is generally limited to the legislators, not fire chiefs or department heads.
However, many jurisdictions recognize a privilege for executives. Here is a brief summary from the Center for First Amendment Studies:
There is also an absolute privilege afforded to top rank, “cabinet” or department head level, or other top-level policy-making officials in the executive branches of government, both federal and state. The privilege can be lost, however, if, as in the courts, the statements have no reasonable relevancy to the public official’s duties or the scope of his office.
Here is the link to the Center’s web site.
Posted in Civil Suit, First Amendment, Immunity
Additional details have been released on the controversial Facebook post that cost one Columbus, Mississippi firefighter his job and caused 3 other city employees (2 firefighters and one police officer) to be disciplined.
Dave Statter has been on this since this morning after the Columbus Packet published an exclusive expose. The original post by Firefighter Brad Alexander came after a 2 year old child, Tyree Sparks Jr., was struck by a vehicle. The paper reported that Alexander did in fact respond on the run on August 20, 2012. His Facebook post allegedly stated:
“People never cease to amaze me. Mama yelling oh my baybee my baybee….Hey you stupid ass, where was babyeees mama at while your 2 year old was getting hit by a truck. Mama needs to have her guts cut so there wont be anymore babies. Freeloading ignorant woman”
The Packet does a good job of laying out the details. Here is some of what the reporter wrote:
“The Henleys told The Packet that, after finally learning the language in post, they might plan some sort of legal action. They said that the mother of the child, Terrance Henley, was actually on her way back from Columbus High School , where she is a Senior, when the accident occurred and was extremely emotional after she learned her child had been struck.”
So exactly what sort of legal action might Ms.Henley have? I am struggling to come up with one. Defamation would probably not be a viable option because while offensive, the post does not make a false statement of fact. At best it is a statement of opinion and hyperbole.
There might be liability based upon an invasion of privacy tort called “false light”. This tort is not recognized in all states and a stumbling block may be that it requires the proof of “actual malice”. Intentional infliction of severe emotional distress might be another semi-viable claim, but my sense is it is a stretch.
Constitutional claims would probably not lie on the facts because Alexander was not acting as a government employee when he posted his comments. The comments seem a bit mild to reach the level of being classified as a “hate crime” or hate-based offense that might allow for civil actions.
How about the Legal Eagles out there – what civil remedy might Ms. Henley have?
An Ohio fire chief has filed a second lawsuit against her former employer alleging breach of a confidentiality agreement contract and intentional infliction of severe emotional distress.
Former Litchfield Township fire chief Joyce Teodecki filed the lawsuit in Medina County Common Pleas Court naming the Township and two trustees personally. Trustee Nancy Wargo was sued for defamation of character and trustee Mike Pope was sued for malicious prosecution and abuse of process
Chief Teodecki resigned as fire chief in July of 2011, following an internal investigation by a former police officer retained by the Township. The investigation concluded the chief was guilty of several charges, including misconduct, gross neglect of duty, and creating a hostile work environment. The Township and the chief signed a confidentiality agreement that the details of the investigation would not be released if she retired.
In November, 2011 the trustees voted to release the investigation report after Chief Teodecki distributed an “open letter” to the citizens of Litchfield criticizing the trustees just before the general election. The trustees claimed that Chief Teodecki was the first to violate the confidentiality agreement because the letter accused them of conducting a “witch hunt” and calling them “character assassins.”
The earlier suit filed in Federal court in December was dismissed in April based on a lack of Federal jurisdiction. In that suit Chief Teodecki alleged a violation of her 1st Amendment rights.
Chief Teodecki served in the Litchfield Township Fire Department for 34 years including 12 years as chief.
Here is a copy of the Federal court’s ruling on the motion to dismiss, which details the factual allegations. Dismissal
The strange case of the New Mexico fire chief who was arrested at an incident scene as a way to relieve him of command, is in the news again - this time with an entirely new twist.
Fire Chief Eddie Velarde, of the Velarde Fire Department, was arrested by Rio Arriba County Sheriff’s Lieutenant Adam Archuleta on March 29, 2011 and charged with disorderly conduct. At the time Chief Velarde was the incident commander at a 3.2 acre interface fire that damaged 3 structures and 3 vehicles.
According to the headlines at the time of the arrest, Archuleta claimed Chief Velarde was out of control and his arrest was done in the interests of public safety. Archuleta later charged Chief Velarde with concealing his identity and obstructing a sheriff’s officer. The allegations made national news and caused considerable embarrassment, humiliation, and stress for Chief Velarde personally and the Velarde Fire Department.
Chief Velarde and his attorney, Diego Zamora, vehemently contested the criminal charges. At his trial last July, Chief Velarde was acquitted of all three charges. According to Zamora, under cross examination Archuleta was at a loss to explain how someone he had known for over a decade could attempt to “conceal his identity” – the basis for 2 of the 3 charges.
Also at issue in the case is the role played by county EMA director Mateo DeVargas, with whom Chief Velarde has had past run-ins. DeVargas was assigned to coordinate evacuation of the fire area, establish perimeter control, and track arriving resources. Chief Velarde claims that following his arrest, he heard Archuleta state “Mateo, you got what you wanted, you are now incident commander.”
The case entered an entirely new phase this week when Zamora and co-counsel Patrick Brito filed a civil suit against Archuleta, DeVargus and Rio Arriba County alleging false arrest, false imprisonment, malicious abuse of process, defamation, and conspiracy. The allegations, if proven, are a serious indictment of law enforcement in Rio Arriba County.
The suit was filed on Wednesday. Here is a copy of the complaint: Complaint-VELARDE
It is a good read. The case raises a number of important concerns – not the least of which are the ICS implications of subordinate law enforcement authorities arresting an IC because they question his actions. For news on the story.
A defamation suit filed by an IAFF union president against a local business leader has been settled. The contentious suit followed a radio talk show where a self-appointed government reformer accused the president of “acting in an illegal and dishonest manner in exercising his employment duties with the City of Omaha” and of “receiving money from public funds” that weren’t due to him.
Back in November of 2010, Steve LeClair, the president of Omaha Firefighters IAFF Local 385, filed a lawsuit against Omaha Alliance for the Private Sector and its president David Nabity. Nabity has been a vocal critic of the Omaha Fire Department, with a publically stated agenda to reform local government and “weed out waste, inefficiency, and corruption”.
Nabity filed a countersuit against LeClair, alleging he was attempting to silence his legitimate complaints about government by filing a SLAPP suit (strategic litigation against public participation). Most states, including Nebraska, have anti-SLAPP statutes that make it illegal to file a lawsuit intended to censor, intimidate, and silence a critic by burdening them with the cost and/or intimidation.
The settlement calls for each side to pay its own attorneys fees, and Nabity will pay LeClair $9,000. According to Nabity, his insurance company recommended the settlement and agreed to pay the $9,000.
Here are some of the documents related to the case:
LeClair Deposition LeClair-Depositioin
Release and Settlement Agreement release-and-settlement-agreement
Joint Statement Joint-statement
Joint Stipulation
Posted in Civil Suit, Labor Law, Politics
An Illinois fire chief who was terminated by the Village of Riverside last February has filed suit against the village and a fire officer who repeatedly complained about him drinking on duty.
Fire Chief Kevin Mulligan filed suit in Federal Court on November 16, 2011 under the Americans With Disabilities Act, against the Village and Fire Captain Matthew Buckley. The suit alleges that the chief was terminated because the Village officials perceived him as being alcohol dependant based primarily on the repeated allegations of Captain Buckley.
According to the complaint, Buckley reported the chief’s drinking to the Village manager on at least three occasions, causing the Village leadership to conclude he had an alcohol dependency. On each occasion, Chief Mulligan submitted to an alcohol evaluation and was found to not be alcohol dependent. The Chief also alleges he offered to submit to alcohol testing, but was turned down.
Suing under the ADA is not usually a viable option for employees who are terminated for drugs and alcohol. However, the law recognizes an important distinction between someone who is impaired on duty and someone who is perceived as having a drug or alcohol dependency. The ADA offers no protection to someone who is impaired while on duty, even though it is the natural result of an addiction.
The ADA does protect someone who is discriminated against on the basis of a perception that they are disabled by a drug or alcohol dependency. That is the theory Chief Mulligan’s attorneys are pursuing.
The complaint is a pretty easy read (very well drafted unlike many legal pleadings) and explains the circumstances better than any of the news articles I have seen on the case. The complaint also contains a count against Buckley personally for defamation.
Here is the complaint. Mulligan v Riverside COMPLAINT
Posted in ADA, Civil Suit, Discrimination, Wrongful termination
Being a fire chief is not an easy job. It fact for many reasons it may very well be the worst job on the department. Bernie Becker was the fire chief in Clearcreek Township, Ohio for 11 years. During his tenure he was subjected to repeated accusations of misconduct by the union.
In February, 2008 the union accused Chief Becker of sexual harassment, creating a hostile work environment and abuse of power in a written complaint made to township officials. The complaint alleged 15 different incidents, and somehow found its way to the hands of the media. Chief Becker chose to resign in July, 2008, and filed suit against the union in October, 2008 for defamation and invasion of privacy.
Chief Becker alleged that the maliciously false accusations forced him to resign from Clearcreek Township, and caused him to lose several job offers in other departments. On the eve of trial that was supposed to start last week, the union moved for summary judgment on the basis that, as a public figure, Chief Becker had to prove “actual malice”…. Remember the movie??? In other words, to prevail the Chief had to prove not only that the union’s allegations were false, but that union officials knew they were false when they made them, or acted with recklessly disregard to whether they were true or false. That is a very difficult standard to prove!
Judge James L. Flannery concluded that Chief Becker failed to demonstrate to the court “some circumstance appearing in the record that would show that the Union entertained serious doubts about the truths of the allegations when the letter was written.” As a result, the judge ruled in favor of the union, effectively ending the case. There has been no word on an appeal as of yet.
Here is the courts actual ruling. Download Becker_final_ruling[1]
Posted in Civil Suit, Labor Law
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