Wisconsin Firefighters Face Discipline Over Cellphone Recording
Two Kenosha, Wisconsin union officials are facing suspensions for their role in a complicated case where a cellphone allegedly recorded a discussion that took place after they stepped out of a meeting with the fire chief. But the case raises a number of more complicated issues involving criminal law, evidence, and even a Constitutional question or two!!!
Firefighters Jeremy Ryan and James Adams were given disciplinary charges last week for recording a meeting to which they had just stepped out of, something that could constitute the criminal offense of eavesdropping. Adams is now facing a four-day suspension while Ryan faces a three-day suspension.
The incident occurred on April 30, 2014 when Ryan, president of IAFF Local 414, and Adams, a member of Local 414’s Executive Board, met with Fire Chief John Thomsen and several other chiefs to discuss a grievance. According to an affidavit signed by Ryan and given to the Kenosha County District Attorney’s office, Adams began recording the meeting on his cellphone that was placed openly on a table.
After 20-30 minutes, the two union officials were asked to leave the room but told they could leave their personal items in the room. Adams’ phone remained in the room on the table.
What is somewhat unclear is whether Adams turned his phone off before leaving the room. What is clear is that upon the meeting resuming, Chief Thomsen asked Adams “Do you deny recording this meeting?” Adams responded “No”, to which Chief Thomsen responded: “You just committed a felony, you will be disciplined pending a formal investigation. I am ordering you to delete that right now.” Adams did as instructed and deleted the recording.
The matter was referred to the Pleasant Prairie Police Department who wanted to prosecute Adams on the eavesdropping charge under Wisconsin Statutes, Section 968.31, but after reviewing the case District Attorney Robert D. Kapf refused.
Here is a copy of Kapf’s letter stating his reasons for not charging Adams. Attorney Hawks-1 (07-17-2014)
Ryan and Adams now face a disciplinary hearing before the city’s Police and Fire Commission. Here is a link to a news article on the case.
For the Legal Eagles out there… as well as those who have been in my discipline and digital age classes – this case is chock-full of issues. How many issues can you spot in the above fact pattern? I am seeing at least four, maybe five… maybe more. Let’s see.
First, under Wisconsin law, only one party to a conversation (or meeting) needs to consent to it being recorded. So Adams’ recording of the meeting was legal AT LEAST up to the point he left the room. Assuming there was no department policy that prohibited secret recordings, that aspect of the recording should be a non-issue. While there appears to be a question of fact as to whether Adams did stop the recording when the meeting adjourned, if he intentionally left the cellphone recording as he left the room it could be an eavesdropping violation under Wis. Stats. Section 968.31. Proving Adams intended to record (as opposed to forgot to turn it off) could be a challenge for the prosecution.
However, there is a bigger challenge looming in this case: the fire chief ordered evidence relevant to a criminal case to be destroyed. That is spoliation plain and simple and even District Attorney Kapf said so in his letter!!!!
While it does not appear that Chief Thomsen will be charged criminally with destruction of evidence/spoliation – ordering the destruction of relevant evidence certainly would be enough to gum up any criminal prosecution of Adams.
The very same issue will likely be in play in any effort to discipline Adams or Ryan. The hearing officer will be entitled to infer that the destruction of the recording tends to hurt the department’s case, and benefits the firefighters’ defense.
Next, did the recording constitute a public record, and was its destruction a violation of the state’s public records act? Let’s leave that rabbit hole and move on to the next.
The next issue applies more to Ryan than Adams, because Ryan was off-duty at the time and present at the meeting in his capacity as a union official. Adams was on duty but arguably was acting in his capacity as a union official. Can union officials be disciplined for off-duty (non work-related) union activities? Does this kind of discipline constitute an unfair labor practice? Before anyone says on-duty or off-duty, it was work related and they both can be disciplined… let me warn you, that answer helps make the case for the next issue: Garrity.
Explaining Garrity here would be a bit much – but the short version: a firefighter who is compelled to answer questions by a superior officer about a work related matter which may incriminate him in the commission of a crime, has to answer the questions asked – but the answers cannot be used against him in a criminal prosecution (ie. the employer cannot share his answers with the police). The responses are entitled to what is essentially use/derivative use immunity.
It would appear that Adams’ answer to the fire chief’s question: “Do you deny recording this meeting?” could be construed as a compelled statement. Given that Chief Thomsen clearly recognized that a criminal offense was a likely outcome, and nevertheless demanded that Adams answer a question that clearly incriminated him in the commission of a crime – Garrity is implicated. By reporting the incident to the police – the department gave Adams a potential “get out of jail free” card that appears to have passed unnoticed up to this point.
Whew…. Flash-back to law school and issue spotting. Is there anything else?
As a matter of fact there may be. Those who have attended my PATC course Fire Department Administrative Investigations & Enforcing Discipline should have been all over the spoliation issue and the Garrity issue (if not, I’m very disappointed).
Did you notice a possible due process issue or two? These are not as clear as the spoliation or Garrity issues but think back to our discussions. Remember the 7 essential components of procedural due process? One we discuss at length is the importance of a neutral decision maker. While it is not totally apparent from the information we have available, somehow an initial determination has been made that Adams and Ryan were guilty of a rule violation and that 3 to 4 day suspensions were appropriate. If that decision was in fact made as part of a POST DEPRIVATION PROCESS – it is an adjudication and as such must be made by a neutral decision maker.
While we do not know if the fire chief made that adjudication decision, let’s assume he did. Can the fire chief in this situation be that neutral decision maker? First of all, he is a witness. Second he’s a possible victim of a crime. Third according to the affidavit that the district attorney took, the chief told Adams: “You just committed a felony, you will be disciplined pending a formal investigation.” That statement would tend to suggest that he has already made up his mind. Someone who made up his mind about someone’s guilt or innocence in April is not in a position to rule on their guilt or innocence months later.
Again, we don’t know from the available news reports if the department used a POST DEPRIVATION process or a PRE-DEPRIVATION process, nor whether the fire chief recused himself from making the adjudication decision relative to Ryan’s or Adams’ discipline. But this is why we spend the time in class studying these issues!!!! TO AVOID THESE KINDS OF HEADACHES!!!!
But there still is one more pesky little due process issue, isn’t there… Due process requires a fair hearing and when the department commits spoliation of potentially exculpatory evidence, how can a firefighter possibly get a fair hearing? I will be VERY disappointed if anyone who has been through the FDAI program missed that one!!!!
OK… I’m done. But how about the other Legal Eagles… Chip, John, Brad… Do you see any other issues in play here? How about Bill Maccarone or Mark Gerano…???
Curt:
This is an interesting case. The one comment I would add is a question about whether the initial “look” into Adams’s cell phone was an unreasonable search in violation of the 4th Amendment. Ryan’s statement indicated that while the two men were standing outside of the office they could see through the glass and noticed the Battalion Chief holding the cell phone. I am assuming that the reason the BC was holding the phone was because he was looking in it. I am not sure whether this is really a clear-cut matter, however it seems to me that Adams should have had at least some amount of an expectation of privacy in his personal cell phone that was at the time being used strictly for union business. In Ontario v. Quon the Court held that a SWAT officer had no reasonable expectation of privacy in a search of his department issued pager, however the Court did not decide whether the case would be different had the pager been the officer’s personal property. I think there is an argument to be made that the initial search of Adams’s cell phone was unreasonable, and violated his 4th amendment rights. What are your thoughts?
As always, your analysis on this case is spot-on. There appears to be some internal issues here that are affecting people’s ability to stop and think. I think the lesson learned here is don’t make on-the-fly decisions that have legal ramifications when you don’t have to.
MG
Mark
I totally missed that!!! You are absolutely right – and in light of the Riley v. California – your point is even more pertinent!!!! SCOTUS took note of the voluminous info on the typical cellphone – finding that the privacy interests that are implicated exceed those normally associated with a search of one’s home!!!!
Curt,
After reading the material provided it becomes obvious that there was tacit permission to record as Adams placed his phone in plain view and not knowing if he pushed the record button in front of the Chiefs appears to become a moot point after the chief made him delete the recorded material.
What is more important at the beginning of the grievance hearing
are the rules of a hearing procedure, many times found in the provisions of
their CBA. At times, the CBA language will permit recording of the proceedings. It becomes a best practice when there is a caucus during the hearing and the other party is asked to vacate the room is to tell the party vacating the hearing to take their stuff. You take the chance of a recording device being operational during those “private discussions”.
This is so unlike the Chief terminated in Alabama for apparently using a spy pen during a “promotional hearing” in spite that it was known he recorded previous meetings.
As noted the burden of proof is on the department to prove the allegations and now the recording is gone, the evidence has disappeared. The prosecuting attorney took the correct direction in not prosecuting this case due to lack of evidence.
The more interesting issue is the union representatives being disciplined for this recording in a grievance hearing. It seems to be a misuse of administrative powers by the Chief to discipline the two labor representatives in a valid labor issue. The effect of the Chief’s disciplinary action would have a chilling effect on future labor/management hearings under the CBA. The question is, “is there an expectation of immunity for representatives of a labor group during a disciplinary hearing” if there are some actual or imagined breaches in the process? In my experience with the grievance process involving a bargaining member is to lay out the ground rules first and establish that the labor representatives are “off duty actors” for the purpose of the hearing.
The letter from the District Attorney’s office sums it up nicely at the end stating it is his understanding that the department is revising its work rule (and hopefully provisions in the CBA) related to the use of mobile recording devices. The grievance hearing officer should have laid out the ground rules at the beginning of the hearing. I see another grievance process in the works.
This will be a good one to follow.
Chief,
I agree with Mark as well. In particular the claims made by the Chief regarding potential felony charges, could very easily point to the Chief acting as an agent for the police. Especially in light of the zealous attempted prosecution (based upon the AG’s letter to local PD). Also, based upon the Chief’s order to erase the recording immediately, one has to wonder what was said outside of the union officials ears? This another example of cut-throat labor management relations, which tend to lead to unnecessary litigation and thousands of wasted taxpayer money in an era when parties should be working collaboratively to save money.
Additionally, there is a public records angle to pursue here as well. I am not sure of the particulars behind this states APRA regulations, however the whole premise behind public information statutes is open and transparent government. The administration would have a difficult time justifying the necessity for secrecy. Therefore how could a union official be convicted/punished for memorializing/creating a public document?
If the recorder/phone was out in the open, and not concealed, did the chief consent to the recording? Similarly, if a police dispatcher places a caller on hold to dispatch resources, while the caller makes incriminating statements, will the recorded statements be suppressed? I highly doubt it.
Good points Bill. If the recording is (was) a public record and the chief is responsible for ordering its destruction – there are likely to be sanctions. In some states it is a criminal offense to destroy a public record.
John
This would be a different case if the department had a policy prohibiting secret recordings AND it extended to meetings with union officials. However – it appears they did not – and given that WI is a one party consent state – the union officials had every right to record the meeting WHILE THEY WERE PRESENT.
The chief’s biggest blunder was to order the destruction of the recording AND seek the FFs criminal prosecution. If he simply sought the criminal prosecution AND they actually did record conversations without the knowledge of anyone in the room – the criminal charges would have some validity.
Another aspect to this case is the bad blood between the union and the chief. The union had accused the chief of misconduct on several occasions. Perhaps the ill-will prompted the chief to act as he did.