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…???