Fire Service Legal Issues – Year End Summary

This year has certainly been interesting related to the legal issues facing the fire service. We continue to see the fire departments in the news for many high profile fires, rescues, service calls and the other good things we do on a daily basis.

We also continue to see the fire departments mired in legal controversies that reduce the effectiveness of organizational cohesiveness and at times polarize our personnel and departments.

We can only read the legal effects of the claims or egregious actions by fire chiefs or firefighters, but we do not see or hear how it affects our firefighters or communities due to the discord created by litigation and possible breach of the public trust.

The general demeanor of our citizens is favorable towards the fire service. 2014 was a year of challenges, some failures and many successes. We find ourselves facing similar challenges for 2015 with new technology, challenging building construction, financial shortfalls, and reduction of firefighters in some areas, difficulty in finding sufficient volunteer firefighters in other areas, apathy and sometimes boneheaded decisions by our elected officials.  There are numerous articles written by our experienced FE bloggers related to managing these operational issues for the fire service. Many of those authors have been intimately involved in those issues are passing that knowledge forward.

Many of the following legal examples are gleaned from the news media, other sources and from personal knowledge gained from my legal comrades whose legal practices attempt to assist fire departments and firefighters through the legal quagmire in their efforts to quash the legal fires facing them. Today my area of current interest is to examine how we legally shoot ourselves in the foot with the following examples ripped from the headlines:

• Poor hiring practices –In Austin Texas, the Justice Department argued that a written test disproportionately eliminated African-American and Hispanic candidates without the Fire Department proving that the scoring method properly measured would-be cadets - the Fire Department amended its hiring process in 2013, but the Justice Department said it still discriminated. As part of the settlement, 30 positions in future cadet academies are reserved for Latinos and African-Americans and up to $780,000 will be awarded to unsuccessful Latino and African-American candidates eligible for back pay.

• Discrimination against Women and Minority Firefighters – there are literally hundreds of cases in 2014 involving discrimination against women and minorities. Many of these individuals who file a complaint against their department and prevail in court generally do not return to their jobs as a result of the court decision or terms of the settlement between the firefighter and their employer. One prime example is Michelle Maher v. City of Fresno in the U.S. District Court for the Eastern District of California (2009). The firefighter won a $2.5 million verdict plus attorneys' fees ($900,000.00) for this Fresno firefighter who was discriminated against on the basis of gender when she was dismissed from the department's training academy. Another ongoing case is in New York where in 2010 a federal judge ruled that New York City intentionally discriminated against black applicants to the Fire Department by continuing to use an exam that it had been told put them at a disadvantage. It was not a “one-time mistake or the product of benign neglect,” wrote the judge of the Federal District Court in Brooklyn. “It was a part of a pattern, practice and policy of intentional discrimination against black applicants that has deep historical antecedents and uniquely disabling effects. This case has continued to 2014 with the following actions: the federal judge ordered a new written test and better recruitment efforts by the department to boost numbers of minorities; Mayor de Blasio agreed to have the city shell out more than $100 million to a group of 1,500 minority firefighter applicants who sued over FDNY entrance exams that were found to be biased and the Fire Commissioner eliminated the Academy Functional Skill Test (FST) as a deciding factor in graduation from the Academy. Finally, in Chicago, there are about 5,000 firefighters and around 120 are women and a federal judge awarded $2 million to women candidates after ruling the department discriminated against women with a physical fitness test that was measuring brawn over the ability to do the job. This type of legal action also occurs in mid sized and small departments as well.

• Inept termination procedures - Columbus firefighter was facing a misdemeanor charge of fondling a 16-year-old girl when he asked his supervisor whether pleading no contest to avoid a trial would cost him his job. He was told that an employee has never been fired for a disorderly-conduct conviction. But after the firefighter was sentenced to 30 days in jail and the Fire Division conducted an internal investigation, the Fire Chief terminated him. The firefighter appealed his termination in 2008, and an arbitrator ruled that even though he never denied fondling the girl, the city failed to prove wrongdoing. The firefighter got his job back. More than half of such appeals have succeeded over the past decade, a review of the police and fire divisions’ internal investigations shows. Arbitrators upheld just six of the 13 firings that police or firefighters appealed under their union contracts. Many of those who won their appeals also were awarded back pay and lost benefits

• Off duty behavior by firefighters - A Hartford firefighter was placed on administrative leave following an arrest for driving while under the influence and evading a crash and in Seattle two off duty firefighters were charged with assault of a homeless person while they were intoxicated but the charges were recently overturned in court. Both Seattle firefighters lost their jobs. An interesting case in Baton Rouge (La.) found the firefighters' career in the crosshairs when the Fire Chief discovered that the firefighter co-produced a movie in his off-duty time. The movie, “Mississippi Shakedown,” is a butt-shaking crime drama featuring scantily clad women, drugs and more four-letter words than uttered by a longshoreman. It also includes a scene allegedly taken inside a Baton Rouge firehouse. Relying on a departmental policy that requires firefighters to notify their superior officer “of all matters coming to his attention affecting the interest and welfare of the department,” the department terminated him. The termination has been appealed the termination to the Municipal Fire and Police Civil Service Board, asserting that the termination infringes upon his First Amendment rights and amounted to an impermissible attempt “to censor the off-duty activities of its firemen and impose the fire departments perceived moral standards on its firefighters.

• Sexual assault in the fire stations - D.C. police conducted a sexual assault investigation which allegedly took place inside a firehouse. The alleged victim is a female firefighter who says she was inappropriately touched while she slept. A police report reveals the victim says she felt an unknown suspect touching her inner thigh which woke her up. The D.C. fire department is also conducting its own internal investigation to find out if the female firefighter’s report of the alleged incident to her immediate supervisors was then passed on to police and administrators within the fire department in a timely manner. Four firefighters have been placed on administrative duties pending the result of the investigation. The alleged victim remains on the job. In New Jersey, a New Jersey volunteer firefighter has filed a sexual harassment suit against another firefighter alleging sexual assault also naming the Fire Chief. The incidents occurred between 2006 and 2008 alleging she was subjected to “severe, regular and pervasive acts of sexual harassment of physical and non-physical nature” and the named firefighter touched her breast and buttocks. A more recent and yet bizarre case in Maine a firefighter who was sexually assaulted by the former Caribou fire chief in 2011 filed suit against both her assailant and the municipality in U.S. District Court in Bangor. The Fire Chief was found guilty in June 2013 of five misdemeanor charges of unlawful sexual contact, assault and unlawful sexual touching after the firefighter and another young woman who had been employed by the city came forward to report the crimes against them. The Fire Chief who was 70 years old resigned in January 2012 after a 44-year career, having spent the last 21 years as head of fire, ambulance and emergency management services for the city.

• Embezzlement -  The fire chief in Middlebury (Conn) faces federal charges, accused of embezzling $70,000 from the town's volunteer fire department, according to federal prosecutors. The Fire Chief was arrested at his Middlebury home and pleaded not guilty in Bridgeport federal court to three counts of theft concerning programs receiving federal funds. In another case, the secretary of the Monroeton Volunteer Fire Department was arrested on suspicion of embezzling more than $140,000 from the volunteer fire department. She was charged with felony embezzlement of the money and in Pennsylvania, charges were announced against two former officers of a local volunteer fire department accused of embezzling more than $105,000 from a department account while the two served as the treasurer and president. Investigators said they first began investigating when another department officer reported discrepancies in a bank account. The two had signatory authority and possessed debit cards allowing both access to the account. The two “had been making several large (personal) purchases, ATM withdrawals, cash withdrawals and several trips to local casinos in the area.

• Social Media – again there are hundreds of cases of firefighters terminated for their inappropriate use of social media to articulate their positions on many issues including issues against the fire service. My cohort Chip Comstock will articulate his position on the First Amendment and Social Media at FDIC 2015; however this example summarizes the inappropriate use of social media for a firefighter:

  • The suddenly unemployed battalion chief with Howard County Fire & Rescue posted to his Facebook timeline while working a 24-hour shift “My aide had an outstanding idea …. Let’s kill someone with a liberal … then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal with another liberal … its almost poetic….” Then one of the Battalion Chiefs Facebook friends commented on the status, giving the joke a vaguely racist twist. Then the Battalion Chief “liked” the comment and responded with an “Lmfao!” He removed the post at the behest of the assistant chief a few days later. Again a few months later, he “liked” a picture of “an elderly woman with her middle finger extended,” underneath which a volunteer firefighter had written a caption stating that he would “post whatever the f–k I want.” In March, he was fired. The termination was based on violation of the Howard County Maryland Employee Manual.

  • A recent case in Philadelphia, a paramedic’s posting with a picture on Instagram shows two African Americans pointing guns at the head of a white police officer, a scene from rapper Maino's video "Hands Up." The post reads, "Our real enemy. Need 2 stop pointing guns at each other and at the ones that's legally killing innocents." What makes the picture more disturbing for police is that the photo came from account of a Philadelphia Firefighter Paramedic. Discipline is pending however the controversy is raging.

• Finally,  Scamming the system – firefighters are smart bunch of individuals, some who have been charged with scamming the overtime system; work replacement and sick leave programs including other creative ways to collect overtime money for not working or even showing up to work. One creative case in Buffalo (NY), the scam would involve three firefighters working in concert with each other. Here's how the alleged scam worked: Firefighter 1 would call in sick even though he wasn't. That would then create an overtime opportunity, at time and a half, for someone at his or her firehouse. Firefighter 2 would then accept the overtime, but rather than work the shift, he or she would then turn around and sell the shift to Firefighter number 3. Firefighter 3 would then kick back money under the table to Firefighter 2. In another case, a Tucson Fire paramedic has been indicted on four felonies for workshift fraud with schemes and artifices after a Tucson Police Department investigation revealed the firefighter “double billed” the city to spike his pension and earn a little extra money through overtime. The firefighter charges stem from paying fellow firefighters up to $200 to call in sick when his name was at the top of the overtime list. This would “double bill” the city by paying twice for the same shift: sick leave to the scheduled employee and overtime to the firefighter. Pension spiking by working overtime isn’t illegal. But the firefighter engages in fraud to pursue it by paying firefighters to call in sick.

OK, that’s enough for now and is only the tip of the fire service legal issues iceberg. I could provide some moral and legal anecdotal comments to these examples but I think you get the message. Let’s do good things out there and stay out of the press and especially out of the courtroom.

I would like to thank my legal cohorts and fellow fire officers: Chief Chip Comstock JD (OH), Chief Brad Pinsky JD (NY) and Chief Curt Varone JD (RI) for their valuable contributions to the legal side of the fire service. Listen to us monthly on Fire Service Court Blog Talk Radio for the latest legal issues facing the fire service.

Have a safe and legally sane 2015.

Sources: Firelawblog.com; numerous newspaper articles; classes taught at national conferences; consultation with firefighters and fire chiefs; firefighter rumor network and many others.

John K. Murphy JD, MS. PA-C, EFO, Deputy Fire Chief (Ret), has been a member of the career fire service since 1974, beginning his career as a firefighter & paramedic and retiring in 2007 as a deputy fire chief and chief training officer. He is a licensed attorney in Washington State since 2002 and in New York since 2011. Mr. Murphy consults with fire departments and other public and private entities on operational risk management, response litigation, employment policy and practices liability, personal management, labor contracts, internal investigations and discipline, and personal injury litigation. He serves as an expert witness involving fire department litigation and has been involved in numerous cases across the country. He is a frequent Legal contributor to Fire Engineering Magazine, participant in Fire Service Court Blog Radio and a national speaker on fire service legal issues.

For more information please contact me at 206-940-6502 or at john@murphylawgroup.org