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How do non union departments protect the firefighters from dismissal?

Todd McKee

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Look first to department Policy as it relates to discipline and termination. Generally discipline is progressive meaning that it starts at a verbal warning then progresses through steps culminating in termination. There are certain procedural steps that departments need to take to include Weingarten and Loudermill hearings which protect employees rights under federal law. Second look to the current state and federal laws that protect employees from wrongful termination like gender or age. Third, don't do anything that would provoke a termination event.

Brief but a good start.

John
This is a hard question to answer without knowing which state you are in. Many states have civil service laws which require certain due process requirements prior to dismissal. Hearings are required in many states. Attorneys are useful at these hearings, although occassionally some employers try to prevent you from using an attorney at a disciplinary hearing. New York State, for example, provides for a hearing prior to the suspension or termination of an employee, and just cause is required for termination of a civil service employee.
I am in Ohio, there is a lot of talk around the firehouse about guys being dismissed or asked to resign. This is why I am asking.
In Ohio- city, village, township and district firefighters are protected by the Ohio Revised Code. For example, see RC Section 505.38 for Township/district employees. A firefighter is entitled to a hearing. However, asking someone to resign avoids the hearing--and can be in both the FFer's and FD's best interest on occasion. Remember that personnel files are public record, so occasionally a firefighter may want to avoid having an incident appear on his permanent record. For more information, attend the Ohio Rural Fire Council's "Fire Department Legal Issues" seminar which will be held at the Ohio Fire Academy on April 4, 2009.
Here is a policy I have used to protect firefighters in fire departments, while providing a good means for discipline. Its part of the bylaws. Its just a sample I used in a department's bylaws. One of MANY ways of doing things.



Termination of Active Membership and Removal of Member. In addition to the requirements and procedures stated in these by-laws, the policies of the Company may proscribe additional reasons for the termination, removal or suspension of membership, but such policies shall not abrogate or amend these by-laws.

A. Reasons for termination.


***

(2) Failure to adhere to membership requirements. Membership may be terminated upon the failure of a member to meet the attendance, drill, training, call or other membership requirements as stated in these bylaws or the policies. No hearing is required to terminate a person for the failure to remain Active.

(3) Conviction or Plea to Arson, Attempted Arson or any felony. The membership of any member shall terminate immediately without a vote required if he pleas to or is convicted of arson or attempted arson (regardless of whether a certificate of relief has been obtained) and may be terminated upon conviction or plea to a felony in any degree while a member, subject to a hearing.

(4) A person may be terminated or suspended for the following:

i. Misconduct
ii. Incompetence
iii. Insubordination
iv. Conviction or plea to any misdemeanor or any felony
v. Conduct unbecoming a member of the Company for conduct that can be attributed to him as a member
vi. Conduct detrimental to the name and reputation of the Company
vii. Violation of the oath of membership
viii. Violation of the policies of the Company
ix. Failure to meet training, drill and other Company requirements
x. Violations of the Code of Conduct
xi. Announcing orally that you are immediately resigning from membership
xii. Refusing upon request to respond to an emergency without reason

B. Termination and Suspensions up to one year.

General notice shall be provided to the members of the Company that any person suspended has been placed on “Inactive Status” but need not state that the person was suspended or the reason for the suspension. The process for suspensions and permanent removal is as follows:

A member may be suspended by:

(1) Any senior member on a call, incident commander or chief or line officer for up to 48 hours after the incident, for an act that seriously and immediately threatens public safety or the health, safety or welfare of the public or Company. The Chief or President may continue the suspension for up to a total suspension time of fourteen (14) days. If the suspension is to be continued for more than a total suspension time of fourteen (14) days, the President must convene the Vigilance committee. The Committee will notify the member to appear before the Vigilance Committee generally no sooner than seven and no later fourteen days of the Chief’s or President’s suspension. The Committee may then suspend the member to up to a total time of ninety days (90) from the first day of suspension. The member shall have only the following rights: The right to appear and testify before the Committee; the right to remain silent; the right to bring witnesses; the right to cross examine witnesses. He shall not have the right to bring an attorney or other counsel. Should the Chief, President or Board of Directors wish to terminate the member, the Vigilance Committee shall conduct a formal hearing as provided below.

(2) The Chief or the President, or a majority of the whole of the Board of Directors may each suspend a member for the reasons stated in A(4) above for up to fourteen (14) days. If the suspension is to be continued for more than a total suspension time of fourteen (14) days, the President must convene the Vigilance committee. The Committee will notify the member to appear before the Vigilance Committee generally no sooner than seven and no later fourteen days of the Chief’s or President’s suspension. The Committee may then suspend the member to up to a total time of ninety days (90) from the first day of suspension. The member shall have only the following rights: The right to appear and testify before the Committee; the right to remain silent; the right to bring witnesses; the right to cross examine witnesses. He shall not have the right to bring an attorney or other counsel. Should the Chief, President or Board of Directors wish to terminate the member, the Vigilance Committee shall conduct a formal hearing as provided below.

For any formal hearing seeking more than a ninety (90) day total suspension or a termination, the following procedure shall take place:

i. Notice and Hearing. After a person has been suspended by either any person or Committee, the Chief or President shall provide the member a letter, by certified mail, which provides all charges alleged with specific dates. Such notice shall provide the member with at least ten (10) days and no more than thirty (30) days notice of an informal hearing. The member shall be advised that it is permitted to submit a written response at any time before the hearing. The notice shall also state the time and place of the hearing, and shall advise that the member may be represented by counsel. At least four of the non-interested members (non-witnesses, non-accusing) of the Vigilance Committee shall serve as the hearing committee. The member shall be afforded four days from receipt of the notice to object to the members of the Membership, but the only reasonable objection is that a member of the Committee is biased or was a witness. Should there not be at least four persons able to serve on the Committee, the President shall choose the alternate, being any person with at least five (5) years of active service in the Company.

ii. The Hearing. At a hearing, the member will be permitted to present a defense to the charges. The Vigilance Committee will determine what the facts of the incident(s) are and determine the facts for each charge. The determinations on each charge shall be placed in writing and provided to the member. The member may present proof that could serve to mitigate any punishment if he desires.

iii. The Decision. After hearing the proof and arguments and after determining the facts underlying the incident(s), the Committee shall render a written decision for either: (1) time served; (2) additional time for a suspension to be imposed up to twelve months; (3) termination of membership; (4) and other remedial action as deemed reasonable by the Committee.

iv. Confirmation of Recommendation. For any other option other than time served or a suspension up to 90 days total, the facts of the decision shall be presented to the membership, along with the recommendation. The membership shall vote by secret written ballot on the recommendation of the Committee. There shall be no dispute or debate of the facts as presented by the Committee. A majority of the active members present is necessary to confirm the recommendation of the Committee.

v. Appeal of the hearing. There shall be no appeal of the hearing.

C. Suspended Member Restrictions.

Members who are suspended may not, for the entire period of the suspension, attend any Company function other than is related to the affiliated hearing or investigation. Suspended members shall not in any way identify themselves as being affiliated with the Company, such as by wearing insignia or other marked clothing. Such members may not be present on Company’s property or in its vehicles. No benefits or privileges of membership may be exercised. Any violation of this rule shall permit the Board to continue the suspension for an appropriate period of time, up to an additional two months. Nothing shall prohibit a suspended member from exercising any rights available to him as a member of the public as if he were not a member.

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