Legal Lesson - Conduct Unbecoming

What does it mean when you are standing in front of your fire chief with a pending discipline action and the chief states you are being charged with “conduct unbecoming”.

What does that mean? Well in many States, it means you are going to be disciplined for on or off duty conduct that violated the Departments published firefighter code of conduct policy or SOP.

I have written in prior articles the need for a Code of Conduct and Policies that outline the terms and provisions of conduct unbecoming. If you work for a municipality or City, they may also have Policies and Employee codes of conduct that may affect you even if the department does not.

Some of you will say it’s a garbage can term that has no weight when being disciplined and the Department is overreaching is authority to discipline employees.

Well, not necessarily true. Let’s look at Woods v. The City of Berwyn, (2014 IL App (1st) 133450, (2014) where a fire lieutenant was fired. The court found he did not have a right to arbitrate his grievance under the collective bargaining agreement when the union had not referred the grievance to arbitration and there was no due process violation when the findings of the Board of Police and Fire Commissioner indicated that he had threatened his supervisors and their families was supported by the weight of the evidence. His statements that he wished to kill his supervisors was adequate to support his termination, since it constituted conduct unbecoming his position.

In a 2015 case found in Illinois entitled Thomas Bensfield, William Ruska, A.J. Ruska and Ray Williamson v. Village of Riverside & Fire Chief Spencer Kimura, the court found that the fire departments Code of Conduct and Standard Operating Procedures which prohibit conduct that would discredit the organization were not overly broad or vague under the US Constitution. Plaintiff is a firefighter for the Riverside Fire Department ("RFD"). Kimura is the chief of that department. The incident precipitating the discipline was in 2013, the plaintiff was at a bar with several other firefighters. On that night, one of the other firefighters got into an altercation with off-duty police officers. Plaintiff failed to report the incident and was suspended for twenty-one days for having violated certain sections of the Departments Code and SOP.

The code instituted by the department under their well-crafted Policies and SOP’s indicated to “Always conduct myself, on and off duty, in a manner that reflects positively on myself, my department and the fire services in general. Accept responsibility for my actions and for the consequences of my actions." The policy hammer contained within the policy indicates, "Members of the Fire Department shall be strictly accountable for disorderly, disgraceful, or unlawful conduct or for the commission of any act tending to bring discredit or reflection upon the department while on or off duty. Additionally, no member shall engage in any conduct, on or off duty, which might adversely affect the morale or efficiency of the Fire Department."

Pretty straightforward policy. However, where does it specifically state, ‘conduct unbecoming’?

In this example, there is no direct wording that reflects the specific term ‘conduct unbecoming’. What is stated however, are the terms: conduct myself in a manner that reflects positively-----; accept responsibilities for my actions and consequences----“. To the astute reader and firefighters affected by those policies need to read the content of Policy or SOP’s to determine how it affects them in all situations.

Many Fire Service Leaders I have talked to and in my own experience, we write many Policies for 5% of the firefighters who create discipline problems. Many times departments write policy after the fact because there is no policy to measure behavior and if there is no Policy in place, then how can you discipline the firefighter? The short version is, you cannot.

The other factor to remember is, in general, (a lawyer disclaimer) Courts are reluctant to meddle in the affairs of a department and will seek ways to create a ruling that preserves the administrative rights of the Department in the discipline of their employees. However, courts will not preserve Policies, Practices or SOP’s that discriminate against the firefighters.

Conduct Unbecoming is a term of art for many fire departments when disciplining their employees. Read department polices and understand the subtle message in those policies affecting your on-duty and off-duty conduct.