Fire Service Legal Issues – 2016 Review

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.

Interestingly enough, in spite of the fact there has been a plethora of information from your favorite fire service attorneys (Murphy, Varone, Comstock and Pinsky) in writing, presentations and on Blog Talk Radio, we continue to see issues repeating themselves resulting in terminations, large money payouts and sometimes embarrassment to our fire service.

We 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.

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

Social Media – our firefighters and fire departments continue to commit Social Media Career Assisted Suicide by posting material on your social media sites (with over 212 different sites to choose from) that result in demotions, suspensions and terminations. For example in Michigan a firefighter posted his support of Kolin Kappernick and his racially charged position on the black live matter issues in an inflammatory way that caused his termination and a Columbus Ohio firefighter made similar comments related to the black lives protesters blocking streets and freeways making comments that there could be a few deaths as he was driving home at the end of the shift if they do not get off the highway. This particular posting had collateral effects as not only he was terminated, there were two other firefighters who agreed and were terminated and a 4th firefighter, carried a personal weapon to work, fearing for his safety was also terminated for violation of the department weapons Policy. There are hundreds of such violations of Policy and your department must have one – (see the Fire Engineering Policy Bank site for a model policy) in order to enforce a violation. It appears that as public safety officers are held to a higher standard by society and posting racist or sexist material on YOUR social media site will probably end your career. There are allegations that cyberbullying over a social media site led to the suicide of firefighter Nicole Mittendorff. A theory not proven but certainly frightening that a person could be pushed to the limits by bullying on social media. Most recently a Henrico Virginia firefighter was suspended for Facebook comments about race, Trump, Obama, Muslims & more. Please keep your personal bias off a site that identifies you as a firefighter and certainly do not post medical information about your patients over those sites as well.

Fair Labor Standards Act (FLSA) – one of the current large liabilities we have seen in 2016 is the non-payment of overtime for firefighters. There are many examples across the country costing the fire department hundreds of thousands of dollars of non-payment of overtime to firefighters. Although it appears simple on the surface, FLSA overtime is calculated by multiplying an employee’s regular rate by 1.5 x the rate of regular pay. When calculating an employee’s regular rate, the employer must include “all remuneration,” not just the employee’s hourly wages. Regular rate mistakes are one of the most common reasons why fire departments are being sued under the FLSA. A current case in California, firefighters are suing their department. In Baskin v. City of San Luis Obispo, under a Memorandum of Agreement, (MOA) contained, among other things, a cafeteria benefits plan (“Plan”), which provided a bimonthly contribution for the optional purchase of health, dental, vision, and disability insurance. The Plan also allowed employees who have other health insurance to receive a cash payment in lieu of health insurance coverage through the City. The 2016-2019 memorandum of agreement provides substantially identical terms with respect to overtime and the Plan. Within three years prior to the filing of this Complaint, Plaintiffs worked overtime and received substantial cash payments in lieu of health insurance. However, the City knowingly and deliberately underpaid Plaintiffs for overtime by excluding cash payments in lieu of benefits in the calculation of the regular rate of pay.

Another recent case found Fairfax County settling a FLSA case with their fire captains for $7.85 million in a case entitled Morrison v.  County of Fairfax (4th Circuit Court of Appeals 14-2308). This was a case of the definition of “Executive” or “Administrative” level employees whose primary jobs management related are generally not entitled to overtime. The question here is that first responders falling in that exception and are not entitled to overtime. The court in this case ruled in favor of the Fire Captains that they were entitled to overtime as their primary responsibility was first response. Our very own Curt Varone provides an excellent course in the nuances of the FLSA.

Inspection Liability – Facing the large loss fire in Oakland (CA), the fire attorneys have discussed the advantages of routine fire inspections of high hazard facilities or special use facilities. The December fire in Oakland in an artist nest called the “ghost ship” resulted in 36 lives taken and scores more injured. The issues were many from owner/operator liability to the perception of liability on the part of the City of Oakland and the fire department. As of this submission there is one lawsuit filed by the estate of several of the victims and the Fire Department has not been a party to this particular litigation. We will see what occurs with the other victims. The attorneys believe that prevention is better than litigation. Your department must have a comprehensive inspection program with some “legal teeth” to enforce the fire codes of your jurisdiction. Just the other day, in my conversation with a firefighter on this very issue, he stated the firefighters do the inspection, find hazards, notify the owner and file a report with the fire marshal’s office. Two to three months go by, a re-inspection occurs and the hazards remain. This is an organizational problem that may come back and haunt the fire department if there is an event in this particular establishment. Listen to Chip Comstock and John Murphy discusses fire inspections and possible liability. Listen here: http://www.blogtalkradio.com/fireengineeringtalkradio/2016/12/09/episode-1435-fire-service-court

Discrimination  and Hazing -  Again we are reminded that our service is rife with litigation related to discrimination, hostile work environment, harassing and bullying behavior mostly directed a women and people of color. I have discussed this issue before in presentations, podcasts and articles and yet we continue to see individuals and municipalities breach the standards of the Civil Rights Act and the various freedoms found under the various laws from Pregnancy Discrimination, Age Discrimination, First Amendment rights violations and others easily found in the Constitution, Federal and State laws.  A recent case in California settled for $2.6 million in a case involving an African American firefighter for racial discrimination and retaliation and he retains his job.  A US Forest Service wildland firefighter testified before Congress about the pervasive sexual harassment and gender discrimination in the federal agencies that manage the public lands. In a disgusting example of hazing, a plea deal has been reached in the sexual assault-hazing incident that occurred one year ago in Ellis County, Texas where five firefighters sodomized another firefighter with a sausage and a broom handle. The girlfriend of one of the firefighters filmed the hazing with her cellphone camera. All six were charged with aggravated sexual assault and attempted aggravated sexual assault. The Fire Chief and Assistant Chief were later charged with witness tampering for advising the victim and members not to discuss the incident with authorities.  There are hundreds of similar cases across the county and most if not all do not end well for the firefighter or the fire department. It is imperative that fire departments have policies preventing discrimination and other adverse actions against your employees and the Policy is actually enforced by the staff, officers and firefighters. It is inexcusable behavior in today’s firehouses.

Promotional Discrimination – the seminal case of promotional discrimination is found in Ricci v. Destafano 557 U.S. 557 (2009). This case on unlawful discrimination through disparate impact under the Civil Rights Act of 1964 found eighteen city firefighters at the New Haven Fire Department, seventeen white and one Hispanic, claiming discrimination under Title VII of the Civil Rights Act of 1964 after they had passed the test for promotions to management positions and the city declined to promote them. Now its progeny continues in the fire services.  Twelve white firefighters in Buffalo NY sued after not getting promotions they were in line to get, have been awarded a total of more than $2.5 million from the city of Buffalo. The men sued the city in 2007, claiming the fire department illegally allowed promotional lists with their names on them to expire so they could promote African-American firefighters instead.  In Dougherty et al v. City of Philadelphia et al, (2:16-cv-00144) in the U.S. District Court for the Eastern District of Pennsylvania, the City of Philadelphia has settled a federal lawsuit brought by 14 firefighters accused its fire department of manipulating its promotion process to favor minority candidates — by reinstating promotions that were rescinded in 2013. The firefighters, 13 of whom are white, had alleged that the fire department and former commissioner deliberately delayed acting on promotions to allow an eligibility list to expire, so they could generate a new list that favored African-Americans and Hispanics. They had been briefly promoted after a court ruling in a lawsuit brought by their union related to the promotional process in 2013, but were demoted later that year after the ruling was overturned. Departments need to look at precedent setting cases and awards before considering the possible discriminatory actions of violating the promotional processes for their firefighters. Again there are many more case law examples of promotional liabilities.

Firefighter Terminations –  We do not terminate firefighters very well, for many reasons, but one reason stands out is that we do not terminate firefighters that often and when we do, we do a horrible job. Many times it is due to an incomplete or faulty investigation arriving at a wrong conclusion or we pull the termination trigger before we know all of the facts. This year, a firefighter who was fired by the City of Vallejo has won a wrongful termination lawsuit. The jury at the Solano County Superior Court awarded the firefighter $2.3 million in damages after a nine-week long trial. The 47-year-old charges the fire department's command staff retaliated against for him for telling the truth about what happened in a deadly fire.

In a case that raised my eyebrows was in the Oak Lawn Village where the trustees unanimously approved a settlement agreement with a village firefighter who was dismissed last year in a phone-sex probe. The agreement came as the result of a grievance process between the village, Oak Lawn Professional Firefighters Union IAFF Local 3405, and firefighter/paramedic. The firefighter/paramedic’s 16-year employment with the village was terminated for “violations of multiple departmental rules and regulations” following a lengthy disciplinary hearing. According to the allegations, the firefighter made calls to an adult phone sex line while on duty. The firefighters’ union fought the termination by filing four grievances on his behalf, in addition to circuit court litigation. Under the terms of agreement, the village will pay $42,040 in accrued time-off benefits, in addition to a $57,960 severance package. The village also agreed to rescind any pending grievances in his personnel file. He will not receive any additional back pay or pension benefits from the village and his separation from the department will go down in the books as resigning instead of being terminated. The village has agreed to provide a letter of recommendation speaking favorably of his skills as a firefighter and paramedic, and not disparage him to future potential employers. In exchange, the firefighter has agreed not to pursue his complaint with the Illinois Labor Relations Board, and will drop circuit court litigation to get his job back. Both sides agreed to permanently dismiss the complaint. This type of behavior on the part of this firefighter is reprehensible but made even more so by the long term struggle to permanently terminate this employee.  

In another case a former Tulsa firefighter is suing for wrongful termination following a social media post. The 20 year veteran wrote a derogatory comment about a police officer and was called in to meet his Chief. As he was on vacation, he did not believe he should cancel is vacation plans to meet with the Chief due to the fact he did not deem it an urgent meeting. When he did finally return to work, he was punished for his comment and fired for insubordination. The firefighter argues the department DID NOT FOLLOW POLICY and failed to give him a written warning. He is suing for $3 million in lost wages and benefits.

Final Commentary – We are a paramilitary organization faced with multiple rules, regulations and laws. Each year when I make this report, it is more of the same, just with different department and different actors. The infractions are the same and apparently we do not learn the lessons from others who have traveled before you. It is incumbent on all members of the organization to understand the laws of society and rules and regulations that dictate our behavior while on and off the job.

As firefighters we have an obligation to self, family and your community to do the best job possible and not bring a harsh spotlight on your organization and yourself by behaving badly. These examples above are just the tip of the iceberg and there is no real reason for it. When you assume the role as a firefighter in your community, you have a sense of duty and obligation to your fellow firefighters as well. None of us get up in the morning and vow to mess up someone’s day. When you see bad behavior, speak out and stop the behavior before someone is hurt or a lawsuit ensues. You are responsible for a safe workplace both inside and outside of the station.

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. Have a legally safe and sane 2017

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 on Fire Service Court Blog Talk Radio for the latest legal issues facing the fire service and read my articles on Fire Legal issues on Fire Engineering.

Sources. I would like to thank the following sources: Fire Law Blog, Curt Varone Author, various news media outlets, Statter 911 with Dave Statter reporter and editor, traveling the country teaching and educating while actively listening to coffee table chatter, various personal conversations with firefighters, the firefighter rumor network, tweets, twitters and other social media sites.

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, a national speaker on fire service legal issues and a distance learning professor with the University of Florida.

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