In Brief: Fire Law Review Fall 2017

By Curt Varone

This is the first quarterly fire law review covering some of the top legal headlines in the fire service between July 1, 2017 to October 1, 2017.

Cybercasualties: Whether you refer to the problem as Social Media-Assisted Career Suicide Syndrome, or you refer to those involved as cybercasualties, there’s no shortage of content for the You Can’t Make This Stuff Up: Social Media Edition in the fire law review. The two cases that stand out followed protests by NFL players regarding the national anthem. They are excellent reminders that online conduct can have long-lasting ramifications. It doesn’t matter if it “was just a joke” or “you didn’t mean anything by it.” Once the bell has been rung it cannot be unrung.

Social media is one of the 10 high-risk areas where an effective policy can make a huge difference. For additional information on firefighter free speech issues, view the Lexipol on-demand webinar, Understanding How and When Departments Can Limit What Firefighters Say.

Pennsylvania – A fire chief who posted a racial slur in a social media post directed at Pittsburg Steelers Head Coach Mike Tomlin has resigned. Fire Chief Paul Smith stepped down from the Muse Volunteer Fire Company following nationwide outrage over his Facebook post criticizing Tomlin’s handling of the NFL national anthem protest. Read More

Ohio – Tyler Roysdon, a firefighter with the Franklin Township Fire Department, was “suspended indefinitely” after posting that if he went to a fire where a black man and a dog were trapped, he would save the dog first and probably take his time coming back to get the black man, stating, “That’s because one dog is more important than a million n[word].” Roysdon has since resigned from the department. Read More

Important Precedents
These legal precedents set the stage for similar future lawsuits. The cases below illustrate how individual states are interpreting the law and how the law may be interpreted in the future. These include the court’s definition of “employee” and an evergreen clause (is a provision in a collective bargaining agreement that requires the parties to continue to honor the contact after it expires until such time as a successor agreement is negotiated or implemented). The other cases show the ramifications of not treating people correctly under the law and what happens when employees do not understand or follow their agency’s policies.

New Jersey – The Appellate Division of the New Jersey Superior Court ruled that volunteer firefighters are not employees for purposes of protection under the state’s whistleblower law. The case involved a firefighter with the Colts Neck Volunteer Fire Company #2, Jeffrey Sauter, who claimed he was retaliated against following a series of inter-related occurrences dating back to 2004. In reasoning its decision the court stated: “As a volunteer member of his fire company, plaintiff stands outside the employment relationship which gave rise to the doctrine underpinning the statute and beyond the scope of the problem the Legislature designed CEPA to address.” Read More

Texas – The Texas Fourth Court of Appeals has ruled in favor of San Antonio Firefighters IAFF Local 624 in a battle over the validity of an “evergreen clause” in its collective bargaining agreement (CBA). The City of San Antonio sued the union seeking a declaratory judgment to invalidate the provision. Summarizing the court’s holding: “We hold the City failed to establish as a matter of law that the evergreen clause or the CBA as a whole is void or violates public policy. […] We also hold the CBA does not cede or improperly restrict the City’s governmental or legislative powers and does not violate public policy.” Read More

Illinois – A lawsuit accusing a Chicago Fire Department lieutenant and captain of discrimination, hostile work environment, and retaliation has been reinstated by the US 7th Circuit Court of Appeals. The suit was filed by former firefighter Roberto Alamo against Lieutenant Charlie Bliss, Captain Patrick Stefan and the City of Chicago. Read More

Illinois – In a long-awaited decision, the 7th Circuit Court of Appeals ruled in favor of the City of Chicago in a case where police officers sought overtime compensation for the off-duty use of their department-issued smartphones. Sergeant Jeffery Allen claimed he and other officers in the Bureau of Organized Crime were required to use their smartphones to communicate while off duty, but were not compensated for the time. In a well-reasoned decision, the 7th Circuit held that provided an employer has a reasonable policy requiring employees to report all off-the-clock work, an employee who fails to comply with the policy cannot come back at a later date and claim a violation of the Fair Labor Standards Act. In this case, officers failed to comply with the city’s reasonable policy. As a result, the court ruled in favor of the city. Read More

New Suits to Watch
These cases are pending decision and each show how important it is to do your job correctly and within policy every time. The consequences of not doing so can include litigation. Whether it’s a woman being demoted because her place is seemingly “in the home;” a major company not planning for inevitable disaster; a civil suit filing because of inappropriate actions on duty; inadequate and inconsistent medical documentation; or perceived retaliation; you need to remember to be your own best risk manager in every situation.

Pennsylvania- A female firefighter in a volunteer fire department has filed suit claiming she was demoted from her position as a lieutenant because she is a mother. Jessica Etzle filed suit against the Lower Swatara Fire Department in the U.S. District Court for the Middle District of Pennsylvania. The suit alleges Etzle had been a lieutenant from January 2014 to January 2016 when she was demoted to firefighter by Fire Chief Jason Brown, who told her, “‘you have a six (6) year old son’ and she needed to be home and be a mother to her son.” Read More

Texas – Seven first responders to the disastrous explosions and chemical fire caused by Hurricane Harvey in Crosby last month have filed suit against both the chemical company and three of its top managers seeking damages in excess of $1 million. The suit alleges that Arkema, Inc. and the three managers failed to heed warnings and anticipate the foreseeable consequences that resulted in an inevitable fire and explosion. Read More

Washington – A Washington man is now suing South King Fire and Rescue and two firefighter-paramedics that he already pled guilty to assaulting. Patrick Thomas called 9-1-1 on June 6, 2015, because he believed he was overdosing on marijuana butter. Thomas claims the responding firefighters as well as police officers “failed to provide any care, compassion, humility, or understanding.” An altercation occurred at the scene resulting in Thomas’ charge of assaulting firefighter-paramedics Greg Garka and David Michaels. Thomas pled guilty to one count of Fourth Degree Assault. That did not stop Thomas from filing a civil suit accusing Garka and Michaels, along with two police officers, of negligence, civil rights violations and battery. Read More

Florida – The mother of a Florida man who died from an asthma attack in 2015 has filed a wrongful death lawsuit against Palm Beach County Fire Rescue. The suit claims personnel administered Narcan and then falsified their reports to support their actions. The deceased, Anthony Duran, was 24 when he suffered an asthmatic episode on June 28, 2015. His mother, Evelyn Garcia, called 9-1-1 and Palm Beach County Fire Rescue responded. The complainant points to a number of discrepancies between the hospital report and the EMS report, concluding the “only logical explanation… [for the discrepancies] is to make the ‘official’ version of the report appear to show that what should have been done was actually done.” Read More

Maryland – Firefighter-Paramedic Jeffrey Dean has filed suit against the Berlin Fire Company. After supporting his colleague’s allegations of sexual harassment by Berlin Fire Company members, Dean claims he was retaliated against. Read More

Settlements
We keep seeing the same mistakes over and over again in the fire service. These two cases are examples of the payout associated when we do things wrong. Remember: Slow down when you’re driving!

Washington – North Kitsap Fire & Rescue (NKFR) has agreed to settle a wrongful death lawsuit arising out of a 2014 accident between an engine and a motor scooter. Jason Foster was killed on July 4, 2014, following a collision between his motor scooter and an engine. Foster’s family filed suit against NKFR. Read More

California – The City of Chula Vista has settled a discrimination suit with a former deputy chief for $2.1 million. Deputy Chief James Garcia was fired in 2015; this was just hours after the department learned he needed surgery on his neck. Deputy Chief Garcia sued in San Diego County Superior Court for disability discrimination and age discrimination. Earlier this year a jury awarded him $1.2 million in damages. The additional $900,000 is reportedly to address some additional claims Chief Garcia had, plus cover interest, costs and attorney’s fees. Read More

Dismissals
Things could have ended differently here. In this suit, the department avoided a payout, but the incident reminds us how important it is to have a plan for high-risk, low-frequency events. If this (or a similar situation) occurred in your town, would you have a practiced plan of action?

Washington, D.C. – A US District Court judge dismissed the District of Columbia Fire and Emergency Medical Services Department from the mass tort suit involving the L’Enfant Plaza smoke incident. The incident occurred on January 12, 2015, when an electrical problem caused power cables to begin emitting large quantities of smoke inside a tunnel just south of L’Enfant Plaza metro station. A Yellow Line train full of commuters stalled in the tunnel and, through a series of miscues, riders remained in the smoke for nearly 30 minutes before being evacuated. One passenger, Carol Glover, died from smoke inhalation and many others were injured. Read More

Discipline
Just like the social media cases above, remember to treat people (all people) with dignity and respect. It should be common sense, but apparently fire departments around the nation still need reminding. Hazing, pranks and bullying is one of the 10 high-risk areas where an effective policy can make a huge difference. Furthermore, in the second example, a fire department policy that prohibited secret recordings in the workplace and the placement of devices capable of secretly recording would have also protected the department.

Florida – Four Pompano Beach Fire recruits are off the job following an investigation into a noose found draped over the seat of the academy’s only black recruit. The incident occurred at the Pompano Beach Fire Training Center on the recruits’ last day of training, June 7, 2017, but was not immediately reported. The black recruit, Vilbert Green, saw the noose and took a photo of it, but did not report the incident. He later showed the photo to another firefighter, who brought it to the fire chief’s attention on July 26, 2017. Four recruits who were in the room at the time the noose was placed were suspended while the matter was investigated. Read More

Texas – A lieutenant with the Austin Fire Department is being investigated for placing hidden recording equipment in a women’s locker room at a city firehouse. Neither the officer nor the station have been identified, but the department has confirmed he has retired. The Austin Police Department’s special investigations unit is investigating the possibility of bringing criminal charges against the lieutenant. Read More

Historical
This is a cool one pending decision. Will a case from 1935 allow for the justice a victim deserves?

New York – In an unusual case with a historical twist, the family of New York City firefighter Thomas O’Brien, who died after a fire in 1935, filed paperwork to clear the way for a civil suit to reopen. Reopening a civil suit would challenge the department’s decision to treat the death as not in the line of duty. O’Brien passed away in October 1935 in Engine 3’s quarters on West 17th Street hours after he returned from a two-alarm fire. The autopsy report concluded that he died from a fractured skull sustained at the fire. Nevertheless, FDNY treated the death as not in the line of duty. Read More

Lexipol’s Fire Policy Manual and Daily Training Bulletin Service provides essential policies to enhance the safety of firefighters in all areas of department operations. Contact us today to find out more.

Lexipol Fire

Fire Law Review Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer’s Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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