May 1998 
Volume 12, Number 5

OSHA extension to fire fighters stalled 
A subcommittee of the House of Representatives defeated a proposal to extend the Occupational Safety and Health Act (OSHA) to local government workers, including fire fighters, police officers, and emergency medical service personnel. Currently, public employees in only 25 states are covered by the protective regulations. 

The vote rejecting increasing the scope of the law came in the form of a procedural move in the Subcommittee on Workforce Protections. While the subcommittee was considering a bill to extend OSHA protection to postal employees, Congressman Rob Andrews (Dem.-N.J.) offered an amendment to apply the law to state and local government workers. The chairman, Cass Ballenger (Rep.-N.C.), blocked a vote on the amendment on the grounds that the issue was not germane to the legislation. Committee members subsequently voted against overturning the chairman's ruling thereby killing the proposal. 

 The OSHA was enacted in 1970 and covers most private sector workers. Public sector workers, such as fire fighters, fall under the law's requirements only if an individual state has adopted companion legislation. Applying OSHA requirements to all fire fighters has been a longtime legislative goal of the International Association of Fire Fighters (IAFF), AFL-CIO. 

Most OSHA rules are generic in application to all workplaces. Some regulations do exist for specific businesses and industries. Since the law is not widely applied to public safety workers, few detailed rules exist for those professions. However, earlier this year the Occupational Safety and Health Administration adopted a rule mandating that fire fighters operate under a "buddy system" when entering a burning structure. The 2-in/2-out rule is standard fire fighting practice, but departments in the two dozen "OSHA states" are legally obligated to comply with this procedure. 

Deaf volunteers get chance as fire fighters and EMTs 
Prince George's County, Maryland, will provide applicants with hearing disabilities the opportunity to volunteer as emergency medical technicians (EMT), under an agreement reached last month with the U.S. Department of Justice (DOJ). The agreement resolves complaints against the county police and fire department alleging violations of the Americans with Disabilities Act (ADA). 

"There's no reason to automatically exclude all persons who are deaf or hard of hearing from volunteering as emergency medical technicians," said Acting Assistant Attorney General for Civil Rights Bill Lann Lee. "Hearing loss does not render a person categorically incapable of performing the job." 

 Under the terms of the agreement, the county will no longer automatically reject applicants to be volunteer fire fighters or rescue technicians solely on the basis of disability. Rather, the county will evaluate, on an individual basis, every applicant's ability to perform the essential functions of the position. Additionally, all personnel who participate in making volunteer application decisions as well as contract medical screening personnel will receive training regarding ADA requirements. 

Audrey Hill, who is deaf, and Susan Boswell-Maier, who is hard of hearing, filed complaints in 1993 alleging that the county refused to accept them for active membership as EMTs in violation of the ADA. The county allegedly told 
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the women that its policy was not to certify for hiring individuals who are deaf or hard of hearing. According to the DOJ, a similar agreement had been reached with the city of Nashville, Tennessee, to change its hiring policies after the city denied employment to a qualified paramedic because he was deaf. 

Under Title II of the ADA, public entities, 

 including county fire departments, are prohibited from discriminating against qualified individuals on the basis of their disabilities. According to the DOJ, counties are required to ensure that qualified persons who are deaf or hard of hearing have an equal opportunity to benefit from the counties' programs and services, including participation as volunteer EMTs or fire fighters. 
Litigation

Supreme Court update 
In recent weeks the Supreme Court declined to hear the matter of Hapgood v. City of Warren, Ohio, No. 97-1069. The decision leaves in place a lower court determination that a fire fighter's claim under the Americans with Disabilities Act may not be pursued in federal court. A stare court state worker's compensation judgment regarding the fire fighter's work-related back injury bars reconsideration of the issue. 

A recently filed case of note is City of Columbus, Georgia v. Jones, No. 97-1470, raising issues under the Fair Labor Standards Act (FLSA). Specifically, the matter raises the question of allocation of burden of proof in deciding whether emergency medical service (EMS) personnel spend at least 80 percent of their time responding to fire fighting and law enforcement scenes, thereby qualifying them for partial exemption from FLSA overtime provisions. Lower appeals court held the burden of proof was on the city to prove that the EMS workers are regularly dispatched to fire and police incidents and thereby qualify for the partial exemption. 

 As a result of the reorganization, the department eliminated 11 positions. Personnel holding the eliminated positions were generally demoted to the next lower tier of management. To determine which battalion chiefs would be demoted to district chiefs, Brice asked three deputy fire chiefs to identify for reassignment three of the battalion chiefs under their supervision. The deputy chiefs developed an evaluation form upon which they rated each battalion chief in a variety of skill and leadership areas. They then forwarded the names of the three lowest rated battalion chiefs to Brice, who adopted the recommendations and demoted the individuals. Gattis was one of the three low-rated battalion chiefs and thus demoted. Gattis brought suit against Brice claiming that the demotion was in retaliation for exercise of his First Amendment right of free speech. Specifically, Gattis had expressed concern that the county proposed changing the fire code and had also opposed the department's equipment procurement policies. Trial court granted summary judgment for the fire administrator and demoted fire officer appeals. 

HELD: To succeed in a federal civil rights suit based on a claim of retaliation for speech, the plaintiff must show that his speech was a substantial or motivating factor in the allegedly retaliatory decision. Gattis claims that the record permits the inference that his speech was a factor in Brice's demotion decision. The record reveals, however, 

Cases of interest 

Demotion 
In 1991, Brice, the county fire administrator, decided to reorganize the department. He made the decision in anticipation of a study that would reveal that the department had too many senior officers. 
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that the decision to demote Gattis had nothing to do with his speech. Brice simply adopted the recommendations of his deputy chiefs. He did not generate the list, nor did he evaluate Gattis himself. He simply made a decision to rely on the experience and judgment of the three deputy chiefs in identifying which battalion chiefs were doing the poorest job. Gattis argues, however, that the low marks he received from the deputy chiefs were themselves retaliation for his speech. Once again, nothing in the record supports the claim that the deputy chiefs acted out of any hidden motive when they filled out the evaluation forms. Even if the deputy chiefs did have improper motives, those motives do not render Brice's decision an unconstitutional county policy. A policymaker's approval of an unconstitutional action can constitute unconstitutional county policy only when the policymaker approves a subordinate's decision and the basis for it. To state a claim against Brice, Gattis must prove that not only did Brice accept the recommendation but knew of and ratified the improper motives. There is nothing in the record to suggest that Brice was aware of any such motives. Thus, the fire administrator's adoption of the deputy chiefs' recommendations cannot constitute an unconstitutional county policy for the purposes of a federal lawsuit. Dismissal affirmed. [Gattis v. Brice, 136 F.3d 724 (11th Cir. 1998)]  suppression fire fighters and EMTs in the same manner, utilizing the so-called Section 7(k) option of the Fair Labor Standards Act (FLSA) rather than the general 40-hour standard. Thus, the EMTs received no overtime compensation until their work period exceeded 53 hours in a week. Several EMTs, including lieutenants and captains, filed suit claiming the county procedure violated the FLSA. Trial court ruled for the EMTs finding that they did not fall within the legislative definition of the 7(k) option. The court also rejected the argument that the EMTs who were captains, field lieutenants, and training lieutenants were exempt from overtime requirements as bona fide executive, administrative, or professional personnel. The plaintiffs, however, did not receive the level of damages they had wished. Both parties appeal. 

HELD: The county first asserts that the FLSA is unconstitutional under the Tenth Amendment to the U.S. Constitution. This argument is based on an apparent resurgence of interest in federalism by the U.S. Supreme Court. In recent years the Supreme Court has rendered decisions advancing the concept of dual sovereignty whereby the federal government is limited in its mandates to state and local government. The Supreme Court, however, has passed up opportunities as recently as 1997 to overturn its 1985 decision applying the FLSA to state and local government. As such, it is not the role of the Court of Appeals to second guess the Supreme Court and the 1985 ruling applying FLSA to local government must be followed. The county claims that the EMTs are engaged in "fire protection activities" and thus fit within the Section 7(k) definition. FLSA regulations define "fire protection activities" to include rescue and ambulance service personnel if such personnel form an integral part of the public agencies' fire protection activities. While the EMTs and suppression fire fighters have much in common in this case, those factors do not necessarily establish that their activities are integrally related to fire protection activities. The fire protection exemption is lost if the employee spends more than 20 percent of total 

Overtime 
Emergency medical technicians (EMT) were assigned to the fire department's emergency medical services (EMS) division. Like all county fire fighters, the EMTs completed a 21-week fire academy that included all aspects of the department's emergency service work. They also worked the same shift schedule and were integrated into the same command structure as other fire fighters. The EMS personnel were governed by the same union contract. The EMTs, however, were generally prohibited from active participation in fire suppression in order to keep them clean for their medical duties. The county compensated 
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work hours in non-related activities. The EMTs in this case do not qualify as fire protection employees because they exceed the 20 percent limit. They perform mostly medical services and are specifically barred from engaging in fire suppression. Medical services that are not rendered at the scene of any fire do not qualify as exempt activities. Exempt work must be performed as incident to or in conjunction with the fire protection activities. Thus, the EMTs do not fall within the fire protection exemption to the FLSA. The county claims that the captains are exempt from the FLSA as executive employees. To qualify for this exemption, personnel must be paid on a salaried basis and engage in certain duties consistent with being an executive. The EMS captains claim they are not paid on a salaried basis because they are subject to reductions in pay for minor disciplinary infractions. While that may be the formal policy of the department, the evidence indicates that captains have never had their pay reduced on a less than daily basis for minor infractions. The Supreme Court ruled in 1997 that loss of salary status occurs only if improper pay docking occurs as a practical matter, not as a theoretical matter. Thus, the captains meet the salary test. They also meet the duties test because their activities consist of managing various aspects of the emergency medical service. The county also claims the fire lieutenants are exempt. Once again, like the captains, these individuals do meet the salary test because they are not, as a practical matter, subject to pay docking for disciplinary matters. The evidence also supports the conclusion that field lieutenants engage in activity beyond mere supervision. They thus act as agency managers and meet the duties test. The training lieutenants are a special case. They meet the salary test, but the question becomes whether they are administrative employees for the FLSA exemption. The administrative duties test is satisfied if the employee's primary duty consists of office or non-manual work directly related to management policies and includes work requiring the exercise of a discretion and independent judgment. The training  lieutenants develop, coordinate, implement, and conduct EMS training. Their duties are indisputably of a non-manual type of work. Likewise, they exercise discretion and judgment in developing and coordinating EMS training, administering tests, and evaluating new equipment. Consequently, the training lieutenants satisfy the administrative exemption for overtime. Affirmed in part and reversed in part. [West v. Anne Arundel County, Maryland, 137 F.3d 752 (4th Cir. 1998)] 

Race discrimination 
The fire department issued a job announcement soliciting applications for the position of fire fighter. The announcement stated that the department was sincerely interested in receiving applicants from minorities, women, and individuals with disabilities. King was the only black applicant among 80 who applied. He had previously worked for the Detroit Fire Department. Fifty-four applicants were considered to meet the minimum qualifications, including King. King passed a physical agility test and moved on to an interview panel. King appeared before the panel in a casual shirt, shorts, and shoes without socks. The panel rated him well qualified, but ten applicants scored higher. The chief subsequently interviewed these ten. He ultimately selected a white male who had served as a volunteer fire fighter with the department and was rated as outstanding. The job announcement had stated that all candidates must pass a job-related background and reference check. King had stated on his application that he had left the Detroit Fire Department to begin a private commercial venture. Later, it was determined that he had been arrested for possession of marijuana and subsequently subjected to drug testing. He had tested positive for marijuana and was suspended from the Detroit Fire Department. He had left the department with an unsatisfactory rating and was thus not eligible to be rehired. King had failed to disclose these facts on his application form. When he didn't receive the position, King filed suit claiming that he was not selected because of racial 
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discrimination. 

HELD: King contends he was a victim of both disparate treatment and disparate impact. Disparate treatment exists when an employer treats some people less favorably than others because of their race. Disparate impact occurs when a selection criteria, while non-discriminatory on its face, has the effect of discrimination. As to the disparate treatment claim, it is undisputed that King was arrested for possession of marijuana and suspended from work. Likewise, it is undisputed that he left his employment without notice and had an unsatisfactory performance rating. The fire department, in it selection procedures, had informed applicants that they were subject to a job-related background and reference check. The information about King's prior employment would disqualify him from being hired for the fire fighter position. Federal law provides that a rule barring employment because of drug use is not an unlawful employment practice, unless it was adopted with intent to discriminate. There is no evidence that the fire department was using the no-drug rule to discriminate. King complains of being downgraded for his attire, for his failure to provide documentation of his prior experience, and his failure to take initiative by visiting the station beforehand to explore the working conditions. Use of these factors, however, to evaluate an applicant, does not raise an inference that the process was discriminatory, but just the opposite. Such criteria are typical and reasonable factors an employer might use in evaluating candidates. King was successful up to a certain point in the process and was rated as well qualified. However, ten candidates received a higher score. Regardless of whether King has established a presumptive case of discrimination, the fire department has advanced legitimate, non-discriminatory reasons for not hiring him. As to King's claim that the selection procedure had disparate impact, it is noted that the department employs no blacks. However, a plaintiff, such as King, who fails to establish that he is eligible for the position sought lacks standing to bring a 

 disparate impact claim. He cannot claim that he was injured by an unlawful employment practice when he was not qualified for the position to begin with. Summary judgment for fire department. [King v. Stanislaus Consolidated Fire Protection District, 985 F. Supp. 1228 (E.D. Cal. 1997)] 

Dismissal procedures 
The Lealman Volunteer Fire Company was a private, non-profit corporation that provided fire protection and medical services to a Florida county. A board of directors governed the department. The department employed Mitchell and two others as deputy chiefs for emergency medical services, operations, and prevention. They did not have written employment agreements with Lealman. In 1992, a local newspaper published a series of articles criticizing Lealman's management and operations. In response, the county conducted an investigation. The county administrator subsequently recommended that the county board not renew its contract with the volunteer fire department. In the following months the Lealman board conducted its own investigation and voted to restructure its management by, among other things, eliminating the positions held by Mitchell and the two deputy chiefs. The three individuals were offered no form of hearing prior to losing their jobs. The three filed suit claiming that they were deprived of property and liberty interests without due process of law. Fire department moves for summary judgment. 

HELD: To prevail on their property interest claims, the plaintiffs must establish that they possess a recognizable property interest. Whether such an entitlement exists depends on state law. The parties agree that without written contracts, the plaintiffs' relationships with Lealman were terminable at will. However, a valid property interest in employment is not created exclusively by contract. A legitimate expectation of continued employment may result from rules and regulations that designate specific grounds for discharge. Here, the plaintiffs offered the existence of a department policy manual setting forth a disciplinary review mechanism. The 
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evidence reflects, however, that the manual clearly distinguishes between management and rank and file employees. The manual is applicable only to discipline in the lower ranks, not to individuals in management. The plaintiffs have failed to produce a separate manual covering management employees. Thus, their procedural due process claim fails. Likewise, their claim of deprivation of a liberty interest must fail. To establish a liberty interest, an individual must show the existence of false, stigmatizing charges made public by a defendant without allowing the plaintiff an opportunity to refute the allegations lodged against them. The newspaper articles in question reveal no derogatory statements by Lealman personnel. In fact, the department actively defended its management despite the adverse media coverage. Absent Lealman's publication of false and stigmatizing statements, the individuals' liberty interest claims fail. Judgment for volunteer fire company. [Mitchell v. Lealman Volunteer Fire Company, 985 F. Supp. 1436 (M.D. Fla. 1996)]  the 1984 surgery. Notwithstanding this information, the chief extended Serrano a written offer of employment conditioned on passing the medical exam and the background check. The comprehensive medical examination was conducted of Serrano. Following the examination and a review of his health history, the county medical supervisor determined that Serrano was not suited for the position of fire fighter. She noted that his medical history presented a significant risk of him not being able to perform the lifting and carrying functions essential to the duties of fire fighting and rescue. She also noted that susceptibility to re-injuring his back was significant. When Serrano was informed that he would not be hired as a fire fighter because of his history of back problems, he pursued a handicap discrimination claim. The claim ultimately resulted in a suit against the county alleging a violation of the Americans with Disabilities Act (ADA). County moves for summary judgment. 

HELD: The ADA makes it unlawful to discriminate against a qualified individual with a disability because of such disability. The statutory definition of "disability" includes not only actual disabilities but also being regarded as having a physical or mental impairment that substantially limits one or more major life activities. Serrano claims that he does not have a disability, but that the fire department considers him to be disabled, and thus he falls within the coverage of the ADA. Federal regulations interpreting the ADA state that the inability to perform a single particular job does not constitute a substantial limitation in the major life activity of working. In limiting the coverage of the ADA to individuals who are regarded by employers as unable to perform a class or range of jobs, the regulations sensibly are aimed at employment decisions based on myths or prejudices about disabilities. Science, not myths and prejudice, underlie ADA protection. Here, the evidence indicates that the county did not regard Serrano as being incapable of performing a class of jobs or a broad range of jobs. Rather, the county considered him unsuited to be a fire fighter. Few, if any, jobs 

Handicap discrimination 
At the age of 17 Serrano injured his back while playing basketball. Subsequent medical investigation revealed that he had suffered a herniated disk. During the course of his college career he suffered several accidents that also caused pain in his back. Despite the history of injuries the back condition did not appear to limit his routine, day-to-day activities. However, his physician had cautioned him about lifting heavy objects. Medical experience reveals that individuals who have suffered a herniated disk have a potential for re-injuring the same disk, although the risk of reoccurrence diminishes over time. Likewise, the consequences of a herniated disk vary widely depending on the individual. In 1994, Serrano applied for a position as a fire fighter. He completed the written and oral portions of the exam as well as the physical agility test. At that point, the fire chief interviewed him. The chief asked him whether he had any old injuries and Serrano informed him about 
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utilize or require the training, skills, or abilities that are demanded of a fire fighter. While Serrano may have been able to perform other jobs, including those involving lifting, his own doctor testified that lifting weight in excess of 100 pounds while in awkward positions during emergency situations would not be advisable. Such duties are inherent in being a fire fighter/paramedic. Even if Serrano met the definition of "disabled," the ADA mandates that only individuals who are "qualified" may state a claim for discrimination. Once again, Serrano's inability to lift heavy objects such as rescuing adult males, precludes his claim. The record indicates that precisely this type of strain could trigger a second disk problem, which might well instantly incapacitate Serrano. Thus, he is not otherwise qualified to perform the essential functions of a fire fighter. Judgment for county rejecting ADA claim. [Serrano v. County of Arlington, Virginia, 986 F. Supp. 992 (E.D. Va. 1997)]  adequate notice of the policy change. Consequently, the arbitrator sustained the grievances on the basis of detrimental reliance on former policy. The union filed a petition with the court to vacate the portion of the award holding that the contract gives the city the right to approve time trades. Trial court ruled for the union finding that the past practice of liberally granting time trades had become integrated into the parties' contract and should have been considered by the arbitrator. The court concluded that the arbitration award was not drawn from the essence of the collective bargaining agreement because a past practice was disregarded. City appeals. 

HELD: The Iowa Public Employment Relations Act is to be interpreted similarly to federal labor law. Arbitration is a favored means of resolving labor management disputes. Ordinarily, courts may not inquire into the merits of an arbitrator's decision. There are several reasons to favor a broad scope of arbitrator authority and a corresponding restriction of judicial involvement in the process. Arbitration is a faster process, draws on the expertise of persons of the field, and is less expensive. To allow a court to "second guess" an arbitrator by granting a broad scope of review would nullify those advantages. Most important, limited judicial review gives the parties what they bargained for—binding arbitration, not merely arbitration binding if a court agrees with the arbitrator's conclusion. Once arbitrability of the issue is established, the sole question to be determined by a court on review is whether the arbitrator's award drew its essence from the collective bargaining agreement. The essence of a collective bargaining agreement is an extremely broad concept. It requires a casting aside of traditional views of contract law in favor of a multitude of other considerations, including not only the written and unwritten agreements themselves, but also the practices of the parties or the industry in general. Put simply, the arbitrator is the parties' officially designated "reader" of the contract. He is their joint alter ego for the purpose of striking whatever supplementary bargain is necessary to handle the unanticipated omissions 

Arbitrator's authority 
The collective bargaining agreement between the city and the fire fighters' union provided that the employees had the privilege to change a work day with another employee on a different shift with approval of the company officer and district chief. Under the parties' past practice, these time trades were granted as a matter of course. Beginning in 1994, however, the city issued restrictions on time trades that would preclude time trades with less than 24 hours or more than 10 days notice, time trades of more than two consecutive days, and time trades for more than one day before or after a vacation. Subsequently, the city denied three requests for time trades that were not in compliance with the new regulations. Grievances were filed and the city denied the grievances. Pursuant to the collective bargaining agreement, the matters went to arbitration. The arbitrator subsequently issued an award finding that the city had a right under the language of the contract to approve or disapprove time trade requests. The arbitrator found, however, that the city failed to give the fire fighters involved 
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of the initial agreement. In the absence of fraud or an overreaching of authority on the part of the arbitrator, he is speaking for the parties and his award is their contract. That is what the final and binding language of the arbitration clause means. If the award is within the submission and contains the honest decision of the arbitrator, after a full and fair hearing of the parties, a court will not set aside the award for error, either in law or fact. Here, the arbitrator's decision was thorough in its analysis. The arbitrator considered the relevant terms of the contract, the past practices of the parties, evidence of the parties' intentions, prior arbitration awards, a fact-finding report, and the city's notice of intention to repudiate past practices pertaining to time trades. The decision was clearly drawn from the essence of the collective bargaining agreement and the trial court erred in overturning the award. Reversed and remanded for entry of judgment affirming arbitration award. [Cedar Rapids Association of Professional Fire Fighters v. City of Cedar Rapids, 674 N.W.2d 313 (Iowa 1998)]  that the fire fighter should have considered the implications of the transfer prior to accepting his new position. Fire fighter appeals. 

HELD: Hirstius argues that upon transferring from the building inspection division to the fire department he was not informed of the difference in hourly wage. He accepted a new position understanding that his monthly salary would not be reduced. The facts show that his monthly salary, in fact, remained the same after the transfer. He was not, however, explicitly informed that his hourly wage would be reduced. The fire fighter admitted that the pay listed in the position announcement was a monthly base salary. When he transferred, his monthly pay rate stayed the same. He had previously been informed of the number of hours fire recruits were required to work. Although it is unfortunate that he sustained a temporary reduction in hourly wage, there is no evidence of any misrepresentation made by the fire department. Affirmed for city. [Hirstius v. New Orleans Department of Fire, 706 So.2d 1071 (La. App. 4 Cir. 1998)] 

Compensation 

 Dismissal procedures 
For three years Hirstius worked for the city as a building inspector. In 1993, he passed the fire fighter recruit examination and was offered a position as an entry-level fire fighter. He subsequently resigned from the building inspection department and began his employment as a fire fighter recruit. He accepted the position because he had always wanted to be a fire fighter. At the time he resigned as a building inspector, Hirstius was earning $1,463 per month while working 35 hours per week. A fire fighter recruit's base pay was $1,113 per month, but the recruits were required to work 46 hours per week. The city allowed Hirstius to keep his base pay of $1,463, but by working 46 hours, his hourly rate actually lowered by over $2 per hour. Hirstius sought to have his pay based on his old hourly as opposed to monthly rate. The civil service commission dismissed the appeal calling it unfortunate that the fire fighter had sustained a reduction in hourly wage. The commission ruled 
Late one evening, two Holyoke police officers saw Kelly, a Chicopee fire fighter who was not known to them, hunch down in the driver's seat of a pickup truck. Another individual approached the passenger side of the truck. One of Kelly's hands then reached up to meet the individual's hands. When Kelly drove away, the officers stopped the vehicle. At the officer's request, Kelly provided them with his license and registration. He smelled strongly of alcohol and had bloodshot eyes. Upon discovering that the driver's license had expired, Kelly was arrested. He was transported to the police station in the police car. After Kelly was taken in to be booked, one of the officers checked the backseat of the cruiser and discovered a vial of crack cocaine. The officers had checked the cruiser before the beginning of the shift and no one had been in it except Kelly. He was charged with possession of a controlled substance. During the booking process, 
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Kelly acted in a belligerent manner. The charges against Kelly were subsequently dropped on the basis of an unlawful search. However, an administrative hearing officer determined that Kelly was in possession of cocaine, was driving without a license, was intoxicated, was belligerent to the police, and otherwise engaged in conduct unbecoming a fire fighter. Based on the evidence, combined with a prior conviction for gambling, the hearing officer recommended Kelly be dismissed from the fire service. The civil service commission upheld the dismissal. Former fire fighter appeals. Intermediate appeals court reversed. Civil service commission appeals. 

HELD: The question presented in this case is whether evidence properly suppressed in a criminal proceeding may be appropriately used to establish just cause for Kelly's discharge. Prior cases hold that the underlying purposes of the rule excluding unconstitutionally seized evidence in criminal cases is to deter the police from conducting unreasonable searches and assuring that the government will not profit from its own lawless behavior. In this case, however, employees of a different town conducted the improper search. There is no attempt, therefore, for Kelly's employer to profit from wrongdoing. Likewise, suppressing the evidence in an administrative hearing of this kind would have a negligible deterrent effect. No reasonable argument can be made that the arresting officer stopped Kelly in the hopes of acquiring evidence so that he could be discharged. Likewise, even if the outcome of the matter were to come to the attention of those officers, it is unlikely to have any more effect on their future conduct than the dismissal of the criminal case alone will have. The interest of the civil service commission in having reliable evidence, and the interest of the city and the public generally in ensuring that its public safety officers are fit for duty are substantial. None of the underlying purposes of the exclusionary rule would be served by excluding evidence obtained as a result of the stop in this case. Accordingly, even if the evidence obtained is inadmissible in a criminal 

 proceeding, the evidence was properly considered in the decision to discharge the fire fighter. Reversed, ordering fire fighter terminated. [Kelly v. Civil Service Commission, 691 N.E.2d 557 (Mass. 1998)] 

Disciplinary grounds 
Two city police officers, one black and one white, approached Karins' automobile at a beach festival. They had received a report that Karins appeared to be intoxicated. As the white officer approached the car, Karins exited the vehicle and identified himself as a city fire fighter. The officer observed that Karins slurred his speech and smelled of alcohol. He cautioned Karins about the dangers of driving while intoxicated. During the lecture, Karins responded with belligerence and sarcasm. The black officer observed the events and approached the scene. He greeted the first officer with the phrase, "Hey, bro." Karins responded to the black officer and stated, "Oh, no, don't start that nigger shit!" and walked away. Although upset and angered that another city employee would use a racial epithet while speaking to him, the black officer did not include the matter in his official report. Karins was not arrested for any offense that night. A few days later, however, the officers were asked by their supervisor to supplement their reports on the incident. As a result, disciplinary charges of misconduct were filed against Karins by the fire department. He was charged with various counts of conduct unbecoming a city fire fighter. Following a hearing, Karins was suspended without pay for 48 days. On review, a hearing officer recommended the suspension be rescinded on the grounds that the city was attempting to discipline Karins for a violation of an unwritten speech code of which he did not have adequate notice. The hearing officer also concluded that the city's policy against racial harassment applied only during working hours. The reinstatement order was sustained through the appellate chain. City appeals. 

HELD: Karins argues that the regulations he allegedly violated are void for vagueness and 
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overbroad. A regulation is unconstitutional for vagueness if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. However, the existence of a catchall provision, such as "conduct unbecoming," does not automatically render the regulation void on vagueness grounds. The Supreme Court has stated that it is not feasible or necessary for the government to spell out in detail all of the conduct that may result in disciplinary retaliation. The fire department regulations contain several specifically enumerated offenses as well as a catchall provision. It would be impossible for the fire department to predict every instance of proscribed conduct. Constitutionally protected conduct-related speech is impliedly excluded from the regulations. On the other hand, Karins knew that use of racial slurs was prohibited because he had been disciplined a year earlier for making similar remarks. Thus, it cannot be said that the regulation was vague. Karins argues that disciplining him for off-duty private speech infringes upon his freedom of speech. The protections of the free speech clause of the First Amendment extend to all citizens, including fire fighters. However, governmental agencies have a stronger interest in regulating the conduct-related speech of their employees than non-governmental employers, particularly when such speech may disrupt governmental operations. The Supreme Court has devised the so-called Pickering test to determine when a public employee's speech is protected under the First Amendment. The Pickering test first requires that the speech be a matter of public concern, and if the public concern standard is met, then the court must balance the employee's interest in free speech against the government's interest in the effective and efficient fulfillment of its responsibilities to the public. In the present case, the racial statement made by Karins was directed at a fellow public employee. The slur was made after Karins had identified himself as a fire fighter. The comment was not remotely related to any matter of public concern. In addition, the  statement would fail the second prong of the Pickering test. Karin's statement potentially increased racial tensions within the department and in the community and would have a tendency to disrupt morale and good working relationships. Fire fighters are not only entrusted with the duty to fight fires, but they must also be able to work with the general public and other municipal employees, especially police officers. Karins further alleges that his behavior did not violate the specific departmental rules charged. Each of these regulations relate to conduct unbecoming a fire fighter. "Conduct unbecoming" is an elastic phrase that has been defined as any conduct which adversely affects the morale or efficiency of the department, or which has a tendency to destroy public respect for municipal employees and confidence in operation of municipal services. Misconduct charges need not be predicated upon the violation of a particular rule or regulation, but may be based merely upon the violation of an implicit standard of good behavior. Karins behavior constituted conduct unbecoming an officer. Likewise, he violated the regulation prohibiting committing penal offenses as the officers had probable cause to arrest him for driving while intoxicated. The department rule against creating hostile work environments was also violated. The chief of a fire department has the responsibility of maintaining departmental morale and discipline. Clearly, Karins engaged in hate conduct that involved speech. There are certain words and phrases that, in the context of history, send a clear message of hatred, persecution, and degradation of certain groups. Karins conduct fell squarely within this category. The First Amendment does not provide a retreat for purveyors of racist speech in the work environment who do not satisfy the Pickering standard. Racist speech or conduct is not purely private when made in connection with the performance of public service. Under those circumstances, a public employee is not immune from disciplinary proceedings. Reversed for city reinstating 48-day suspension without pay. [Karins v. City of Atlantic City, 706 A.2d 706 (N.J. 1998)]