July 2000
Volume 14, Number 7

San Antonio shift swapping sparks investigation
Shift swapping is part of the culture of the fire service. Individuals swap shifts in order to cover the occasional unanticipated family emergencies or to maximize days off. Most departments routinely permit the swaps providing reciprocity occurs within sufficient time to avoid a Fair Labor Standards Act problem. But can one get too much of a good thing? That is what fire department officials in San Antonio are trying to find out.

The inquiry was prompted by a discovery that Fire Lieutenant Richard Willborn during the last two years has worked only about 700 hours, about 15 percent of his assigned time. Almost all of the missed time was worked by fire fighter Ralph Arredondo, who has covered numerous shifts for other fire fighters as well. According to the department, Arredondo worked almost 4,200 hours for Willborn over the last two years, in addition to his own 56-hour week. The extreme rate of shift swapping prompted the San Antonio Express-News to label Arredondo as the "iron man" and Willborn as the "phantom."

San Antonio Fire Department regulations prohibit fire fighters from paying fellow personnel to work for them or to miss turns to work an outside

 job. Although Willborn has not worked any of Arredondo's shifts in return, both men deny money has changed hands. Willborn stated he did not miss tours to work his landscaping business, a venture that reportedly grosses about $1,000,000 per year. Willborn says family problems and legal issues have forced him to take so much time off. "My wife doesn't like to be left alone. I'm not there as often as I used to be because she wants me home in the evening," Willborn said.

Department rules also require fire fighters who miss two consecutive shifts to receive written permission. Department records indicate that Willborn has been absent three or more consecutive shifts at least 15 times over the past two years. Arredondo covered almost every shift. Some fire fighters claim that Willborn has received special treatment over the years, a charge the department administration denies. 

In a touch of irony, Willborn, who is planning to retire this fall, said he received a perfect attendance cash bonus of about $1,000 at the end of each year because he did not abuse sick leave. Arredondo's right to substitute for other fire fighters has been suspended while the inquiry continues. 

Fitness testing begins in New York
Twenty-nine New York fire fighter recruits took and passed the state's mandated fitness test at the State Academy of Fire Services in Montour Falls last month. The examination marks the first time newly hired fire fighters in New York were subject to fitness standards. The new criteria were approved earlier in the year and are applicable to all fire service personnel hired after April 1.

The state adopted the eight-station test in hopes of reducing fire fighter injuries and deaths

 due to lack of conditioning. Many on the job deaths are caused by overexertion and cardio-vascular stress.

A joint committee of the International Association of Fire Chiefs and the International Association of Fire Fighters, AFL-CIO, developed the test protocol. Cadets are given 10 minutes and 20 seconds to perform a series of job tasks ranging from raising ladders and climbing stairs to using a sledgehammer.
July 2000
Volume 14, Number 7
A new fire fighter must successfully complete the job simulation within 18 months of being hired. The test is age and gender neutral, focusing on skills necessary for the job. Once a fire fighter passes the test, he or she will be required later only to pass an annual medical exam. 

FDNY fire fighter in trouble over TV sex scene
A sex scene in HBO's popular show "Sex and the City" has landed a veteran New York City fire fighter in hot water. Fire Department of New York (FDNY) officials last month launched an investigation to determine if Michael Lombardi, assigned to Rescue Unit 5 on Staten Island, had violated department regulations prohibiting fire fighters from "bringing discredit" on the department.

Lombardi, 38, appeared as a fire fighter in the cable television series' June 4 episode, "Where There's Smoke," in a love scene in which his character's bare bottom is exposed. The fire fighter's face is not visible in a passionate scene where he pushes actress Kim Cantrall's character Samantha against a fire truck. 

According to the story line, Lombardi,

 playing the character Ricky, links up with Samantha when she and her "Sex and the City" sidekicks go to Staten Island to judge a fire fighter calendar contest. In real life, Lombardi appeared in the department's 1999 "Firehouse Hunks" calendar.

The New York Post, quoting an anonymous FDNY source, claimed that Lombardi had department permission to pursue acting jobs and specifically to appear on the HBO program.

Program representatives declined to publicly confirm whether a body double was used for the sex scene. 

Meanwhile, the Uniformed Firefighters Association, Lombardi's union, said it would vigorously defend him in any disciplinary action that might be brought. 

Louisiana fire fighters sue over sickout investigation
Earlier this month, a group of Lafayette, Louisiana, fire fighters sued the city claiming their civil rights were violated during an investigation of a three-day fire fighter sickout in April. Three fire fighters are seeking monetary damages for mental anguish and distress allegedly caused by police investigators.

More than two-thirds of the city's fire fighters called in sick for three days, beginning April 1, to protest their pay level and impending cuts to the fire department's budget. The city responded with a police investigation to determine if any city policies were being violated. Additionally, the Louisiana State Police (LSP) launched an investigation into allegations that some fire fighters were intimidated into participating in the sickout. The LSP turned up no criminal violations.

Two of the plaintiffs, Ryan Hernandez and Mitchell Perrodin, claim they were picked up by police internal affairs investigators and taken to

 police headquarters. They were allowed to leave after asking for their lawyer. Later the same evening the pair was taken to police headquarters again. Allegedly, an investigator threatened them with termination and promised immunity if they cooperated in identifying who started the sickout. The third plaintiff, Cory Gaude, who is the secretary of the fire fighters' union, alleges his rights were violated when the fire chief ejected Gaude's attorney from his office during an interview.

At the core of the protest was fire fighter unhappiness at earning less pay than the city's police officers. Although the fire fighters' union denied organizing the sickout, the group used the opportunity to ask the city administration for collective bargaining rights. The request was rebuffed. During the job action, many fire fighters who called in sick for their own shift filled in for vacant slots during other shifts. 

City officials have not responded to the suit.
July 2000
Volume 14, Number 7
Litigation for his activities on the day of the discovery of the wiretap. City officials affirmed the terminations. Subsequently, the two former officers filed suit against the city and the chief alleging, among other things, a violation of their First Amendment rights. The chief moved for summary judgment based on the doctrine of qualified immunity. Trial court denied the motion and chief appeals.

HELD: Under the doctrine of qualified immunity, public officials are protected from civil liability when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The question raised on this appeal is whether the chief should have known that the termination of the two officers violated their constitutional right to the exercise of free speech. Whether or not a public employee enjoys a First Amendment free speech right must be examined under the Pickering balancing test. The Pickering test involves balancing the employee's right to free speech against the interest of the public employer. The first step in this inquiry is to determine whether it was clearly established that the two officers' speech was a matter of public concern at the time they were terminated. Prior case law holds that speech that discloses allegations of criminal activity committed by public officials occupies the highest rung of hierarchy of First Amendment values. Such speech is of inherent public concern. The chief argues that no specific prior case law holds that announcing a city official's potentially illegal recording of private telephone conversations is a matter of public concern. The Pickering test, however, does not require such specificity. At the time of the terminations the law was clearly established that disclosure of potential illegal conduct of public officials was a matter of public concern. The second step of the Pickering test requires a balancing of the governmental employer's interest against that of the employee. For the employer to prevail in this step the employer must produce sufficient evidence that the speech had an adverse effect on the efficiency of the employer's operations. Here, the chief asserts that the recording

Supreme Court update
The Supreme Court closed the 1999-2000 term last month. It will reconvene on October 2. No fire service-related cases are currently pending.

Cases of interest

Dismissal grounds
Sexton and Kistler were public safety officers. The city department of public safety (DPS) provided police, fire, and ambulance services to its residents. In 1974, the DPS began recording telephone conversations that took place in its building. These recordings were made for the purposes of security, safety, and quality control. Every conversation that took place on a particular telephone was recorded regardless of which line was being used. The sole exception was a telephone in the kitchen. The kitchen telephone was reserved for the making of private calls. In 1992, the DPS moved into a new building. The new building utilized a recording device that recorded incoming and outgoing telephone calls. However, unlike the old building, all telephone calls were recorded, including the private kitchen line. In early 1995, Kistler drove his police vehicle through a supermarket window. An investigation was conducted but he was not formally charged with administrative violations until some six months later. A week following the filing of charges against Kistler, he and Sexton discovered that the kitchen telephone line was being recorded. Two days later they and their attorney went to city hall to disclose to the public that the private line in the building was being recorded illegally. Missouri statute declares it a crime to conduct an illegal intercept of a wire communication. Kistler was subsequently terminated a few days later, allegedly because of the vehicle crash earlier in the year. Six weeks later Sexton was also terminated for failing to account
July 2000
Volume 14, Number 7
of the alleged misconduct violated department rules, made various supervisors angry, and created a significant political problem within the DPS. The chief has simply failed, however, to provide evidence of this assertion. A government employer must make a substantial showing that speech is in fact disruptive before that speech may be punished. The chief has failed to present evidence as to how many persons were upset about the news or any specific instance where the speech had disrupted department operations. Alternatively the chief argues that there were sufficient independent reasons for terminating the two officers' employment - the automobile wreck and the violation of various department rules. Thus, he asserts that the terminations were based on legitimate unrelated conduct. While this may be the case, there is sufficient evidence for a reasonable juror to conclude that Sexton and Kistler were discharged for the disclosure of the wiretap, not for the reasons stated by the chief. The timing of the terminations was suspiciously close to the protected speech activity. Kistler was discharged six days after the disclosure for an accident that occurred some six months earlier. Three days after the disclosure of the wiretap the administrative investigation was launched against Sexton. These two terminations took place in a department where terminations were rare. A jury must consider these matters. Denial for motion of summary judgment based on qualified immunity affirmed. Matter to proceed. [Sexton v. Martin, 210 F.3d 905 (8th Cir. 2000)] Nonetheless, Presley was hired for the position. After three weeks on the job he was sent to a local clinic to undergo a physical examination. During that medical examination the physician concluded that Presley was qualified for the position pending approval of a cardiologist. Subsequently, a cardiologist examined Presley and determined that he was not exhibiting any current heart difficulties. Nevertheless, because of his past medical history, the MSANG concluded that Presley could not be medically certified to perform the duties as a fire fighter and would be a threat to himself or others. Accordingly, his employment was terminated. Presley filed suit against the State of Mississippi Military Department claiming a violation of the Americans With Disabilities Act (ADA). Specifically, he alleged that while he did not have a disability and no physical restrictions prevented him from performing his job as a fire fighter, the employer nonetheless discharged him because it perceived him as having a disability. The MSANG responded that the ADA does not apply to military positions and moved for summary judgment. Presley countered that he was not a member of the military, but simply a civilian employed by the military and, as a consequence, the ADA did apply.

HELD: Prior case law holds that the ADA is not available to uniformed members of the armed forces. While the statute does not specifically exempt the military or National Guard from its coverage, Congress apparently did not intend for the law to apply to those entities. Presley argues, however, that he was a civilian employee, not a member of the military. The Supreme Court and other lower courts have ruled that employment decisions that are inherently military are not subject to review by civilian courts. This is known as the Doctrine of Intra-Military Immunity, also called the Feres Doctrine. The Feres Doctrine is best explained by the peculiar and special relationship of a soldier to his superiors, the effects civil suits would have on the maintenance of military discipline, and the extreme results that might occur if suits were allowed for negligent acts committed

Handicap discrimination
The Mississippi Air National Guard (MSANG) employed civilians as part of its fire fighter-crash/rescue team members. Presley applied for a position as one of the civilian fire fighters. As a condition of his employment he was required to pass a baseline medical examination and be certified as meeting certain medical requirements established for the position. On the medical questionnaire that he completed as part of his application process Presley disclosed his previous heart problems.
July 2000
Volume 14, Number 7
in the course of military duty. The Feres Doctrine has been broadly construed to immunize the government from any suit that may intrude in military affairs or that second-guess military decisions. In other words, the Feres Doctrine bars claims that would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness. Here, the Mississippi National Guard argues that the decision not to retain Presley was a military command decision, made by a military officer due to Presley's noncompliance with mandatory military regulations. Presley argues, however, that he was a pure civilian employee and the Feres Doctrine simply does not apply to him. While it is true that Presley was not an enlisted member of the military, the court is nevertheless persuaded that the Feres Doctrine may properly be applied to prevent his suit since his position was of decidedly military nature and his alleged injury arose incident to service with the military. The fire fighter-crash/rescue team of which Presley was briefly a member is operated under the auspices of the MSANG and stationed at a military base. The MSANG is part of a military mission and is required to maintain the fire fighter-crash/rescue team at all times. The operations, manning, equipping, and organization of the team are governed by military regulations. The team is commanded by an Air Force major and the base fire chief is a member of the military. The job description for the position stated that Presley was subject to certain specific military requirements. Among those requirements was the ability to be certified as meeting the medical criteria. Among the criteria is being free from coronary disease. From the facts, it is evident that while Presley may have been a civilian, his position is a military position and his relationship to his superiors a military supervisory relationship. Consequently, he may not pursue a claim of discrimination under the ADA. [Presley v. Jackson Municipal Airport Authority, 94 F.Supp.2d 755 (S.D. Miss. 2000)]

Worker's compensation
Hyatt was employed as a fire fighter for the city. One evening, two residential fires broke out. He spent that evening and the next morning fighting the fires. The activity involved heavy physical exertion. Early that morning he collapsed on the street and was transported to the hospital where it was discovered that he had suffered a heart attack. Hyatt has not worked as a fire fighter since. Hyatt subsequently filed for worker's compensation benefits, claiming that he had suffered a heart attack arising out of and in the course of his employment. He subsequently entered into an agreement with the city attorney that stated that Hyatt was entitled to benefits under a particular Connecticut statute. This statute provided that any member of the fire department who suffered a heart attack, either off duty or on duty, was presumed to have been injured as a result of line-of-duty conduct. The benefits provided by the statute were in lieu of any other benefits to which a fire fighter might be entitled. The worker's compensation commission issued an award that found Hyatt entitled to benefits under the statute including 195 weeks of compensation for a 25 percent permanent partial disability. Hyatt agreed to the finding. Thus, for 195 weeks he was paid the difference between his pension amount and an amount equal to 100 percent of his weekly compensation as a member of the fire department. In 1995, some 12 years after the initial heart attack, Hyatt requested a hearing to determine whether he was entitled to other worker's compensation benefits because his heart attack was work related. The worker's compensation commission denied the request, concluding that he had made a choice of remedies under state law. Hyatt appeals.

HELD: Under Connecticut worker's compensation law, heart disease and hypertension are just some of the many elements compensable under the act. In order to recover benefits, an employee must prove that the injury arose out of and in the course of his employment. On the other hand, a special statute was enacted to provide
July 2000
Volume 14, Number 7
compensation to qualified fire fighters who become disabled as a result of heart disease. The wording of this statute is clear and unambiguous. Its benefits are provided in lieu of any other benefits. Thus, a fire fighter who suffers a heart attack in the course of his employment may not receive both benefits concurrently. He can elect to proceed and obtain benefits under the general worker's compensation statute or exercise his right to benefits under the special police and fire fighter heart law. He may not choose both. Decision of workers compensation board affirmed. [Hyatt v. City of Milford, 749 A.2d 650 (Conn. App. Ct. 2000)] Hargreaves' injuries. The defendants moved for summary judgment on the wrongful death suit. Trial court held that the IOD statute was the exclusive remedy for a fire fighter injured in the line of duty and precluded a negligence suit against superiors and fellow officers. Wife appeals.

HELD: The earlier case decision held that an injured public safety officer's exclusive remedy was the IOD statute and the statute precluded a separate tort action against his employer and the municipality. This exclusivity was inferred because the statute allows recovery without a showing of fault and is not subject to various tort defenses. The intent behind the IOD law was to provide greater work-related injury benefits to certain public employees whose jobs require them to serve in dangerous situations. Under the IOD statute, a fire fighter injured in the performance of his duty receives his full salary while a worker's compensation claim provided only a small percentage of salary. The heirs of a deceased fire fighter, however, are placed in a different position. The surviving spouse benefits under the IOD statute do not even come close to providing a comprehensive benefit for the death. The greatest benefit that the wife could achieve under the IOD scheme would be $3,600 a year, much less than a surviving spouse would receive under the general worker's compensation law. The IOD remedy for a surviving spouse is so meager as to be regarded as only a token amount. The court will not infer an intent on the part of the legislature to make the IOD benefit exclusive in this context. A court will not construe a statute to reach an absurd result. It would be nothing short of absurd to infer that the legislature intended to eliminate surviving spouses' remedy to a meager stipend of $300 a month, as opposed to the much higher benefit under the worker's compensation law. The Rhode Island IOD statute does not bar a surviving spouse from bringing a wrongful death suit. Such suit, however, will be subject to any applicable common law and statutory defenses. Reversed for surviving spouse. [Hargreaves v. Jack, 750 A.2d 430 (R.I. 2000)] 

Civil liability
Hargreaves was a fire fighter who served as a pump operator. He responded to a fire and was tending his pumper in accordance with department policy when a superior officer ordered him to enter the burning building to assist the other fire fighters. Hargreaves followed the order. As the fire scene conditions worsened, however, the commanding officer decided to evacuate all fire fighters from the building. However, the officer in charge was unable to track the whereabouts of all the personnel. Hargreaves was inadvertently left behind in the building. By the time he was able to escape the flames, he had suffered fatal injuries and died one month later. His wife, as the administrator of his estate, filed a wrongful death suit against the city and the two superior officers. She sought to hold them liable for alleged negligence in the management and supervision of the fire fighting operations. Before the case went to trial, the Rhode Island Supreme Court ruled that a state statute known as the Injury On Duty (IOD) Benefits Law was the exclusive remedy for fire fighters injured in the line of duty. Believing that this ruling would bar any claim against the individual fire fighters and the city, the estate administrator filed a second suit against the individual police officers at the scene. She alleged that they were negligent in the provision of fire ground support and security in the area of the fire and that this was the proximate cause of
July 2000
Volume 14, Number 7
procedure in three ways: (1) the bargaining contract permits discretionary appointment to positions two ranks below the fire chief, rather than just one rank as restricted by civil service law; (2) the collective bargaining contract requires the person appointed to be fire chief be a member of the department and be either an assistant chief or district chief or captain, while the state statute is broader; and (3) the labor contract permits that promotions be made at the sole discretion of the fire chief. No similar discretionary provision is contained in state statute. Since the appointment procedures contained in the labor agreement are not consistent with the statutory provisions, the city argues that the 90 day requirement is not applicable. By approving the collective bargaining agreement, the city council approved an appointment procedure that permitted the fire chief to appoint persons to the classification immediately below the fire chief. At that time, that position was the deputy chief position. However, the city subsequently eliminated the deputy chief position and the classification immediately below became the assistant chief position. Since the council had already approved the appointment procedure to the classification immediately below the fire chief, that procedure became applicable to the assistant chiefs. The statutory restrictions contained in the state civil service law, therefore, became applicable to the appointment of assistant chiefs to the extent that the bargaining agreement did not specify otherwise. In this case, the labor agreement provided that as vacancies occurred in the rank of assistant chief, the fire chief had the discretion to fill the position from the ranks of district chief or captain. Reading the phrase, "at his sole discretion" in context, the court believes that it unambiguously gives the chief discretion over whom to appoint, not when to make the appointment. The collective bargaining agreement is silent as to the timeline. Therefore, the state civil service law's 90 day requirement prevails because the bargaining agreement does not specifically provide otherwise. [City of San Antonio v. Scott, 16 S.W.3d 372 (Tex. App. _ San Antonio 1999)]

Promotion procedures
Since the 1950s, the city had operated under state civil service law regarding its promotions in the fire department. In 1974, the city entered into a collective bargaining agreement with the fire fighters' union. Under Texas law, the civil service act prevails over a collective bargaining agreement unless the collective bargaining agreement specifically provides otherwise. On March 1, 1994, Scott took the promotion exam for fire captain and was ranked number 21 on the list. The eligibility list expired on February 28, 1995. Before the expiration date, 20 vacancies occurred in captain positions, leaving Scott first on the eligibility list. In July of 1994, an assistant fire chief retired. At that time the vacancy in the assistant fire chief position could only be filled by a deputy chief or captain. However, the assistant chief vacancy was not filled until after the captain eligibility list had expired. Scott sued the city, alleging that the city had violated the terms of the civil service act that requires that vacancies in the position of assistant fire chief be filled within 90 days. If the 90 day requirement had been met, the appointment of the assistant fire chief would have occurred during the life of the promotion list, a vacancy in the captain's position would have been created, and Scott would have been promoted. Trial court granted Scott a summary judgment, but the city appealed. The intermediate appellate court reversed the summary judgment, holding that several issues of material fact needed to be resolved. The matter was remanded to the trial court. At trial, union negotiators and city officials testified as to their understanding of the meaning of the collective bargaining agreement. Ultimately, the trial court ruled that the civil service law that required a department head to make an appointment within 90 days of a vacancy applied in this case. Judgment was entered for Scott. City appeals.

HELD: The city notes that the promotion procedure contained in the collective bargaining agreement varies from the statutory promotion
July 2000
Volume 14, Number 7
Settlements Association of Fire Fighters, AFL-CIO, represented the approximately 250 fire service personnel covered by the contract.

Anaheim, California

fire fighters

Englewood, Florida

fire fighters
Binding arbitration has produced a 15 percent raise for Anaheim fire service personnel. The award is the first pay raise fire fighters have received since 1996 and ends years of negotiations. The fire fighters' union becomes the first in southern California to go through binding arbitration. In 1998, Anaheim fire fighters became frustrated at the lack of progress in contract negotiations. They initiated a voter referendum on binding arbitration. The local electorate approved the procedure by amending the city charter. In addition to the pay award, the arbitrator ruled that the city could not take away two paid holidays nor overstaff the department in order to reduce overtime hours. The arbitrator did grant the city the authority to conduct drug and alcohol testing and to institute a fitness policy. The award expires in June 2001. Fire fighters were represented by Local 2899 of the International Association of Fire Fighters, AFL-CIO.
A four percent pay hike for each of the first two years and a 4.5 percent wage boost in the final year are the economic terms of a new labor agreement between Englewood fire fighters and the local fire district. The deal, retroactive to October 1, covers 36 fire fighters. Under the new contract, a new fire fighter starts at $24,758 while a five-year veteran will earn $35,984. The fire personnel, represented by the Suncoast Professional Firefighters and Paramedics, Local 2546 of the International Association of Fire Fighters, AFL-CIO, work an average 56-hour week.

Lockport, New York

fire fighters
Lockport and its fire fighters' union have reached agreement on a four-year labor contract. The pact, which is retroactive to January 1, 1999, contains a wage freeze for each of the first two years. The final two years will see a pay hike of three percent each year. Changes were also made to improve the pension plan and health benefit coverage. The fire fighters are represented by Local 963 of the International Association of Fire Fighters, AFL-CIO.

Anchorage, Alaska

fire fighters
Anchorage fire fighters have voted to accept a five-year contract with the municipality. The retroactive pact grants a three percent pay hike as of January 1, 1999, and cost of living increases between two and four percent in 2002 and 2004. A new position, senior fire fighter-paramedic, is created under the contract. An additional five percent pay will accompany this position. Fire fighters who hold a bachelor's degree in a fire-related discipline will earn an additional eight percent pay. In the future, new battalion chiefs will be excluded from the union. The eight current battalion chiefs will be allowed to remain in the organization if they so choose. This agreement marks the first contact since 1984 that was negotiated without third-party mediation or arbitration. Local 1264 of the International

Niagara Falls, New York

fire fighters
Niagara Falls City Council this month unanimously approved a retroactive one-year contract with the city's fire fighters. The pact with Local 714 of the International Association of Fire Fighters, AFL-CIO, covers the year 1999. An across the board pay hike of 5.5 percent is the primary element of the agreement.