December 2000 
Volume 14, Number 12 

Philly paramedic protests city's hepatitis C stance 
An arbitration award and city promises notwithstanding, Philadelphia fire fighters want action on the hepatitis C issue. And a female fire paramedic took matters into her own hands this month. Lieutenant Mary Kohler, an 11-year department veteran, continues a sit-in protest she began December 6 at City Hall, saying she would not leave until the mayor approved the recently issued arbitration award. Kohler, 37, has been diagnosed with the deadly virus and claims she was infected during an emergency call. The city has refused to recognize hepatitis C _ which attacks the liver - as job-related. 

In early November an arbitration panel handed Philadelphia fire and rescue personnel a victory by ordering the city to set aside millions of dollars for health costs and testing for the virus. The arbitrators also ordered the city to reinstate sick leave used in connection with hepatitis C. To date, however, the city has not implemented the changes and is appealing the award. Earlier in the year the city announced it would voluntarily allocate millions to treat up to 200 fire service personnel who had contracted the virus. 

In an initial show of support for Kohler, about 50 fire department workers appeared at City Hall 

 carrying signs. One sign featured pictures of Dalmatian dogs and read, "Don't treat fire fighters like dogs." A week later, more than 400 fire fighters, wearing "No Hep-C" pins marched on City Hall to demonstrate support for Kohler's vigil. Pressure on the city intensified on December 12 when International Association of Fire Fighters (IAFF), AFL-CIO, president Harold Schaitberger met with Mayor John Street. 

Kohler has vowed to maintain her vigil until the arbitration award is enforced or she is forcibly removed from the property. "I've got magazines, books, a little light to use if they turn the lights off in here," she said, pointing to a duffel bag. "I was told if I refuse to leave, I will be arrested and charged with trespassing. I'm not going anywhere." 

Kohler believes she contracted the deadly virus in the early 1990s. She has no sick time left and is off the fire department payroll. "If the contract gets enacted, she gets that time back. But for now, the situation for Mary and for many others is dire," observed Tom O'Drain, vice president of Local 22 of the IAFF. 

Pennsylvania lawmakers are considering legislation to make hepatitis C presumed to be an occupational disease for rescue workers. 

Worcester tragedy generates over $8 million 
The Worcester Cold Storage fire that resulted in the deaths of six fire fighters last December has produced financial donations to the surviving families unsurpassed in history. The Massachusetts tragedy has generated an outpouring of sympathy and monies from as far away as Australia and Greenland. While firm totals are unlikely to ever be calculated, estimates place the amount of contributions in excess of $8 million.  At least a dozen separate funds were established to receive donations following the tragedy. The largest, set up through the Worcester Telegram & Gazette Charitable Foundation, has collected just over $6.5 million from 43,250 separate contributors. Donations continue to trickle in. The foundation has established a $1 million interest-bearing fund for each lost fire fighter's family. The newspaper's publisher, Bruce Bennett, 
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said that all families should receive their share of the fund, along with the interest, by the end of the year. Remaining monies will be dedicated to fire fighting purposes. 

Worcester fire fighters also created a fund through the department's credit union. No report has been made public as to the extent of this fund. In addition, the Worcester Fire Department has received about $160,000 in donations independent of the funds for the families. This money has been used to purchase thermal imaging devices, defibrillators, and safety ropes. 

Because the newspaper's foundation is not- 

 for-profit, federal tax regulations make contributions tax-deductible but restrict disbursement of the funds. Specifically, Internal Revenue Service (IRS) rules prohibit making a small group of individuals wealthy. Despite the foundation's initial concerns about complying with the law while still ensuring the monies when to the survivors, the IRS has not pursued the disbursement issue. 

The six fire fighters were killed the evening of December 3, 1999, when they became trapped in the inferno engulfing the six-story abandoned warehouse. The fire was started by homeless persons using the building for shelter. 

Grinch attacks fire service on both coasts 
The spirit of peace on earth, goodwill toward fire fighters is being tried this month on both coasts. At issue: Christmas trees. In Eugene, Oregon, fire fighters are grieving an order barring the Yuletide symbol from the city's firehouses while in Boston the mayor is displeased at fire fighters for picketing tree-lighting ceremonies. 

In an effort to "put a neutral face on a religious holiday" Eugene city fathers have ordered Christmas trees and other religious symbols removed from shared work space and public areas of city property. Included in the ban is the traditional tree in fire stations. Local 851 of the International Association of Fire Fighters (IAFF), AFL-CIO, has filed a grievance claiming that the ban is a subject of mandatory bargaining because it changes a longstanding practice. The union has also pointed out that the ban has been applied selectively with decorations being permitted at the airport and a senior citizens center. 

According to callers to radio talk shows and letters to the local newspaper, public opinion is running strongly against the policy. Even a fire fighter who is Jewish, Matt Steinberg, said that fire fighters find the trees uplifting and part of a celebration with their families when they must work on the holiday. Over 40 fire fighters are scheduled for duty Christmas Day. 

"We don't set policy around here based on 

 majority opinion," said Lauren Chouinard of the city's human resources department. "We do it based on what is the right path to take, and we stick to our guns. I am not compelled to change a policy simply because we get a lot of opposition." 

Meanwhile, Boston officials have refused to resume contract negotiations after a furious Mayor Thomas Menino shut off discussions when he noticed fire fighters picketing city holiday festivals. Bargaining for a new labor pact had begun in early December, but the mayor ordered negotiations stopped after he observed union demonstrators while on his annual trolley tour of community tree-lightings. 

"The mayor was very upset," said Dennis DiMarzio, Boston's acting fire commissioner. "We had about 20 guys out there holding signs, and that's all," retorted Jack McKennas, president of Local 718 of IAFF. "They weren't being disruptive." 

Union members reportedly picketed 17 lighting ceremonies, carrying signs that read "Contract Now for Boston Fire Fighters" and "Happy Holidays Boston.". 

Fire fighters have worked without a contract for 18 months. Besides economic issues, negotiations have sputtered because of city demands to change work rules in an effort to save as much as $1 million in payroll costs annually. No date has been set for additional bargaining sessions. 
December 2000 
Volume 14, Number 12 

Disability retirement rates questioned in LA County 
In the past three years Los Angeles County fire fighters have been awarded service-connected disability retirements at a higher rate than those in other major California counties, according to a report released last month by the county auditor. The Los Angeles County retirement board granted disability pensions to 64 percent of its fire fighters the past three years. In 1997-98, three-quarters of all fire fighter applicants were awarded a service-connected pension. Other counties' rates range from 30 to 49 percent for public safety employees. 

"There seems to be rampant abuse of the disability retirement system in California, and it's undoubtedly costing taxpayers millions statewide," said Jon Coupal, leader of a taxpayer reform group. 

High rates of disability pensions partially 

 stems from county policy that requires fire fighters to be capable of a full range of duties to be available in case of emergencies. The report recommends narrowing the range so that injured employees could be assigned less strenuous jobs. The report also suggests that a "clear and convincing evidence" standard be adopted in determining whether the job was the predominant cause of the injury. Also recommended are alterations in the workers' compensation law that have allowed public safety personnel who are injured to participate in off-duty activities such as skydiving and rodeo. 

County officials are pessimistic, however, that the state assembly will change the laws, predicting that few lawmakers would be willing to challenge the state's fire fighter and police unions. 
Litigation 

Supreme Court update 

Cases of interest 
Last month, the Supreme Court chose not to review Greer v. Amesqua, No. 00-461. This leaves in place a lower court determination that a fire fighter's free speech rights were not violated when he was fired after mounting an anti-gay publicity campaign amid innuendoes about the female fire chief's sexual orientation. Greer, a part-time pastor, was openly critical of homosexuality. He publicly accused the chief of favoritism in an incident involving a lesbian division chief who was investigated for excessive discipline of a male recruit. Amesqua fired Greer for his comments. The Court of Appeals affirmed a lower court finding that the department's interest in maintaining a harmonious workplace outweighed any First Amendment right enjoyed by the fire fighter. 

A recently filed case of interest is Williams v. Houston Firefighter's Relief and Retirement Fund, No. 00-757, alleging discrimination in allocation of fire fighter pension benefits. No review action has been taken on the matter. 

Dismissal procedures

 Krentz became chief of the fire district in 1987. After almost a decade of employment the district signed him to a new seven-year contract. Shortly after the new contract was executed, however, the district board became increasingly disenchanted with Krentz' performance. The changed attitude was to some degree caused by the election of new board members. In particular, one board member had campaigned with the support of the fire fighters' union. This member disliked the fact that several fire officials in the district, including Krentz, had received long-term contracts. By mid-1997 the district board informed Krentz that the department was suffering from a severe morale problem and asked him to present a plan to remedy the lack of fire fighter morale. Krentz never responded. About the same time the board began to question rather Krentz and other officials used the district's cellular phones to place personal calls. By the latter part of the year virtually all of the district's 
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Volume 14, Number 12 
fire fighters had signed a petition expressing lack of confidence in Krentz. The petition asked for his removal. In November 1997, following an investigation, the board sent Krentz a letter detailing his substandard performance in previous months. The letter announced the board's decision to terminate Krentz' employment. The board offered Krentz an opportunity to present arguments and evidence in his defense at a special board meeting. Krentz attended the board meeting with his attorney. He presented the board with a letter objecting to the procedures but not disputing the allegations levied against him. Krentz stated that he wanted to hear the board's view of the situation but the board's attorney insisted on speaking for the board. Krentz' attorney, on the other hand, attempted to explain his side of the story but the board demanded to hear from Krentz personally. Krentz refused to address the board or answer questions. The two parties left the meeting. The district removed Krentz from its payroll a week later. The former chief filed suit alleging a variety of contractual and constitutional violations including lack of due process in his dismissal. The trial court granted the district's motion for summary judgment and dismissed other claims. Former fire chief appeals. 

HELD: The due process clause of the Fourteenth Amendment provides that no state shall deprive any person of life, liberty or property without due process of law. Procedural due process requires that a plaintiff demonstrate that the state deprived him of some life, liberty, or property interest and that the deprivation was without sufficient process. Here, Krentz can establish a property interest in his job as fire chief because of his contract. When a state deprives a public employee of a contractually-created property right to continued employment, that deprivation must be preceded by notice and an opportunity for a hearing appropriate to the nature of the case. Prior case law divides procedural due process claims into three stages: an employee receives notice that he is terminated and is given an opportunity to respond - that is pre-termination process; then the employer actually fires the 
employee; and finally an employee has an opportunity to receive some measure of post-termination process, usually a hearing with heightened procedural safeguards. Prior case law requires only a limited pre-termination process, especially if post-termination proceedings are available. At the pre-termination level the tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. Krentz' pre-termination process was twofold. First, he received a letter of termination that informed him of the charges against him. The letter also advised him of the opportunity to respond to the board at a special hearing. The meeting itself then offered Krentz an opportunity to present his side of the story. Krentz was provided a constitutionally adequate pre-termination process. While the district board refused to answer the ex-chief's questions, neglected to record the hearing, and insisted that Krentz' attorney not participate, nonetheless the hearing met the minimum requirements of a pre-termination proceeding. As to the question of post-termination process, the State of Missouri has enacted the Missouri Administrative Procedure Act (MAPA). The MAPA provides for a hearing in "contested cases." Krentz could have instituted a "contested case" proceeding under the MAPA after his termination became effective. He declined to pursue this available post-termination remedy. Prior law holds that an employee waives a procedural due process claim by refusing to participate in post-termination grievance procedures made available to him. It is not relevant that Krentz may have been personally unaware that the MAPA applied to personnel actions because persons are conclusively presumed to know the law. Even if the fire district neglected to give Krentz the process he was due, his sole remedy lay within the confines of the MAPA. Failing to pursue a MAPA claim in a timely fashion forecloses subsequent litigation over the matter. Dismissal of case affirmed. [Krentz v. Robertson Fire Protection District, 228 F.3d 897 (8th Cir. 2000)] 
December 2000 
Volume 14, Number 12 

Civil liability 

 acts or omissions in connection with emergency response communication services." The city fire department in this case argues that its actions fall within this exception. A local government has a strong interest in providing rescue services for its citizens who need immediate response. The statutory exemption for tort liability allows municipal providers of emergency care to render necessary aid in dire situations free from distractions and concerns over potential lawsuits. Kershner argues that had the fire department dispatched equipment according to its policy, then the risk of damage to her property would have been reduced. She argues that the immunity provision of the law does not apply when a governmental entity fails to follow its own written policies. The undisputed facts in the case show that the claim is based on the fire department's negligence in deciding the proper equipment and number of fire fighters to dispatch. Clearly, the decision concerning the type of equipment and number of personnel qualifies as an act or omission in connection with an emergency response. Consequently, the city has met its burden of showing that the emergency response exemption applies in this case. The statute makes no reference to whether any existing operational guidelines in effect at the time the alleged act are to be followed. Likewise, nothing in prior case law speaks to this issue. There is no convincing argument as to why the immunity provisions of Iowa law should not apply in this case even though the fire department did not follow its own written service policy. There is no evidence that the city intended to impose on itself or its employees a mandatory duty of care toward persons within the city so as to provide a basis for civil liability or that the city otherwise intended a waiver of immunity. The statute plainly states that the only relevant inquiry in determining whether the city has immunity is whether the plaintiff's claim is based upon or arising out of an act or omission in connection with an emergency response. Because Kershner's claim is based on conduct of the fire department in connection with an emergency response, the statutory immunity 
Kershner discovered a fire in the clothes dryer located in the enclosed back porch of her home. She attempted to extinguish the fire but was unsuccessful. She then placed a call to the fire department stating that she had a dryer fire in her home. Under the department service response policy for a residential fire, an engine with three fire fighters, a truck with three fire fighters, a command vehicle of two fire fighters, and an engine with two fire fighters was the minimum equipment to be dispatched. However, in response to Kershner's call the battalion chief ordered only one truck with two fire fighters and a fire officer to respond. Upon arrival, the fire fighters observed the fire contained to the back porch of the house. The general technique to be used in such a fire was to enter the front part of the home and fight the fire from the interior. However, since only three fire fighters initially responded to the fire, entry of the home could not be made safely. A call was placed for additional fire personnel and equipment. Additional personnel arrived approximately three to five minutes later. Despite their efforts, however, the fire spread and eventually consumed the entire home, destroying the structure and contents. Kershner filed suit against the city alleging that the fire department was negligent in failing to follow its written service response policy. The city moved for a summary judgment claiming that it was immune from suit under Iowa law. Following a hearing the trial court sustained the city's motion and plaintiff appeals. 

HELD: Iowa statute establishes the parameters of a municipality's liability for the negligent acts or omissions of its officers and employees. The statute states that every city is subject to liability for the torts of its employees unless the torts fall within one of the listed exceptions. One exception provides immunity to a municipality for "a claim based upon or arising out of an act or omission in connection with an emergency response, including but not limited to 
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Volume 14, Number 12 
provision applies. Affirmed for city dismissing case. [Kershner v. City of Burlington, 618 N.W.2d 340 (Iowa 2000)]  only that the parties address each issue that has resulted in an impasse. The statute is silent on the structure the final settlement offer must take. Clearly, substance is superior to form in the statute. In this case, the issues the city bundled together had logical relevance to each other but were not inextricably intertwined. The distinct ideas were there and the arbitrator freely chose from among them. He did not err simply by finding in the city's favor on all of those points. On the other issue, the union claims that it filed a submission to delete the employee performance appraisal system and the city made no counterproposal. The union is correct that the arbitrator's only option was to find in its favor on that issue. A week before the city filed its final offer statement, the union had sent the city a proposal regarding performance appraisals. There was no surprise thrown in by the union in its final offer settlement. The city is concerned that by ruling for the union it will encourage wholly new items to be submitted for the first time as disputed issues. This is not what happened in this case, however. Still, arbitration by ambush is not a tactic that either side should employ in collective bargaining. The union's one-week gap between its proposal and final offer settlement is about as close to a surprise attack as the court is comfortable allowing. Reversed in part and affirmed in part. [Fairborn Professional Fire Fighters' Association, IAFF Local 1235 v. City of Fairborn, 736 N.E.2d 5 (Ohio 2000)] 

Bargaining procedures 
The collective bargaining agreement between the fire fighters' union and the city provided for mandatory arbitration if the parties did not arrive at a successor contract within eleven days before the expiration of the agreement. The contract also stated that arbitration would be conducted in accordance with the applicable Ohio statutes. Two weeks before the expiration of the contract the parties reached an impasse in negotiation on several provisions. Pursuant to the contract the parties submitted the disputed issues to arbitration. The arbitrator conducted a hearing and subsequently issued an award. The union filed suit seeking a modification of the award claiming that the arbitrator had erred in adopting the city's position on two issues. In one instance, the city had bundled a series of disputed issues in its submission and in another instance, the city had simply not responded to the union's position. In both cases, however, the arbitrator had ruled for the city. The trial court rejected the union's claim, as did an intermediate court of appeals. Fire fighter's union appeals. 

HELD: Ohio bargaining law provides for final offer arbitration. The statute requires parties to submit final offer settlements of those issues that are subject to collective bargaining and upon which the parties have not reached agreement. Each party is required to submit a written report summarizing the unresolved issues, the party's final offer as to the issues, and the rationale for their positions. Arbitrators must then resolve the dispute on an issue by issue basis from the final offers. The arbitrator must choose one final offer or the other on each issue. Here, the union objects to the city's bundling of issues. Specifically, on the question of hours of work and workweek, vacation, and holidays the union treated those as three separate issues. The city, however, in its submission discussed all three issues within the same paragraph. Ohio law requires 
Settlements 

Akron, Ohio 

fire fighters 
Akron fire fighters have ratified a new three-year labor contract with the city. About 400 members of Local 330 of the International Association of Fire Fighters, AFL-CIO, will see 3 percent pay hikes in each of the first two years of the pact. A 3.75 percent boost will be awarded in the final year. Fire fighters will receive a $300 health maintenance bonus to keep physically fit.