In late June, President Bush signed into law an amendment to the Public Safety Officers Benefit Act (PSOB) that expands the list of possible beneficiaries. The law now permits anyone, including the survivor of same sex couples, to receive the death benefit awarded for line of duty fatalities. Previously, only surviving spouses or children were eligible for the award.
The new statute allows the federal benefit to be paid to any beneficiary listed on the victim’s “most recently executed life insurance policy,” providing there is no surviving spouse or child. Since the purchaser of a life insurance policy is generally free to designate the beneficiary, anyone, including a same sex domestic partner, is now an eligible recipient. The law also creates eligibility for siblings, parents, or any other individual named on the life insurance policy. Presumably, former spouses could receive the benefit if the fire fighter never bothered to change his or her life insurance beneficiary following divorce. Likewise, the surviving child provision is not limited to minor children.
“All brave men and women who die in the line of duty deserve equal and just treatment,” said International Association of Fire Fighters, AFL-CIO, General President Harold Schaitberger. “The International thanks the efforts of the Senate and House members who helped pushed this measure through.”
Named for Mychal Judge, the Fire Department of New York chaplain killed at the World Trade Center, the statute also extends coverage to fire and police chaplains. Application of the amendment is retroactive to September 11, 2001.
Reportedly, the Department of Justice (DOJ), which administers the PSOB, objected to the change on the basis that the purpose of the law was to provide cash aid to the immediate survivors of deceased public safety personnel. DOJ cautioned Congress that the bill was “likely to create unintended and unfortunate results.” Congress ignored the DOJ warning and amended the 26-year-old law.
An upstate New York assistant fire chief must spend 75 days in jail and avoid contact with any fire department under the terms of a five-year probated sentence handed down in the death of a fire fighter trainee last year. Alan G. Baird III, a former volunteer assistant fire chief, had been found guilty of criminally negligent homicide of Bradley Golden, 19-year-old trainee, during a live burn exercise in a vacant farmhouse in Westmoreland, New York last year. In May, a jury also found him not guilty of manslaughter and assault charges for the incident that also severely burned two other fire fighters. The trial judge imposed the sentence on July 8.
Baird, 30, said he planned the training exercise and ignited a sofa bed on the first floor of the house. The fire burned out of control and ultimately engulfed the entire structure. But Baird testified that he was not in charge at the scene, indicating that the fire chief of a nearby community was the incident commander of the joint exercise.
Baird’s case attracted national attention about how well volunteer fire fighters are trained and how departments follow accepted firefighting standards. However, Baird’s chief and several other participating fire officers testified that they did not know that Baird had planned to use an actual first floor fire. Golden and one of the injured fire fighters were posing as drill “victims” on the second floor. Golden died of asphyxia from the smoke and superheated air after the fire quickly shut off avenues of escape.
“We were told that there would be a burn barrel with live fire in it and we were to rescue two victims,” fire fighter Kathryn Wenham testified. “We were not told there would be an uncontained structure fire or a sofa would be lit.” Wenham, an emergency medical technician, unsuccessfully attempted to resuscitate Golden.
The prosecution argued that Baird’s conduct in setting a real fire while knowing that two fire fighters were on the second story of the house constituted reckless behavior sufficient to justify the criminal homicide charge.
Assistant District Attorney Michael Coluzza, added that the case was not about criticizing volunteer fire companies. However, legislative proposals are already being discussed that would prohibit using live victims in controlled burn situations, requiring a state permit to conduct certain training exercises, and establishing state-mandated minimum live burn training standards for volunteer fire fighters.
In addition to the jail time and the banishment from the fire service, Baird must complete 100 hours of community service. The case is believed to be the first in recent memory where a fire officer has been criminally charged in the death of a fellow fire fighter. An appeal is expected.
The president of Springdale, Arkansas, fire fighters’ union who was terminated in April by the city’s fire chief has his job back. A civil service commission ruled recently that “just cause” for the chief’s actions was lacking and ordered the fire fighter’s discipline reduced to a 30-day suspension and a letter of reprimand. The disciplinary case against Dean Bitner had been followed closely by officials at the International Association of Fire Fighters (IAFF), AFL-CIO.
The case is being handled by the IAFF General Counsel’s Office and local counsel pursuant to the IAFF Guardian Policy, which is designed to provide legal representation to IAFF members who have suffered adverse treatment at the hands of their employers because of their union activities.
“As a longtime champion of public safety, Mr. Bitner has frequently and honorably used his First Amendment Rights to further that cause, and Fire Chief David Hinds tried to make him pay for it,” said Harold Schaitberger, IAFF General President. “The IAFF is pleased with the commission’s decision to give him his job back, but considers the suspension and written reprimand unwarranted. The International will continue to stand behind Mr. Bitner 100 percent.”
Bitner, head of Local 3007, was fired on April 25, 2002 after asking the fire chief why he was not appointed to a committee concerning a pension plan for the department. The City claimed the local union president was “insubordinate” and engaged in “conduct subversive of good order” when he made the inquiry.
Chief Hinds claimed that he had spoken with the captains and battalion chiefs and they agreed with him. But the captains and battalion chiefs testified to the contrary. They told the civil service commission they had never been consulted by the chief before he fired Bitner.
The firing was the latest action in a conflict between Bitner and the city administration, which began after he addressed the Police and Fire Committee of the Springdale City Council in early 2001. With the city administration’s permission, Bitner gave a formal presentation to the council about matters related to public safety, fire department understaffing, and loss of qualified fire fighters to surrounding cities and counties due to pay disparity. Two weeks later, the city officials refused to promote Bitner to captain and chose the second most qualified candidate. Bitner had received the highest score on the promotion exam, had 14 months more experience, and had completed more advanced level courses than the other candidate. Shortly before Bitner was passed over, the fire chief allegedly told him that he was a risky candidate for promotion because of his local union activities.
In August 2001, Bitner filed a First Amendment lawsuit challenging the city’s decision. Since then, Bitner claims he has been harassed through reassignment, demotion to a less desirable position, not being allowed to serve on the pension committee, and ultimately termination.
“The First Amendment lawsuit is still pending against the city,” said
Molly Elkin, an attorney with Woodley & McGillivary, who represented
Bitner on behalf of the IAFF. “And the civil service commission’s ruling
to reinstate Mr. Bitner only adds credibility to his already strong case.
But we will be asking the court to lift the suspension and award him back
pay.”
A young girl was electrocuted while in the bathtub. Her father called 911 and requested an ambulance. The 911 center was operated by the local fire protection district. The 911 operator apparently placed the call on hold rather than immediately dispatching emergency personnel. Ultimately, a deputy sheriff who was monitoring the call responded and transported the child to the hospital. The child suffered permanent debilitating injuries. A suit was brought against the fire protection district claiming it was negligent in failing to dispatch emergency equipment promptly. Trial court dismissed the case on the grounds that the fire protection district was immune from suit under California statute. Injured girl and parents appeal.
HELD: Under California statute, a public entity is generally immune from tort liability. Statute also makes emergency rescue personnel liable only if they act in bad faith or are grossly negligent. “Emergency rescue personnel” is defined to mean “any person who is an officer, employee, or member of a fire department, or fire protection or fire fighting agency” of the government, whether volunteer or paid. Plaintiffs in this case admit that they are unable to show that the dispatcher acted in bad faith or was grossly negligent and, thus, cannot take advantage of that statutory exception. However, the plaintiff argues that 911 emergency operators are not “emergency rescue personnel.” The definition of emergency services includes first aid medical services. Such activities would necessarily be assumed to include a 911 dispatching system. Even if the legislature has not enacted an express amendment to that effect, it does not mean that the 911 system was not already covered by the language of the statute. Thus, the dispatchers fall within the statutory immunity. Plaintiff further argues that while there is no duty to come to the aid of another, such a duty may exist when a special relationship is created. Prior case law holds that paramedics have no general duty to render aid to injured persons unless some special relationship was indeed created. Here, however, the emergency personnel involved did not create the peril to the young girl, they did not voluntarily assume a special duty to assist her, and they made no promise or statement to induce reliance, nor did they increase the risk to her. Prior case law has rejected the assertion that California law imposes a mandatory duty upon emergency personnel to render assistance whenever summoned. The dispatchers had no duty to the young girl except to avoid acting in bad faith or with gross negligence. Importantly, they made no promise that an ambulance was being dispatched. Rather, they simply placed the call on hold. Consequently, the emergency dispatchers never actually provided emergency services to the injured girl. The dispatchers are immune from suit in this case. [Eastburn v. Regional Fire Protection Authority, 119 Cal. Rptr.2d 655 (Cal. Ct. App. 2002)]
The Supreme Court closed its 2001-2002 term with no fire service labor matters pending. However, the justices did agree to consider whether state workers may sue their employer for violation of the Family and Medical Leave Act (FMLA). Nevada Department of Human Resources v. Hibbs, No. 01-1368, is another of a series of cases wherein the court must decide a question defining the relationship between the state and federal governments. In 1999, the Supreme Court ruled that 11th Amendment immunity for states barred their employees from enforcing their rights under the Fair Labor Standards Act in federal court. The Hibbs matter raises a similar question regarding the FMLA.
Only in special circumstances has the court ruled that a lawsuit against a state may be pursued in federal court. To date, the justices have limited the application of the 11th Amendment to state governments and have not expanded their holdings to subunits, such as counties and cities. No decision is expected in this matter until next year.
The Supreme Court will reconvene on October 7.
The city and the fire fighters’ union were parties to a collective bargaining agreement. Under the terms of the contract, disputes were subject to a grievance procedure. This procedure provided that an aggrieved employee would submit a petition to the union grievance committee. The union committee would determine if a grievance existed. If no grievance existed, no further action was necessary. If a grievance did exist, then the committee would present the grievance to the fire chief. Following review by the fire chief the matter could be pursued to the city manager and ultimately to arbitration. Taylor was a fire fighter who was discharged from his job. Electing to follow the grievance procedure of the labor contract, he sent the union a petition. The union apparently determined that a grievance existed and proceeded to file the grievance with the fire chief. The fire chief denied the grievance. At that point, the union notified Taylor that it had elected not to proceed further through the grievance procedure. Taylor then sought to pursue the matter independently and seek review of his claim by the city manager. City manager refused to consider the matter and Taylor filed suit. Trial court found that Taylor had a right to pursue the grievance privately and ordered the city to arbitrate. City appeals.
HELD: Prior case law holds that a union’s right to exclusivity over the administration of a collective bargaining agreement includes not only the right to settle a grievance short of arbitration but also the right to decline to process a grievance when it believes the grievance lacks merit. Taylor argues that the language of the labor contract specifically provides an employee the right to proceed on his own without union participation, at least as to the later steps of the process. While Taylor acknowledges that the union has exclusive right to proceed on filing a grievance with the fire chief, he argues that the contract intends to allow the employee to invoke subsequent steps. Such a view is a misinterpretation of the contract, however. Unnecessary arbitration causes the outlay of significant public funds and, therefore, the settlement provided by a contract to avoid such expenses should not be undermined. Though the language of the contract does not state explicitly that subsequent steps of the grievance procedure are under the exclusive control of the union, it is logical that the union should control the procedure as a whole. The potential for harassment would exist if arbitration could be compelled by an employee in a situation in which those who negotiated the labor contract deemed the proceedings to be unwarranted. Reversed for city overturning grievance order. [City of Boynton Beach v. Taylor, 813 So.2d 1039 (Fla. Dist. Ct. App. 2002)]
In 1996, Dudley fell from a fire truck and landed on both knees, injuring them. He subsequently underwent a left knee replacement. He filed for worker’s compensation and was determined to be permanently and totally disabled. Four years later, his right knee gave out and he fell. Paramedics transported him to a hospital. A subsequent knee surgery was performed. Ultimately, however, Dudley developed a bacterial infection and died. His death occurred four and a half years after having originally fallen from the fire truck. Dudley’s wife sought medical benefits and death benefits from the worker’s compensation board. The worker’s compensation board ultimately concluded that death benefits as well as funeral and medical expenses were in order. City appeals.
HELD: The standard of review for questions of fact requires the reviewing court to examine the record and all reasonable inferences therefrom in the light most favorable to the findings and award of the worker’s compensation commission to determine whether they are supported by competent and substantial evidence. Commission’s factual findings and resulting award should be set aside only if they are not supported by competent and substantial evidence. Missouri law provides that if an employee dies as a result of an operation made necessary by a work-related injury, death shall be deemed to be caused by the injury. Here, the commission heard evidence that the death was a consequence of the surgery that Dudley underwent as a result of injuries received while working as a fire fighter. The doctor testified that there was a direct relationship and a medical relationship between the injury and the ultimate death of Dudley. A second physician testified that the knee surgery was also a substantial factor in Dudley’s death. Thus, the worker’s compensation commission’s findings that Dudley’s death was caused by the knee surgery is supported by substantial evidence. Judgment of commission affirmed. [Dudley v. City of Des Peres, 72 S.W.3d 134 (Mo. Ct. App. 2002)]
fire fighters
The Conroe City Council recently boosted fire fighter pay up to 22 percent to stem defections to other agencies. Base pay was jumped to $35,640 for entry-level personnel. The second part of the pay plan goes into effect in September when longevity pay is increased. Only the most senior fire fighters will gain the entire 22 percent wage increase.
fire fighters
A new four-year memorandum of understanding has been inked between the City of Glendale and its fire fighters. The agreement grants a 6.5 percent pay boost in each year. City officials said their goal was to retain fire fighters by providing competitive salaries and benefits. Over the last 18 months, the city has lost 11 fire fighters and paramedics to other departments. The new agreement boosts the pay of fire recruits to $51,000 per year. About 184 fire department personnel are covered by the contract.
fire fighters
Members of Local 385 of the International Association of Fire Fighters,
AFL-CIO, have a new labor pact with the City of Omaha. The three-year deal
provides base wage hikes of 3.97 percent in each year. The contract eliminates
call-back pay at overtime rates if the city increases the number of fire
fighters to 630 in 2003 and to 642 in 2004. Currently, the department is
18 members short of its authorized strength of 605. Additionally, newly
hired fire fighters will remain in lower pay steps for longer periods of
time than previously. Probationary fire fighters will now earn $27,566.
Veteran fire fighters will draw about $48,000.