Most fire fighter deaths occur away from the fire, so says the National Fire
Protection Association (NFPA) in releasing its annual evaluation of fire personnel
fatalities. Heart attacks and motor vehicle crashes cause more on-duty fire
fighter deaths than smoke, heat, flames or collapsing buildings, according to
an analysis of fire fighter deaths in 2002 by the NFPA.
A total of 97 fire fighters died on the job in 2002, roughly the same number
as in each of the previous nine years, excluding the 340 deaths at the World
Trade Center in 2001. But in eight of the last 10 years, fewer than half those
deaths occurred at or near the fire ground.
The majority of fire fighter deaths - 51 - occurred traveling to or from an
emergency, during training activities, during non-emergency duties (such as
administration or equipment maintenance), and during non-fire emergencies (such
as medical calls or motor-vehicle crashes).
On the fire ground and off, heart attacks were again the leading killer of
fire fighters. Last year, 37 on-duty fire fighters died of heart attacks, 13
on the fire ground, eight while traveling to or from a fire or other emergency,
seven while engaged in normal administrative activities, six at non-fire emergencies,
two during training activities, and one while cleaning up after a tornado. In
addition, two fire fighters suffered strokes during training activities, and
one suffered an aneurysm at a medical call.
Motor vehicles were another major cause of death, claiming 29 lives. Twenty-two
fire fighters were killed in crashes and vehicles struck seven, all while on
duty. In the most catastrophic incident, five fire fighters were killed and
six injured when a 15-person passenger van overturned on its way to a wildland
fire. Interestingly, while almost one-fifth of the deaths occurred in motor
vehicles, no career fire fighter died while responding to or returning from
emergencies.
“The biggest life threats to fire fighters are not what most people may
expect,” said James M. Shannon, NFPA president. “Two fire fighters
died from burns last year, while the top killer continues to be heart attacks.
What’s most troubling is that most fire fighters who died of heart failure
suffered from known health problems.” NFPA recommendations on medical
conditions that preclude individuals from serving as fire fighters should be
more widely followed, Shannon added. NFPA 1582, Requirements for Firefighters
and Information for Fire Department Physicians, establishes health screening
standards for fire service personnel.
Fire fighters older than age 50 have accounted for 40 percent of all fire fighter
deaths between 1998 through 2002, although they make up less than 15 percent
of all fire suppression personnel.
In other findings of the study, 2002 was one of the worst wildland fire seasons
in recent years. Additionally, the year proved particularly hazardous to wildland
fire fighters. Last year, 22 fire fighters died while working at or responding
to wildland fires or a controlled burn.
Non residential structures (except for health and educational facilities) are
more dangerous to fire fighters than private homes. The highest death rates
occurred in vacant buildings and buildings under construction.
Provision in a labor contract that keeps the terms in force even after contract expiration date. Evergreen clause prevents either party to the pact from unilaterally changing wages or working conditions after contract expires.
Six California fire fighters have sued their employer claiming that employment
of chaplains on the department violates the First Amendment requirement of separation
of church and state. The fire fighters, all of whom work for the Department
of Forestry and Fire Protection (DFP), claim that the cross-wearing chaplains
improperly insert religion into the government operated fire service.
The lawsuit flows from an internal complaint filed in 2001. At that time, DFP
officials agreed to remove religious content from an internal computer file
and revise department policies on the wearing of chaplain pins and the manner
in which chaplains are selected. However, Chief Karen Cohen defended the program
saying the chaplain program “is appropriate because the Constitution does
not require hostility towards religion by the government.” The DFP has
about 50 chaplains, line personnel who double as chaplains and minister to fire
fighters and their families.
The half-dozen complaining fire fighters include Christians, a Christian Scientist,
a Jew, and a “reformed agnostic.” Despite reportedly being branded
by some colleagues as the “satanic six,” the fire fighters say they
are not anti-religion. “We just don’t want it on the work site,”
said co-plaintiff Michael Cole, a 30-year veteran who was reared an Episcopalian.
“It’s [the lawsuit] about three simple things,” stated co-plaintiff
Robert Lewin to the Los Angeles Times newspaper. “We don’t want
department displays of religion. . . We don’t want government funds for
the promotion of religion. . . and we don’t want chaplains to be uniformed
personnel who supervise other employees.” As to the last point Cole observed,
“Imagine the potential for misuse and discrimination if an employee seeks
promotion from a supervisor or a ranking officer who has the power to evaluate
based on religious affiliations.”
“Fire fighters have four days off a week to practice any religion they
want to,” Lewin said.
The military as well as many of the nation’s public safety agencies utilize
chaplains. In some instances chaplains are paid by the agency while in others
they are officially recognized but perform chaplain duties without extra pay
in addition to their normal workload. One victim of the World Trade Center tragedy
was a New York City fire chaplain, Mychael Judd.
The litigation is expected to commence in federal court in Los Angeles later
this summer.
Every time the Anne Arundel County Fire Department in Maryland forces a paramedic
to work overtime after completing a regular 24-hour shift, County Executive
Janet S. Owens receives a postcard in the mail. The anonymous postal protest
is just one way the paramedics are trying to raise awareness of their working
conditions, which some say have grown increasingly worse in recent years. To
date, the County Executive reportedly has received about a half-dozen postcards.
Some of the paramedics also sent an unsigned letter addressing their concerns
to Ms. Owens, claiming county paramedics are being forced to treat patients
and drive ambulances up to 48 hours straight and warning that such sleep deprivation
puts the public at risk. The authors, who signed the letter only as “concerned
paramedics” for fear of retaliation, blamed Chief Simonds and the “gross
mismanagement” of the workforce, saying “the paramedics in this
department are on a downward spiral.”
Chief Simonds, reportedly angry about the cards and comments, told the Maryland
Gazette newspaper that he does not believe any crisis exists, or that the public
faces any danger by overworked personnel. He called staffing adequate to provide
quality service to residents but said, “It’s not where I’d
like to be.”
The department employs 139 paramedics, who work 24-hour shifts. About 30 paramedics
are deployed on each workday. Chief Simonds said that about 95 percent of the
holdovers occur because an employee calls in sick leaving little time to fill
a position voluntarily.
Union officials counter that the sheer number of holdovers, which they contend
has grown in frequency for paramedics in recent years, is a clear sign that
the department needs more staff. More paramedics would mean more people to fill
vacancies voluntarily, said Keith Wright, President of the Anne Arundel County
Professional Firefighters, Local 1563 of the International Association of Fire
Fighters, AFL-CIO.
Paramedics complain they are constantly on the road going from call to call.
In order to try and prevent mistakes, a paramedic working overtime is normally
paired with a fresh partner.
County fire officials say recruiting additional paramedics has been a struggle
due to a nationwide shortage and a dearth of local applicants. Critics counter
that salaries are not competitive. According to figures provided by the union,
an Anne Arundel paramedic’s top pay with longevity steps reaches about
$58,000. A paramedic’s top pay in neighboring Montgomery County is $76,000
while in Baltimore County is $69,000.
Fourteen Houston, Texas, fire fighters have been suspended for one day without
pay for conducting union business on duty time. Another seven have been reprimanded
for taking department vehicles outside assigned districts while tending to union
business. Off duty personnel reportedly took fire department vehicles out to
distant stations while surveying on-duty personnel.
“They [the union] can’t conduct business like that that is not
related to their city employment,” Fire Chief Chris Connealy said. “They
need to be taking care of the people’s business while being paid.”
In years past, the Houston Fire Department was relatively lax about the conducting
of union activities on duty time. “I’m not saying it hasn’t
happened in the past, but it’s not appropriate,” Connealy said.
Union President Steve Williams called the charges “trumped up”
and accused the city of trying to limit union access to its members while on
duty.
Houston Professional Fire Fighters Association, Local 341 of the International
Association of Fire Fighters, AFL-CIO, has been engaged in a long running dispute
with the chief and the city over staffing levels and wages. Last year, the union
passed a “no-confidence” vote on the chief. The union’s meet-and-confer
contract with the city expired June 30, 2000. Negotiations on a new agreement
have been stalled.
Travers was a fire fighter who, along with a group of other fire fighters,
was picketing outside the county administration building during his off-duty
hours. Travers engaged the county executive in a verbal exchange. The county
executive found Travers’ behavior to be loud, menacing and taunting. The
matter was reported to the fire chief who suspended Travers for 30 days for
insubordination and conduct unbecoming a fire fighter. Travers appealed the
suspension to the county merit board. Following a hearing, the merit board upheld
the suspension finding that it was warranted. Travers then filed suit against
the fire chief alleging that the discipline was actually in retaliation for
his having engaged in protected union activity and violated his First Amendment
rights. The fire chief moved for qualified immunity, which the trial court denied.
Fire chief appeals.
HELD: The law is clearly established that an employer may not demote or discharge
a public employee for engaging in protected speech. An employer may, however,
discipline an employee for insubordination. The First Amendment does not require
a public employer to tolerate an embarrassing and vulgar attack simply because
the employee was waiving a sign while conducting the attack. In this case, Travers
received an administrative hearing that determined his discipline was justified
and not the result of any non-job related factor. These findings are binding
upon a federal court if the employee received a full and fair opportunity to
present his case. The federal courts must give these findings a preclusive effect
and factual issues may not be relitigated.
Travers argues, however, he did not receive a full and fair hearing because
of the inability to compel two witnesses to testify in his behalf. Under county
procedures, however, in order to compel witnesses to appear, the county must
receive at least five working days notice prior to the hearing. Travers failed
to give such notice within the time limit. Any inability to present live witnesses
was due to Travers’ own inaction. Likewise, the alleged witnesses would
not have apparently helped Travers’ case. According to testimony they
would have testified only to the fact that he was not being insubordinate, not
to the fire chief’s subjective intent for discipline.
Since Travers had a full and fair opportunity to litigate the factual issues,
the trial court is bound by the hearing officer’s determination. No constitutional
violation occurred and fire chief should have been awarded qualified immunity
from suit. Reversed for fire chief. [Travers v. Jones, 323 F.3d 1294 (11th Cir.
2003)]
Belcher was a 20-year veteran fire fighter. One of the department’s fire
trucks was taken out of service and the department determined that the purchase
of a new truck was necessary. The city council posted the item for its public
meeting and was to consider waiving the standard bidding procedure so it could
immediately purchase the truck from a previously identified vendor. Belcher
was unable to attend the city council meeting for personal reasons. Instead,
on the day of the meeting, he contacted three council members by telephone and
one in person expressing concerns about the proposed purchase of the fire truck.
Belcher was concerned that the truck did not meet the fire suppression needs
of the city, that it was too expensive, and that there was the possibility of
corruption and kick-backs if the competitive bidding process was waived. Belcher
did not voice any of these concerns to his superiors in the department or to
the city manager prior to contacting council members. Subsequently, the council
voted to waive the bidding procedure and purchased the previously identified
truck.
Under both city and department policies, fire fighters were prohibited from
addressing the city council except at a public meeting. Such violation of the
policy could result in disciplinary action. Indeed, a few days later the fire
chief issued a written reprimand to Belcher for contacting the city council
members in violation of department policy. Belcher subsequently filed suit claiming
that the reprimand violated his First Amendment rights as well as state law.
The city moved for summary judgment, which was granted by the trial court concluding
that Belcher’s speech was not entitled to First Amendment protection.
Fire fighter appeals.
HELD: Whether or not a public employee’s speech is protected by the First
Amendment is examined under the Pickering balancing test. Here, a court must
determine whether speech touches upon a matter of public concern. If it does,
the court must balance the interest of the employee in making the statement
against the employer’s interest in promoting the efficiency of the public
service it performs through its employees. Whether an employee’s speech
addresses a matter of public concern must be determined by the content, form,
and context of a given statement. A public employee’s speech is not removed
from First Amendment protection simply because he expressed his views through
a private forum. Here, the proposed purchase of the fire truck involved city
tax dollars and the potential impact on the safety of the community. While the
council subsequently disregarded Belcher’s views, it does not mean his
views were irrelevant. Certainly the purchase of the fire truck involved a matter
of public concern.
As to the second factor of balancing the employee’s interest against
the employer’s interest, the employee’s First Amendment rights prevail
unless the employer shows that some restriction is necessary to prevent the
disruption of official functions and ensure an effective performance by the
employee. One such factor is if the employee’s speech interferes with
the regular operation of the enterprise. In this case, Belcher could have used
less disruptive internal channels to express his concern about the fire truck.
By speaking directly to council members in violation of department policy, he
diminished the level of protection his speech might otherwise enjoy. Further,
evidence indicated that his comments upset several members of the department
who viewed his comments as an effort to derail the purchase of the fire truck.
Belcher himself admitted that his comments had caused controversy and friction
within the department and made other fire fighters distrustful of him. Under
these circumstances, the interest of the city in maintaining harmony among its
fire fighters outweighs the interest of the fire fighter in speaking out, given
that the fire fighter had alternate less disruptive means of voicing his opinion.
Affirmed for city. [Belcher v. City of McAlester, Oklahoma, 324 F.3d 1203 (10th
Cir. 2003)]
In November 2001, the town enacted an ordinance that stated that the fire chief
would be the only authorized person to release to the news facts regarding fire
department matters. All other personnel were to refer media inquiries to the
fire chief. The ordinance further provided that all questions regarding policies
and procedures and operations of the department should first be addressed to
the union representative. The union president would then address the matter
to the chief. A violation of the ordinance could result in a potential fine
or jail sentence.
In addition, the fire department had a policy stating that no information relative
to the business of the department was to be furnished to any person except as
authorized by the fire chief through the state freedom of information act. The
department had always construed this policy to prohibit communications from
fire fighters to the public on freedom of information matters but the city subsequently
argued that the policy barred talking to the public at all about anything having
to do with the fire department.
Approximately a year later, the state occupational safety division found that
the department had violated a variety of safety rules regarding training, incident
command, and organizational structure. A newspaper reporter approached the president
of the fire fighters’ union and asked him about the alleged violations.
The union president claimed not to have responded to the reporter out of fear
of being prosecuted under the ordinance and suffering disciplinary action under
the department policy. Subsequently, the union filed suit claiming that the
ordinance violated the First Amendment because it hampered its members’
right to speak on matters of public concern. The union moves for summary judgment.
HELD: Most employee free speech cases concern public employees who are disciplined
for making comments about departmental operations. The courts judge those cases
under the Pickering balancing test, which examines whether the employee spoke
on a matter of public concern and if, on balance, the interest of the employee
in speaking out outweighed the interest of the employer in maintaining the efficiency
of the public service. The ordinance and policy in question in this case are
different in that they, on their face, purport to bar virtually all comments
by fire fighters to the media or to the public. Despite the city’s assertion,
various aspects of the operation of the fire department, including certain internal
operations, are matters of public concern.
Given that the ordinance and policies act as a prior restraint on fire fighters’
speech they are to be examined by the courts under a heightened scrutiny test,
not the Pickering balancing test. Under the heightened scrutiny test, the government
must show that the interest of both potential audiences and the vast group of
present and future employees are outweighed by the impact on the actual operations
of the government. This test is much harder for the government employer to meet.
First, it weighs the interest of all employees whose speech is restricted plus
the members of the public who have an interest in hearing the restricted speech.
Secondly, the government must establish that the speech being restricted necessarily
would impact the actual operations of the government.
In applying this heightened scrutiny test to the case at hand, the city ordinance
and policy fail to meet the criteria. There is simply no evidence that a fire
fighter’s speech has in the past caused disruption to the operations of
the department. In fact, the city policy would suppress whistleblowing comments,
which are particularly relevant to the safety violations that brought this matter
to the forefront. Disruption caused by the exposure of governmental wrongdoing
does not impair the interest of the government because in the long view such
whistleblowing promotes the public service. Failing to establish a compelling
necessity to bar fire fighter speech, the court finds the ordinance and policy
of the fire department to be overbroad and in violation of the First Amendment
rights of the fire fighters. Summary judgment for union holding ordinance and
policy unconstitutional. [International Association of Fire Fighters, Local
3233 v. Frenchtown Charter Township, Michigan, 246 F.Supp.2d 734 (E.D. Mich.
2003)]
Shortly after the appointment of a new fire chief, an anonymous email was received
by the entire department. The email was signed a “concerned citizen.”
The email stated that the author would start to privately argue and speak to
the press and city government about “meaningless changes” instituted
within the fire department as well as how the “priority now was to avoid
the cost of running a truck to a medical run.” The email further stated
that, “We will talk with our city council about the fire department; we
will ignore the chain of command when warranted.” The email was similar
to annoying messages that had been received by the fire department personnel
on pagers and via an anonymous letter.
At the fire chief’s request, the police department launched an investigation
and subsequently determined that the source of the email was Paquette, a part-time
fire fighter with the city. When questioned, Paquette refused to acknowledge
that he was the source of the email. The fire chief asked Paquette to come to
a meeting. Paquette refused to attend but instead sent his lawyer. The chief
thereupon fired Paquette, who was an at-will employee under Ohio law. Paquette
filed suit against the city and the fire chief alleging a violation of his First
Amendment right to free speech as well as the fact that he was discharged based
on an unconstitutional policy. Further, he claimed that his report via email
was protected by the Ohio whistleblower law. The city moves for summary judgment.
HELD: In order to establish illegal employer retaliation against free speech,
the employee must show that he had engaged in protected speech, was subject
to an adverse action, and that the protected speech was a substantial or motivating
factor in the adverse action. Here Paquette does not get past the first criteria.
Content, form, and context of the anonymous email show that it did not constitute
speech that addressed a matter of public concern. Rather, the email contained
inflammatory and insubordinate comments referring to “silly changes”
and ignoring the chain of command and other statements concerning procedures
the new fire department administration had implemented. For example, the criticism
not to send a fire truck as the first responder on a medical run was a matter
that related to internal policies and procedures of the government. The First
Amendment does not require a public office to be run as a roundtable for employee
complaints about internal office affairs.
The mere fact that the email involved the fire department does not automatically
trigger public concern. The purpose of this email was to challenge superiors
with dominant motivation and so dominates the substance of the speech that it
is rendered a matter of personal concern. While an anonymous author can enjoy
First Amendment protection, here Paquette used anonymity not in a public forum
about a public matter, but in a stealthy targeted attack on the fire department’s
internal power structure. He had previously expressed himself freely by name
on numerous occasions by writing letters to the editor in talking to city officials.
The email by contrast is distinctly different.
Even if the email enjoyed First Amendment protection, there is an alternate
grounds for upholding Paquette’s dismissal. Paquette refused to meet with
his superiors. The court senses a lack of credibility in the First Amendment
claim by an individual who refuses to speak with his employer about a communication
that he claims not to have written. Secondly, Paquette is not protected by the
Ohio whistleblower law. This statute protects individuals who challenge illegal
activity by public officials. There is no violation of an ordinance or statute
at issue in Paquette’s email. The email does not allege any criminality
and, therefore, does not fall within the coverage of the whistleblower law.
Given no violation of the First Amendment and no violation of the whistleblower
law, Paquette is unable to assert the public policy exception to the doctrine
of employment at-will. Thus, as an at-will employee without constitutional protection,
the department could terminate the part-time fire fighter. Summary judgment
for city. [Paquette v. City of Mason, Ohio, 250 F.Supp.2d 840 (S.D. Ohio 2003)]
Wren and Foiles were volunteer fire fighters for the community fire protection
district. Soon after arriving at a fire one of the trucks left the scene due
to the apparent mistaken belief that the truck needed more water. Wren and Foiles
were riding on the running board along the side of the truck. The truck was
subsequently involved in a collision with a car. The two fire fighters were
injured. Soon after the accident, the fire district worker’s compensation
insurance carrier began paying the medical bills of Wren and Foiles. The two
fire fighters subsequently filed suit against the district, the driver of the
fire truck, and the operator of the other vehicle seeking damages for other
injuries. The defendants at trial moved for summary judgment on the basis that
the two fire fighters were barred from bringing a negligence suit because of
the Illinois worker’s compensation act. Trial court found that by accepting
the medical payments from the worker’s compensation insurance carrier
they became “employees” for the purposes of the law. As such, they
were prohibited from bringing a negligence suit. The court granted judgment
for the defendants and injured fire fighters appeal.
HELD: Illinois law bars employees who are injured on the job and receive worker’s
compensation benefits from pursuing a common law negligence suit for their injuries.
Here, however, the fire fighters argue that they are not precluded from filing
suit because despite having received the worker’s compensation benefits,
they are not employees of the fire district and are not covered by the worker’s
compensation act. Prior case law holds that where an employee has collected
worker’s compensation payments for his injuries, he cannot then allege
that the injuries fall outside the provision of the law. This conclusion is
based not only on a concern of double recovery but also on a desire to prevent
a proliferation of litigation. Applying for and accepting benefits of the act,
however, does not transform a non-employee into an employee. It merely precludes
individuals who avail themselves of the worker’s compensation law from
later claiming they are not covered by the statute. However, prior law also
holds that a voluntary acceptance of worker’s compensation payments, without
any affirmative act to seek those benefits, does not necessarily operate to
bar recovery of civil damages.
In this case, the facts reveal that the benefits received by the two fire fighters
were made voluntarily by the insurance company. Neither initially applied for
the medical payments. Under these circumstances the mere acceptance of the unsolicited
benefits does not prohibit the injured fire fighters from pursuing a civil suit.
In summary, a party who seeks and accepts worker’s compensation benefits
is prohibited from subsequently suing the provider of those benefits. This rule
applies even when the party receiving benefits is not an employee. However,
a party may accept benefits voluntarily offered and still file a claim to protect
their rights. It is only when one actively seeks benefits and retains them as
a result of their efforts that they are barred from pursuing a common law suit.
Reversed for injured fire fighters. [Wren v. Reddick Community Fire Protection
District, 785 N.E.2d 1052 (Ill. Ct. App. 2003)]
The majority of the fire department suppression personnel walked off the job
or called in sick in connection with a job action. The sick-out began on Friday
and ended on Monday. On Saturday, during the sick-out, the fire department held
a televised press conference to inform the public of the situation.
Lantier, a 20-year veteran, had worked his shift on Thursday, the day before
the sick-out began. Friday was his regular day off. On Friday, he allegedly
twisted his ankle while coaching his son’s baseball team and that evening
called the fire department to tell them he would not be able to work his next
regularly scheduled duty day, Saturday. On Sunday morning, a day that Lantier
was not scheduled to work, he received a telephone call from the fire department
alarm room. He recognized the number on his telephone caller id. He did not
answer the call because he assumed they were calling him to work an overtime
shift, which he did not desire to do because his ankle was still giving him
problems. He also wished to avoid receiving “a strike” for refusing
to take a call for overtime. Under department policy, an employee could not
reject calls to work overtime more than three times during the year or else
was removed from the overtime list. Lantier had already received one strike
for an unrelated matter. Later that evening, he received a call from a different
fire station, which he answered because he assumed it was a co-worker calling.
However, when he answered that call he was told that the fire station needed
drivers. He decided to go in and help.
After the sick-out, an administrative investigation revealed that over 70 percent
of the personnel had called in sick, well above the norm. Additionally, the
investigation revealed that personnel had called in sick on their regular shifts
yet worked overtime shifts opposite to their own. After the investigation the
fire chief terminated Lantier for dereliction of duty. The department regulation
on dereliction of duty provided that when an emergency had been declared by
the fire chief, off-duty members could be called to work on an overtime basis
and it was the duty of each member to respond and work until relieved. Lantier
appealed his dismissal and the civil service board affirmed the termination.
On appeal to a trial court, it likewise affirmed the dismissal. Former fire
fighter appeals.
HELD: Louisiana statute grants tenured fire fighters the right not to be terminated
except “in good faith for cause.” “In good faith” has
been interpreted to mean the opposite of arbitrary or capricious action or action
that stems from prejudice or political expediency on the part of the employer.
“Cause” means legal cause and the evidence must show that the dismissal
was necessary for the discipline and efficiency of service or it was needed
to avoid some detriment to the department or to the city. Disciplinary action
against a civil service employee will be deemed arbitrary and capricious unless
there is a real and substantial relationship between the improper conduct and
the efficient operation of the public service.
The fire chief testified before the civil service board that he declared an
emergency at the Saturday press conference and instructed fire fighters to be
called in to work overtime. A videotape of the press conference, however, revealed
that the only individual who used the term “emergency” was a reporter
who stated that he was covering an emergency meeting. Later, the fire chief
admitted that he did not actually say that the fire department was in a state
of emergency. Additionally, Lantier testified that while he saw the press conference
on television, he was unaware that anyone had declared an emergency. Similarly,
a communications officer testified he was unaware that a state of emergency
had been declared.
Evidence further reveals that several individuals on the same day that Lantier
called in sick went home allegedly sick but were not disciplined. Further, in
a conversation between Lantier and the fire chief, the fire chief sought to
have Lantier disclose who was behind the sick-out. The fire chief asked Lantier
to name names and not be an innocent victim of the circumstances. Lantier denied
any wrongdoing. Thus, the record is clear that Lantier was dismissed, not because
the fire chief had declared a state of emergency and Lantier had violated a
disciplinary rule, but because he would not provide the information desired
by the chief. Civil service board and trial court were clearly wrong in affirming
the dismissal. Reversed for fire fighter ordering his reinstatement. [Lantier
v. Lafayette City-Parish Consolidated Government, 839 So.2d 1176 (La. Ct. App.
2003)]
A dispute developed between the fire department and the fire fighters’
union regarding the number of fire fighters to be assigned to fire apparatus.
The fire chief authorized the operation of certain trucks with only three fire
fighters while the union, led by Williams their president, advocated the assignment
of four fire fighters to each unit. During a mayoral press conference where
unit staffing levels were discussed, a member of the fire chief’s staff
spoke favorably of both the mayor and fire chief. Williams, while in uniform
and on-duty, attended the event and allegedly interjected an inappropriate remark
questioning the staff member’s praise of city officials.
The fire chief subsequently sent Williams a letter of temporary suspension,
stating that he had violated the department rule requiring each member to treat
the other with respect. The letter further stated that Williams had accepted
responsibility and agreed to the temporary suspension with the waiver of any
right to appeal. Williams denied the veracity of the statement, claiming he
had never agreed to the suspension and did not waive his right of appeal. Consequently,
he filed suit seeking a declaratory judgment that the city had violated state
civil service law by submitting documents containing false statements and that
his suspension was void because it violated the civil service law. The city
filed a motion to dismiss the case for want of jurisdiction, which the trial
court denied. The city appeals.
HELD: Under state civil service law for fire fighters, a disciplined fire fighter
can appeal to either the civil service commission or to an independent hearing
examiner. Williams had given notice to have his case heard by a hearing examiner.
An employee who elects this route waives his right to appeal to the courts,
except where the examiner is without jurisdiction, exceeds his jurisdiction,
or the orders are procured by fraud, collusion, or other unlawful means. Thus,
Williams has forfeited his right to appeal to the court except on those limited
grounds.
Under the present case the court would only acquire jurisdiction to review
the award of the hearing examiner if the examiner was without jurisdiction or
exceeded his jurisdiction in making the award. The hearing has yet to be held
and, therefore, the examiner has made no award. It is a traditional rule of
administrative law that a party must exhaust his administrative remedies before
seeking judicial review of an agency action. Williams has cited no authority
that would permit a suspended fire fighter to seek judicial relief before the
hearing examiner has conducted a hearing or issued a ruling. Williams has not
exhausted his administrative remedies.
Williams seeks an exemption from the exhaustion requirement saying to do so
would cause irrevocable injury. Williams fears that if the hearing examiner
were to rule he did not have jurisdiction because the city failed in complying
with statutory requisites, the merits of his appeal would never be reached.
However, the hearing examiner cannot uphold a suspension based on defective
charges. A decision of the hearing examiner is final and binding on all parties.
The hearing examiner has authority to apply the statutory framework to a case
and decide if the fire department correctly applied the law to Williams. Having
submitted his suspension to a hearing examiner, Williams is not entitled to
utilize a court action for declaratory judgment to avoid a potentially adverse
decision of the hearing examiner. Williams must first exhaust his administrative
remedies before proceeding to the trial court. Reversed for city dismissing
case. [City of Houston v. Williams, 99 S.W.3d 709 (Tex. App. 2003)]
Under Texas civil service law a fire fighter or police officer who retires
or resigns is entitled to a lump sum payment of the “full amount of the
person’s salary for accumulated sick leave” up to 90 days of sick
leave. A group of fire fighters filed suit against the city claiming the city
was inappropriately calculating the lump sum payments. The city was paying a
lump sum calculated on base pay plus longevity pay, while fire fighters argued
the number should include certification pay, education pay, and assignment incentives.
The city moved for a summary judgment asserting that it was not required to
include the supplemental pays. Alternatively, the city claimed that the maintenance
of standards provision in the collective bargaining contract permitted the city
to continue its traditional method of calculating lump sum payment because the
calculation was a standard protected by the labor agreement. Trial court ruled
for fire fighters and ordered city to base sick payouts on all compensation.
The city appealed.
HELD: The state civil service provision regarding salaries lists two types
of pay. First, it provides that all fire fighters in the same classification
are entitled to the same base salary. Second, it provides for additions to base
salary, such as longevity pay, educational incentive pay, shift differential
pay, certification pay, and assignment pay. A Texas Attorney General’s
opinion has previously ruled that the phrase “full amount of a person’s
salary” means the amount of pay the individual would have received if
the person had actually used the sick leave. This view, which is espoused by
the fire fighters, is correct. The statute says that the fire fighters are to
be paid the “full amount of the person’s salary for accumulated
sick leave.” The fire fighters certainly would have received their incentive
pay if they had used the sick leave.
Further, the court presumes the legislature intended a just and reasonable
result in enacting the statute. The fire fighters guard lives and property.
They provide an essential service to the general public. To adopt the city’s
construction of the statute would punish those fire fighters who were dedicated
to their profession in such a fashion as to accrue sick leave for they would
be penalized monetarily for not taking that leave by being paid less for their
accumulated time. Certainly the legislature did not intend this result.
The city counters that the lump sum payment based on base pay is a standard
under the collective bargaining agreement maintenance of standards provision.
However, Texas law provides that a civil service provision prevails over a collective
bargaining contract unless the collective bargaining contract “specifically
provides otherwise.” The maintenance of standards provision in the contract
does not specifically provide for a different method of computing the lump sum
payment for accumulated sick leave. Affirmed for fire fighters requiring sick
leave payout contain base salary and all incentive pays. [City of San Antonio
v. Baer, 100 S.W.3d 249 (Tex. App. 2001)]
fire fighters
Fire fighters in the suburban Las Vegas city of Henderson have a new five-year
contract. The pact with Local 1883 of the International Association of Fire
Fighters, AFL-CIO, provides a three percent cost-of-living boost in the first
year. Each successive year will see a 3.5 percent increase. The city's contribution
to the employee benefit package was increased by $50.