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CHAPTER 16 – DISCIPLINE

Article 16-7

LOUISIANA: NEW ORLEANS CAPTAIN HAS PHOTO TAKEN WITH FEMALE WEARING PASTIES - POSTED ON INTERNET – SUPERINTENDENT SOUGHT DEMOTION TO FIREFIGHTER BUT COURT AGREES WITH CIVIL SERVICE COMMISSION ON 12-DAY SUSPENSION

On Sept. 2, 2009, in Ross Hennessy v. Department of Fire, 2009 La. App. Unpub. LEXIS 547, the Court of Appeal of Louisiana (3 to 0) denied the Superintendent’s appeal seeking to demote Captain Hennessy to firefighter. The photo was not posted on the Internet ("craigslist") until one year after it was taken; it then came to FD’s attention. The FD’s Peer Review Committee recommended a 12-hour suspension for "bringing reproach" on the FD, and 6-hour suspension for improper command. The Civil Service Commission agreed. The Superintendent appealed to the Court of Appeals, which denied the appeal; the Court noted that the FD had previously not disciplined officers for similar conduct, and even authorized FF to hose down women and men participating in the "Red Dress Race."

The facts as reported by the Court:

"In February of 2007, Capt. Hennessey was stationed at Engine Company Number 9, located at the corner of Decatur Street and Esplanade Avenue. The station located at Decatur Street and Esplanade Avenue responds to calls up to Toulouse Street in the French Quarter.

Capt. Hennessey testified that on February 19, 2007, Lundi Gras, he and other firemen responded to a call. The firemen parked the fire truck at Orleans Avenue and Bourbon Street. As the firemen returned to the fire truck, Mardi Gras revelers asked to take a photograph with them. An anonymous individual posted the photograph on 'craigslist’, an internet site, approximately one year later. The photograph depicts Capt. Hennessey standing directly behind one female. The photograph also depicts an Italian firefighter, in town for a "ride-along" with Engine 9, with his arm around the second female. The photograph reveals that the female Mardi Gras revelers wore only body paint and pasties on their upper bodies.

Superintendent Charles Parent (Supt. Parent) testified that Deputy Chief Gary Frank provided a copy of the photograph to him, and in June of 2008, an investigation began. After the investigation, the NOFD charged Capt. Hennessey with violating the rules and regulations of the NOFD. Specifically, the NOFD charged Capt. Hennessey with violating Article 3, Section 3.1.3.1, which provides, 'The Captain shall be responsible for the proper discipline of members also, the efficiency and operation of the unit under his/her command.’ The NOFD further charged Capt. Hennessey with violating Article 5, Section 5.2.27, which provides, 'Members shall be governed by the customary and reasonable rules of proper behavior and shall not commit any act that brings reproach upon themselves or the Department.’

A Peer Review Committee met and held a hearing on August 3, 2008. Thereafter, the Peer Review Committee found Capt. Hennessey guilty of both charges and recommended a six hour suspension for violating Article 3, Section 3.1.3.1 and a twelve hour suspension for violating Article 5, Section 5.2.27.

After reviewing the information presented at the Peer Review Committee hearing, Supt. Parent imposed a six hour suspension for the violation of Article 3, Section 3.1.3.1. Supt. Parent deviated from the twelve hour suspension recommended by the Peer Review Committee and demoted Capt. Hennessey to the classification of Firefighter for the violation of Article 5, Section 5.2.27, as well for the violation of Article 3, 3.1.3.1.

Capt. Hennessey appealed the discipline imposed by the NOFD. In due course, a hearing officer was appointed to receive testimony. Before the hearing officer, Supt. Parent testified that he disciplined Capt. Hennessey as Capt. Hennessey interfered with the efficiency of the NOFD by bringing a bad reflection on the NOFD. Supt. Parent opined the picture made the NOFD look like an 'unprofessional group of buffoons.’ Supt. Parent acknowledged that he did not receive a complaint from a member of the public regarding the picture.

Supt. Parent also testified that the firemen were not in their proper location and were surrounded by people, which would slow their response time in the event of a call. Supt. Parent further stated part of a captain's job 'is to be instructing his younger underlings on proper behavior and proper firefighting.’

Capt. Hennessey admitted the other firemen in the Lundi Gras photograph were under his command. Capt. Hennessey testified that he has been asked to pose for thousands of photographs, both in and out of the French Quarter, when he has gone out on calls. Capt. Hennessey admitted he and the other firemen were in uniform at the time the Lundi Gras photograph was taken.

Capt. Hennessey further identified photographs taken during the Red Dress Race. Capt. Hennessey testified the NOFD approved the use of a hose by the participants. Photographs taken during the event show scantily attired men and women wetting one another down and posing with the fire hose.

The parties stipulated that if Deputy Chief Joseph Buras were called to testify, he 'would testify that he was ordered by his command to provide not only water, but the use of a hose for the participants of the Red Dress Race.’ Further, while Deputy Chief Buras questioned the order, the participants of the race were allowed to use the hose for whatever purpose they chose.

Capt. Steve Cordes (Capt. Cordes) testified he was previously stationed at 317 Decatur Street. Capt. Cordes further stated that while it was not condoned, the companies that bordered the French Quarter were always out in the crowd during the Mardi Gras season. Additionally, Capt. Cordes noted that women like to take pictures with the firemen while they are in uniform and sometimes the women are wearing less than the women in the picture at issue. Capt. Cordes testified that other administrations 'never encouraged, but they knew it went on, and they just overlooked it.’ Capt. Cordes stated District Chief Chris Michaels not only knew these sorts of activities occurred, but that District Chief Michaels participated in the activities.

After reviewing the testimony and evidence, the Commission granted the appeal for the limited purpose of reducing the Appellant's discipline to the recommendation of the Peer Review Committee, namely a six hour suspension for violating Article 3, Section 3.1.3.1 and a twelve hour suspension for violating Article 5, Section 5.2.27. In its decision, the Commission stated:

'We have no hesitancy agreeing with Fire Superintendent Charles Parent's conclusion that circulation of the picture on the internet brought "reproach" to the New Orleans Fire Department. The internet site carrying the photograph identifies the New Orleans Fire Department, and an observer could readily reach the conclusion that some firemen in the "Big Easy" are cavorting around with partially clad women while on duty and in uniform during Mardi Gras.

Though we do not condone Appellant's [Capt. Hennessey] bad judgment, we are not convinced that the disciplinary step of demotion was commensurate with Appellant's misconduct. There is no credible evidence in the record that he has previously compromised Fire Department ethical standards or that the isolated incident during the Mardi Gras season adversely affected the performance of his duties as a fireman. Appellant testified that it is common for civilians to want to be photographed with firemen-out of respect for their position-and that the Department has never explicitly condemned such a practice. Under the right circumstances such photographs can generate good will for the Fire Department. Unfortunately that was not the case here. Though Appellant should be disciplined, we think demotion from the position of Captain, a position which he has properly performed for 12 years, was unjustified.’" [Footnotes omitted.]

The Court of Appeals refused to demote the Captain:

"[W]e note the [Civil Service] Commission took into account Captain Hennessey’s record as well as surrounding circumstances. We recognize the NOFD serves as a special guardian of the public safety and operates as a quasi-military institution where strict discipline is imperative. However, while we do not condone Captain Hennessey’s conduct or seek to minimize the conduct, we believe a demotion is too Harsh a penalty for conduct that is well-known throughout the NOFD and not explicitly condemned."

Legal Lessons Learned: FDs need to issue clear SOGs on posing for photos while on duty. In addition, SOGs are needed regarding photos and comments on Internet sites such as Facebook.

Article 16-6

FL: CAPTAIN DEMOTED – CONSENSUAL SEX OFF-DUTY WITH FEMALE FF – CLAIMS RETALIATION BY BATTALION CHIEF - LAWSUIT DISMISSED

On Feb. 2, 2009, in Randolf Starling v. Board of County Commissioners, Case No. 08-80008-CIV, U.S. District Court for Southern District of Florida, 2009 U.S. Dist. Lexis 7030, a firefighter with the Palm Beach Fire Rescue Department claimed he was improperly demoted because he exercised his alleged "First Amendment right of freedom of intimate association."

United States District Judge Daniel T. K. Hurley described the facts in a detailed opinion [note from author of this newsletter - because of the lurid allegations, we have replaced names of other individuals with their initials]:

" Starling was hired as a firefighter with the Palm Beach County Fire Rescue Department ("the Department") in 1994, and was promoted to Captain in 2002. From May 2005 to January 2006, Starling was stationed as Rescue Captain at Station 42, where he reported to District Chief [D/C KF]. Under the then operative chain of command, [D/C KF] reported to [a Battalion Chief], who reported to [a Division Chief], who reported to [a Deputy Chief], who reported to [the Fire Rescue Administrator]. [The Fire Rescue Administrator] is the highest ranking employee at Fire Rescue and the only person with authority to demote a Fire Rescue employee.

In July, 2005, Starling began an intimate, extramarital relationship with a subordinate co- worker, firefighter [Ms. CS]. In October 2005, Starling moved into [Ms. CS’s]house. Their cohabitation was well known to family, friends and co-workers within the Department. Shortly after he moved in with [Ms. CS], Starling learned that [D/C KF] was using [Ms. CS’s] home as a meeting place for his own romantic trysts with another county employee, [Ms. LP] (a friend of [Ms. CS’s] ). According to plaintiff's complaint, [D/C KF] allegedly used his superior authority over [Ms. CS] set up this arrangement. When Starling insisted that [Ms. CS] end the arrangement -- shortly after learning that [D/C/ KF] Fischer, through [Ms. LP] had solicited [Ms. CS] for a "three way" sexual encounter involving [Ms. CS], [Ms. LP] and [D/C KF]. [Complaint P 9]. [D/C KF] allegedly retaliated by ordering Starling to end his relationship with [Ms. CS], failing which [D/C KF] promised to do "everything in his power" to ensure that Starling "lost his captain's bars." [Complaint P 10].

Starling continued to pursue his relationship with [Ms. CS], ultimately marrying her in June, 2006 (two months after his divorce became final).

The trial judge described the discipline that followed:

• "On January 11, 2006, [D/C KF] issued an 'Employee Development Form’ (EDF) to Starling, essentially a cautionary note with no disciplinary impact, raising question on certain performance related issues, as well as his preoccupation with firefighter [Ms. CS]."

• "On Jan. 13, 2006, Captain [M] issued a notification and acknowledgment of violation of rules and regulations arising out of a December 19, 2005 incident involving plaintiff's alleged failure to follow protocol by discontinuing patient care prior to arrival at a hospital. Plaintiff received a written reprimand for this incident."

• "On January 17, 2006, Captain [M] issued another notice of investigation into a failure to perform duty charge arising out of a January 6, 2006 episode in which plaintiff allegedly logged a two hour delay in reporting to duty zone."

• "On January 20, 2006, Captain [M] issued notice of investigation into Starling's alleged failure to report an incident which occurred in 2005 when a woman on a bicycle crossed the path of his fire rescue truck."

• "On February 7, 2006, Starling gave two tape recorded statements in connection with the episode, stating that while exiting the fire station in his fire rescue truck, a woman riding a bicycle fell in front of his truck without making impact. He said he did not report the incident at the time because the woman did not want any help, and he decided to simply 'let it go.’"

• "On February 13, 2006, Captain [M] issued a report regarding the bicycle incident, concluding that the evidence substantiated charges of misconduct, including failure to perform duty."

• "On February 14, 2006, Captain [M] issued a report on the delay in reporting to zone incident, likewise concluding that the evidence substantiated the charge of failure to perform duty. At that time, Starling was issued notification and acknowledgment of violation of rules and regulations, placed on administrative leave and demoted from Captain to Firefighter/Paramedic."

• "On March 2, 2006, [Fire Rescue Administrator B] held a grievance hearing regarding Starling's demotion. [Fire Rescue Administrator B] ultimately demoted plaintiff based on a recommendation from senior staff [two Deputy Chiefs] on the failure to perform duty charges and denied the plaintiff's grievance."

• "On April 18, 2008, the plaintiff's union advised that it would not pursue arbitration of his demotion because the claim lacked merit. Plaintiff has not pursued any action against the union for breach of good faith duty of representation, nor has he filed any other lawsuit regarding the alleged violation of his rights."

The lawsuit named Palm Beach County and [B/C KF] as defendants. The complaint alleges the County is liable because [Fire Rescue Administrator B] demoted him as part of a concerted retaliation action by [B/C KF]. The judge found no evidence of such a concerted effort:

"There is nothing in Capt. [M]’s reports which suggested such a retaliatory motive, and no other evidence suggesting that [Fire Administrator B] might have learned of [B/C KF]’s alleged improper motives from some other source. On this record, [Fire Administrator B]’s adoption of his deputy chief's recommendations cannot constitute unconstitutional county policy, even if [B/C KF] triggered or participated in the investigations and acted on retaliatory motives in pressing the charges or in persuading the deputy chiefs to act upon them."

The lawsuit also named [B/C KF] as a defendant, sued in both his official capacity and in his personal capacity. The trial judge dismissed the Battalion Chief in his official capacity, since he did not make the demotion decision. The Court also held that the Battalion Chief enjoys qualified immunity, and could not be sued personally unless he violated a clearly defined legal right. Plaintiff alleged the Battalion Chief violated his First Amendment "freedom of intimate association" but the courts have not clearly defined such a right. Neither the U.S. Supreme Court, nor the U.S. Court of Appeals for the 11th Circuit (includes Florida) have decided whether public employees, such as firefighters, have a First Amendment right to have adulterous relations with subordinates.

"With this background, the court need not decide whether Starling's relationship with [Ms. CS] -- an initially adulterous relationship between a superior and subordinate employee in a quasi-military employment hierarchy -- constituted the kind of intimate association protected by the First Amendment. It suffices that the contours of the asserted right of intimate association were not so clearly established at the time of the alleged violation that a reasonable person in [B/C KF]’s position would have known that his challenged conduct was illegal. Accordingly, the court concludes that defendant [B/C KF] is entitled to qualified immunity on plaintiff's first amendment retaliation claim."

The trial judge cited several court cases involving police officers and other public officials, and the adverse impact of superior officers having sexual relations with subordinates:

"In addition, courts have historically recognized that rights of intimate association and marriage are not absolute, and may appropriately give way in the government employment context where the exercise of the right creates unreasonable interference or impediment to the effective functioning of the public office. See e.g. Patches v City of Phoenix, 68 Fed. Appx. 772 (9th Cir. 2003)(unpub)(sexual relations among officers in police department may be appropriate matter of inquiry in light of possible adverse effect on morale, assignments, and command subordinate relationship), citing Thorne v City of El Segundo, 726 F.2d 459 (9th Cir. 1983); Shawgo v Spradlin, 701 F.2d 470 (5th Cir. 1983)(disciplinary action against two police officers for co-habitation did not violate privacy interests in light of rational relation between exigencies of department discipline and forbidding members of quasi military unit to co-habitate); McCabe v Sharrett, 12 F.3d 1558 (11th Cir. 1994)(transfer of police chief secretary after marriage to police officer did not violate associational right of secretary regardless of legal standard that applied). See also Flaskamp v Dearborn Public Schools, 385 F.3d 935 (6th Cir. 2004)(school board's decision to deny tenure to teacher for having an alleged intimate relationship with former high school student within nine months of student's graduation did not directly and substantially affect teacher's right of intimate association)."

Legal Lessons Learned: Sexual relations with a subordinate in the fire service can be problematic, for both the participants and the FD.

Article 16-5

OHIO – LAST CHANCE AGREEMENTS – COMPANY PROPERLY FIRED MAINTENANCE EMPLOYEE FOR NOT WEARING SIDE SHIEDS ON SAFETY GLASSES – VIOATED THE LCA

On Dec. 24, 2008, in Robert Tack v. PCC Airfoils, Inc., the Ohio Court of Appeals for the Fifth District, 2008 Ohio 6898, 2008 Ohio App. LEXIS 5758. affirmed (3 to 0) the decision of a trial judge in Stark County Court of Common Pleas, granting summary judgment to the employer. The employee breached the "Last Chance Agreement" entered into between the company, the employee and the labor union, Metalworkers Alliance, Inc. [Author’s comment: While this case does not involve the fire service, it reflects the good management practice of documenting safety violations and use of LCAs.]

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 16-4

OHIO: CLASSIFIED SERVICE - POLICE CHIEF WAS IMPROPERLY FIRED - CITY NEVER SERVED HIM WITH REMOVAL ORDER - CHIEF REINSTATED WITH BACK PAY

On August 7, 2008, in The State ex rel.McClaran v. City of Ontario, 119 Ohio St.3d 105, 2008-Ohio-3867, the Ohio Supreme Court (7 to 0) held that Tim McClaran, a member of Ontario, OH police force since 1975, was entitled to reinstatement as Police Chief, with back-pay, since the city failed to prove it had "good cause" to remove him from his classified position under Ohio Revised Code 124.34.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 16-3

OHIO - 12 Oho State Patrol Face Possible Termination, Two Sergeants Have Been Demoted, Three Others Reprimanded – Sharing Test Answers

The fire service administers lots of tests. This unfortunate story deals with Ohio State Patrol. On August 26, 2008, The Akron Beacon Journal reported that the 12 troopers facing termination will be provided a hearing at the Patrol district’s headquarters.

On July 16, 2008, the Ohio Inspector General issued an investigation report concerning cheating by State Troopers on a renewal exam for permits to operate breath testing instruments. The IG found that one Trooper in the Canton Post made copies of his answer sheet for an exam on March 2, 2007, and shared it with others through April 4, 2008, including tests on April 17, 2007, August 31, 2007, October 25, 2007 and April 2, 2008, and April 4, 2008. You can read the full report at: http://www.watchdog.ohio.gov/investigations/2008097.pdf.

The permits are issued by the Ohio Department of Health, Bureau of Alcohol and Drug Testing (BADT). The Bureau has reported possible similar incidents at two police departments in Hamilton County, which are being investigated by those departments.

The Ohio IG concluded that BADT testing was not adequately monitored by the BADT testing inspectors.

"We interviewed all five testing inspectors who are responsible for administering renewal exams statewide. We found there was no written, standardized procedures addressing how inspectors should administers exams. For example, the inspector who administered the exam on April 4, 2008, pointed out questions to test takers that were answered incorrectly and gave them an opportunity to change their answers. We did not find that the other inspectors provided such guidance."

The Ohio IG also concluded that five OSHP sergeants exercised "poor judgment" and did not demonstrate "appropriate supervision over subordinates" during the April 4, 2008 test at the Canton Patrol post. Three of the sergeants were present when a Trooper openly distributed a copy of the answer sheet to other Trooper before the exam started. The other two sergeants were given the answer sheet by the same Trooper before they entered the room to take the exam.

Legal Lessons Learned: The IG’s report is a "must read" for fire service instructors who administer exams.

Article 16-2

“Larry’s Legal Lessons: Two New Orleans Dispatchers Suspended After Katrina; Court reverses ruling because workers not notified of return-to-work deadline.” Eddie Fuller and Wanda Newsome v. Department of Fire, Court of Appeals of Louisiana, 2007 La. App. LEXIS 1895, September 19, 2007. Article published 10-29-09 in www.firehouse.com; to read article go to this web site and Search, “Bennett.”

Article 16-1

OHIO - WORKERS’ COMP – TERMINATING AN EMPLOYEE WHILE OUT ON MEDICAL LEAVE IS BREACH OF PUBLIC POLICY DOCTRINE

On April 23, 2007, in Klopfenstein v. NK Parts Industries, Inc, 117 Ohio App.3d 286, 2007-Ohio-1916, the Ohio Court of Appeals for Shelby County held that David Klopfenstein, an “at will” laborer in the warehouse of NK Parts Industries who was injured on the job and fired 10 months later when he could not return to work, can sue the company for wrongful discharge for breach of the “public policy doctrine.” A jury can now hear the case and possibly award him substantial damages.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

NEWSLETTER IS NOT PROVIDING LEGAL ADVICE; Posted by UC solely as information and for the benefit of students.

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