FIRE, EMS & SAFETY LAW NEWSLETTERceas.uc.edu/content/dam/aero/docs/fire/Feb. 2017 Newsletter.pdf · FIRE, EMS & SAFETY LAW NEWSLETTER ... • Chap. 2 – FF Safety – NY ... Jeffries

FIRE, EMS & SAFETY LAW NEWSLETTER

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Larry is Program Chair, UC Fire Science & Emergency Management at University of Cincinnati (see bio, last page). [email protected]; Cell 513-470-2744. He is the author of this newsletter, and new textbook: FIRE SERVICE LAW (Second Edition), Jan. 2017 (ISBN 978-1-4786-3397-6); Waveland Press; publisher Neil Rowe [email protected]. ITEMS COVERED IN THIS NEWSLETTER

• Community Paramedicine / Narcotic Overdose – free UC seminar, March 16, 2017; • Drones – free UC seminar, April 3, 2017; • New Textbook– Fire Service Law (Second Edition, Jan. 2017), courtesy copies; • Chap. 1 – Fire Code Enforcement – OH: “At Will” Fire Chief Fired; • Chap. 2 – FF Safety – NY: Retaliation, Lawsuit By FF Reinstated; • Chap. 4 – Incident Command - CA: New Statutes, Can Shoot Down Drone; • Chap. 6 – Employment Litigation – CA: Batt. Chief Exam Req. Passing All Parts; • Chap. 6 – Emp. Lit -- MS: FD’s Two Hatter Rule, Had To Resign From 2nd FD; • Chap. 6 - Emp. Lit - NY: Bed Bugs, Painters Union Handbills, Not Liable Defamation; • Chap. 10 – FMLA – PA: Employee Fired, Co. Had “Honest Belief” Was Falsifying; • Chap. 16 – Discipline – MA: FD Fired Pres. of Union, Theft Union Funds; • Chap. 17 – Arbitration – OH: Arbitrator Can Reverse Termination Of Detective.

UC FIRE SCIENCE – FREE SEMINARS

• COMMUNITY PARAMEDICINE: Free CE - Quick Response Teams; Home Visits For Narcotic Overdose Patients: March 16 (9 am – noon), at Colerain Township

http://ceas.uc.edu/content/dam/aero/docs/fire/Colerain%20QRT.pdf

• DRONES FOR EMERGENCY RESPONDERS: Free lecture – Larry Bennett & pilot: Aerospace Grad. Student Nathan Richards: April 3 (12:45 pm – 2 pm), Auditorium, 2220 Victory Parkway, Cincinnati, OH 45206:

Lawrence T. Bennett, Esq. Feb. 2017

http://ceas.uc.edu/content/dam/aero/docs/fire/Drones%20-%20April%203%2C%202017.pdf

FIRE SERVICE LAW (SECOND EDITION) – COURTESY COPY

Fire Service Law (Second Edition) by Larry Bennett was published Jan. 2017; (ISBN 978-1-4786-3397-6); courtesy copy to Profs who may use in their classes: Neil Rowe, Publisher, Waveland Press, Inc., 4180 IL Route 83, Suite 101, Long Grove, IL 60047-9580; Phone, 847-634-0081 [email protected]; www.waveland.com

File – Chap. 1 OH: “AT WILL” FIRE CHIEF – CODE INSPECTION, DID NOT CALL OWNER AS PROMISED –TERMINATION UPHELD On Dec. 5, 2016, in Kevin Lanzer v. City of Louisville, Ohio, 2016-Ohio-8071, the Court of Appeals for Fifth Appellate District held (3 to 0) that the fire inspector was an “at will” employee who “was not terminated for complying with his duty to follow the law … [but] for breaking the promises which he had made to Mr. Jefferies.” Facts: “On June 25, 2012, the City of Louisville hired Appellant Kevin Lanzer as its Fire Chief. The Louisville Fire Department is an ‘all-call paid part-time’ department. *** On July 31, 2013, Capt. Rob Yoder conducted a fire safety inspection of the property known as Parksite Warehouse #2, located at 3663 Tulane Street in the city of Louisville. Parksite Warehouse #2 is owned, in part, by William Jeffries, a local businessman and property owner in the City of Louisville. At the time of the inspection, part of the building was leased to a tenant. *** Captain Yoder's fire safety inspection revealed violations of the Ohio Fire Code, so he issued a notice of the alleged violations. The City Defendants admitted that this inspection was conducted in accordance with Ohio law. Jeffries was displeased with the manner in which Captain Yoder conducted the fire safety inspection. Jeffries contacted Ault [City Manager E. Thomas Ault] and asked that he be personally contacted prior to any fire safety inspections at properties he owned but leased to others. (Ault Depo. at 42). Jeffries also expressed his displeasure with the use of red ink in the paperwork used to document fire safety violations. (Ault Depo., pp.43-45). According to Lanzer and Ault, Jeffries didn't like that the Fire Department documents used red ink because it made it seem like the Fire Department was ‘hollering at him.’ (Lanzer Depo. at 44; Ault Depo. at 43-45). *** Ault discussed these issues with Lanzer, and Lanzer instructed his fire safety inspectors to contact Jeffries prior to inspecting any property Jeffries owned. (Ault Depo. at 42). This prior notification policy was only instituted as to Jeffries and his properties, not to other property owners in the City of Louisville. (Ault Depo. at 137-138.) The color of the ink used on the inspection reports was also changed. (Lanzer Depo. at 45-46).

*** On August 29, 2013, Captain Yoder re-inspected the Parksite property but failed to give prior notice to Jeffries. (Ault Depo. at 42). Captain Yoder later explained that he thought the special requirement to notify Jeffries applied only to the initial inspection and not the re-inspection. (Lanzer Depo. at 41). Jeffries was very upset that he was not notified of the re-inspection. (Ault Depo. at 27- 28). Jeffries contacted Ault ‘*** and stated very bluntly that he wanted Mr. Lanzer fired and *** he would go to council to see that that happened.’ (Ault Depo. at 28, 42). Ault informed Jeffries that, as City Manager, he alone had sole authority to fire Lanzer. (Ault Depo. at 42). *** Jeffries approached City Council with regard to this incident. On September 9, 2013, City Council held a special council meeting and went into executive session. Initially, Bill Jeffries, and his brother, Mike Jeffries, were in the executive session. *** During the special council meeting on September 9, 2013, Robert Duffrin, the City Law Director, came out of the executive session and told Ault that: ‘*** it was council's intent that [he] terminate the employment of Kevin Lanzer, or be terminated [himself] and have someone else do it.’ (Ault Depo. at 37, 58). Ault understood that council was telling him to fire Lanzer or that City Council would fire Ault, then someone else would fire Lanzer. (Ault Depo. at 63). Ault stated that although he thought it was wrong that he was being told to fire Lanzer, he weighed the impact to himself and his family and determined he had no choice but to follow City Council's instructions. (Ault Depo. at 61-63). Ault called Lanzer and requested that he come to Council's chambers, where he proceeded to tell Lanzer that he was fired. (Ault Depo., at 62).” Holding – trial court properly granted summary judgment to defendants “The Louisville City Charter gives the Louisville City Manager the sole authority to terminate City officers and employees. *** The City of Louisville had employed Appellant Lanzer as an at-will employee. Under the common law employment-at-will doctrine, either party may terminate the employment relationship for any reason, with or without cause, without giving rise to an action for damages. *** The Ohio Supreme Court created a narrow exception to this employment-at-will doctrine in Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d 981 (1990). In Greeley, the court held that an employee-at-will who is discharged in violation of a public policy may maintain a cause of action for wrongful discharge. Id. at 234, 551 N.E.2d 981. To prove a claim for wrongful discharge in violation of public policy, an employee must establish: (1) that clear public policy existed and was manifested in a state or federal

constitution, statute or administrative regulation, or in the common law (the clarity element); (2) that dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy (the jeopardy element); (3) the plaintiff's dismissal was motivated by conduct related to the public policy (the causation element); and (4) the employer lacked overriding legitimate business justification for the dismissal (the overriding justification element). Leininger v. Pioneer Natl. Latex, 115 Ohio St.3d 311, 2007-Ohio-4921, 875 N.E.2d 36, ¶10, 12. *** Initially, we find that Appellant was not terminated for complying with his duty to follow the law. The statute and administrative code sections cited by Appellant are procedural in nature, detailing the procedure which must be followed to gain access to premises for the purposes of conducting inspections. These statutes do not direct when, how often, or even if, such inspections must take place. *** However, as stated above, the City of Louisville had made assurances to Mr. Jeffries that he would receive prior notice before any further/additional inspections were conducted, and that did not happen. From the record it appears that Mr. Jeffries is a valued, local businessman and constituent, and that City Council terminated Appellant for breaking the promises which had been made to Mr. Jeffries. We find that such grounds are sufficient to terminate Appellant’s at-will employment. We do not find that Appellant has proven a violation of a clear public policy warranting abrogation of the employment-at-will doctrine.” Legal Lessons Learned: Ohio public policy exception for “at will” employees is very narrow protection. Fire Chiefs, if working as “at will” employee, should consider negotiating an employment agreement with a severance provision.

File – Chap. 2

NY: FF SAFETY CONCERNS – CHARGED WITH PUTTING CHIEF’S SIGNATURE ON COURSE APP - RETALIATION

On Jan. 24, 2017, in Adam Crown v. Danby Fire District, the U.S. Court of Appeals for 2nd Circuit, held (3 to 0) that the trial judge improperly granted summary judgment to the volunteer FD since there are facts in question about possible retaliation for reporting safety concerns to NY Department of Labor. “Where, as here, prior complaints regarding officer training and safety were nevertheless relevant to Crown's e-mail requests made just one month before the meeting at issue, and only two months before Crown's resignation, we cannot conclude as a matter of law that no inference of causation could arise.” http://caselaw.findlaw.com/us-2nd-circuit/1768438.html

Facts:

[From U.S. District Court decision, March 31, 2016: https://casetext.com/case/crown-v- danby-fire-dist-danby-volunteer-fire-co]

“Plaintiff joined Defendant Fire Company in January of 2007. See Admin. R. at 20. His association with Defendant Fire Company ended on March 23, 2010, when he resigned. See Dkt. No. 65-17, Pl.'s Ex. ‘12.’ Defendant Chief John Gaden is the chief of Defendant Fire Company and held that position during the entire interval at issue in this case.

***

During Plaintiff's membership in Defendant Fire Company, he perceived a variety of safety and health issues with respect to Defendant Fire Company's management and operations. Plaintiff raised such issues frequently and often publicly. For example, in the spring of 2008, Plaintiff openly opposed voting to admit an individual into Defendant Fire Company who had not fulfilled the requirements for membership according to Defendant Fire Company's bylaws. … Plaintiff also made multiple requests for information in connection with Defendant Fire Company's training, response records, injury records, and the like.

***

Another core issue from Plaintiff's perspective was Defendant Fire Company members being assigned to and undertaking fire rescue tasks for which they had not been properly trained. Plaintiff raised such issues in company meetings, and one of Defendant Commissioners told him that he was going to ‘too far.’ … Plaintiff also spoke to a number of individuals outside Defendants Fire Company and Fire District about his concern that Defendant Fire Company was operating unsafely including, among others, the Tompkins County Fire Supervisor. See Admin. R. at 174.

He also published a blog concerning fire safety in the Town of Danby that supported candidates for fire commissioner, and he ran for Danby fire commissioner twice on a platform based upon, among other things, the issues noted. See id. at 754; Dkt. No. 52-2, Crown Dep., at 46. Plaintiff testified that the reaction to his concerns was at best indifferent and at worst hostile; other members of Defendant Fire Company testified that they were treated poorly within Defendant Fire Company because of their relationship with Plaintiff. See Admin. R. at 328.

***

During his membership in Defendant Fire Company, Plaintiff pursued an ambitious schedule of training and classes at the New York Fire Academy of Fire Science at Montour Falls in Schuyler County. See Admin. R. at 62-64, 480-87. According to Plaintiff, Defendant Fire Company's protocol with respect to training was informal and that in practice members of Defendant Fire Company generally could take those classes they wished to take so long as they paid the expenses themselves.

***

One series of classes about which Plaintiff told Defendant Chief Gaden, and in which he enrolled, included Fire Officer I, II, and III. See id. at 23-24. Plaintiff further testified that Defendant Chief Gaden signed a blank enrollment form and instructed him to make photocopies of the signed form for the classes that Plaintiff wished to take. See id. at 24. Plaintiff then took the first two courses, Fire Officer I and II, and "sent in" his certificates of completion.

***

On January 25, 2010, Plaintiff requested response data and membership rosters of Defendant Fire Company for the interval 1989-2009 together with certain historical information about Defendant Fire Company. See Dkt. No. 55-11, Defs.' Ex. "Z." He did so in connection with a research project in his Fire Officer III course and to ‘anticipate future needs’ of Defendant Fire Company. See id. He ultimately gained access to much of this information by way of a Freedom-of-Information-Law ("FOIL") request that the Supreme Court, Tomkins County, upheld through an Article 78 proceeding. See Dkt. No. 60-4, Defs.' Ex. "SS," at 4.

***

Defendant Chief Gaden testified that, when he learned of Plaintiff's January 25, 2010 request for information, he began to wonder how Plaintiff could take the Fire Officer III class without authorization. See Admin. R. at 530. He then retrieved Plaintiff's authorization form for the Fire Officer III course by way of a FOIL request. See id. Defendant Chief Gaden further testified that he did not remember authorizing Plaintiff to take the course. See id. at 669-72

***

At the March 23, 2010 Fire District meeting, Plaintiff testified that he attempted to tape record the proceedings and that Defendant Fire District's attorney told him that he could not do so. See Admin. R. at 42. Plaintiff did acknowledge in his deposition testimony that he received a notice of hearing and that he was advised of his rights. See Dkt. No. 52-3, Pl.'s Dep., at 57, 58. He also testified in response to the same line of questioning that ‘I'm not sure the order of things’ and that he was presented a notice of hearing only after agreeing to turn off his audio recording device. See id. at 56:21, 56:24-57:12. He further testified that, after he denied the charges, Defendant Commissioners left the room and Defendant Fire District's attorney told him, ‘if I didn't resign, I was going to be subject to departmental charges and criminal charges.’ See id. at 58:21-59:6, 61:6-9; Dkt. No. 52-4, Pl.'s Dep., at 102 (recalling that ‘[Attorney] Butler said I would be charged with criminal charges if I did not resign’).

***

According to Defendants, Plaintiff was suspended and subsequently charged for disobeying Defendant Chief Gaden's order to meet with him and also for submitting allegedly forged authorization forms for the Fire Officer II and III classes.”

Complaint with NY State Department of Labor

“Plaintiff testified that he had been in contact with the New York State Department of Labor for some time in connection with the issues detailed above, among others. See Admin. R. at 122; Dkt. No. 30-12, Pl.'s Ex. "6e," at 81. Plaintiff compiled a list of the issues he observed and drafted a formal complaint. See id. He then filed the complaint with the New York Department of Labor under the Public Employees' Health and Safety Act of 1980 (‘PESH’). See Dkt. No. 56-7, Defs.' Ex. "FF." The complaint was dated March 5, 2010, and stamped received on March 11, 2010. See id. at 2-3.

It is undisputed that Defendants were not aware of Plaintiff's PESH complaint until Safety and Health Inspector Michael Cappelli arrived at a Fire Company meeting on March 29, 2010—six days after the meeting of Defendant Fire District at which Plaintiff was served with disciplinary charges.

***

In response to Plaintiff's complaint, Inspector Cappelli found that Plaintiff had not made out a prima facie case of discrimination and dismissed his complaint. See Dkt. No. 65-3, Pl.'s Ex. "3." Plaintiff then appealed this finding to the New York Board of Industrial Appeals ("Board"), which conducted a hearing over four days on the question of whether Inspector Cappelli's investigation of Plaintiff's PESH complaint was ‘valid and reasonable.’ See Dkt. No. 30-3, Pl.'s Ex. "1," at 7. The proceedings included testimony from Plaintiff, Defendant Chief Gaden, Defendant Commissioner Caveney, and others.

***

The hearing also included the testimony of Jeffrey Baker, a former Danby Volunteer Firefighter. Mr. Baker testified that he too took courses at the Academy using a photocopy of the Chief's signature and without the commissioners' approval. He further testified that he did this under the Chief's direction and that he was not terminated or otherwise disciplined as a result. See Admin. R. at 133-34.

***

Turning to Plaintiff's retaliation claim, the Board then found that the record was ‘replete with evidence to establish a prima facie case of retaliation.’ See id. at 9. In so doing, the Board found that Plaintiff had prima facie shown the elements of his claim: protected activity, adverse employment action, and a causal nexus between the two. See id. It then discussed Defendant Fire Company's explanation that it suspended Plaintiff because he forged Defendant Chief Gaden's signature on the enrollment form for certain Fire Academy courses. See id. at 9-13. It found the explanation to be a pretext for bringing disciplinary charges against Plaintiff. See id. at 13.

Neither Plaintiff nor the Commissioner of Labor sought judicial review of the Board's decision. The Board referred the matter to the New York Attorney General, who appears not to have taken further action in prosecuting the case.”

Trial judge granted summary judgment to defendants

“Thus, viewing the record as a whole, the Court finds that, even assuming that Defendant Commissioners and Defendant Chief Gaden knew about Plaintiff's protected speech, any reasonable juror would have to conclude that the individual Defendants in this case were objectively reasonable in bringing disciplinary charges against him for enrolling in Fire Academy courses without authorization and by means of allegedly forged documents and for failing to follow Defendant Chief Gaden's orders.”

Court of Appeals reverses – remands case

[W]e conclude that, on the record presented, defendants were not entitled to summary judgment on qualified immunity grounds.

‘Qualified immunity shields law enforcement officers from § 1983 claims for money damages provided that their conduct does not violate clearly established constitutional rights of which a reasonable person would have been aware.’ Zalaski v. City of Hartford, 723 F.3d 382, 388 (2d Cir. 2013) (citing Ashcroft v. Al-Kidd, 563 U.S. 731, 735 (2011)). At the summary judgment phase, such a conclusion can be reached only where the facts are undisputed or viewed in the light most favorable to the nonmovant. See Ricciuti v. Gyzenis, 834 F.3d 162, 169 (2d Cir. 2016).

Our precedent has long established that a firefighter's criticisms of a fire department for deficiencies in training, discipline, and morale, see Janusaitis v. Middlebury Volunteer Fire Dep't, 607 F.2d 17, 25 (2d Cir. 1979), and for limitations on access to public records, see Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987), are protected matters of public concern, at least insofar as the criticisms relate to the department generally, rather than to plaintiff specifically, see Janusaitis v. Middlebury Volunteer Fire Dep't, 607 F.2d at 25–26 (identifying speech falling within ‘general protection of the First Amendment,’ but concluding that plaintiff's conduct evinced concern only with ‘proving himself right’); Mulcahey v. Mulrenan, 328 F. App'x 8, 9 (2d Cir. 2009) (summary order) (identifying no matter of public concern where firefighter complained that he lacked sufficient training to serve as battalion chief).

Viewing the facts in the light most favorable to the nonmovant, Crown's speech regarding the District's training protocols and officer safety constituted protected speech. See Ricciuti v. Gyzenis, 834 F.3d at 169.

***

Here again, however, the conclusion depends on resolving disputed facts against Crown rather than in his favor. Crown asserts that the Fire Chief authorized him both to take any firefighter classes he desired and to make photocopies of his signature for that purpose, a contention further supported by testimony from another firefighter that he was given substantially the same instruction. Further, record evidence suggests that Crown attempted to reschedule the meeting at issue, which, viewed most favorably to him, raises at least a question as to whether defendants in good faith believed his absence to indicate insubordination.”

Legal Lessons Learned: Courts will give great deference to firefighters’ right to express concerns about safety and training protocols. This case will now be remanded for further pre-trial discovery and possible trial.

File – Chap. 4

CA: DRONES – TWO NEW STATUTES - CA ATTORNEY ADVISES: NO LIAB. SHOOT DOWN INTERFERING DRONE

California: Posted by Steven Miller on Sep 30, 2016 in California Law: https://www.hoverlaw.com/category/state/

“The two bills signed into law are SB 807 and AB 1680.

SB 807 amends the Civil Code to limit the exposure to civil liability of any emergency responder for damaging a drone that interfered with the provision of emergency services. The bill applies to public and private entities and to persons regardless of whether they are paid or volunteer.

One of the more frequent questions I am asked from public agencies is “Is a firefighter liable if he knocks down a drone that is in his way while fighting a fire?” As of January 1, 2017, there is now an answer to this question—“No!.” [Emphasis added.]

AB 1680 amends the Penal Code to add drone operators to the existing requirement that no person may stop at the scene of an emergency, unless as part of their job, and interfere with emergency personnel in the performance of their duties. Violation is a misdemeanor. Interesting, while the pre-existing law focuses on persons who are physically at the scene of an emergency, AB 1680 now criminalizes interference regardless of the drone operator’s location so long as the drone itself is at the scene of the emergency. Another frequent question I am asked is “How do I stop someone whose drone is interfering with firefighters?” As a result of AB 1680, law enforcement may be able to cite a drone operator who interferes with emergency personnel in the performance of their duties.”

18 States – New Statutes

See listing of states as of 1/5/2017: http://www.ncsl.org/research/transportation/current- unmanned-aircraft-state-law-landscape.aspx

“At least 38 states considered legislation related to UAS in the 2016 legislative session. Eighteen states–Alaska, Arizona, California, Delaware, Idaho, Illinois, Indiana, Kansas, Louisiana, Michigan, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, Virginia and Wisconsin–passed 32 pieces of legislation.”

On July 1, 2015, the new Mississippi “Pepping Tom” statute became effective:

“Any person who looks through a window, hole or opening, or otherwise views by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, drones, camera, motion-picture camera, camcorder or mobile phone, into the interior of a bedroom, bathroom, changing room, fitting room, dressing room, spa, massage room or therapy room or tanning booth, or the interior of any other area in

which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside and without the consent or knowledge of every person present, for the lewd, licentious and indecent purpose of spying upon the occupant or occupants thereof, shall be guilty of a felony. http://dronepilotsmarts.com/drone-flying-laws-in-mississippi/

Utah may need such a statute; see Dec. 6, 2016 article: http://www.953gorilla.com/?p=425

“A man spotted the drone hovering outside the window of his private bathroom, and saw it land in a nearby parking lot. The man then picked up the drone and took it to police.

Officers identified the drone’s owner through his self-portrait, which was recorded on the peeping-Tom drone. The device also had photos of various other people, shot through windows into their private bathrooms and bedrooms without their even knowing it.

The Orem Police Department put a notice on their Facebook page to alert the owner that they have his device.”

See also Jan. 27, 2016 article from New York Times: “When Your Neighbor’s Drone Pays an Unwelcome Visit.” https://www.nytimes.com/2016/01/28/style/neighbors-drones-invade-privacy.html?_r=0

Legal Lessons Learned: Emergency responders are increasingly using drones; they should carefully review pending legislation to ensure they enjoy “qualified immunity” arising out of the use of drones in emergencies and other official business.

File – Chap. 6

CA: FD CAPTAIN FAILED “SIMULATION” PART OF BATTALION PROMOTION – LAWSUIT PROPERLY DISMISSED

On Jan. 23, 2017, in Rudy Diaz v. City of Chula Vista, the Court of Appeal, 4th Appellate District, in an unpublished decision, held (3 to 0) that the “evidence showed the fire chief was not required to make a promotion to a vacant battalion chief position, and the decision whether to do so was entirely discretionary. Thus, even if we were to assume Diaz should have been included on the battalion chief eligibility list and interviewed for an open battalion chief position, the record and applicable authority support the court's finding that Diaz's claimed damages were not recoverable because they were ‘completely speculative.’” http://www.leagle.com/decision/In%20CACO%2020170123029/DIAZ%20v.%20CITY%20OF%20VISTA

Facts:

“This case arose in 2011 when Diaz took a three-part fire battalion chief recruitment examination (examination or battalion chief examination) in an attempt to be included on

a list of candidates eligible to be considered for promotion to an open fire battalion chief position only during the next year. The minimum acceptable examination score was 70 (out of a maximum of 100), unless otherwise provided in advance in a published examination notice. Diaz failed the simulation exercise component of the examination by failing to achieve the minimum passing score of 70, but he received an overall weighted score of 73 on the examination.

***

[Trial judge dismissed his lawsuit.] The court denied the petition on numerous grounds. As pertinent here, the court found that even if Diaz passed the examination and was eligible to be placed on the one-year battalion chief eligibility list, as he claimed, the evidence established that placement on the list did not guarantee promotion and, thus, Diaz's damages were speculative and could not be determined.

***

The one-year battalion chief eligibility list from the 2011 examination took effect on November 15 of that year and expired on November 14, 2012. Placement on the battalion chief eligibility list does not guarantee promotion to a vacant battalion chief position. In the fire department, the chief has discretion not to promote anyone to a vacant battalion chief position. An eligibility list typically supplies only its three highest-ranking candidates for consideration when a position is open. (Charter, § 702(d).)

***

The battalion chief examination consisted of three components: (1) a simulation exercise, which was weighted at 50 percent; (2) a written examination weighted at 20 percent; and (3) a panel interview weighted at 30 percent. Diaz applied to be included on the battalion chief eligibility list and, along with four other candidates, took the examination.”

Holding:

“[T]he City's standard practice for 10 years, including 2011, was to require a passing score on each component of the battalion chief eligibility examination. For example, in early 2007 the City posted a closed promotional battalion chief recruitment opportunity. Under the subheading ‘Eligibility Lists,’ the posting stated: ‘All candidates who successfully pass all phases of the examination process are placed on an eligibility list.’ (Italics added.)

***

During his deposition testimony, Diaz acknowledged that he took and passed each component of the 2007 battalion chief examination (discussed, ante). He also acknowledged that no representative of the City told him he could pass the 2011 examination without passing each element.

***

Diaz did not demonstrate in the superior court, and has not shown and cannot establish on appeal, that he was entitled to any of the relief requested in his petition.”

Legal Lessons Learned: Fire & EMS departments, following a standard practice for 10 years, requiring passage of EACH section of an exam, can avoid litigation by clearly stating in the announcement that this practice will be followed.

File – Chap. 6

MS: TWO HATTER – FF WAS “AT WILL” EMPLOYEE AT SECOND FD, NO PROPERTY INTEREST IN THAT JOB

On Jan. 23, 2017, in Glen Owens v. City of Flowood, Mississippi, U.S. District Court Judge Carlton W. Reeves granted City’s motion to dismiss, since the career firefighter was an at will employee at Reservoir Fire Department, from which he resigned. https://docs.justia.com/cases/federal/district- courts/mississippi/mssdce/3:2016cv00451/92512/13

Facts:

“City’s new policy in July 2013 prohibiting career FF from working at other fire departments did not violate his 4th Amendment right to due process, since he had no property interest in his at will position with Reservoir Fire Department.”

Holding:

The City of Flowood SOP manual did not “affect the at-will nature of another employer’s relationship. Whatever interest was created by the manual is relevant only to Owen’s employment with the Flowood Fire Department, which is not at issue.”

Legal Lessons Learned: Lawsuit required proof of a “property interest” in second job.

File – Chap. 6 NY: “BED BUGS” - HOTEL SUES PAINTER’S UNION FOR HANDBILL – NOT DEFAMATION, NO MALICE On Jan. 27, 2017, in New Yorker Hotel Mgt. Co. v. District Council No. 9, NY IUPAT, Judge Braun, Supreme Court, New York County, granted summary judgment for the union, The International Union of Painters and Allied Trades, holding: “defendant made it clear that the claim that plaintiff hotel is infested with bed bugs is metaphorical and not an assertion of fact.” http://nycourts.gov/reporter/3dseries/2017/2017_27012.htm

Facts:

“This is an action for defamation seeking damages, and preliminary and permanent injunctive relief, arising out of the giving out of handbills by defendant District Council No. 9 New York IUPAT outside of the premises of plaintiff New Yorker Hotel. Defendant is a union representing painters. The three versions of the handbills in question all begin in large bold print:

NOTICE TO THE PUBLIC

THE New Yorker HOTEL — INFESTED WITH BED BUGS In somewhat smaller type size in the very next line of each handbill, but all still in large bold print, the handbills state:

THE WORD(sic) BED BUG IS DEFINED AS ONE WHO SUCKS THE FINANCIAL BLOOD FROM ITS WORKERS.

The handbills went on to explain that painters who were hired to paint the hotel were not being paid wages and benefits that have been established by defendant's workers for the area. One set of handbills further requested:

PLEASE HELP US SEND A MESSAGE TO THE NEW YORKER & CAULDWELL WINGATE LETS (sic) TELL THEM THAT IF THEY CONTINUE TO DO BUSINESS IN THIS MANNER, WE (THE RESIDENTS OF NEW YORK CITY) ARE ALL IN DANGER OF OUR LIVING STANDARDS BEING ERODED BY BIG FAT BED BUGS!

In other versions of the handbill, the substance was the same, except that they were addressed not to plaintiff, Cauldwell Wingate, and a painting company but only to plaintiff and the latter, and [*2]the wording was only slightly different. All of the handbills included photos or drawings of bed bugs.

[Footnote 2] "In five-inch red capital letters on two lines that appear just above the feet of the banner's holders, it reads: 'CARPENTERS L.U. 1506 HAS A DISPUTE WITH [_______] FOR FAILING TO PAY PREVAILING WAGES TO ITS WORKERS.' In the blank space, in two-inch black handwritten letters, the banner reads: 'Best Int.'" (San Antonio Community Hosp. v Southern California Dist. Council of Carpenters (125 F3d at 1233).”

Holding:

“Defamation grows out of the making of a false statement that ‘tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.’ (Sydney v MacFadden Newspaper Publ. Corp., 242 NY 208, 211- 212 [1926].) CPLR 3016 (a) requires that in a defamation action, ‘the particular words complained of ... be set forth in the complaint.’ ***

Expressions of opinion ‘false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions’ (Steinhilber v Alphonse, 68 NY2d 283,

286 [1986], quoting from Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 380, cert denied 434 US 969 [1977]).

A state remedy for libel derived from labor unrest is preempted by Federal law in that a plaintiff must demonstrate malice and actual damages (Old Dominion Branch No. 496, Nat. Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 US 264, 282 [1974]; Linn v Plant Guard Workers, 383 US 53, 64-65 [1966]).[FN1] 1 Malice in the defamation context is knowledge that the defamatory statement is false or in reckless disregard of whether the statement is false or not (see Old Dominion Branch No. 496, Nat. Ass'n of Letter Carriers, AFL-CIO v Austin, 418 US at 272-273, 281-282).

[Footnote 1] There is no dispute that defendant's complaints about plaintiff not paying union level wages and benefits to painters is a labor dispute (29 USC § 152 [9]; Labor Law § 807 [10] [c]; see Burlington Northern Railroad Co. v Bhd. of Maintenance Way Employees, 481 US 429, 442-43 [1987]; Burlington North v IBT Local 174, 203 F3d 703, 711 [9th Cir 2000]).

***

Thus, the handbills here cannot be understood to include a defamatory falsehood, but merely the type of immoderate rhetoric often associated with labor disputes (see Old Dominion Branch No. 496, Nat. Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 US at 283). The fact that defendant was trying to pressure plaintiff and portray it in a negative light with respect to its labor practices does not mean defendant was acting maliciously as that term applies to expression in labor disputes (id. at 281).”

Legal Lessons Learned: Bed bugs are also an issue in the Fire Service. If union were to “go public” on the issue, must prove malice – false or reckless disregard of the truth. http://www.fireengineering.com/articles/2011/02/bedbug-infestation.html

File – Chap. 10 PA: FMLA – COMPANY’S “HONEST BELIEF” THAT EMPLOYEE WAS FALSIFYING LEAVE –GOOD DEFENSE On Jan. 30, 2017, in Fredrick Capps v. Mondelez Global, LLC, the U.S. Court of Appeals for 3rd Circuit [Philadelphia], held (3 to 0) that the U.S. District Court properly granted summary judgment in the lawsuit against one of nation’s largest manufacturers of snack foods and beverages. “In so doing, we hold that an employer’s honest belief that its employee was misusing FMLA leave can defeat an FMLA retaliation claim.” http://www2.ca3.uscourts.gov/opinarch/153839p.pdf Facts: “Mondelez’s predecessor, Nabisco, hired Capps in November 1989. At all relevant times to this action, Capps held the position of mixer, which required him to operate a mixing machine that makes dough.

*** Capps suffers with Avascular Necrosis (‘AVN’), which was described by Aron Guttin, D.O., Capps’ treating physician, as ‘a condition in which there is a loss of blood flow, severely limiting oxygen and nutrient delivery to the bone and tissues, essentially suffocating and causing death of those cells.” (JA 312.) As a result of the AVN, Capps developed arthritis in both hips which necessitated bilateral hip replacement in or about 2003. He has experienced severe pain at times in the pelvic region, thighs and hips, sometimes lasting for days or weeks at a time. Therefore, he requested intermittent time off from work when flare-ups occurred. Capps was certified for intermittent FMLA leave following his hip replacements, and thereafter throughout his tenure at Mondelez, he was continuously recertified approximately every six months for intermittent FMLA leave for his condition until his employment was terminated in 2014. *** Capps was scheduled to begin his shift that Friday afternoon at 1 p.m. on February 15th. However, on the 15th, he called Mondelez’s phone system and the FMLA message line indicating that he would be using FMLA leave due to leg pain.” Arrested On Feb. 14 - DUI “Capps further testified [at his deposition] that at approximately 6:30 p.m. on the 14th he drove to a local pub, which was not more than one and a half miles from his home, to ‘get something to eat’(JA 279). According to Capps, at the pub he also drank three beers and three shots of alcohol with his friends, and he spent approximately two and a half (2 ½) to three hours at the pub. Afterwards, despite feeling too intoxicated to drive, Capps attempted to drive home. Capps testified that after leaving the pub, at or around 9:00 p.m. he was stopped by police. The Bensalem Township police drove Capps to the hospital for a blood test, which resulted in a reading of a blood alcohol concentration level of 0.339% - more than four times the legal limit in Pennsylvania. Capps testified that he was released from jail early the next morning on Friday, February 15, 2013. He further testified that he woke up on the 15th ‘probably about 10, 11 o’clock’ and his ‘legs were bothering [him] again.’ (JA 46.) He stated that he ‘just hung around the house, just wasn’t feeling good’ and ‘took some Aleve again.’ (JA 46.)” Termination “On August 7, 2013, Capps pled guilty to the charge of Driving Under the Influence of Alcohol (‘DUI”), and he served 72 hours in jail immediately following the guilty plea hearing. His sentence also included probation, costs and fines, and suspension of his driver’s license. In early 2014, William Oxenford, a Human Resources (‘HR’) Manager at Mondelez, became aware of Capps’ DUI conviction and sentence by finding in Oxenford’s company mailbox a newspaper article reporting the same. Oxenford asked Barbara McAvoy, an employee in the HR department, and Nancy Pace, administrative assistant to the plant manager, to investigate Capps’ attendance record to determine if Capps had

any absences during the time frame of Capps’ arrest and conviction. *** Capps was notified of his termination of employment by letter dated March 21, 2014, effective February 26, 2014. That decision was made by Oxenford and the plant manager, Rusty Moore, in conjunction with Mondelez’s legal department. The letter confirmed that Capps’ termination was based on his violation of the Dishonest Acts Policy. The termination letter further stated: ‘You claimed to be out due to … FMLA related issues on multiple dates. The documentation you produced does not support your claim of … FMLA related absences.’ (JA 404.) *** Following Capps’ termination, Mondelez retained the services of an investigator. The investigator reported on April 25, 2014 that a detective from the police department indicated that Capps had been released from custody from his DUI arrest at 6:00 a.m. on the morning following the arrest. *** Mondelez offered Capps reinstatement without back pay on April 28, 2014, and Capps rejected the offer of reinstatement on May 13, 2014.” [He filed a Grievance, which was denied by the employer.] Holding: “As the District Court found, even assuming, arguendo, that Capps could establish a prima facie case of FMLA retaliation, Mondelez met its burden of demonstrating a legitimate, nondiscriminatory justification for Capps’ discharge with evidence that Capps was terminated for his misuse of FMLA leave and dishonesty surrounding the leave in violation of Mondelez’s policies. See McDonnell Douglas, 411 U.S. at 802; Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). ‘FMLA retaliation claims require proof of the employer’s retaliatory intent.’ Lichtenstein, 691 F.3d at 302 (emphasis added). Where an employer provides evidence that the reason for the adverse employment action taken by the employer was an honest belief that the employee was misusing FMLA leave, that is a legitimate, nondiscriminatory justification for the discharge.” Legal Lessons Learned: Fire & EMS departments must also manage sick leave and FMLA leave abuse, and should consider having a dishonesty clause in their Employee Handbook. For example, the employer in this case had a Dishonest Acts Policy that includes the following warning: “THE COMPANY WILL NOT TOLERATE DISHONESTY ON THE PART OF ITS EMPLOYEES, WHETHER IT BE COMMITTED AGAINST THE COMPANY, ANOTHER EMPLOYEE, ITS CUSTOMERS, OR OTHERS EITHER DURING OR AFTER WORKING HOURS … and ANY EMPLOYEE FOUND GUILTY OF A DISHONEST ACT WOULD BE SUBJECT TO DISMISSAL.”

File – Chap. 16 MA: SALEM FD – UNION PRESIDENT WAS PROPERLY TERMINATED – STEALING FROM UNION FUNDS On Jan. 25, 2017, in John O’Leary vs Civil Service Commission, the Commonwealth of Massachusetts Court of Appeals held (3 to 0) in an unpublished opinion that that former the termination of the Union President was properly upheld by the Civil Service Commission. There were “six instances where the plaintiff misappropriated funds from the union's account, and that there were five instances in which the plaintiff was untruthful about what happened to those funds.” http://www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/16p0383.pdf Facts: [From this press report: http://www.salemnews.com/news/local_news/appeals-court-upholds-firefighter-s-firing/article_bb9b2204-2c82-576f-88e8-8e15cf00d5cb.html ] “O'Leary was president of the Salem Firefighters Union from 2002 until 2010. The union had established a charitable fund that, over that period, raised approximately $344,000 through fundraisers and donations. Nearly two-thirds of that amount, however, ended up going to a professional fundraising company, All Pro Productions, and toward other expenses. City officials had estimated that $25,000 was misappropriated by O'Leary; the Civil Service Commission put the figure much lower, at $2,100, but concluded that the conduct warranted termination.

***

“While his appeal of his firing was ongoing, O'Leary was arrested and charged with domestic abuse; he subsequently reached a plea agreement in the case in 2013 and received a ‘split’ 2 1/2 year jail sentence, with 18 months to be served and the balance of the time suspended for three years.”

Court’s decision:

“In its decision, the commission reviewed the evidence including the report prepared by O'Connor, an accountant, submitted by the city, and determined that there were six instances where the plaintiff misappropriated funds from the union's account, and that there were five instances in which the plaintiff was untruthful about what happened to those funds. *** Footnote 2: “The commission determined the plaintiff to have been dishonest concerning monies he claimed to have paid out from the union's fundraising account to the Stephen O'Grady Fund; the Salem High School golf team; the

Salem recreation department; the Robert Mullins Fund; and the Salem Cartoon Basketball League. The commission also pointed to his failure to reimburse the account for personal travel for himself and his wife to a Fallen Firefighters event in Colorado. *** Finally, the plaintiff's claim that he suffered disparate treatment is without merit. The commission found essentially the same facts and misconduct as the city had found, and the commission determined that the sanction of termination was appropriate in this case where the plaintiff had misappropriated charitable funds and made false statements including some ‘wildly unbelievable’ testimony.” Legal Lessons Learned: Fire & EMS departments, and unions (also churches, not-for-profit organizations, etc.) should have an accountant conduct annual audit of their funds. It helps keep “everybody honest.”

File – Chap. 17 OH: ARBITRATOR DECISION REVERSING TERMINATION OF DETECTIVE UPHELD – PUBLIC EMPLOYEE – DUE PROCESS On Jan. 19, 2017, in Cuyahoga Metropolitan Housing Authority v. Fraternal Order Of Police, Ohio Labor Council, Inc., 2017-Ohio-190, the Ohio Court of Appeals for 8th Appellate District, held (2 to 1) that the arbitrator’s decision will be affirmed. “The arbitrator’s award overturned the termination of a CMHA detective, Clinton Ovalle, and instead, imposed a 30-day suspension and ordered back pay. CMHA urges this court to vacate the award for several reasons. After a thorough review of the record and law, this court affirms.” Facts: “On December 3, 2013, Detective Ovalle and two other CMHA detectives were conducting quality of life patrols on CMHA property. The three saw what they perceived to be a drug transaction between a man and a woman. The detectives approached, and as they did, the man, later determined to be Thomas Moore, moved his hand toward his mouth. The woman, Tamblyn Stanley, began to walk away. Detectives ordered them to stop. Detective Ovalle went to stop Stanley as the other two attended to Moore. According to Detective Ovalle, he ordered Stanley to the ground and she willingly laid on the ground with some gentle assistance from him. According to Stanley, Detective Ovalle pushed her to the ground, and she sustained injuries to her knees, hands, and other parts of her body. Stanley was searched and released. Later, Stanley went to the hospital for treatment, and filed a complaint against Detective Oval. ***

Moore was also searched. Detectives did not find any drugs, but they did find a key to a CMHA apartment. Moore explained that the key belonged to his girlfriend and that he did not live at the apartment. The three detectives continued to detain Moore and transported him to the apartment with the intent to see if the tenant was there and to search the apartment for drugs. When walking into the apartment complex, detectives smelled the odor of burnt marijuana and encountered an individual in the hallway who appeared to have just smoked marijuana. Detective Ovalle stayed behind to talk to this individual while the other two detectives escorted Moore upstairs where they used the key to enter and search the apartment. Detective Ovalle found a very small amount of marijuana smoldering in what remained of a marijuana cigarette discarded on the floor. He interviewed the male downstairs, confirmed the individual’s identity with dispatch, issued him a verbal warning about using drugs on CMHA property, and let him go. Detective Ovalle then went upstairs and rejoined the other two detectives. The search of the apartment that had been taking place while Detective Ovalle was downstairs did not reveal any drugs, and Detective Ovalle advised the other detectives that they should leave because the search was unlawful. Moore was released, and the detectives left. They did not file any paperwork regarding the stop and search of Stanley, the possible drug use in the hall, or the stop and search of Moore and the apartment. They also did not inform any supervisors about the transport of Moore or the search of the apartment prior to or as it was taking place. After Stanley filed her complaint, CMHA began an investigation into her allegations of excessive use of force. The investigation expanded to include the search of the apartment. CMHA investigators interviewed Stanley, Moore, and the three detectives. After the investigation concluded, CMHA determined that Detective Ovalle had committed serious policy and procedure violations and had been dishonest. CMHA terminated Detective Ovalle’s employment based on the following: Rules and Regulations violations: 1) gross neglect of duty; 2) conduct unbecoming an employee; 3) violations of Administrative Order 11; 4) any other reasonable and just cause; 5) conduct themselves in such a manner as to command the respect of the public; 6) violate any law of the United States, the State of Ohio, or neglect to perform any duty required by law; 7) willfully neglect to perform any duties required by directives, written or oral, issued to them by a supervisor of the CMHA; 8) and be disrespectful or discourteous to any member of CMHA, resident, or guest.” Arbitrator’s decision: “The matter proceeded through the grievance process as set forth in the Collective Bargaining Agreement (‘CBA’) that governed the employment relationship between the parties. This grievance process resulted in final, binding arbitration. Hearings were conducted before an arbitrator on November 6, 2014, January 22, 2015, and February 18, 2015. The arbitrator issued a 27-page opinion finding that Detective Ovalle breached several procedures regarding documentation, but that he did not engage in the unlawful search or use excessive force against Stanley. The arbitrator found that termination was not warranted in this case. The arbitrator’s award modified Detective Ovalle’s disciplinary sanction to a 30-day suspension and ordered reinstatement with back pay.”

Trial court upheld arbitrator: “CMHA petitioned the common pleas court to vacate the arbitration award. The common pleas court instead confirmed the arbitrator’s award” Court of Appeals upheld arbitrator: “Ohio has codified a preference for arbitration to resolve disputes between public employers and their employees. R.C. 4117.10(A); R.C. 2711.01 et seq. Therefore, the authority of courts to vacate an arbitration award is ‘extremely limited.’ Cedar Fair, L.P. v. Falfas, 140 Ohio St.3d 447, 2014-Ohio-3943, 19 N.E.3d 893, ¶ 5. Courts must generally presume an arbitrator’s award to be valid and enforceable, and a common pleas court reviewing an arbitrator’s decision may not substitute its judgment for that of the arbitrator. *** CMHA raised issues of dishonesty throughout the arbitration proceedings and the arbitrator addressed these allegations specifically. The arbitrator found that Detective Ovalle did not engage in dishonest conduct. The portion of the arbitration award detailing the arbitrator’s findings that Detective Ovalle did not engage in conduct that would constitute dishonesty is lengthy and thorough. *** CMHA is correct that the CBA does not include any reference to due process requirements, but public employees are entitled to due process when a governmental entity makes a decision to terminate their employment. *** The arbitrator applied a clear and convincing evidentiary standard and determined that just cause for termination did not exist. Dissent by Justice Larry A Jones, Sr.: “The arbitrator exceeded her powers by reinstating the officer because reinstatement is against public policy, is arbitrary and capricious, and the arbitrator so imperfectly executed her powers that a proper award was not made. First, as to the matter of public policy, as CMHA argued, there is a clear public policy against retaining police officers who engage in dishonesty in their official capacity. Not only did the evidence show that Detective Ovalle lied about the events at issue, but, by the arbitrator’s own admission, violated numerous CMHA policies and procedures.” Legal Lessons Learned: Arbitrator decisions are generally presumed to be valid and enforceable, since they Arbitrator hears the witness testimony and evaluates the employer’s evidence on a “clear and convincing” evidentiary standard.

Newsletter author:

Lawrence T. Bennett, Esq. Program Chair Fire Science & Emergency Management, College of Engineering & Applied Science [email protected] Cell 513-470-2744 Bio: http://ceas.uc.edu/aerospace/FireScience/faculty_mentors.html