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When I began to work on this review of fire service cases for 2012, my sense was that it had been a slow year compared with 2010 and 2011. In 2010, we had the landmark reverse-discrimination case of Ricci v. DeStefano, 129 S. Ct. 2658, 2671, 174 L. Ed. 2d 490 (2009); in 2011, we had an important First Amendment case, Westmoreland v. Sutherland, 662 F.3d 714 (6th Cir., 2011).
While 2012 did not yield a comparable landmark ruling, it was anything but boring. In fact, the cases and controversies that developed in 2012 may provide the foundation for important new precedent in areas including the First Amendment, social media and labor relations.
In terms of organizing the 2012 cases into a top-three, top-five or even a top-10 listing, there are literally too many cases to do justice to what took place. Consider the following:
• In Nashville, TN, a firefighter found himself to be the victim of a blackmail plot perpetrated by a gang member whose “girlfriend” had visited the fire station on previous occasions to strip and perform sex acts. Police arranged a sting operation and caught the blackmailer. An internal fire department investigation led to discipline for several firefighters, including three members who resigned.
• In Taylor, MI, the entire city council filed suit against the mayor to force him to accept an $8 million SAFER (Staffing for Adequate Fire and Emergency Response) grant that would let the department restore 30 firefighter positions. Not to be outdone, in Grand Island, NE, the firefighters’ union filed suit against the city, seeking a court order to appoint a new fire chief.
• In New Waverly, TX, a firefighter was charged criminally for using an app on his smartphone to secretly take photos in his firehouse’s women’s bathroom.
• During an Independence Day parade in Philadelphia, PA, a volunteer firefighter aboard fire truck gestured with his middle finger to a cameraman zooming for a close-up. The incident was broadcast live on WPVI-TV/6ABC and rebroadcast on CNN. The member was suspended and the department apologized.
• In Pittsburgh, PA, a fire captain working his last shift gave a TV interview in which he criticized the city’s public works department. When the TV station ran a humorous story that included the captain’s remarks, the public safety commissioner tried to revoke the captain’s retirement and discipline him for speaking to the media while on duty without permission. The captain more or less said, too late, I’m retired. When the city later withheld the captain’s severance check, he sued, alleging it was in retaliation for the exercise of his First Amendment rights.
• In Harford County, MD, a firefighter complained on Facebook that firefighters did not get the same discount at a restaurant as police and military. His post was quickly followed by several others that suggested a fire ought to be set and the fire department’s response delayed. Nine firefighters were disciplined, including one who was terminated.
• In Durham, NC, a firefighter was arrested in connection with armed robberies committed by a perpetrator known as the “Green Goblin robber” because he wore a green mask.
• The mayor of Scranton, PA, ordered the unilateral reduction in pay for all fire personnel down to minimum wage to address a financial crisis. The firefighters’ union sued, obtaining a restraining order against the mayor, which he initially ignored. On the eve of being found in contempt of court, the mayor agreed to a settlement that restored the wages.
• In Cleveland, OH, a firefighter accused of having only worked 11 shifts in a year and paying co-workers to cover some 4,336 hours over two years, pleaded guilty to soliciting/receiving improper compensation and was sentenced to 60 days in jail.
• In Carabassett Valley, ME, an ambulance crew was transporting a critically injured skier to the hospital during a blizzard. The crew was doing CPR and the patient’s wife, an ICU nurse who was riding up front, insisted that she be allowed to ride in the back. The driver stopped the ambulance long enough for the wife to exit the vehicle, then drove away and left her by the side of the road. Shortly thereafter, CPR was stopped and the skier’s body was returned to the ski area. Several investigations cleared the crew of any wrongdoing.
The United States did not have the exclusive on jaw-dropping fire law headlines in 2012. In Paris, France, members of the fire department’s elite gymnastics team were accused of sodomizing a new member as part of an initiation. In the United Kingdom, at the scene of a small cooking fire at the home of a school teacher, a firefighter swiped a computer disk that contained images of child pornography. The disk proved instrumental in convicting the teacher. However, the firefighter was reprimanded and fined 30 days’ pay for taking the disk.
Busiest fire law departments
While 2012 may be best remembered for the sheer volume of headline-grabbing cases, several fire departments seemed to have more than their share. Among the contenders:
• FDNY – In an epic race-discrimination lawsuit, the judge ordered the City of New York to pay up to $128 million in damages and the mayor sought to have the judge removed, claiming he has lost objectivity; a suit filed by a retired firefighter turned lawyer whose confidential medical records were leaked and used against him when he ran for City Council; and the tabloid-worthy trial of a calendar model firefighter accused of choking his transsexual girlfriend, who herself had been a contender for America’s Next Top Model.
• Los Angeles Fire Department – Allegations of faulty response-time data coupled with HIPAA (Health Insurance Portability and Accountability Act) concerns prompted the department to shut down its Twitter feed. The shutdown prompted allegations of a cover-up and lack of transparency, which then prompted an order by the mayor to restore the Twitter feed. All of this was capped off in December, when a provocative hula-hoop video filmed inside a fire station surfaced on YouTube.
• Philadelphia Fire Department – It has become all-out war between the Local 22 and the city administration with lawsuits suits, appeals and grievances too numerous to mention being filed.
The clear winner in the battle for the fire department with the most fire law headlines in 2012 goes to the District of Columbia Fire and EMS (DCFEMS). The cases began in January at the fire chief’s state-of-the-department speech ,when more than 100 firefighters walked out en masse, angry over the chief’s proposal to move from 24-hour to 12-hour shifts. That prompted a Tweet by the department public information officer on his personal Twitter account referring to the walkout as racist. He was disciplined and while he took his penalty in stride, the case points out the tension between a public employee’s First Amendment right to voice an opinion and the department’s ability to regulate work-related speech.
Another First Amendment issue at DCFEMS arose with the demotion of a fire lieutenant who gave a TV interview in which he was highly critical of the fire chief. Although the interview took place while the lieutenant was on duty, in uniform and in his station, he was disciplined because during the interview a person in need of medical attention pulled up outside and the lieutenant did not ask the news crew to turn off their camera.
In May, an interesting due-process case arose when the fire chief allegedly disciplined two battalion chiefs who served as hearing officers in separate discipline cases stemming from a “beer in the station” incident. In each case, they refused to impose the penalty sought by the chief. One battalion chief was demoted to captain and the other was reassigned from a line position to supply. The American Civil Liberties Union (ACLU) publicly criticized the chief for the moves and questioned whether thereafter DCFEMS personnel could get a fair disciplinary hearing.
Also in May, an investigation was started into fires set in three dumpsters and an abandoned vehicle at the DCFEMS training academy. The fires damaged what appeared to be personnel records of members of the police and fire departments.
Then there was the so-called “Poolgate” incident – despite a historic weather emergency on June 29, 2012, an in-service engine company was sent on a non-emergency pool-filling assignment by someone at headquarters. An investigation resulted in assurances that such activities would not occur again, followed just days later by a second incident dubbed “Poolgate II.”
In October, an arbitrator concluded that DCFEMS and the chief wrongfully transferred the president of the union local last year in retaliation for union activities.
DCFEMS also saw three employment rulings handed down in 2012 that went in favor of the department and a former chief. The cases – Cusick v. District of Columbia, Coleman v. District of Columbia and Bowyer v. District of Columbia – arose out of disciplinary actions in which employees alleged the department was guilty of race, gender or whistleblower discrimination.
The most significant case
If there were one case in 2012 that I must point to as being the most significant to firefighters everywhere, it would be the case of Miami-Dade, FL, Fire Rescue Captain Brian Beckmann, whose Facebook remarks in April set off a firestorm of controversy.
In the aftermath of the shooting of a black youth, Trevon Martin, in Sanford, Beckmann posted a Facebook comment that was perceived by many as evidencing racism or at least racial insensitivity. Amid a public outcry for his termination, Beckmann was demoted. He is presently appealing that decision.
Beckmann posted the comments while off duty on his personal Facebook page, engaging in a social commentary on the role that parenting might have played in the shooting. Unlike some of the other First Amendment cases mentioned above, Beckmann’s remarks had no direct relationship to his employment, as the shooting occurred hundreds of miles away in a different community. Yet the remarks offended citizens in Metro Dade and coworkers alike.
The challenge in the Beckmann case is one that should concern all firefighters – black, white, Hispanic, Asian, male, female, Gentile, Jewish or Muslim: When do we have the right to speak our minds – and when does a fire department as an employer have the right to say that we have stepped over the line? The emergence of social media as the communication platform of choice for many firefighters makes the answer to this question all the more urgent.
Beckmann’s case may well have to reach the U.S. Supreme Court before a definitive answer is known. Firefighters and chiefs would all be well served if the law governing the First Amendment rights of public employees was clarified.
The U.S. Supreme Court has said: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Then again, that was back in the days before the Internet or Facebook!
Of all the cases from 2012, Beckmann’s is the one to watch in 2013. n