LA Settlements total $8 million

The City of Los Angeles recently settled discrimination cases with two firefighters, totaling $8 million.

Long Awaited New Haven Decision Issued by USSC

The long awaited decision in the New Haven promotion discrimination case was issued yesterday, June 29, 2009, and ruled that the fire department was not justified in throwing out the results of an otherwise valid examination process simply because the results did not provide the racial make-up hoped for. No doubt there will be a number of opinions on this decision. Here is one from the NY Times.

Liability for Ignoring ICS????

My friend and colleague, Brad Pinsky, wrote this article about a NY law suit that raises the question of whether the failure to utilize ICS, and in particular comply with NIMS, could be the basis for liability against the fire chief and fir department. Certainly a good read and food for thought.

US Supreme Court to Hear Fire Service Reverse Discimination Case

Soon after I began studying law, it became apparent to me that there was a special connection between law and the fire service. The connection was (and is) evident on so many levels and in so many ways. Once again that connection is re-emphasized in the reverse discrimination law suit from New Haven, Connecticut, that is now pending before the US Supreme Court. Once again, it appears that a fire service based case will be setting new precident. Here is an interesting news article on the case.

http://www.latimes.com/news/nationworld/nation/wire/sns-ap-scotus-firefighters-lawsuit,1,6226259.story?page=1

BETHESDA FIRE DEPARTMENT PAYS OVER $250,000

Former Chief And Board President Held To Have Imposed UnconstitutionalRestrictions On Former Deputy Chief’s Speech After His Critical CommentsAbout Chem/Bio Preparedness

BETHESDA, MARYLAND –Former Bethesda Fire Department Deputy Chief Lewis German, who had beenterminated from his position in February 2002, announced today he hadsettled his First Amendment termination lawsuit against the Bethesda FireDepartment, former Chief Dennis Urban and former Board President (andcurrent board member) Virginia Miller for $259,000.00. The case was pendingbefore the U.S. District Court for the District of Maryland and wasscheduled to go to trial on June 16, 2009. German was terminated followinghis public whistleblowing comments in the aftermath of 9/11 that MontgomeryCounty was ill-prepared to counter a chem/bio attack.

The parties issued a joint statement that “[i]t is regrettable that thissituation occurred. Mr. German has been a valued member of the MontgomeryCounty Fire and Rescue Service for more than 35 years and is to be commendedfor his dedication to the fire service.” “This sizable settlement sends themessage that fire departments can not legally silence volunteers who darepublicly speak out about legitimate safety concerns,” stated German, whosesalary for his service as Deputy Chief was $0 annually.

In or around 1999, Montgomery County purchased approximately $500,000 worthof protective suits which were never distributed to the various fire/rescuestations. None of the protective suits were appropriately or continually“fit tested” to ensure maintenance, nor did Fire/Rescue personnel receivethe necessary training to utilize the suits. This, according to German andseveral other volunteer fire officers, had rendered the suits unavailablefor service and was a waste of government funds. The public criticismprompted an October 9, 2001, press conference by then County ExecutiveDouglas Duncan, who was initially a defendant in the lawsuit and testifiedby deposition, to counter the media reports generated by German and his fireservice colleagues.

On January 22, 2002, Chief Urban, with the formal backing of PresidentMiller, notified German that he could not remain in the Department unless hesubmitted a letter of apology to Duncan, served a six month suspension fromBFD activities and agreed to “never again contact the media in any way(individually, anonymously, third party, etc.) while a member of the BFD.”Urban noted that there is “no negotiation or compromise on theseconditions”. After German refused to accept the conditions and specificallypointed out that Chief Urban and President Miller were violating his FirstAmendment rights, he was terminated on February 20, 2002.

The Honorable Peter J. Messitte, the presiding Judge in the case, afterevaluating the media restriction, wrote “The Court has no difficultyconcluding, however, that the condition that the [plaintiff] would have toforego every kind of speech as long as he was a member of the department isfacially unconstitutional. There's no question about that in the Court’smind, that it would represent a prior restraint that would be inappropriate,and I think the defendants would have to concede that.” Additional defenseclaims that German’s comments had jeopardized the Fire Department’s fundingwere characterized by Judge Messitte as “almost ridiculous in and of itself”and “speculative.”

“This case is a significant First Amendment victory for firefighters, themedia and the Montgomery County community, especially in light of theimportance of the issues that Lewis German risked his career to ensure werepublicly debated,” said Mark S. Zaid, the Washington, D.C. nationalsecurity/constitutional attorney who represented German. Chief Urban andPresident Miller bear predominant responsibility for the unlawful andreprehensible actions that ruined the career of a dedicated volunteerservant, and it cost the Fire Department more than a quarter million dollarsas a result. That says it all, added Zaid.

The case was German v. Bethesda Fire Department et al., Civil Action No.PJM05-494 (D.Md), and was filed on February 18, 2005. Prior to joining theBethesda Fire Department, German served as a volunteer member of theBethesda Chevy Chase Rescue Squad from 1966-2001, and its’ Chief fromJanuary 1999 - January 2001. He was appointed Deputy Fire Chief for BethesdaFire Department in February 2001. Following his unlawful termination Germanno longer participated in the fire rescue service and moved out-of-state.Chief Urban left the Bethesda Fire Department not long after and relocatedto Tennessee. Ms. Miller is no longer President but continues to serve on the Bethesda Fire Department board.

Can City get out of CBA through Bankruptcy?

Can a City file bankruptcy to get out of collective bargaining agreements that exist with municipal employees? That is what one California city is trying to do. Municipal bankruptcy is an interesting tactic that has never been completely successful to date - but in light of the recent financial crisis may be looked to by public officials. More on the California case here.

Firefighter case Headed to US Supreme Court

I have always been amazed by the connection between fire and law - and that connection continues to be proven time and time again. A reverse discrimination case involving the New Haven Fire Department is now before the US Supreme Court and may establish groundbreaking precident when it is decided. Here is a story about the case, and the arguments that each side is presenting.