By Gary Klien
The Marin Independent Journal
NOVATO, Calif. — A former Novato firefighter who was terminated after failing a drug test is fighting back in Marin Superior Court, claiming the fire department violated his labor rights.
Kirk Lewis, 36, filed for a court injunction to be reinstated while the litigation is pending, but Judge Roy Chernus denied the request last week.
However, the judge, in a 10-page ruling, wrote that Lewis has shown “a reasonable probability of prevailing on a claim” that the Novato fire district violated the Firefighters Procedural Bill of Rights.
If so, it might not be enough save Lewis’ job, but it could force a financial settlement by a district that has been plagued by internal turmoil and litigation in recent years. Among other conflicts, the district faced a defamation suit by a former fire chief and paid a $250,000 settlement to a battalion chief who claimed verbal abuse and retaliation by top brass.
In Lewis’ case, the lawsuit stems from an incident on Aug. 12, 2015, at fire station No. 62 on Atherton Avenue. Lewis was in his dorm room.
A supervisor identified as Capt. Kyle Dague smelled marijuana outside the dorm room window and asked Lewis if he was smoking it. That set off a chain of events where Lewis was ordered into the captain’s office for questioning.
Lewis denied smoking marijuana that day but acknowledged using marijuana two days earlier. He was ordered to take a drug test, which detected marijuana.
Legal advisories
At issue in the lawsuit is whether the process comported with Lewis’ labor rights under the Firefighters Procedural Bill of Rights. He claims the managers never formally told him he was under investigation, did not advise him of his right to have a union representative present, and did not advise him of his rights against self-incrimination.
Several months later, after further personnel procedures, the fire department terminated Lewis. It cited the marijuana use, his alleged “deceptive” and “misleading” behavior during the investigation, and his apparent use of sick leave for vacation purposes, according to court documents.
In his ruling on whether Lewis should be reinstated while the litigation proceeds, Judge Chernus said that the evidence “strongly points” to a violation of Firefighters Procedural Bill of Rights. But he also said “it is far less clear” whether the fire district would have imposed a lesser penalty had if a union representative had been present during the questioning.
Chernus also said some of Lewis’ statements during the investigation might need to be redacted in documents before the Marin County Personnel Commission if the dispute ends up there.
Fire Chief Mark Heine declined to comment on Chernus ruling because it involves active litigation. In court filings, the fire district denies its questioning of Lewis constituted an unlawful interrogation.
‘Embarrassed’
Lewis, in a statement released by his lawyer, said:
“I am deeply thankful for Judge Chernus’ ruling. He recognizes that the District violated my rights.
“I love being a firefighter/paramedic and I love the Novato Fire District. I used a small amount of marijuana on a camping trip. I returned to work and failed a drug test. I did not and would never smoke marijuana on duty. I know that as a firefighter I am held to a higher standard and I am incredibly embarrassed by this and the problems it has caused for the District. I am the sole provider for two young daughters and I’m essentially raising them on my own. I do not think the penalty fits the crime. ”
His lawyer, Gregg Adam, said: “It’s investigations 101 that Mr. Lewis was entitled to representation. The District was warned that it had violated the law but it carried on regardless. The judge’s ruling was spot-on. “We still hope this can be resolved in a conciliatory way. Mr. Lewis is an excellent firefighter. Most Marinites would be skeptical of firing him for a single violation like this. We’re all human; we make mistakes. We’ll just keep fighting for him to be given a second chance.”
Lewis, a 12-year veteran of the department, lives in Santa Rosa. His father Gordon, a retired businessman, ran for a seat on the board in the November election — while the district was weighing the fate of his son’s career — and also applied for appointment to a vacant seat. He won neither.
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