Book excerpt: ‘Firefighters in the Hot Seat’
Attorney Lance J. LoRusso helps firefighters navigate OPS and discipline cases
Whether you’re just starting out as a firefighter or have been holding the front line for years, at some point in your career, you’re bound to find yourself in the hot seat. Office of Professional Standards and discipline cases are complex, challenging procedures in which your livelihood may hang in the balance.
In Chapter 2, “Knowing Your Rights and Understanding the Process,” of “Firefighters in the Hot Seat,” LoRusso discusses the various rights a firefighter has during the OPS investigation. He gives guidance on how to find, identity and understand all of your rights, and the importance of each in the investigation and appeal process. Each chapter includes “HOT TIPS” to highlight important information as well as “Front-Line Stories” to illustrate the concepts in action.
By Lance J. LoRusso
“Before I knew it, I went from working a shift to administrative leave.”
“In a week, I was interviewed, investigated, and recommended for discipline.”
“I had no idea they could do that or what my rights were. I was scrambling to find an attorney and read the policies that now affected my career.”
— Quotes from several firefighter clients
The most frightening question I receive from clients facing an administrative investigation is, “Do I have any rights?” I truly hate to hear these words. They tell me first that the firefighter feels helpless. Second, the words convey that the firefighter is not aware of the policies and procedures in their own department that ensure they will be treated fairly. This question usually arises from a lack of education, which ultimately falls back on the department. It usually also indicates a level of distrust of management. Both indicate a sad state of affairs. If you are a supervisor, work hard to eliminate both situations. If you are in senior management, commit to eliminate this type of uncertainty. It only serves to put a cloud of suspicion on what may be a legitimate disciplinary process.
Back to the original question: “Do I have any rights?” Not to “lawyer up” on you, but it depends. The good news is, it is relatively easy to answer that question before you are ordered to report to OPS! Appendix A contains a Sample Notice of Investigation. The stress you will experience upon receiving a letter like this will consume you. That is the wrong time to start searching policy manuals, ordinances, and other materials to learn about your rights and the appeal process.
The reality is that some of you reading this book will have more rights than others. The levels of appeal and rights afforded to you, and in fact whether you have these at all, depends in large part on the area in which you work, because state laws vary greatly regarding employee rights. All of you work for a government, and whether it is a state, county, or city entity who provides your paycheck, that government passes laws and policies that control its relationship with employees.
There are instances in which a contract is formed between the firefighter and her employer, called a collective bargaining agreement. This contract sets out the obligations and rights of the parties, and the terms are generally enforceable in court. In other instances, some firefighters will sign individual contracts with their employers, although these are relatively rare. Finally, as a citizen or a person subject to the jurisdiction of the United States, you have rights under both the United States Constitution and your state constitution.
This may sound complicated, and it can be. All the more reason to learn the ropes before you step into the ring and to be prepared to use the services of an attorney familiar with these areas if you find yourself in the arena. Because you are generally permitted to handle these matters with an attorney, you should carefully consider that strategy. If you decide to hire an attorney, look for an attorney or firm that actually litigates cases in court. Every hearing, no matter how informal, is serious. Our firm is made up of litigators. If you are searching for a firm in your state or region, review their website to examine their experience with litigation and handling OPS matters.
So again, back to the original question: “Do I have any rights?” Let’s look at the five typical sources of rights and protection firefighters can look to when they face discipline:
- Rights Arising from Policies and Ordinances
- State Law
- City Charters
- Collective Bargaining Agreements
- Employment Contracts
- Due Process Clauses of Federal and State Constitutions
Rights Arising from Policies and Ordinances
Irrespective of any state or federal law, a department or government entity can give you rights through a policy, ordinance, and/or other documents that control how the government entity runs. Therefore, your search for rights should begin with the policy manual for your department and the government entity that employs you.
These are two separate documents. Every government entity has a set of policies, and while those policies are usually the same as those in your department, sometimes they can be far broader and more detailed. In fact, your department policy manual will likely refer you to the main government policy manual. We have represented clients who found rights in their government manual that were not set out clearly or at all in their department policies.
Ordinances often describe how the government entity functions. They may cover everything from zoning to personnel. It is important to remember that a city or county performs legislative actions just like a state or the federal government. For this reason, those ordinances are said to “have the force of law” and may control or take precedence if the policies of the government entity are silent or ambiguous. You can find these ordinances in a few places. Many government entities publish their ordinances online at www.municode.com. You can also go to the website for your county or city clerk. Finally, you can always ask for a copy at the clerk’s office. Be sure to ask for only the personnel or other specific ordinances. The complete code of ordinances may be a foot thick or take up more than two volumes.
Once you locate those policies and ordinances, make certain you keep a copy handy. If you are a union representative or a supervisor, you owe a duty to your troops to have a copy available. In my experience, administrative investigations arise very quickly with little notice. Do not wait until you are under the stress of a pending investigation to search for these policies. Have a copy available to you.
Obtain copies of both your department policy manual and the government policy manual,
and read them NOW before you are in the hot seat!
Publisher: BookLogix (June 16, 2020)
About the Author
With over 30 years of public safety experience as an EMT, cop and trainer, Lance J. LoRusso is an attorney focused on public safety issues including critical incident response, OPS/IA investigations, employment appeals, and state licensing inquiries. LoRusso represents first responders injured on and off duty and is a sought-after instructor at public safety training seminars across the country. He has written critically acclaimed non-fiction books to educate on police and fire issues, and has several fiction books inspired by his time as a first responder and as their attorney.