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Nebraska Suit Seeks to Force Appointment of a Fire Chief

Today’s Burning Question: My fire department is currently without a fire chief. The city had an interim chief but civil service rules limit interims to four month terms and that time has expired. Can I sue the city to force them to appoint a fire chief?

Answer: You can in Nebraska! Scott Kuehl, a fire captain with the Grand Island Fire Department, and president of IAFF Local 647, filed suit on February 15, 2012 to force the city of Grand Island to appoint a fire chief. The suit is based on a Nebraska statute which reads as follows:

16-222.02. Employment of full-time fire chief; appointment; duties.

Not later than January 5, 2009, each city of the first class with a population in excess of thirty-seven thousand five hundred inhabitants shall employ a full-time fire chief with appropriate training, credentials, and experience and for whom firefighting or emergency medical first response is a full-time career. The fire chief shall be appointed by the mayor with the approval of the city council or by the city manager in cities that have adopted the city manager plan of government. The fire chief shall have the immediate superintendence of the fire prevention, fire suppression, and emergency medical first response services and the facilities and equipment related to such services of the city. The fire chief shall promulgate, implement, and enforce rules governing the actions and conduct of volunteer members of the department so as to be in conformity with the personnel policies of the city.

The action was filed in Hall County District Court and seeks a writ of mandamus ordering the city to appoint a fire chief “with all deliberate speed.” The city is claiming it is awaiting an ICMA public safety study.

More on the story.

Comments - Add Yours

  • John

    I could save them a bunch of money on the ICMA study. Cross-train the cops as firefighters (PSO), replace half the fire apparatus with pickup truck type grass rigs with 100 gallons of water and a FIT 5 can, and demand “mutual aid” on a regular basis. Can I have my $60K now?

  • http://firelawblog.com Curt Varone

    Now John.. you know you are supposed to at least show up in town for a few hours, have a coffee, pretend to talk to some of the firefighters before you render an opinion that cuts can be made…

  • George

    I think the whole state statue (16-222.01-16-222.03)needs to be looked at. The state statue was developed in 2008 due to a first class city having a 100% volunteer fire department and not having a full-time PAID chief. Instead of the city doing their job, they got the legislature involved and got this law passed. If you look at the whole law, it specifically states volunteer firefighters. Curt, I would like to hear your opinion on this. Please look at the whole statue.

    • http://firelawblog.com Curt Varone

      George

      I just took another look at it and while it clearly appears that the legislature was contemplating a career chief for a volunteer fire department when they drafted 16-222, the statutes do not limit the career fire chief requirement to cities with volunteer fire departments. It would therefore be a logical reading of 16-222.02 that it applies to all cities of 37,500 and over.

      Having said that – I do not see anything in the statute that gives an ordinary citizen the standing to enforce compliance with the statute through a civil suit. One could argue that it imposes a duty that could lead to liability if someone is killed or injured and the lack of a fire chief is somehow a contributing factor (proximate cause/forseeable)… One might also argue that the state attorney general would be the one with standing to force the city to appoint a fire chief – but that is a long way from letting a citizen take a municipality to court to force it to comply with a state statute… I suppose the writ of mandamus may cover that – but not every statute creates an obligation that is enforcible through a court order.

      I’ll give you an example. CT has a law that requires employers to give employees written notice if they are going to be electronically monitored. Brideport FD put GPS tracking devices on a couple of fire prevention cars without telling the employees, and then disciplined the inspectors. The inspectors claimed their privacy rights were violated and the discipline should be overturned. The CT Supreme Court ruled that the statute put an obligation on the Bridgeport FD to notify employees – but the statute did not give the employees the right to sue under the statute or use the statute to exclude evidence at their disciplinary hearing. All the statute did was give the Department of Labor the right to fine the city $750 per violation.

      To make a long winded point – its clear there is a law that requires the city to have a fire chief (16-222.02). What is not clear is whether a citizen, or even a firefighter/union president, has the legal standing to force the city to comply with it.

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