DC Judge Restores Rank to Battalion Chief that Ellerbe Demoted

An administrative law judge for the District of Columbia has overturned the demotion of Battalion Chief Richard Sterne, who was punished by Fire Chief Kenneth Ellerbe for not finding two officers guilty of charges at a disciplinary hearing.

The case arose back in 2012, when a grateful citizen dropped off two cases of beer at a fire station after firefighters had assisted him. Chief Ellerbe brought disciplinary charges against three officers at the station for (1) improperly accepting a gift and (2) allowing alcohol in the station. The Chief proposed a 12 hour suspension for each officer, and the officers requested a hearing known as a Battalion Fire Chief Conference. Chief Sterne was assigned to serve as the hearing officer for two of them.

After hearing the case, Chief Sterne determined the officers were not guilty of accepting a gift because the officers refused to accept the beer at which point “the citizen said something to the effect of [‘]well I’m not taking it home,[‘] placed the beer on the apparatus lane floor and left quarters.” Chief Sterne found they were guilty of allowing alcohol in the station, but that the circumstances warranted corrective not punitive action. Chief Sterne’s penalty recommendation was an official reprimand.

As we covered at the time, Chief Ellerbe was quite upset with Chief Sterne’s ruling, charged him with neglect of duty, and ordered him demoted to captain. Another Battalion Chief, Kevin Sloan, later heard the other case and after finding the officer not guilty, was transferred out of a line position to supply.

Chief Sterne challenged his demotion, and after three long years a ruling was finally issued last week by the District of Columbia Office of Employee Appeals. The decision is 26 pages and rather painful to read. While IMHO Chief Ellerbe’s decision was a very clear due process violation (interfering with the neutrality of a hearing officer; punishing a neutral decision maker for a ruling a superior officer disagrees with), the ruling went in a different direction. In Senior Judge Eric T. Robinson’s own words:

  • It is apparent to the undersigned that [Chief Sterne]’s demotion stemmed from Chief Ellerbe’s disagreement with how [Chief Sterne] undertook the [Battalion Fire Chief] BFC conference and the resulting punishment that was meted out to [the two officers].
  • Through Chief Ellerbe’s testimony, it is apparent to the undersigned that Chief Ellerbe faults [Chief Sterne]’s election to find [the two officers] not guilty of accepting beer.
  • Moreover, Chief Ellerbe in deciding to demote [Chief Sterne] herein noted that [Chief Sterne] did not make direct reference to the Douglas factors in opting to use corrective versus adverse action as part of the BFC Conference in question.
  • I find that Fire Chief Ellerbe never clearly articulated why he believed [Chief Sterne]’s actions with respect to how he carried out the BFC conference were sufficient to sustain a charge of neglect of duty.
  • It appears as though Chief Ellerbe simply disagreed with [Chief Sterne]’s conduct relative to how the BFC conference was undertaken and the punishment that was ultimately recommended by [Chief Sterne] for [the two officers].

DCFEMS has 30 days to restore Chief Sterne to his original position and rank, and compensate him for any backpay he lost.

Here is a copy of the ruling: BC Sterne Ruling

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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