Volunteer Firefighter’s Right To Due Process

Today’s Burning Question: If a volunteer firefighter is dismissed from a department without the governing board following it’s rules on dismissal which includes formal charges and a hearing, can the volunteer file a 1983 claim against the board? Is this a due process violation?

Answer: It depends… Don’t you love it when your lawyer gives you “it depends” as an answer…. but it really does depend on a number of important variables.

First of all, let’s clarify what 1983 is all about. 42 United States Code §1983 is a law enacted by Congress back in 1871 that gives people the right to sue someone who acts “under color of law” and violates their constitutional rights. Here is 42 USC §1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

An important limitation on §1983 actions is that it can only be used to sue governmental actors… those who operate “under color of law”… namely governmental employees!!!!

Thus, in order for a volunteer firefighter to sue his/her fire chief for a due process violation, the fire department must be a governmental entity, or at least be deemed to be so closely associated with a governmental entity that the fire company is deemed to be acting “under color of law”. I will spare you the details but there are a number of tests that courts use to determine whether a fire company is a “state actor” and those tests vary from jurisdiction to jurisdiction.

The second limitation involves whether a volunteer who is terminated is actually “deprived” of anything for due process purposes. The 14^th Amendment’s due process clause states: “No state shall … deprive any person of life, liberty, or property, without due process of law…”

Thus, in order for there to be a violation of someone’s due process rights, the denial must be of his/her (1) life, (2) liberty, or (3) property. An important question is, does depriving someone of a right to volunteer for a fire department – deny the person of “life, liberty, or property”?

The answer to that question can only be answered by looking at the specific circumstances of that particular department and that particular member. Does he/she receive a stipend or call pay? Does he/she qualify for LOSAP? Are there other benefits that might arguably constitute “property” of which he/she is being deprived?

As if the above were not enough to overly complicate a seemingly simple question, in a state like New York, other factors also come into consideration. New York has a law that gives certain volunteer firefighters a right to notice and a due process hearing before being terminated. Here is the law”

NY Code – Section 209-L

1. The authorities having control of fire departments of cities, towns, villages and fire districts may make regulations governing the removal of volunteer officers and volunteer members of such departments and the companies thereof.
2. Such officers and members of such departments and companies shall not be removed from office, or membership, as the case may be, by such authorities or by any other officer or body, except for incompetence or misconduct.
3. Removals on the ground of incompetence or misconduct, except for absenteeism at fires or meetings, shall be made only after a hearing upon due notice and upon stated charges and with the right to such officer or member to a review pursuant to article seventy-eight of the civil practice law and rules. Such charges shall be in writing and may be made by any such authority. The burden of proving incompetency or misconduct shall be upon the person alleging the same.
4. a. Hearings upon such charges shall be held by the officer or body having the power to remove the person charged with incompetency or misconduct or by a deputy or employee of such officer, or body designated in writing for that purpose. In a case where a deputy or other employee is so designated, he or she shall, for the purpose of such hearing, be vested with all the powers of such officer or body, and shall make a record of such hearing, which shall be referred to such officer or body for review within ninety days from the close of such hearing along with his or her recommendations. b. The notice of such hearing shall specify the time and place of such hearing and state the body or person before whom the hearing will be held. c. Such notice and a copy of such charges shall be served personally upon the accused officer or member at least ten days but not more than thirty days before the date of the hearing. d. A stenographer may be employed for the purpose of taking testimony at the hearing.
5. The officer or body having the power to remove the person charged with incompetence or misconduct may suspend such person after charges are filed and pending disposition of the charges, and after the hearing may remove such person or may suspend him or her for a period of time not to exceed one year. The provisions of this section shall not affect the right of members of any fire company to remove a volunteer officer or voluntary member of such company for failure to comply with the constitution and by-laws of such company.

So what is the impact of a state statute like Section 209-L on a volunteer firefighter’s 14^th Amendment right to due process? Does it create a right recognizable under the 14^th Amendment where one might not otherwise exist?

To better understand the impact of Section 209-L on volunteers in New York, I reached out to my good friend, Chief Brad Pinsky, Esq. Here is his summation:

Two governing boards usually exist in a fire department. The municipal government and the fire corporation’s governing board. The fire corporation is mandated to follow the process in its bylaws and is not governed by statute. Therefore there generally is not a right to a 1983 action against a corporate entity with regard to its bylaws.

Municipal entities such as fire districts and villages are governed by General Municipal Law 209L and are subject to 1983 actions for certain dismissals of a volunteer firefighter. There have been successful 1983 challenges against a municipal fire department but the damages are usually low.

Apart from §1983 actions, a volunteer may also have other grounds upon which to challenge his dismissal, including state law due process grounds and basic corporate principles of ultra vires actions. Ultra vires essentially means “beyond the powers”… in other words the firefighter could allege that the fire company’s officers exceeded the authority granted to them by the fire company charter and bylaws in imposing discipline.