San Diego Firefighter Loses Appeal of Discipline for Off-Duty Drinking

Today’s burning question: Can my fire department tell me I can’t drink while off-duty? I mean… who do they think they are suspending me for drinking when I’m on my own time? It’s not fair. Oh, by the way I was attending a fire department training program at the union hall at the time.

Answer: Let me quote San Diego County Superior Court Judge Joan M. Lewis: “even absent a specific rule, it strikes the court as difficult to understand how becoming intoxicated and disruptive during a department-offered class would not be subject to discipline.”

The case giving rise to the above quote involved San Diego firefighter Kyle Kutzke, who was suspended for 72-hours for being intoxicated and disruptive during a November 2012 class held at the union hall. The class, “Fire Prevention 1B,” was paid for by the fire department and necessary for the certain promotions within the department. Kutzke was off-duty and attending the class on his own time.

Kutzke appealed his 72-hour suspension to the San Diego Civil Service Commission arguing that because he was off duty, he should not be disciplined for drinking. The Commission upheld the suspension but reduced the discipline to 60 hours.

That prompted Kutzke to appeal to Superior Court, where he added damage claims for lost wages, lost overtime shifts totaling $9,000 and even the loss of three promotions totaling $20,000. Judge Lewis rejected Kutzke’s arguments.

More on the story.

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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