Discipline, Deception and Hard Cases

Today’s burning question: I was disciplined last week because I called in sick to go to my daughter’s hockey game. Her team was in the championship and I could not get anyone to cover my shift. It was stupid but what’s done is done. However, I am being demoted from captain to engineer and I think that is unfair. We had a captain who got caught lying on-duty and he got virtually no punishment. Why am I being demoted and he get’s a slap on the wrist?

Answer: My father has a saying: hard cases make bad law. What that means is that when courts are confronted with hard cases where the equities compel an outcome that conflicts with what the law requires, courts can end up setting a bad precedent with the best of intentions. The example he would use would be the proverbial little old widow being evicted on Christmas Eve by the greedy Mr. Scrooge. A court that finds a loophole to protect the widow can unwittingly create a precedent which others may choose to use, if not exploit.

How does that relate to you? The hard cases make bad law concept can apply to discipline as well. Without knowing the details of what the lying captain did in your department, let’s consider a case from today’s headlines: The Oklahoma City fire officer who transported a toddler on his engine out of concern for a delayed response by the third-service ambulance provider, while telling dispatch the family would transport the victim on their own to cover his actions.

While much of the discussion in social media about the case has focused upon the rightness or wrongness of transporting the toddler on an engine, there has been surprisingly little discussion about the deception to cover it up. Admittedly, if one excuses the protocol violation as justified due to the urgencies of the child’s condition, those same urgencies would appear to justify the deception to cover it up.

The problem is: hard cases make bad law. If no penalty attaches to the deception, what does the fire department do the next time an officer, or even a firefighter, deceives his/her superiors? What does this officer do if a firefighter deliberately deceives him/her? Does the officer look the other way? Does he/she risk being a hypocrite for reporting/disciplining a firefighter for doing little more than what the officer did and was not punished for? The hard cases make bad law phenomenon can become the gift that just keeps on giving. It has consequences into the future for everyone involved. That is why some level of discipline is inevitable in such circumstances.

Compounding your situation further is the reality that most fire departments treat disciplinary matters as confidential between the department and the employee involved. As a consequence, there very well may have been punishment that was imposed upon that captain who lied that you are not aware of. While demotions and transfers might be hard to conceal, consequences such as loss of future promotional rights, loss of vacation benefits, loss of seniority incentives, loss of bid rights, mandatory counseling, and the entry into a last chance agreement, may not be publicly known. Also, any extenuating circumstances may not be fully known.

Having said all this, a fire department cannot treat similarly situated employees who engage in the same conduct differently. Doing so can be a violation of due process (substantive due process to be exact) and it can also violate one of the seven basic tenants of just cause. The factual questions will be: (1) are you and the captain you are referring to truly similarly situated, and (2) was your punishment truly harsher? The answers to those questions may ultimately be left to the courts to decide unless the parties can reach an agreement short of litigation, and perhaps a trial.

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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