New Haven…. AGAIN!!!!!

I know a lawyer should never complain about too many law suits, but at some point you have to ask when is enough going to be enough.

Another group of New Haven firefighters have filed suit over the 2003 promotional examination.  Eleven firefighters filed suit on July 2, 2010 challenging the promotional list created by the 2003 exams. Those are the same examinations for captain and lieutenant that  gave rise to the US Supreme Court decision in Ricci v. DeStefano. By my count that makes 5 suits (some may count differently) over the 2003 promotions including:

·     Ricci, et al

·     Tinney, et al

·     Briscoe

·     Broadnax, et al (arguably a separate issue but it ties back into discrimination)

·     Luschenat, et al

Not to mention suits by Ismael Hernandez and John Brantley alleging discrimination against NHFD during the same time period.

A story today by William Kaempffer in the New Haven Register does an exceptional job of explaining the Luschenat allegations, so I won’t repeat it all here.  My question is – is there really that much discrimination going on in New Haven, or is it just a litigation “free for all” where folks in the various racial and ethnic factions are trying to gain an advantage any way they can? And perhaps the bigger question is: how would we even know? I have had plenty of clients who feel they have been wronged – who have convinced themselves (sometimes against the weight of the evidence) that they are the victim in a great conspiracy. Who is to say who has a valid case or not until the justice system plays itself out? Certainly not me.

If we can leave the micro issue of who is right and who is wrong in each of the seven or so cases in New Haven for a moment – there is a macro issue that needs to be considered: how does a fire department mired in litigation – move forward. The piecemeal litigation focuses too much attention on the micro issues of each case at the expense of the macro issues.

New Haven is not alone in this regard. Dozens of other cities are under assault by various single issue plaintiff employees who see the world through their own “I’m the victim” kaleidoscope. How can a fire department confronted with multiple – and often conflicting – challenges possibly hope to move forward?

When a police department is accused of engaging in a “pattern or practice” of violating the law or the US Constitution, the US Department of Justice can step in and force the necessary reforms. Through authority granted by Congress shortly after the 1991 Rodney King case, the DOJ can essentially file suit against the department and force the changes necessary. The local Federal District Court reviews all major decisions and resolves disputes that cannot otherwise be worked out. In the process the DOJ can sort out fact from fiction (ie. address those pesky little micro-issues) while addressing the more important macro issues. The law is 42 USC § 14141, and its authority is limited to law enforcement organizations.

Might something like that work for fire departments that are paralyzed by multiple racial, ethnic and gender based lawsuits? I recall a salty-old captain who once remarked “Kid, we either keep our own house in order, or somebody’s gonna come in here and do it for us”. He was not referring to daily housework!

Any thoughts?

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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