Premature Fire Law Headlines – Where’s the Beef

There are two stories in the fire law news today that – beyond grabbing headlines – give me pause to discuss because there does not seem to be enough detail to go much beyond media reports. Both cases are bound to generate more headlines going forward, so let’s discuss them now.

In DC, beleaguered Fire Chief Kenneth Ellerbe has won a major victory in his efforts to move firefighters from 24 hour shifts (four shifts – averaging 42 hours per week) to 12 hour shifts using a modified three shift schedule. The decision was rendered last Thursday. That much is clear.

What is not clear is whether the decision was rendered by an arbitration panel or the D.C. Public Employee Relations Board – who by the way IS NOT AN ARBITRATION PANEL… despite what the Washington Post and several other news outlets have reported. Also unclear is whether the proceeding was an interest arbitration, grievance arbitration, or unfair labor practice charge. Details… details…

Another thing that is unclear is how many hours DC firefighters would be required to work per week under the new plan, and what the impact of the change will be compensation wise. A three-shift schedule works out to 56 hours per week. The proposed the 3 day, 3 night and 3 day off schedule that has been widely reported is also a 56 hour a week schedule. Would firefighters receive overtime for the extra 14 hours per week? Would 11 of the hours be straight time and 3 hours be overtime as per the FLSA? Would firefighters receive additional days off periodically to offset the increase? Again, the news reports are vague at best. Details… details…

Chief Ellerbe is being quoted as saying “I think this is long overdue. It’s a win for the city.” He is predicting a $38 million savings for the taxpayers. It is unclear if that $38 million in predicted savings comes with an expectation that firefighters will work an additional 14 hours per week for free. IAFF Local 36 President Ed Smith is vowing an appeal, citing concerns over fatigue, disruption of morale, and decreased size of the workforce.

Here is more on the DC case. We are hoping for a written decision soon so we can better understand exactly what was and was not decided.

The other case in the news involves a disabled Providence firefighter who was the subject of a hidden-camera TV news expose that showed him working out in a gym while he and his doctors claimed he was totally and permanently disabled due to a shoulder injury. Last December, John Sauro’s tax-free disability pension was suspended when he either failed or refused to submit to a pension board-ordered medical examination.

Last Friday, Sauro filed a $7 million civil claim against the city, alleging he was unfairly singled out by city officials. The claim is a precursor to a lawsuit.

Sauro alleges the city violated his constitutional rights (I am guessing due process), humiliated him and caused anxiety, pain and suffering. He also claims he developed a colorectal condition that has been exacerbated by the city’s harassment.

The news report on the Sauro case by ProJo reporter Greg Smith, does an excellent job of laying out the facts in the case – so much so there is not much more for me to add at this point.

The Sauro case raises a polarizing issue – but one that most people (firefighters and taxpayers alike) ought to be able to agree upon – if only we could get past the rhetoric: Guys with phony injuries who fraudulently get disability pensions should get more than just their pensions taken away – they should get jail time for fraud. ON THE OTHER HAND guys with legitimate line-of-duty permanent disabilities should not be harassed be it by TV stations looking for a ratings bump or city-compensated private investigators sent at the behest of a local politician looking to run for governor.

How do we tell one case from the other? That is where it gets frustratingly hard.

Stay tuned for more on both of these cases in the upcoming months.

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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