Off Duty Supervision Challenged in Illinois

Today’s burning question: Can an officer be disciplined for not supervising a firefighter while both are off-duty? For example if some officers were out on the town with some firefighters, and the firefighters start to get a little rowdy, do the officers have an obligation to rein them in, or at least report any misconduct?

Answer: Here we go again… last week we discussed the civil suit arising out of the FDNY Salty Dog brawl case, where some bar patrons are suing FDNY following a barroom brawl involving some off-duty firefighters who had just come from a fire department event. Among the issues in that case was whether the FDNY might be liable for negligent supervision at least in part because supervisors (company officers) were present during the brawl and failed to intervene to stop a particularly vicious attack that happened to be captured on security cameras.

Now we have a somewhat similar fact pattern that occurred in North Riverside, Illinois last December following a fire department Christmas party. While the Salty Dog case started with a drink spilled on a firefighter, the Illinois case started when a Riverside firefighter “inappropriately touched” a female patron at a bar named the Sweet Spot (not making it up either).

That led to an altercation between the firefighter and a friend of the woman who also happened to be an off-duty police officer. No one was arrested but following the incident, four Riverside firefighters, Lt. Thomas Bensfield, Lt. William Ruska, Lt. Ray Williamson and Firefighter A.J. Ruska, were disciplined by the department.

A.J. Ruska was suspended for 21-days and issued “last-chance” warning. The three lieutenants were suspended for three days each for failing “to take the necessary and appropriate steps to discipline a subordinate employee when the conduct of the subordinate employee require[s] such action.”

The four are now challenging their discipline in Cook County Circuit Court. They claim that the rule they are being disciplined under is “unconstitutionally vague” (a due process violation), and that their discipline is arbitrary and capricious (also a due process violation).

Their attorney, Patrick J. Walsh, also alleges that the discipline is related to their support for Riverside’s former fire chief, Kevin Mulligan, who recently received a $350,000 settlement in his wrongful termination suit against the department. According to Walsh the department is divided and those who support Chief Mulligan are being targeted.

Walsh says he is planning on amending his complaint this week to add a 1st Amendment claim because the discipline is retaliation for the firefighter’s freedom to associate with Chief Mulligan.

Here is more on the story.

UPDATE: May 8, 2014: Attorney Walsh has graciously provided us with a copy of the complaint. It also includes copies of the disciplinary actions as well.   Bensfield Complaint Filed and Summons

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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