NY Discipline Upheld by Appellate Division

A former fire chief has lost his bid to be reinstated to his New York fire company following allegations he cursed at fellow firefighters, didn’t wear proper PPE and refused to follow orders at a fire scene.

Michael Pasqua, a past fire chief of the Mamaroneck Fire Department, responded to a house fire on April 16, 2010. He was not the fire chief at the time, and was terminated “based upon his verbally abusive conduct directed to fellow firefighters during the course of a fire, and his failure to follow direct orders, including an order directing him to leave the scene of an emergency because he was not attired in proper gear. At the hearing, reference was made to the petitioner’s prior “assault” of a line officer, resulting in a suspension.”

Chief Pasqua appealed his termination to the New York Supreme Court where Justice Susan Cacace in 2012 ordered him reinstated, concluding he was motivated by a concern about safety and proper firefighting procedures, and that the 29 months he had been separated from the fire department was an appropriate penalty.

That decision was appealed to the Appellate Division, Second Judicial Department who rendered their decision reversing Judge Cacace last week. In doing so the court discussed the proper role of a court reviewing a fire department’s decision on the appropriateness of a penalty. According to the Appellate Division:

“An administrative penalty must be upheld unless it “is so disproportionate to the offense . . . as to be shocking to one’s sense of fairness,” thus constituting an abuse of discretion as a matter of law.”

“The petitioner’s conduct endangered himself and distracted his coworkers while they were fighting a fire, thus possibly endangering them as well. Under these circumstances, the penalty of termination of membership was not shocking to one’s sense of fairness.”

“Accordingly, the Supreme Court should have denied… the petition which sought to review the penalty, confirmed the penalty, and dismissed the proceeding on the merits.”

Here is a copy of the ruling:  Michael Pasqua

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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