Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s burning question: Can a firefighter who is facing disciplinary action, avoid facing any punishment for his misconduct by quickly retiring before he can be terminated?
Answer: An employee can resign at any time and there is nothing an employer can do to stop a separation of service from occurring. However, the employee’s entitlement to a pension is another story. A pension can be conditioned on honorable service. The laws and/or the contractual provisions that create the right to the pension would need to be properly drafted to prohibit an employee who is under investigation from being awarded a pension.
For the second time in two years, these difficult questions are being asked in the District of Columbia. Both cases involve allegations of neglect of duty by a fire lieutenant amidst the tragic death of a civilian.
In the current case, Lt. Guy Valentine was accused of a delaying his response to the choking death of 18-month-old Martin Cuesta on March 18, 2015. Despite being three blocks from the scene, it took crews nearly 11 minutes to arrive on scene. Lt. Valentine reportedly retired over the holidays as he awaited a trial board on disciplinary charges.
The case is not unlike that of Lt. Kellene Davis — who was in charge of the D.C. ladder truck in January, 2014 whose crew failed to render assistance to a heart attack victim, Medric “Cecil” Mills Jr., across the street from the fire station. Facing a trial board, charged with six counts of neglect of duty, Lt. Davis escaped any punishment by retiring.
In the aftermath of Lt. Davis’ retirement, the D.C. Council passed the “Firefighter Retirement While Under Disciplinary Investigation Amendment Act of 2014.” While stopping short of prohibiting firefighters who are under investigation from retiring, it does allow the department to impose fines of up to $5000 against those found to have committed “serious misconduct.” Those charged with “serious misconduct” can be granted a “conditional retirement” pending the outcomes of the proceedings.
Here is a copy of the act: Firefighter Retirement While Under Disciplinary Investigation Amendment Act of 2014
