Utica Prevails in Appeal By Firefighter Terminated for Sexual Misconduct

The City of Utica has prevailed in its appeal of a lower court ruling reinstating and awarding backpay to a firefighter who was terminated for sexual misconduct on duty. Richard J. Forte was terminated following a bizarre incident in the firehouse in 2018 which fortunately I do not have to explain. Here is how the Appellate Division of the Supreme Court of New York, Fourth Department explained the facts:

• While petitioner was working at the fire station one day, he masturbated and ejaculated onto the “inside crotch area” of a pair of pants belonging to an unsuspecting female firefighter who was away from the station responding to a call.
• Several firefighters who had access to the pants voluntarily provided a buccal swab and were cleared by DNA testing.
• Petitioner refused to provide a buccal swab until he was compelled to do so by court order.
• Subsequent DNA testing confirmed that the semen belonged to him.

Forte was initially suspended without pay while the discipline process began. New York civil service law prohibits a member from being suspended without pay for longer than 30 days while charges are pending. Forte, through his union, filed for arbitration and a hearing was promptly commenced. As explained by the court:

• At the close of [Forte’s] case, [he] demanded the disciplinary file of [Interim Fire Chief] John Kelly, who had been disciplined for engaging in similar sexual misconduct at work while employed by the UFD.
• [The City] refused to produce the file on the ground that personnel records of firefighters are confidential pursuant to Civil Rights Law § 50-a, and may not be released without a court order unless the firefighter consents to their release, which Kelly did not.
• The arbitrator then adjourned the hearing so that [Forte] could apply for a court order, and [the City] suspended [Forte] without pay for an additional period of time pending the resumption of the hearing.

Forte was found guilty of criminal charges related to the incident, and sentenced to 60-days in county jail. He was also terminated. His union filed suit on his behalf in the Supreme Court for Oneida County seeking reinstatement and backpay. In December, 2018 that court held that Forte was entitled to be reinstated with backpay according to civil service law.

The City appealed to the Fourth Appellate Division arguing Forte should not be reinstated, nor should he receive backpay for the time between the end of the thirty-day period suspension period and his termination. From the ruling:

• Although an employee suspended without pay for a longer period under those circumstances is generally entitled to receive back pay, he or she waives any claim to back pay if a delay in the disciplinary hearing beyond the 30-day maximum is “occasioned by” his or her own conduct.
• We agree with [the City] that [Forte] is not entitled to reinstatement or back pay because [he] was solely responsible for the delay.

Here is a copy of the ruling:

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