Utica Firefighter Loses Appeal of Termination

The appeal of a Utica firefighter who was terminated for engaging in lewd behavior in the firehouse in 2018 has been rejected by the Appellate Division of the New York Supreme Court. Richard J. Forte was fired following a police investigation into semen found on the pants of a female firefighter.

After being compelled to produce a DNA sample by a criminal search warrant, Forte was determined to be the source of the semen. In September, 2019 he was found guilty of fourth-degree criminal mischief and third-degree criminal tampering.

Forte was terminated from the Utica Fire Department, and grieved his discipline. When the termination was upheld he filed suit in the Oneida County Supreme Court seeking to have the arbitrator’s decision vacated. The Supreme Court denied his request, and he appealed to the Appellate Division.

In a rather terse memorandum decision, the Appellate Division held:

  • [Forte] contends that the arbitrator improperly found him guilty of committing uncharged conduct, i.e., sexual harassment, and determined that termination was the appropriate penalty for that uncharged conduct.
  • We reject that contention.
  • [Forte] was charged in the notice of disciplinary charges with, inter alia, conduct unbecoming a member of the Utica Fire Department “insofar as [he] knowingly and intentionally damage[d] property belonging to a fellow firefighter” by “intentionally, knowingly, and unlawfully, with the intent to damage property, deposit[ing] [his] semen onto the inside crotch area of a pair of pants belonging to” a fellow firefighter.
  • The record establishes that the arbitrator determined that [Forte] was guilty of that charge, and concluded that termination was the appropriate penalty.
  • Thus, contrary to respondent’s contention, the arbitration award is based on a finding that he committed conduct that was alleged in the notice of disciplinary charges.

Here is a copy of the decision:

Earlier coverage of the appeal. It is not entirely clear why the Appellate Division issued a second ruling on the matter.

Coverage of the search warrant issue.

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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