Mass Firefighter Ordered Reinstated by Civil Service Commission

A Bourne firefighter who was terminated in 2018 over comments he made on a medical run, will be reinstated following a Massachusetts Civil Service Commission ruling. Thomas Swartz was fired on August 22, 2018 following an investigation into comments he made to an 18-year-old patient and the patient’s mother.

Swartz has been in the Fire Law headlines before. In 2016, he sued the fire chief in Bourne alleging a violation of his First Amendment rights following a 24-hour suspension he received for refusing to pose for a photograph. According to Swartz’s lawsuit, having his photo taken violated his religious beliefs. The chief prevailed in that lawsuit.

In the current case, the Commission explained the facts as follows, using A to represent the patient and Mrs S to represent his mother:

  • Firefighter Swartz noted the smell of marijuana. Firefighter Shaughnessy remembered seeing what appeared to be a standard prescription drug bottle in the room.
  • Firefighter Swartz received a “brief rundown” from Dep. Chief Haden who relayed his observations and information received about A’s marijuana use and history of seizures (which did not specifically mention epilepsy) and what A’s father had reported to Dep. Chief Haden about A possibly mixing marijuana with Xanax.
  • Firefighter Swartz and Shaughnessy transported A to the nearest hospital.
  • Firefighter Swartz rode alone in the back of the ambulance with the patient and Firefighter Shaughnessy was the driver.
  • While en route, as part of continuing care, Firefighter Swartz asked A some routine questions to identify any issues that would be important for the receiving hospital to know.
  • This included asking him if he had any illegal substances in his possession, which A denied.
  • Firefighter Swartz then told A something to the effect that his “actions had consequences for everybody involved” and he needed to “grow up” and stay off risky drugs.
  • After transferring the patient to an Emergency Department gurney, Firefighter Swartz completed his “run report” (also known as the ImageTrend Report or Standard Ambulance Report Form [SARF]).
  • The two firefighters then headed to the hospital coffee shop.
  • They passed A’s bed in the hallway and stopped to exchange pleasantries.
  • Ms. S was sitting on the gurney facing her son, caressing him.
  • Firefighter Swartz stood in front of them alongside the bed. Firefighter Shaughnessy was about 10 feet away facing the foot of the bed.
  • Ms. S said: “He’s a good kid” and Firefighter Swartz replied: “Yes, he’s a good kid.”
  • He told Ms. S that A reminded him of his own stepson who had “similar” issues in the past and told her what he had said to A in the ambulance, adding “if that’s what he wants to do maybe he should be on his own” or words to that effect.

Swartz’s comments apparently upset Mrs. S, who sent an email to the fire chief complaining about what was said. That in turn prompted an investigation, which led to questions about whether Swartz had been truthful in his explanation of what occurred. He was terminated for “misrepresentations about what happened during the incident” and for being “discourteous and insolent to a member of the public.”

Swartz appealed to the Massachusetts Civil Service Commission, who concluded that while he might have overstepped his role, he did not lie or act in a discourteous manner as would warrant termination. In handing down its decision, the Commission (as it typically does) did an excellent job of providing a model for how to make credibility determinations. Quoting from the decision:

  • The duty imposed upon public safety personnel to be truthful is one of the most serious obligations he or she assumes.
  • The corollary to the serious consequences that flow from a finding that a firefighter violated the duty of truthfulness requires that any such charges must be carefully scrutinized so that the employee is not unreasonably disparaged for honest mistakes or good faith mutual misunderstandings.
  • Here, the Appellant was charged with being “untruthful when you were ordered to provide a report regarding the [January 28, 2018] incident and that you made misrepresentations about what happened during the incident.”
  • After a careful review of the evidence, including the testimony of percipient witnesses, I conclude that the preponderance of the evidence fails to establish those charges.
  • Firefighter Swartz was ordered to prepare that report without any information about the complaint that had been made by Ms. S.
  • He cannot be faulted for focusing that report on the standard of care that had been administered.
  • When he was ordered to submit that report, Firefighter Swartz was never asked to address any off-handed statements that he or any other firefighter might have made while administering care to the patient during the call, let alone, after the patient was transferred to the custody of the hospital and their duties had ended.
  • Second, the Respondent’s claim that Firefighter Swartz “made misrepresentations about what happened during the incident” is equally without merit.
  • I also find that the evidence does not support Bourne’s conclusion that Firefighter Swartz was untruthful during the second meeting with Chief Sylvester on February 1, 2018.
  • In sum, the preponderance of the evidence fails to establish that Firefighter Swartz “misrepresented” his actions during the January 28, 2018 medical call.
  • The Respondent did not establish just cause to terminate him for untruthfulness.
  • Firefighter Swartz presented himself at the Commission hearing as a sincere, articulate, and responsive witness with an excellent memory for events.
  • His strong background of training and experience as a firefighter/paramedic was unquestioned.
  • His confident, measured demeanor, which stood up during tough cross-examination, reinforced my conclusion that he sought to be truthful in his testimony even when it did not put him in the best possible light.
  • Of all the witnesses to the events of January 28, 2018, I found his testimony the most accurate and credible.
  • I found Ms. S to be the least credible witness to the events of January 28, 2018. First, by her own admission, she was “devastated” (as could be expected) as a result of living through her son’s medical emergency, which she described as “chaos”.
  • This certainly affected her perception and recollection and led her to get numerous critical facts demonstrably wrong.
  • Firefighter Swartz did tell patient A that his “actions had consequences for everybody involved” and he needed to “grow up” and recognize the risks he was taking. While this off-handed comment may not have been appropriate and was made without any documented factual support that the patient’s actions were “risky”, the comments, standing alone, do not constitute conducting unbecoming a firefighter.
  • This comment was an honest effort to provide what he perceived to be constructive feedback to the patient, after coming to learn of his history of using marijuana, purportedly for medical reasons, but for which he had no prescription (i.e., whose dosage and purity was not regulated), as well as reports that he knowingly mixed his marijuana with other substances, including Xanax, according to A’s father, and the “rapport” he believed he had established with Ms. S and her son. I find nothing “discourteous” or “insolent” about Appellant’s remarks.
  • The statements made by the Appellant to Ms. S. at the hospital on January 28, 2018, at best, warrant counseling or coaching.
  • They do not, however, justify the termination of a long-time Bourne firefighter.

Here is a copy of the decision:

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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