Court Rules Suspensions Trigger Due Process Protection for NY Volunteers

The 90-day suspension of a New York volunteer firefighter has been overturned by a state supreme court judge who concluded the fire department failed to respect his due process rights.

Charles Prevot was suspended from the Haverstraw Fire Department by the Fire Council of the Village of Haverstraw on April 29, 2021. According to the decision:

  • It is alleged by [the department] that [Prevot] has a history of misconduct and insubordination as a firefighter of the Haverstraw Fire Department, having been given prior verbal and written warnings from the Chief as the result of recklessly responding to fire alarms in his personal vehicle.
  • [The department asserts] that on March 19, 2021, [Prevot] deliberately and directly disobeyed the orders of the Chief at a fire scene in that he received and acknowledged commands to “hit” a certain fire hydrant in order to attack a structure fire in progress, yet chose to “hit” a different fire hydrant.

Prevot was notified of the suspension by letter, and appeared at the Fire Council’s May 27, 2021 meeting to object to the discipline and the process. He claims the Fire Council failed to comply with General Municipal Law Section 209-L that requires firefighters be afforded notice of charges and a right to a due process hearing before being disciplined. Section 209-L states:

  1. The authorities having control of fire departments of cities, towns, villages and fire districts may make regulations governing the removal of volunteer officers and volunteer members of such departments and the companies thereof.
  2. Such officers and members of such departments and companies shall not be removed from office, or membership, as the case may be, by such authorities or by any other officer or body, except for incompetence or misconduct.
  3. Removals on the ground of incompetence or misconduct, except for absenteeism at fires or meetings, shall be made only after a hearing upon due notice and upon stated charges and with the right to such officer or member to a review pursuant to article seventy-eight of the civil practice law and rules.  Such charges shall be in writing and may be made by any such authority.  The burden of proving incompetency or misconduct shall be upon the person alleging the same.

The fire department contended the discipline was in accordance with its bylaws, and that Section 209-L did not apply since it was just a suspension. Prevot filed suit in Rockland County Supreme Court challenging the suspension, asking the court to declare the bylaws null and void.

The court found that Section 209-L does apply to lengthy suspensions. Quoting from the decision (embedded quotes removed for ease of reading):

  • A volunteer firefighter [in New York State] must be afforded due process in disciplinary proceedings.
  • This is true whether the penalty that is ultimately imposed entails the firefighter’s permanent removal from his or her position, or a suspension from the position.
  • The plain meaning of [Section 209-L] is that a volunteer firefighter may only be temporarily suspended, without a hearing, from the time that the charges are filed until the ultimate disposition of the charges, but that a final penalty of suspension, not to exceed one year, may only be imposed after that hearing.
  • The Court further finds that [Prevot] was deprived of his due process rights in that Respondents failed to comply with GML Sec. 209-1.
  • More specifically, [Prevot] was neither advised of the charges, nor offered an opportunity to have a hearing on the charges, before the 90 day suspension was issued.
  • Additionally, when given notice of the charges, he was not advised of his full panoply of rights.
  • That [Prevot] was given notice of the charges and offered the opportunity to appeal the length of the suspension after the suspension was issued, does not comply with the GML statute nor does it provide the minimum degree of due process.
  • While [Prevot] asks this Court to dismiss the charges with prejudice, and clear [Prevot’]s record with the Department of any findings of guilt, the appropriate remedy pursuant to relevant case law is to annul the suspension and remit the matter for a hearing and a new determination on the charges.

Here is a copy of the decision. A big shout out and congratulations to our friend and colleague Brad Pinsky, who successfully represented Prevot in this matter.

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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