Demoted FDNY Chiefs File Blistering Lawsuit against Fire Commissioner

Three FDNY chiefs who were demoted by Fire Commissioner Laura Kavanagh earlier this month have filed suit claiming they are being retaliated against for raising legitimate safety concerns. Assistant Chiefs Joe Jardin, Michael Gala and Fred Schaaf filed suit today in Kings County Supreme Court naming Commissioner Kavanagh and the New York City Fire Department as defendants.

Commissioner Kavanagh demoted Chiefs Jardin, Gala and Schaff to deputy chief on February 3, 2023, with an effective date of March 4, 2023. A fourth named plaintiff, Deputy Assistant Chief Michael Massucci, claims he was reassigned from Chief of Uniformed Personnel to a “toolroom” position with “no clear role or responsibilities.

The 36-page complaint paints a grim picture of the inner workings of FDNY, and is quoted here at length so that the plaintiffs’ words speak for themselves:

  • Respondent Kavanagh’s brief tenure as FDNY Commissioner has shown what happens when a political operative is put in charge of a public-safety agency as vital as the FDNY. Through the demotions and reassignments, as well as through other decisions antithetical to public safety, Respondent Kavanagh has abused the office of Fire Commissioner, violated the oath of office, put the public and members of the FDNY at risk, and retaliated against senior staff for raising safety concerns about leadership decisions.
  • Respondent Laura Kavanagh is the 34th Fire Commissioner of the FDNY. Prior to joining the FDNY in 2014, Respondent Kavanagh worked primarily as a political operative on political campaigns and in local government, never a day as a firefighter.
  • Respondent Kavanagh has no experience fighting fires and worked only on the civilian side of the FDNY before ascending to Commissioner.
  • The FDNY Regulations require that “Assistant Chiefs and Deputy Assistant Chiefs are appointed by the Fire Commissioner in consultation with the Chief of Department to serve as members of the Chief of Department’s staff.”
  • As of this filing, the FDNY had nineteen individuals who could serve as Incident Commander at 3-alarm fires or more severe ones (“Staff Chiefs”).
  • Of those, eight have been demoted (actually or constructively). Accordingly, this leaves only eleven Incident Commanders for all 3-alarm fires city-wide. Given that 4- and 5-alarm fires require higher-ranking officers within the Staff Chiefs, this leaves no one—not a single Staff Chief—who has experience as Incident Commander for a 5-alarm fire.
  • Respondent Kavanagh demoted (actually or constructively) eight of her most senior chiefs without cause and with no explanation. On information and belief, three additional Staff Chiefs have acknowledged their constructive dismissals through requests for reassignment or medical leave.
  • Although the gravamen of this action concerns Respondent Kavanagh’s very recent actions to gut the ranks of the Staff Chiefs based on their disagreements with her over matters of public safety, to humiliate them through reassignments to places like the FDNY Quartermaster and Toolroom, and to then disparage them publicly through a campaign of disinformation and slander, background on Respondent Kavanagh’s mismanagement and malfeasance serves as important context.
  • As an initial matter, Respondent Kavanagh inherited a department that was functioning at a very high level, by any objective indicator. According to the FDNY annual report for 2020, the department has seen a significant decrease in fire-related fatalities and injuries. For instance, in 2017, there were 73 civilian fire-related fatalities. By 2020, those numbers had decreased to 63 civilian fire-related fatalities, a 13.7% reduction in fatalities.
  • An experienced professional would not seek to fix that which is unbroken. A political operative would.
  • Instead of concentrating on preserving and maintaining the safety of New York City residents and the firefighters within its ranks, Respondent Kavanagh focused her efforts on “revolutionizing” the FDNY, including by repeatedly demanding undefined and unquantified “out-of-the-box thinking” by her Staff Chiefs.
  • This ill-defined approach supplanted a focus on firefighting science, which has required, established, and clear military protocols, adherence to science and training, and expert precision.
  • Following appointment as Acting Commissioner, Respondent Kavanagh made numerous unprecedented decisions, ungrounded in safety or best practices.
  • Each time, the Staff Chiefs objected. These decisions included:
  • Self-Contained Breathing Apparatus (“SCBA”) Purchasing Decision: The SCBA is the most important piece of equipment that protects the men and women of the FDNY from smoke, toxic gas, and harmful particulates as they fight fires. The FDNY’s SCBA equipment is at the end of its life cycle, and so the Department will soon purchase new units at a cost of $50-$100 million. Because this equipment is so critical, the FDNY created a special SCBA Committee, comprising experts in fire safety, operations, and R&D, which has been meeting for years to test and develop the next generation SCBA apparatus for the FDNY. Upon becoming commissioner, Respondent Kavanagh altered the composition of the SCBA Committee, sidelining these experts and instead putting the decision primarily in the hands of her civilian staff.
  • Putting an Unqualified Civilian in Charge of R&D
  • Making Firefighter Safety a Civilian Task
  • Taking Fire-Code Inspection Out of Fire Department Purview
  • Ending Practice of Meeting with Chiefs
  • The Staff Chiefs raised their concerns with her decisions to Respondent Kavanagh and her staff, stating that, in their expert view, these decisions harmed public safety.
  • Instead of taking the advice of her experienced Staff Chiefs, Respondent Kavanagh took their concerns as unjustifiable dissent.
  • To put the Staff Chiefs who dared to question her decisions in their place, Respondent Kavanagh began a pattern of abuse of power and retaliation. The first set of Retaliation Decisions were to reassign Assistant Chiefs and Deputy Assistant Chiefs to meaningless positions within the FDNY, and to strip them of their duties.
  • Respondent Kavanagh ordered these reassignments in November 2022, less than a month after being installed as Commissioner, with one reassignment made even earlier, when she was still Acting Commissioner.
  • In total, Respondent Kavanagh moved at least six Assistant Chiefs and Deputy Assistant Chiefs—out of a total of seventeen—to meaningless and made-up jobs with little to no responsibilities and reassigned a seventh out of his field of expertise. The reassignments were a bold-faced attempt by Respondent Kavanagh to force the Assistant Chiefs and Deputy Assistant Chiefs into retirement, as a member of Respondent Kavanagh’s staff admitted.
  • Because of Respondent Kavanagh’s actions detailed above—including the decisions contrary to public safety and the retributive reassignment campaign—the FDNY was in severe disarray by the start of 2023.
  • On Friday, February 3, 2023, Respondent Kavanagh ordered that a Staff Chiefs meeting take place. This would be Respondent Kavanagh’s first, and only, meeting with all of the chiefs. Three chiefs—Gala, Jardin, and Schaaf—were instructed not to attend.
  • During the meeting, Respondent Kavanagh falsely disparaged her chiefs. She accused them of “pestering her for promotions and personal cars.” Respondent Kavanagh also noted that she had not been given updates about other issues such as a “pending critical situation around the purchase of new air respirators for firefighters.”
  • However, and as explained above, the “critical situation,” concerning the purchase of new “air respirators” for firefighters was a creature of Respondent Kavanagh’s making.
  • During that same meeting, Respondent Kavanagh continued to berate the Staff Chiefs for not “thinking outside the box.”
  • The Staff Chiefs sat in the meeting and tried to appease Respondent Kavanagh. It soon became apparent, however, that the meeting was not an attempt by Respondent Kavanagh to seek out the advice and counsel of the Staff Chiefs or find an amenable path forward. Instead, this meeting was a pretext for Respondent Kavanagh’s next move—the demotions of Gala, Jardin, and Schaaf—which the rest of the Staff Chiefs did not yet know was coming, because Respondent Kavanagh did not tell them.
  • Most concerningly, this sensitive meeting was secretly recorded and later leaked to the media. On information and belief, it was Commissioner Kavanagh herself who approved the decision to leak the recording.
  • On February 3, 2023, Assistant Chief Gala, Assistant Chief Jardin, and Assistant Chief Schaaf were instructed not to attend the Staff Chief meeting but were instead asked to meet with Respondent Kavanagh’s chief of staff, Luis Martinez. In those meetings, Martinez informed each Staff Chief that, effective March 4, 2023, they were being demoted to the rank of Deputy Chief—two ranks below their current rank. These demotions were the second set of Retaliation Decisions, after Assistant Chiefs Gala, Jardin, and Schaaf remained at the Department after their reassignments.
  • Notably, Gala (62 years old), Jardin (61 years old), and Schaaf (60 years old), are the three oldest Staff Chiefs in the FDNY, and none were provided with any information or insight into the reasons for their demotions.
  • Unable to force their retirement through humiliating reassignments, Respondent Kavanagh decided to twist the knife further and unceremoniously demoted these proud public servants. She did so in violation of lawful procedure because she did not consult the Chief of Department as required in Chapter 5 of the FDNY Regulations.
  • As the Staff Chiefs sat to discuss the bewildering meeting they had just completed with Respondent Kavanagh, one of the Staff Chiefs received word that Chief Jardin had been demoted. He told the rest of the meeting’s participants, and the response from every other chief—including the Chief of Department and Chief of Operations—was surprise and shock. The Chief of Department and Chief of Operations stormed out of the room. They knew that if Chief Jardin had been demoted, the other two Staff Chiefs who were instructed not to attend the earlier meeting that day were also being demoted.
  • Upon information and belief, the Chief of Department and Chief of Operations went directly to the Respondent Kavanagh. They asked her, in sum and substance, if it was true that she was demoting these three Staff Chiefs, and they asked why she was doing so without discussing it with them first. Respondent Kavanagh responded, in substance, by confirming that she was demoting Staff Chiefs, and said words to the effect of: “Had I said something to you in advance, you would have tried to talk me out of it.” This was an admission that not only did Respondent Kavanagh not consult with the Chief of Department before demoting the Staff Chiefs, but she knew that the demotions would be against their advice. Thus, Respondent Kavanagh ignored her obligation under the FDNY Regulations to consult with the Chief of Department regarding Staff Chief appointments.
  • No Staff Chief can remain in his or her position if the Commissioner is creating grave safety risks and preventing the Staff Chief from performing his or her job. Based on the actions described above, Chief of Department John Hodgens and Chief of Operations John Esposito immediately asked for a reduction in rank to Deputy Chief. Petitioner Massucci did so as well, along with Deputy Assistant Chief Leeb and Assistant Chief Kevin Woods. They submitted paperwork and informed Respondent Kavanagh of the reality of the situation: they had been constructively demoted, and so they asked to be returned to the rank of Deputy Chief. In addition, on information and belief, three more Staff Chiefs either orally requested a reduction in rank to Deputy Chief, or, because of planned medical leave, will soon be inactive and so did not yet request a reduction in rank.
  • On information and belief, Respondent Kavanagh’s actions have also crippled the FDNY’s ability to even find replacement Staff Chiefs. On information and belief, offers to some candidates to ascend to the (now open) Staff Chief position have been rejected.
  • As the Staff Chiefs voice disagreement with Respondent Kavanagh’s decisions, she is continuing to act as a political operative, not a safety professional. Attempting to smear the victims, on information and belief, Respondent Kavanagh is retaliating and engaging in a pattern of retribution, punishment, and abuse of power by smearing them in the press. This is Respondent Kavanagh’s third set of Retaliation Decisions.

The complaint asks the Supreme Court to intervene through a rather unique provision in New York law called an Article 78 proceeding. Under an Article 78 proceeding, courts have jurisdiction to review the legality of certain governmental actions. In this case, the complaint asks the court to block the demotions from going into effect, and reverse what is characterized as “retaliation decisions.” Quoting again from the complaint:

  • Respondent Kavanagh’s Retaliation Decisions are arbitrary, capricious, irrational, an abuse of discretion, and in violation of lawful procedure in the following ways, each of which is an independent basis to overturn the involuntary demotions and preserve the status quo.
  • First, the Retaliation Decisions, including the involuntary demotions, created a state in which the FDNY cannot adequately respond to the city’s largest and most dangerous fires, which causes grave risk to the health and safety of FDNY personnel and city residents. Respondent Kavanagh’s Retaliation Decisions included the demotions of three Staff Chiefs and caused the constructive demotions of at least five other Staff Chiefs, and upon information and belief eight other Staff Chiefs, leaving the entire city and all responding firefighters at risk.
  • Second, Respondent Kavanagh’s decision to remove the appointment of Chiefs Gala, Jardin, and Schaaf without consulting the Chief of Department—and, in fact, with knowledge that if he had been consulted, he would have insisted against it—was a violation of lawful procedure pursuant to the FDNY Regulations, Chapter 5.
  • Third, Respondent Kavanagh’s actions in attempting to constructively discharge the Staff Chiefs, to retaliate against them, and to stigmatize them, were all unlawful acts that were arbitrary and capricious, and an abuse of discretion.
  • Petitioners-Plaintiffs have no adequate remedy at law.
  • Petitioners-Plaintiffs are entitled to an order pursuant to Article 78 compelling Respondents-Defendants to stop the involuntary demotions and maintain the status quo.

The complaint also alleges a due process violation, and seeks a name clearing hearing. Here is a copy of the complaint.

UPDATE: February 28, 2023: Commissioner Kavanagh and FDNY had the case removed to US District Court today:

Update: March 6, 2023 – US District Court Judge Rachel P. Kovner refused to issue a temporary restraining order to block the demotions, and declined a motion to reconsider. Here are the two rulings:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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