Court Refuses to Dismiss Due Process Demotion Case

A Wisconsin fire captain who was demoted in 2021 when the city reorganized its promotional process, got a mixed decision in his federal court lawsuit. Richard Haffner claims that Fire Chief Joshua Bell, the City of New Richmond, and the City’s Police and Fire Commission violated his due process rights by removing him as a captain without cause or a hearing.

Haffner, a part-time firefighter, was a captain and served as the department’s health and safety officer. Historically the department elected its officers, and did so without obtaining the formal approval of the city’s Police and Fire Commission. That violated state law, prompting the city to change the promotional process in 2021.

Quoting from the decision:

  • In August 2021, the city amended its ordinance governing fire department officer selection to comply with state law.
  • The new ordinance did away with officer elections and gave the fire chief the authority to appoint officers—subject to confirmation by the Police and Fire Commission.
  • In accordance with the new ordinance, the new fire chief, defendant Joshua Bell, appointed a slate of officers and the Police and Fire Commission approved those officers at its next meeting. Bell did not appoint Haffner to an officer position.
  • Haffner remained a firefighter with the department.
  • Haffner contends that defendants demoted him from his officer positions without providing him the procedural protection he was due under state law, violating his right to due process under the Fourteenth Amendment.
  • Defendants move for summary judgment on two main grounds.
  • First, they contend that Haffner was not deprived of any protected property interest, because his officer positions were meaningless honorifics without real duties, and he was never legally appointed to his officer positions in the first place.
  • Second, they contend that defendant Bell is entitled to qualified immunity.
  • Haffner asserts a claim under the Fourteenth Amendment Due Process Clause, contending that defendants deprived him of a property interest without due process of law when they demoted him from his positions as captain and health and safety officer.
  • To prevail on a procedural due process claim for deprivation of property, Haffner must demonstrate that he: (1) had a cognizable property interest, (2) suffered a deprivation of that interest, and (3) did not receive the process he was due.
  • Defendants admit that Haffner was removed from his positions as captain and health and safety officer, but they contend that Haffner did not have a property interest in those positions and, in any case, he received all the process that he was due.
  • The Constitution does not create any property interests; rather, property interests are created by other, independent sources of law, such as state law.
  • Haffner contends that he has a property interest in his officer positions under Wis. Stat. § 62.13.
  • That statute removes police officers and firefighters from employment at will, protecting them against wrongful discharge and wrongful discipline.
  • State and federal courts have consistently held that the statute creates a property interest protected by the Fourteenth Amendment Due Process Clause.
  • Defendants concede that Wis. Stat. § 62.13 creates a property interest, but they contend that the statute does not apply to Haffner because Haffner was not legitimately appointed to his officer positions under the statute.
  • If Haffner was promoted to an officer position within the fire department, then § 62.13 protects him from wrongful demotion or discharge and provides him with a property interest in that officer position.
  • Whether the department complied with § 62.13 in promoting Haffner in the first place is immaterial.
  • Defendants contend that even if Haffner was deprived of a property interest, he received all the process he was due.
  • Once an individual has shown that he was deprived of a property interest, the question of what minimum process the Constitution requires is a federal constitutional question.
  • The court need not define the minimum procedural requirement here other than to say that it is more than the nothing that Haffner got.
  • Haffner is suing New Richmond fire chief Joshua Bell under 42 U.S.C. § 1983 in his individual capacity, alleging that Bell demoted Haffner from his officer positions when Bell appointed a new slate of officers after the city changed its officer promotion policy for firefighters.
  • Qualified immunity affords broad protection to government officials who make good-faith mistakes in the performance of their duties.
  • Qualified immunity shields government officials from individual liability under 42 U.S.C. § 1983 unless two elements are met: (1) the official violated a federal statutory or constitutional right, and (2) the unlawfulness of the official’s conduct was clearly established at the time of the violation.
  • A legal violation is clearly established if there is a strong foundation of legal precedent plainly prohibiting the official’s conduct, such that a reasonable official would understand that what he is doing is unlawful.
  • The plaintiff bears the burden of defeating qualified immunity.
  • Haffner provides no case law applying the principles of due process law to a factual scenario even remotely like this one.
  • It is well established that firefighters hold property interests in their positions and that they may not be demoted without due process.
  • But this is far too general a principle to establish that Haffner’s rights were clearly established. Bell was presented with an unusual set of facts—New Richmond had a longstanding practice of unlawful hiring practices, changed its policy to conform with the law, and its city administrator told Bell that he had the authority to appoint officers pursuant to the now lawful policy.
  • In those circumstances, it was not clearly established that it would be unlawful for Bell to assume he was starting with a clean slate and could appoint whomever he thought was best.
  • The court will grant summary judgment to Bell and dismiss him from the case.

Here is a copy of the decision. Note that Haffner did not file a motion for summary judgment. Rather the court ruled on motions for summary judgment filed by the City and Chief Bell. As a result the case will continue against the city.

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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