NY Chief Challenges Removal

The fire chief of the Wading River Fire District who was removed by the district’s Board of Fire Commissioners last November, has filed suit alleging a violation of his statutory and constitutional due process rights. Fire Chief Kevin Berg was initially suspended and then removed as fire chief, all without notice of the reason for these actions, or an opportunity to respond.

The facts as explained in the complaint are as follows:

  • On or about November 2, 2023, Petitioner was verbally informed by the Chair of the Wading River Fire District Board of Fire Commissioners that he was suspended until further notice. No reason was provided for his suspension.
  • Upon information and belief, Respondent Board of Fire Commissioners voted to suspend Petitioner from membership at its public meeting on November 2, 2023.  No reason for the suspension was provided.
  • By letter dated November 14, 2023, the Chair of the Wading River Fire District Board of Fire Commissioners notified Petitioner “that the Board of Fire Commissioners (BOFC) […] voted to continue the suspension against you imposed by the BOFC at the last meeting…” No reason for the suspension was provided.
  • By letter dated November 27, 2023, the Chair of the Wading River Fire District Board of Fire Commissioners notified Petitioner that the “Board of Fire Commissioners approved a motion to relinquish your Chief Duties…” No reasons for this removal was provided.

The suit is what is referred to as an Article 78 suit, which is unique to New York. It provides a mechanism to challenge administrative decisions by state and local governmental bodies. It alleges a violation of Chief Berg’s statutory right to due process under NY General Municipal Law § 209-l, and his right to due process under the 14th Amendment, actionable through 42 U.S.C. § 1983.

Here is a copy of the complaint:

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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