Kentucky Court Concludes Board Member Testifying and Voting Violates Due Process

A Kentucky court has concluded that a fire district board member who served as an adverse witness against an accused firefighter in a disciplinary proceeding, violated the firefighter’s due process by participating in deliberations and the adjudication decision.

The ruling arose out of a case we discussed here back in in 2021 involving the disciplinary suspension of Battalion Chief Marty Terry of the Anderson County Fire Protection District. Chief Terry was accused of four disciplinary infractions, including:

  • Failure to conduct himself in a manner that reelects positively on the Department.
  • Failure to follow directive of April 9, 2020 COVID directive.
  • Failure to “size up incidents and to manage incident scenes/follow commands.
  • Failure to recognize fire conditions and to properly manage the incident and failed to direct commands on scene.

During a disciplinary hearing on February 16, 2023, a board member was called by the department to testify, and thereafter participated in the boards deliberation and decision to find Chief Terry guilty.  Chief Terry appealed his suspension to Anderson County Circuit Court alleging that his due process rights were violated. Judge Melanie H. Brummer agreed, concluding as follows:

  • The most glaring issue raised is that this hearing was conducted and a board member that participated in the deliberation of the Plaintiffs occupational fate, was an adversarial witness against the Plaintiff just moments before joining the other board member in a decision finding the Plaintiff guilty of charges warranting discipline and demotion.
  • Any notion of due process would dictate that the board member providing evidence to the Board as a witness, supporting discipline for the employee’s poor behavior should have abstained from participating in a discipline decision made by the Board, on the very employee that was the subject of the hearing.
  • Although the vote was unanimous and Mr. Terry would have likely suffered the same disciplinary fate, he was entitled to an impartial decision maker.

Here is a copy of the decision:

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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