Principles for Public Safety Employment

3. C ASE S TUDIES a. Firefighters

When a public safety employee has committed misconduct, determining the appropriate level of discipline can be a challenge. In certain cases, the misconduct is sufficiently severe that termination is appropriate based solely on the one incident. In all cases, the decision maker should consider the agency’s past practice and the employee’s personnel and discipline history. i. Insubordination Bynoe v. City of San Jose 204

In an unpublished decision, the California Court of Appeal upheld the City of San Jose’s decision to suspend firefighter Dudley Bynoe for 18 weeks and to impose a one-step salary reduction for nine pay periods. Bynoe had exhibited a pattern of angry and violent behavior. He cursed at a fire captain and accused him of being a racist and cheating Bynoe out of a promotion. On another occasion, he publicly yelled at the captain and screamed racial slurs at him. Over the course of a year, while on-duty at the fire station, he would intimidate other fire personnel with racist and sexist remarks. Bynoe often made racially based remarks to groups of firefighters while watching television, commenting on the ethnicity of people on television and using racial epithets. He also threatened to physically fight a retired battalion chief. The Court found that Bynoe’s destructive and damaging pattern of behavior justified the lengthy suspension. Russ v. Civil Service Commission of Pine Bluff 205 L.D. Russ was a Hoseman for the Fire Department of Pine Bluff. As a Hoseman, Russ served infrequently as a Driver (a higher rank) at the fire station. When the regular Driver at the station went on a two-week vacation, the Captain told Russ that he would be the Driver during that time. Russ definitively and positively refused to serve as Driver unless he received the pay of a Driver. The Fire Chief spoke to Russ and Russ again refused to serve as Driver. The Fire Chief terminated Russ’ employment for willful disobedience of a lawful order. The Fire Department showed that Hosemen did not receive Driver wages unless there was a vacancy in the rank of Driver, and there was no vacancy at the time of Russ’ refusal. The Arkansas Supreme Court upheld the termination decision. The New York City Fire Department terminated a 13 year firefighter’s employment after discovering that the firefighter had operated an outside pool maintenance business for three years without seeking the necessary departmental approval. The firefighter had also engaged in this extra departmental employment while on medical leave on four separate dates. In addition, he tried to conceal his outside employment by asserting that his pool services were rendered free of charge. The New York Supreme Court,

ii. Secondary Employment Cook v. Von Essen 206

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 70