Fire Law: Delaying Discipline of a Firefighter Accused of a Criminal Offense

Although not a pleasant topic, firefighters are occasionally accused of criminal offenses. When this occurs, fire departments can be confronted with a dilemma: Do we initiate an immediate disciplinary investigation that, in turn, may lead to disciplinary action, or do we wait until the criminal case plays itself out?

There is no right answer that applies in every situation. However, there are circumstances when delaying a disciplinary investigation and subsequent discipline may be advisable, if not necessary.

Leave and suspension
Let’s start this discussion with a simple principle: No one should be disciplined simply because that individual is arrested. Whether for on-duty or off-duty behavior, an arrest should be viewed as being in the nature of an allegation. Innocent people are arrested every day, and presuming that an arrest will lead to a conviction that warrants discipline is a cognitive error that is made all too often.

That said, employers usually have the ability to remove employees who are accused of criminal offenses from the workplace when appropriate. This typically is done either through placing the employee on administrative leave or suspension while the matter is dealt with. (Civil service rules and collective bargaining agreements typically govern whether the leave is paid or unpaid.) Such leave or suspension should not be characterized as being disciplinary. Discipline only should be imposed after a full and fair investigation into the allegations has been conducted and the accused has been afforded a disciplinary process that provided an opportunity to be heard.

You might want to reread that last sentence. Within that simple overview are the factors to consider when determining whether a delay is necessary. Disciplinary delays may be necessary when matters interfere with either (a) the capability of the fire department to conduct a full and fair investigation or (b) the ability of the accused firefighter to have an opportunity to be heard.

Warranted investigations
Consider the following three situations when the delay of a disciplinary investigation is warranted.

When witnesses and/or evidence are not available to fire department investigators. An investigation consists of two essential tasks: interviewing witnesses and gathering evidence. The inability to interview witnesses and/or gather evidence poses fatal problems for an investigation. This situation can arise when a firefighter is accused of a heinous crime, such as sexually assaulting a minor.

To conduct a full and fair investigation, fire department investigators need to interview the victim and, perhaps, the members of the victim’s family. In addition, physical evidence also may be relevant. If the matter moves forward to a disciplinary hearing, the victim likely must testify, and the physical evidence may need to be introduced.

Neither the police nor the prosecutors will allow fire department investigators to interview a sexual assault victim or the victim’s family, for that matter, before the criminal case is completed. Doing so without permission from law enforcement may result in obstruction of justice charges against the investigators. In such a case, the disciplinary investigation is dead in the water and must await the conclusion of the criminal case.

When law enforcement requests a fire department not to interview the accused because of Garrity concerns. Public employees who are accused of criminal offenses have a Fifth Amendment right to remain silent. However, as interpreted by the U.S. Supreme Court in Garrity v. New Jersey, a public employer can compel public employees to answer questions that are “specifically, directly and narrowly” related to the performance of their official duties. In such a case, employees must answer the employer’s questions. If they don’t, they face termination.

To protect the employee’s Fifth Amendment rights, compelled answers are subject to defacto immunity protection and cannot be used against the employee in a criminal case.

Garrity immunity has the potential to compromise a police investigation into the underlying crime. Therefore, police may ask the fire department to refrain from conducting a compelled interview of the accused and/or letting the matter to proceed to a disciplinary hearing, until police complete their investigation or, perhaps, until the criminal trial is over. In such cases, a delay is inevitable.

When complying with professional standards, best practice may not be possible. Under the disciplinary concept that’s known as professional standards, the recommended best practice is for an accused employee to be interviewed last. Prior to that interview, the employer provides the accused employee with all of the evidence that the employer has available up to that point in the investigation. In addition, once disciplinary charges are preferred, the accused has a right to a hearing. This poses two sets of problems. First, criminal defense attorneys may see the interview or the hearing as an opportunity to gather additional information. Second, if the accused is incarcerated, access to the employee for an interview and/or hearing may be limited.

A related concern is that police may not be willing to share information with fire department investigators out of concern that it may be shared with the accused, particularly early in a case. If law enforcement is willing to share information, it may be on the condition that it not be shared with the accused until a later stage in the criminal proceedings.

Each of the three reasons that are noted above are grounds for a fire department to defer initiating a disciplinary investigation into an accused firefighter and await the outcome of the criminal case. Fundamentally, each goes back to whether the delay is necessary to ensure that the fire department is capable of conducting a full and fair investigation or whether the accused firefighter has an opportunity to be heard. In such cases, the employee may be placed on administrative leave or a nondisciplinary suspension pending the outcome of the criminal proceedings.

Job abandonment
When an accused firefighter is incarcerated and it appears likely to continue for an extended period, an alternative that some departments take is to do the opposite of what is described above: not put the employee on administrative leave or suspension. Instead, initiate an investigation into the employee’s absence, the same as if an employee fails to report for work without approved leave.

Most departments do not have a leave category for employees who are unable to work because they are incarcerated. Once personal and vacation leave is exhausted, incarcerated employees who are unable to report for their scheduled shifts are considered to be absent without leave. The term used in employment law for this is job abandonment. If an investigation determines that an employee abandoned his/her employment by failing to meet an essential condition of employment—namely, showing up for work—termination may follow without the need to investigate the underlying criminal offenses.

I would point out that this approach appears to ignore the simple principle that’s discussed above: No one should be disciplined simply because they are arrested. However, the person is not being disciplined solely because of an arrest. The individual is being disciplined because he/she isn’t able to fulfill an essential condition of employment: showing up. Nevertheless, this alternative approach should be the exception not the rule, and its use should be limited to serious criminal offenses where such an approach is warranted.