A Suffolk County, New York judge has ruled that the Stony Brook Fire District improperly suspended a volunteer fire lieutenant, and in doing so violated his statutory right to due process. Thomas J. Killeen filed suit under a NY law that allows aggrieved persons to challenge acts or omissions of a governmental entity, an action known as an Article 78 proceeding. He also included an allegation of a 42 USC §1983 violation of his due process rights.
Killeen was suspended by the fire chief in 2022. That suspension was extended by the chief to 180 days. Under NY law, a chief can only suspend a member until the next meeting of the fire Commissioners, who then must decide of further discipline. Quoting from the decision:
- Petitioner alleges that he was a lieutenant and member of the Stony Brook Fire Department and on November 20, 2022 he was suspended by the Chief of the Fire Department for alleged misconduct.
- The suspension was in place until the next meeting of the Fire Commissioners which was held on December 15, 2022.
- The petitioner contends that at this meeting which he did not attend the Fire Commissioners suspended him for 180 days.
- By letter dated December 16, 2022 the Chief of the Fire Department notified petitioner of the suspension which would be in effect until May 28, 2023.
- Respondents claim that petitioner’s suspension was made solely by the Chief of the Fire Department.
- Petitioner’s conduct was discussed at the Fire Commissioner’s December 15, 2022 meeting in its executive session but no action was taken by the Fire Commissioners other than referring the matter back to the Chief.
- There is no record of the Chief, Fire Department, Fire District or Fire Commissioners filing any charges against the petitioner, providing notice of a hearing or conducting a hearing as provided for in the Department’s by-laws or pursuant to statute.
- General Municipal Law 209-l(3) states:
- Removals on the ground of incompetence or misconduct, except for absenteeism at fires or meetings, shall be made only after a hearing upon due notice and upon stated charges and with the right to such officer or member to a review pursuant to article seventy-eight of the civil practice law and rules. Such charges shall be in writing and may be made by any such authority. The burden of proving incompetency or misconduct shall be upon the person alleging the same.
- The petitioner’s suspension was effectuated without written charges and a hearing, which was in violation of lawful procedure.
- Petitioner served his period of suspension and has returned to the Fire Department.
- Accordingly, for the foregoing reasons, the Article 78 petition is granted as against the Fire District and Fire Commissioners.
- The suspension issued in violation of lawful procedure is null and void.
- Furthermore, the Court in considering the Article 78 claims in this proceeding, severs the remaining claims and directs that a proposed preliminary conference order be submitted to the Court within 30 days of the filing of notice of entry of this decision and order.
With that the court addressed the Article 78 portion of the suit. However, the court has yet to rule on whether there was a §1983 violation, and if so, what the damages would be. The court scheduled further proceedings to consider this constitutional deprivation of rights and to determine what, if any, money damages are due to Killeen.
Killeen, through his attorney Brad Pinsky, has argued that the court should grant money damages to a volunteer firefighter in a case like this, who is deprived of both his statutory and constitutional rights to due process. Part of their reasoning rests on the fact that some courts have ruled that a petitioner only has the right to an award of attorney’s fees if the petitioner has actual and/or substantial damages. In the absence of court-ordered attorney’s fees, attorneys will be disinclined to handle these constitutional violations, leaving volunteer firefighters unable to achieve justice.
This case is important. If a court fails to award damages to a prevailing firefighter, government entities will be free to take advantage of volunteers by ignoring their due process rights, placing an unreasonable burden on the firefighter to rectify governmental misconduct. At stake is whether the right to due process for volunteer firefighters in New York, will be an empty promise.
In this case, the Killeen’s attorney spent well over $35,000 fighting for the Petitioner’s rights. What attorney would spend this much money just to defend the rights of a volunteer firefighter? Well, besides Brad Pinsky that is!
Here is a copy of the complaint:
