In August 2002, Richard Greene was discharged from his position as a volunteer firefighter by the Medford (N.Y.) Fire Department. The events leading up to his discharge and subsequent lawsuit merit our attention.

In the lawsuit that followed his discharge, Greene alleged that he had served as a volunteer firefighter with the Medford Fire Department since 1996. He claimed that during that time, he met all of his duties and obligations as a member, maintained an excellent working relationship with the members and officers of the department, excelled in fire activities, garnered praise from members of the community, and devoted himself to improving his firefighting skills. In addition, he stated that he had received awards from the department for his service.

Greene claimed that he had a good working relationship with the entire department up until disagreements with Chief Michael Barry in October 2001 ultimately resulted in a six-month suspension Greene described as “a social suspension.” However, the trouble did not end there.

Greene stated that on June 3, 2002, and again on July 3, 2002, incidents arose where the department alleged that he violated the “social suspension” and had an altercation with Barry. He was then verbally suspended by the chief and thereafter received a letter from him dated July 11, 2002, which suspended him again on the allegations that he had violated “Medford Fire Department Bylaws Article 3, Section A.” Greene claimed that in fact this bylaw did not exist. The letter also advised him that he would be entitled to a hearing at the department's August meeting.

Further correspondence was issued to Greene dated July 22, 2002, advising him that the hearing would take place on Aug. 2, 2002. Greene claimed that the only statement in this letter concerning the charges against him was as follows: “The charges once again are as follows: failure to abide by the bylaws, Article IV, Section III, A, C, and E.”

The bylaws of the Medford Fire Department provide that “All charges shall be tried in open meeting with the President presiding and the members present acting as the jury. Both the accused and the department shall be entitled to select counsel. Vote will be by secret ballot. Two-thirds of the valid ballots cast shall be in favor of guilt in order to determine a verdict of guilty.” Section 5 of the bylaws further provide that the executive committee was to set the penalty.

Greene claimed that on Aug. 2, 2002, the “trial” was conducted and chaired by Barry, not the president of the department. Greene further claimed that not only did Barry chair the meeting, but he also presented the case against Greene and testified against him. Greene also argued that his attorney was not permitted an opportunity to cross-examine Barry.

On or about Aug. 3, 2002, Greene was notified by letter that his membership in the department had been terminated.

The department had a different recollection of the events. It claimed that in October 2001, Greene was suspended due to false statements he allegedly made to members of the general public regarding his involvement in the wake of the Sept. 11, 2001, attacks. The suspension was to last until April 1, 2002.

When asked by other members of the department to explain the actions that resulted in his suspension, the department said that Greene called into question his own mental status and indicated his intention to seek professional help. In response to this revelation, 30 members of the department signed a petition requesting that a physician clear Greene before his being permitted to return to active duty as a Class A firefighter.

When the chief asked Greene whether he had sought professional assistance as requested by his fellow firefighters, Greene became verbally abusive and refused to cooperate further regarding the issue of his mental health.

Nonetheless, Greene was reinstated following his suspension, provided that he agreed to abide by certain rules set out by Barry, who restricted Greene's firefighting activities to department meetings, training and responding to active alarms. Greene was not to be present at the firehouse unless his presence was in connection with these official activities. He was not, under any circumstances, to be present on department grounds for social activities.

The department claimed that despite these directives, Greene was discovered on June 3, 2002, in the recreation room of the firehouse when no meeting, training or active alarm was under way. When confronted with the terms of his suspension by Barry, Greene became verbally abusive.

One month later on July 3, 2002, Greene was seen on department property washing his truck. There was no active alarm at the time, nor was a meeting or training being held. Greene was confronted again regarding the violation of the terms of his suspension.

Based on these continuing violations, the department sent Greene a letter dated July 11, 2002, that his membership was suspended due to his “apparent disregard of rules and authority within the Medford Fire Department.” In a further letter dated July 22, 2002, he was advised of his hearing date of Friday, Aug. 2, 2002, and was further charged specifically with failure to abide by certain department bylaws.

The department claimed that the transcript of the hearing proceedings reflected that the charges against Greene were clearly stated, and an overhead projector was used to facilitate the presentation of the charges. The department further claimed that at no time did Greene, either personally or through his attorney, request any clarification of the charges or object in any way to the manner in which the charges and evidence were being presented.

The department said that at no time did Greene's attorney indicate his desire or intention to cross-examine Barry. The department argued that the record nowhere reflected any refusal by the department to allow Greene to conduct a cross examination, or in fact to adhere to any formal proceedings or procedures in the presentation of his defense.

Following the hearing in accordance with the bylaws, a ballot was taken of the department members acting as a jury of Greene's peers. By the required vote, Greene's name was removed from the membership rolls.

Greene then sued the department, seeking to have his membership reinstated. The trial court refused to do so, upholding the department's decision to terminate Greene's membership. Greene then appealed this lower court decision to the State of New York Supreme Court, Appellate Division. The Appellate Court, in the case entitled In the Matter of Richard Greene, Appellant, v. Medford Fire Department, Inc., et al., Respondents, 2004 NYSlipOp 03136, reversed the lower court.

The primary bases for Greene's challenge to the department's actions were that the department violated his due-process rights by giving inadequate notice of the charges against him, and that Barry's conduct of the meeting, while simultaneously acting as a witness, violated the due-process requirement of a fair hearing. The Fifth Amendment to the U.S. Constitution provides that no person shall be deprived of life, liberty or property without due process of law. The threshold issue was whether the Fifth Amendment protection of property rights included a person's right to be a member of a volunteer fire department.

The appellate court had little difficulty in deciding this issue. It held that a volunteer firefighter must be afforded due process in disciplinary proceedings such as those under consideration. Quoting from earlier cases on the subject, the court said, “In order to satisfy due process, a notice of charges must reasonably apprise the accused of the claim being made so that an adequate defense may be mounted.… Significantly, where the charges against an individual are made only in the most general terms and no specific directive or established procedure is mentioned, the disciplinary action must be annulled.”

Once the appellate court had disposed of the question of whether due process applied in this instance, it quickly concluded that the department's notice to Greene was inadequate. It stated that the notice provided to Greene prior to the hearing merely advised him in general terms that he was charged with conduct unbecoming a member of the department, neglecting to carry out orders of a superior officer, and failing to comply with the bylaws and rules of the department. The court noted that neither the specific actions underlying these charges nor the specific bylaws or rules allegedly violated were set forth in the notice.

For these reasons, the court agreed with Greene that the notice was inadequate to permit him to mount a defense. Consequently, the court annulled the department's decision to terminate Greene's membership and remitted the matter back to the department with the direction that it set forth proper notice of the charges against him and conduct a new hearing to determine the status of Greene's membership. In other words, the appellate court didn't permanently reinstate Greene to the department. Rather, it directed the department to go through the hearing process again after giving proper notice to Greene.

This case is instructional for several reasons:

• Just because a person is a volunteer firefighter doesn't mean that the due-process clause of the U.S. Constitution is inapplicable.
• Notice to a person who is the subject of a disciplinary proceeding must be sufficiently specific to allow the person to prepare a defense. While this does not mean that notice must be of the degree of specificity used in criminal charging documents, it does mean that the notice must specifically set out the behavior objected to and the rules or regulations thereby violated.
• The conduct of a disciplinary hearing must be such that there is no appearance or actual presence of bias.
• Just because the original hearing process may have been flawed doesn't mean that all is lost. It may be possible to go through the process again after curing the earlier defects.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He has been legal counsel for the Wisconsin State Fire Fighters Association, legal counsel and Wisconsin director for the National Volunteer Fire Council Inc., president of the NVFC Foundation, and current NVFC chair. Stittleburg sits on the NFPA board of directors and has served on the committee for NFPA 1500, Fire Department Occupational Safety and Health Program.