4 NY firefighters dismissed for alleged absenteeism sue for reinstatement
One of the firefighters alleges she was retaliated against for running in a fire district board election
The Buffalo News, N.Y.
ORCHARD PARK, N.Y. — They seem like the kind of volunteers any town fire district would desire.
A state corrections officer who attended classes three days a week to become an emergency medical technician.
A Buffalo firefighter who wanted to apply his experience and knowledge when he moved back from the city.
A nurse practitioner who made home visits to check smoke detectors.
A real estate agent who said she averaged 10 hours a week responding to calls, participating in weekly drills, serving on the fire company's kitchen committee, and leading the Halloween and Christmas parties for children and the annual installation dinner.
But the Board of Fire Commissioners in Orchard Park removed them as firefighters from the Orchard Park Fire Company, effective Sept. 1.
Their failing? None responded to at least 10% of the company's fire calls.
One of the volunteers disputed the calculation, and she said she was retaliated against after she announced she was seeking election to the fire district board. The others offered what they consider reasonable explanations – a demanding work schedule, starting a new family and a broken wrist among them – that they expected the fire district board to take into account.
Now the four are suing the fire district in State Supreme Court to be reinstated.
Even their fire company's president asked the Board of Fire Commissioners to reconsider.
"I am writing this letter to inform the board of my concerns regarding the disciplinary actions/dismissal that the Orchard Park Board of Fire Commissioners are taking against four members of the Orchard Park Fire Company," Orchard Park Fire Company President Michael Carey wrote in an Aug. 11 letter to the board. "I question the fact that this action does not follow the bylaws set forth by the Orchard Park Board of Fire Commissioners."
Carey, writing that "due process steps" were not followed, pressed the fire commissioner to "re-evaluate this situation."
Unless their removals are invalidated, the four said in court papers, they will never be able to rejoin any volunteer fire company in the Town of Orchard Park.
They're also worried about the potential harm to their reputations.
"It creates an erroneous impression that I have neglected my duties as a member of the company, when in fact, during the last two years, I have responded to as many calls as possible amid my work schedule as a corrections officer, my EMT training classes, and my wife's and my marriage and preparation to welcome our first child," said Russell Perez, a corrections officer at Wende Correctional Facility in Alden, in a court affidavit.
Attorney Craig R. Bucki, who represents the four, said they tried but failed to resolve the issue at a meeting with district officials shortly before they filed their court case.
"The board removed the firefighters for absenteeism in failing to respond to the required number of fire calls," said attorney Michael F. Chelus, who represents the Orchard Park Fire District and the Board of Fire Commissioners.
Chelus declined further comment about the pending Article 78 proceeding.
Three of the four ousted volunteers said in court papers that they appeared before the fire company's hardship committee over the summer to explain their low response rates, and the committee encouraged them to stay on as members and to try to respond to more calls. The fourth volunteer, the Buffalo firefighter, said he was never summoned to appear before the committee.
None heard anything from the fire company or district to suggest the district was thinking about removing them as volunteer firefighters. That's why the fire district's removal letter in August came as a shock to them.
"During my seven years as a member of the company, I am not aware of any instance before this summer when the district removed any member of the company from the district's roster of volunteer firefighters for any alleged failure to respond to 10% of the company's fire calls in a particular year," said Violet Newell, one of the four ousted volunteers, in a court affidavit.
So what prompted her removal?
It boils down to retaliation, Newell said.
On June 4 she announced her candidacy on Facebook for a seat on the district's Board of Fire Commissioners. She lost by only 16 votes when she ran for a seat on the board in 2017.
The district issues bonds and levies taxes on property owners in the Town of Orchard Park for the operations of three volunteer fire companies: the Orchard Park Fire Company, Windom Volunteer Fire Co. and Hillcrest Volunteer Fire Company.
The district is governed by a five-member Board of Fire Commissioners elected by Orchard Park voters. Each December, the town's voters elect one commissioner for a five-year term.
The same day as her Facebook post, she also began collecting signatures for the petition she would need to qualify for the election this December.
The next day, Commissioner Roger Restorff called her husband, John Newell, presently the chief of the fire company, to advise him for the first time that the board would soon initiate proceedings to remove her as a volunteer firefighter, she said in her court papers.
"Simply put, the board's initiation of proceedings to remove me as a volunteer firefighter in the district and as a member of the company was prompt retaliation for the announcement of my candidacy against an incumbent commissioner," Newell said in her affidavit.
Newell, an employee of the Erie County Department of Social Services and also a real estate agent, joined the Orchard Park Fire Company in 2013. She's in her sixth year on the company's executive board, previously serving as the company's treasurer and now as corresponding secretary.
The company's records reflect that she responded to about 2% of the company's fire calls in 2018 and about 5% of the calls in 2019, according to the lawsuit.
"These statistics understate my actual rate of response to the company's fire calls, because the "Red Alert" system used to track company members' responses has often malfunctioned, and I often drive to calls with my husband John, rather than log in and record my own response," she said in her court papers. "Unlike other volunteer fire companies, moreover, the company does not have a ladies' auxiliary, and relies primarily upon volunteer firefighting members like me to organize and run social events for members and their families and outreach to the Orchard Park community. My rate of response to fire calls does not account for my hours of volunteering each week that supports the company's governance and charitable activities, and that demonstrates my commitment to the fire service in Orchard Park."
She said she's running again for a district board seat because of "what I perceive to be a lack of commitment by the district to open and transparent government."
The board has failed to respond to requests under the state's Freedom of Information Law for copies of its bylaws and other documents, she said. The board does not allow the public to question the commissioners at board meetings, she added. And, according to her affidavit, she has routinely observed the board vote to approve payments of invoices without specifying publicly those invoices' purposes or itemizing their amounts.
Not in good standing
The other ousted volunteers in their court papers did not suggest why the district board removed them – only that it violated its own bylaws in doing so.
Perez, the corrections officer, said the district board summoned him to a meeting Aug. 5. The meeting lasted about 10 minutes.
"I explained to the board why my recent marriage and my three-times weekly commitment to take EMT training classes, combined with my work schedule at Wende Correctional Facility, limited my availability to respond to fire calls in 2019, but that I very much wanted to continue serving as a volunteer firefighter in Orchard Park," he said in court papers.
During the meeting, the board suggested that he resign from the district so that he could apply to rejoin the fire company at a later time, he said. Otherwise, he was warned, if the board removed him, he would be permanently barred from ever rejoining.
He replied that he would consider the board's suggestion, but about two weeks later, he learned the board voted to remove him from membership as a volunteer firefighter.
Perez said it's his understanding the district can remove a member who is not in "good standing" for two consecutive years.
"I had not belonged to the company for two years when the board requested a meeting with me to discuss my status," he said in his affidavit.
Jeffrey Szalay, the Buffalo Fire Department firefighter with 29 years of fire service, said the Orchard Park Fire District refused in 2019 to accept the results of his physical by the City of Buffalo.
The district, he said, insists that he be examined by a doctor approved by the district. As a result, he has not been able to respond to any fire calls in Orchard Park since May 2019.
"Even so, I would like to resolve my dispute with the district (over the physical) and to continue my service to the Orchard Park community as a volunteer firefighter and member of the company," he said.
Juliet Marczak, a nurse practitioner at Erie County Medical Center, said she had surgery on her right wrist in 2018 and responded to 33 of the company's fire calls last year, just three calls short of 10%. She has served on the company's smoke detector committee, making home visits in October and November, and serves on the company's executive board.
She, too, was summoned to the fire district board to explain her low response rate.
"I explained to the board why my medical leave for several months in 2018, my busy work schedule as a nurse practitioner at ECMC and Mobile Primary Care, and my more recent role in conducting frequent Covid-19 nasal swab testing have limited my availability to respond to certain fire calls in recent years, but that I very much wanted to continue serving as a volunteer firefighter in Orchard Park," she said in her court affidavit.
©2020 The Buffalo News (Buffalo, N.Y.)