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Firefighter discipline procedure under fire

ACLU questions fairness of hearings

- The Washington Times - Wednesday, July 4, 2012

The District's chapter of the American Civil Liberties Union is concerned that D.C. firefighters facing departmental disciplinary hearings are not receiving fair trials, according to a letter it sent to the D.C. attorney general's office.

Citing the demotion of one fire battalion chief and the transfer of another shortly after the men presided over disciplinary hearings and issued lesser punishments than had been proposed initially, Arthur B. Spitzer, legal director for the ACLU of the Nation's Capital, criticized D.C. Fire Chief Kenneth B. Ellerbe and questioned whether employees can expect to receive due process in disciplinary hearings.

"I think that sends a very clear signal to people in the department who are asked to act as judges in a sense that they better put the chief's desires ahead of independent judgment or they may find themselves personally injured," Mr. Spitzer said in an interview. "There are not many people who are going to put their own careers at risk by saying to the chief something else."

Mr. Spitzer wrote the letter, which was provided recently to The Washington Times, in May in reference to departmental charges that were being brought against Lt. Robert Alvarado as a result of an interview he gave to WTTG-TV (Fox 5) in January.

This week, the trial board that heard Lt. Alvarado's case handed down a decision on the matter, demoting Lt. Alvarado to the rank of sergeant and suspending him from work without pay for 264 hours. The bulk of the punishment stemmed from one of several charges that the ACLU said "have no merit and apparently were added in order to increase the potential discipline that can be imposed upon him."

Lon Walls, a spokesman for the D.C. Fire and Emergency Medical Services department, did not respond to multiple requests for comment about the ACLU's concerns.

In the past, Chief Ellerbe has declined to comment on disciplinary proceedings, citing them as personnel matters.

Lt. Alvarado was charged with violating the department's Patient Bill of Rights after the Fox 5 news crew that was interviewing him photographed a patient who drove up to the fire station where the interview was being conducted and requested medical care.

As the interview was taking place on a public sidewalk in front of the fire station, Mr. Spitzer wrote, "Neither Lt. Alvarado nor anyone else - including Fire Chief Ellerbe, had he been present - had any power to tell Fox News to turn off its cameras."

The charges of violation of a patient's rights and insubordination, of which Lt. Alvarado also was found guilty, were the two charges heard by the trial board. Three other charges against him were dropped after the attorney general's office received the ACLU's letter, which challenged the basis of several of the charges.

The D.C. Fire Fighters Association is seeking assistance from either the ACLU or the International Association of Fire Fighters for Lt. Alvarado in order to appeal the punishment, union president Ed Smith said.

"We believe that it is not proper, and we are seeking assistance to help him through this rough spot," Mr. Smith said.

Mr. Spitzer said the ACLU would have to review the trial board's decision before committing to represent Lt. Alvarado in any appeal.

"If he asks us, we certainly would consider it," Mr. Spitzer said.

Among the other charges brought against Lt. Alvarado, but not ruled upon, was a charge based on a department order that had been ruled unconstitutional in a 1990 court case.

The order declared that department employees could not give interviews while on duty without prior written permission from a public affairs officer. In a 1990 lawsuit brought by the firefighters union, the U.S. District Court for the District "found that regulation to be an unconstitutional prior restraint on firefighters' freedom of speech and prohibited the Department 'from enforcing [the] regulation in the future,' " Mr. Spitzer wrote.

A similar rule was reintroduced into the department's orders in 2005.

Lt. Alvarado said the handling of his case, and backing by the ACLU, proves that firefighters' concerns about retaliation within the department are real.

"It shows we're not crying wolf. This is a very legitimate problem within the department. And Ellerbe is just doing whatever he wants without regard to whether it's legal and whether it's right," he said. "The longer this goes on, the longer the citizens of the District of Columbia are at risk for picking up charges for litigation over this."

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