An arbitrator has ordered the D.C. fire department to reverse former Chief Kenneth B. Ellerbe’s demotion of a 33-year veteran employee over his handling of an internal disciplinary matter involving beer found in a fire house.
The ruling will reinstate Capt. Richard Sterne to the rank of battalion fire chief and require the city to reimburse him back pay for the nearly three years since the demotion took effect.
“I knew I was right and I had faith that the system would prove it,” Capt. Sterne said Monday in an interview. “But it’s an aggravating thing that it took the system this long.”
Capt. Sterne estimates that he is owed about $30,000 in back pay and likely will recoup an additional $30,000 in attorneys fees for the case.
The demotion stunned D.C. Fire and Emergency Medical Services officials and left high-ranking employees under the impression that they too would face punitive action if they failed to rule on internal matters in a way the fire chief wanted.
In the ruling, dated Jan. 21 and received by Capt. Sterne over the weekend, a senior administrative judge with the Office of Employee Appeals wrote that it did not appear Capt. Sterne violated any protocol and Chief Ellerbe “simply disagreed” with how he handled the disciplinary proceedings of two firefighters involved in the beer incident.
“The fact that FEMS would seek to demote an employee who has enjoyed a near spotless tenure within its rank and without clearly articulating that his conduct violated a clear rule or regulation but rather was merely a disagreement about an amorphous situation cannot be tolerated by the OEA as it reviews this matter,” Administrative Judge Eric Robinson wrote in his ruling. “I find FEMS action inconsistent and it is entirely unclear to the Undersigned why Chief Ellerbe chose to elevate the penalty from a reprimand to a demotion.”
Fire department spokesman Tim Wilson said Monday the agency is evaluating its options before making a decision whether or not to appeal the ruling.
Chief Ellerbe, who retired from the department last year, did not return phone messages.
The demotion stemmed from Capt. Sterne’s decision to reprimand rather than suspend two firefighters involved in a 2011 incident in which a resident delivered two 12-packs of beer to a U Street fire station to thank firefighters for extinguishing a fire at his home.
The firefighters declined to accept the beer, but the man left it at the fire station and firefighters put the beer into a refrigerator to get it out of public view. Chief Ellerbe discovered the beer on a visit after being tipped off and closed the station so all employees there could be tested for alcohol consumption. None of the employees was found to have been drinking.
A punishment of 24-hour suspensions was proposed for two firefighters, but disciplinary action was left to Capt. Sterne. Following a disciplinary hearing, Capt. Sterne issued only reprimand letters to the men after determining “no intentional misconduct” occurred.
Chief Ellerbe moved to have Capt. Sterne demoted after the lesser punishment was handed down, writing in a notice of demotion that the battalion fire chief had not taken into consideration the prior disciplinary history of one of the men and therefore created an appearance of “preferential treatment.”
The Office of Employee Appeals noted that department policy indicates that during this type of disciplinary hearing Capt. Sterne was to consider only the history and details of the case included in a packet of information he received from the department’s Office of Compliance. Capt. Sterne was aware that one of the men previously had a disciplinary hearing because he had presided over the case; however, the information was not included in the packet.
Capt. Sterne was not the only one to face fallout over the highly publicized beer incident.
Battalion Fire Chief Kevin Sloan ruled on the appropriate punishment for another firefighter tied to the beer case and later was transferred in what he called an act of “workplace bullying.” Facing family hardship over his new work schedule, he retired from the department in 2012.
Capt. Sterne said he believes his demotion had negative effects on the department’s disciplinary process by creating an environment in which those who dole out discipline were afraid to do anything Chief Ellerbe disagreed with.
“Penalties and charges were so substantially up during that period, it was crazy,” Capt. Sterne said.
Firefighters facing such charges could accept the punishment recommended or seek a hearing like the one he presided over to challenge it.
“A lot of people didn’t challenge them because they thought the deck was stacked against them,” Capt. Sterne said.