Legal Lesson of the Month: Firefighter Fired for Not Disclosing Firing

EMS can be full of interesting and tricky legal scenarios. While you can’t have an attorney ride with you, it behooves providers to have at least some familiarity with the principles, precedents, and major issues of EMS law. To that end EMS World is pleased to offer the EMS Legal Lesson of the Month.

These cases are presented by prominent attorneys in the EMS field. This month’s comes from Larry Bennett, program chair for fire science and emergency management at the University of Cincinnati. Bennett’s department publishes a monthly Fire & EMS and Safety Law newsletter; subscribe to that by e-mailing Lawrence.bennett@uc.edu or read the latest edition here. Find this case and more in his newsletter archive. 

Case: Brandon Lewis v. Fire Chief Larry DiCamillo, Stafford Fire Marshal’s Office, and City of Stafford (Tex.)

Decided: August 2021

Verdict: The Texas First District Court of Appeals held 3–0 that the trial court properly dismissed Lewis’ lawsuit.

Facts: On September 4, 2018, Lewis was terminated from his position as an inspector/investigator with the Stafford Fire Department. About two weeks before, on August 22nd, Chief Di Camillo received information from Peter E. Alvarado, the emergency management coordinator for the Stafford Fire Marshal’s Office, about Lewis’ prior employment with the Missouri City (Tex.) Fire Department. Alvarado had been informed by the Missouri City Fire Marshal’s Office (MCFMO) that Lewis was not allowed to conduct business or aid in investigations in Missouri City because Lewis, previously an intern with the MCFMO, was fired from the Missouri City Fire Department after being accused of stealing a book.

Alvarado reviewed Lewis’ employment files and found Lewis did not list his previous work for the Missouri City Fire Department on his application, personal history statement, or resume. Alvarado provided this information to Chief Di Camillo in a signed, written memorandum.

Di Camillo provided Lewis with a notice stating Di Camillo had reviewed the complaint “alleging omission of work history during the application and background process for employment and falsification of a TCOLE [Texas Commission on Law Enforcement] document” and agreed with Alvarado’s findings. As a result, Di Camillo terminated Lewis’ employment.

Di Camillo informed Lewis of his right to appeal the termination either in writing or in person within five business days, or by September 11th. Lewis signed a document indicating he had received both a notification of complaint for untruthfulness and a copy of the complaint.

Lewis appealed his termination on September 6th. On September 11th Di Camillo sustained the decision to terminate Lewis’ employment and informed Lewis of his right to appeal to the Stafford City Council. Lewis elected not to pursue that appeal.

Lewis’ suit alleged the chief, fire marshal’s office, and city failed to perform a necessary ministerial act and acted outside their authority by failing to provide him with a signed complaint—the August 22nd memorandum—within a reasonable time after it was filed, in violation of Section 614.023 of the Texas Government Code. Lewis admitted he received the memorandum on September 4th, the day he was terminated, but contended the 13-day delay was unreasonable and denied him a reasonable opportunity to collect evidence to defend himself.

However, the Texas Supreme Court had explicitly ruled in 2017 (Colorado County v. Staff) that Section 614.023 does not require a complaint to be served before discipline is imposed. Also here, like in Staff, Lewis’ termination was conditioned on his right to appeal to both the chief and city council. As stated in Staff, the statute does not require the employee be given a pretermination opportunity to be heard. Finally, Lewis argued his receipt of the August 22nd memorandum on the day of his termination was unreasonable because an investigation had already been conducted and termination was recommended by the time he received the complaint. But, per Staff, the statute does not require an employee be afforded an opportunity to participate in the investigative process.  

Key quote: “Lewis was provided detailed information in both the August 22nd memorandum and the complaint notification to allow him to investigate the allegations against him related to his failure to disclose his prior employment on his City of Stafford applications. He was also afforded ample opportunity to defend himself against these allegations during the appeal process.”

Legal lesson: Be honest on all application forms, including disclosure of prior terminations. A best practice also includes asking applicants to authorize prior employers in writing to disclose their employment and disciplinary records.