AFF PREVAILS IN COMPLEX RETALIATION LAWSUIT BROUGHT BY UNION OFFICIALS

     Attorneys Stuart Adams and Michael McGill recently combined efforts to successfully vindicate the First Amendment and union rights of three Board members for the Santee Firefighter’s Association, Local 4373.  
Fire Captains Jon Sengebusch, David Leask and Justin Matsushiata were all very active and vocal union members for the Firefighters’ Association.  The Captains served various official positions with the Association Board, including part of a labor relations committee.  Over the course of a couple of years, the Captains brought to light and blew the whistle on various safety concerns within the Department.  These concerns related to a number of failures by the Fire Chief, including his failure to implement basic safety recommendations of the Association following a series of preventable severe injuries by firefighters.  
The Association, as well as the Captains, complained that the Fire Chief failed to adequately investigate the concerns brought forward, and that the Fire Chief’s failures resulted in an incident where a firefighter was rendered unconscious and taken to the hospital after a confined space drill. 
The Captains believed that the Fire Chief’s questionable practices had systematically eroded the ability of the Fire Department to protect the citizenry and has endangered the lives of firefighters.  They brought this information forward with the goal of facilitating discussion and hopefully addressing the poor functioning of the Fire Department, and in particular the problematic leadership at the City through Fire Chief and the City Manager.  
Unfortunately, the Fire Chief and the City Manager did not take too kindly to the constructive criticism.  
In response to the disclosures, the Fire Chief and the City Manager both sought to stop the Association and the Captains from bringing this type of information forward.  In December 2013, the City Manager warned a room full of firefighters that engaging in the type of free speech that the Captains did, would be used against them in promotional opportunities going forward.  This threat was a clear attempt to stop further lawful disclosures about problems the Fire Chief was creating and to stop issues like this from being brought to light.  The Fire Chief would routinely speak negatively of the Captains and the Association, and indicated a clear dislike for them, both individually and collectively.  
In February 2014, in response the mounting criticism, much of which was leveled by the Captains, the Fire Chief was forced to resign.  The City Manager indicated that the Chief’s resignation was due in large part to the disclosures made by the Captains.  However, as his farewell parting gift, the Fire Chief issued one last act of retaliation.  
Four days before the Fire Chief’s resignation was to take effect, the Fire Chief made three promotions to Battalion Chief.  Despite the fact that the three Captains were the most qualified and were on the promotional list and ready to be promoted, the Fire Chief promoted three other captains simply as retribution for the protected speech.  The Fire Chief’s actions were clearly retaliatory, as it is custom in the industry that an outgoing department head would not make promotions to an executive staff position; rather the incoming department head would make those promotions.  
The Fire Association and the three Captains immediately called Adams, Ferrone & Ferrone and spoke with attorney Stuart Adams.  Stuart immediately filed an unfair labor charge against the City for interference and discrimination against the Association and the Captains for engaging in lawfully protected union activities.  The Public Employment Relations Board issued a complaint against the City and the matter was set for trial.  Concurrently, attorney Michael McGill filed a federal civil rights claim against the City, as well as the Fire Chief and the City Manager, alleging retaliation for engaging in activities protected by the First Amendment.  
On the eve of trial, the City, the Captains and the Association came together to try and resolve the matter.  By this time, the Fire Chief that had caused the problems and engaged in the retaliation had been forced to resign.  In addition, the City Manager who had allowed this all to occur had also been forced to resign under mounting pressure of complaints about problems within the Fire Department.  Thus, with new staff at City Hall, the City was committed to proceed in the right direction and fix the problems that had been occurring.  
Thus, the parties agreed to resolve the litigation by putting in place a plan where one of the three Captains is immediately promoted to Battalion Chief, followed by the remaining two when vacancies occur.  The value of the promotions for the three Captains to Battalion Chief is estimated to be approaching one million dollars for each Captain.  In addition, and aside from the promotion, the Captains each received a significant damage award to compensate them for their pain and suffering, as well as lost back wages.  The Captains and Association are ecstatic about this resolution and look forward to moving forward with the City in a positive direction.  
The Santee Firefighters’ Association thanks Adams, Ferrone & Ferrone, and specifically, attorneys Stuart Adams and Michael McGill for their hard work and commitment to obtaining justice.  
 
ABOUT THE AUTHOR: Michael A. McGill is an attorney with Adams, Ferrone & Ferrone, and specializes in representing public safety officers and their associations in all labor and employment related matters.  Adams, Ferrone & Ferrone serves as general counsel to over 100 public safety associations in California.