The following is summarized from Legal Briefings for Fire Chiefs, SPECIAL BULLETIN, RICCI et al. v. DESTEFANO et al. (“The New Haven Case”). Citation: Frank Ricci, et al. v. John DeStefano, et al, Nos. 07-1428 and 08-328. Supreme Court of the United States. (2009)
By a 5-4 decision, the Supreme Court overturned a ruling that the New Haven promotional tests were racially biased.
Background. The city charter governs the promotion process when the City of New Haven, Connecticut, fills vacant positions in its fire department. The charter establishes a merit system that requires the City to fill vacancies with the most qualified individuals as determined by job-related examinations. After each examination, The New Haven Civil Service Board (CSB) certifies a ranked list of applicants who passed the test. Under the charter’s “rule of three,” the relevant hiring authority must fill each vacancy by choosing one candidate from the top three scorers on the list. Certified promotional lists remain validated for three years.
Test results. In 2003, 118 New Haven firefighters took examinations to qualify for promotion to the rank of lieutenant or captain. Eight lieutenant and seven captain positions were vacant at the time of the examinations. Of the 77 candidates who completed the lieutenant examination, the top 10 scorers eligible for immediate promotion by operation of the “rule of three” were Caucasian. Of the 41 candidates who completed the captain’s exam, the top nine scorers eligible for immediate promotion by operation of the “rule of three” were Caucasian and Hispanic.
New Haven reaction. Officials expressed concern that the tests discriminated against minorities. The CSB began meeting in early 2004 to consider whether to certify the results. The City’s chief administrative officer argued against certification, saying the results disproportionately excluded African-American and Hispanic candidates from opportunity under the “rule of three,” as applied to the existing captain and lieutenant vacancies.
The CSB ultimately voted not to certify the results, denying the 17 Caucasian firefighters and one Hispanic firefighter (“Petitioners”) who passed the examinations a chance at promotions.
Petitioners’ suit. The petitioners filed suit, alleging that when the CSB refused to verify the captain and lieutenant exam results, the CSB discriminated against them in violation of the Title VII disparate-treatment provision. The City defended its decision, arguing that if it had certified the results, it could have faced liability under Title VII for adopting a practice that has a disparate impact on the minority firefighters who did not score as well.
Original ruling. The District Court granted summary judgment in favor of the City, and the Court of Appeals affirmed. The Supreme Court then granted Certiorari.
Ruling reversed.The decision was reversed and remanded. Title VII prohibits both intentional discrimination (known as “disparate treatment”) as well as practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as “disparate impact”).
The Supreme Court held in this case that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.
An employer cannot discard a test to achieve a more desirable racial distribution of promotion-eligible candidates absent a strong basis in evidence that the test was deficient and that discarding the results was necessary to avoid violating the disparate impact provision.
The Supreme Court saw no evidence in this case that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Therefore, the City’s discarding the test results was impermissible under Title VII.
Lesson learned. The lesson to be learned from this case, according to the BULLETIN, is the following: “For purposes of promotional examinations, employers need a strong basis in evidence that an exam is deficient before discarding the results. Discarding the results of a promotional examination on a race-conscious basis is especially perilous. Cities, towns, and fire departments should do everything they can to establish bulletproof selection criteria before any exam is administered. Source: EDM Publishers Inc. (www.edmpublishers.com) Duxbury, MA.
Line-of-Duty Deaths
June 26. Captain Brett Stearns, 29, Bureau of Land Management, Craig, CO: struck by a falling tree.
June 30. Assistant Chief Allan LePage, 67, Kingston (RI) Fire District: head injury suffered while working on a ladder truck; incident under investigation.
July 4. Assistant Chief Dale Elliott Haddix, 70, Schell City (MO) Fire Department: cause under investigation.
July 5. Firefighter Robert Johnson, 75, Mahopac Falls (NY) Volunteer Fire Department: head injury sustained in an October 2008 fall while retrieving an SCBA from a fire apparatus during a fire safety demonstration.
July 6. Firefighter Ryan Wingard, 28, Strattanville (PA) Volunteer Fire Company No. 1: cause under investigation.
July 8. Firefighter David Grass Jr., 34, Ste. Genevieve (MO) Fire Department: apparent brain injury.
July 10. Apparatus Operator Joseph T. Grace, 47, Saint Tammany Fire Protection District #4Mandeville (LA) Fire Department: cause under investigation.
Source: USFA Firefighters Memorial Database
FDA approves vaccine for 2009-2010 seasonal influenza
The vaccine approved by the U.S. Food and Drug Administration (FDA) in late July for the 2009-2010 seasonal influenza in the United States will not protect against the 2009-2010 H1N1 influenza virus, according to the FDA. The H1N1 virus had moved the World Health Organization (WHO) to declare a pandemic on June 11, 2009.
The FDA is working with manufacturers, international partners, and other government agencies to expedite the availability of a safe and effective vaccine against the 2009 H1N1 influenza virus.
The FDA says that although this year’s seasonal vaccine is aimed against other strains of influenza expected to be in circulation, and not the 2009 H1N1 virus, those Americans for whom the seasonal influenza vaccine is recommended should still receive it.
Experts from the FDA, the WHO, the U.S. Centers for Disease Control and Prevention, and other institutions study virus samples and patterns collected from around the world to identify strains that may cause the most illness in the upcoming season. The vaccine for the 2009-2010 seasonal influenza contains an A/Brisbane/59/2007 (H1N1)-like virus, an A/Braisbane/10/2007 (H3N2)-like virus, and a B/Brisbane60/2008-like virus. Additional information is at www.fda.gov/BiologicsBloodVaccines/GuidanceComplianceRegulatory
Information/Post-MarketActivities/LotReleases/ucm162050.htm/.
Relative to the H1N1 flu, Health and Human Services Secretary Kathleen Sebelius, Homeland Security Secretary Janet Napolitano, Education Secretary Arne Duncan, and Homeland Security Advisor John Brennan hosted an all-day H1N1 Flu Preparedness Summit on July 9 with states to prepare for the possibility of a more severe outbreak of H1N1 flu in the fall. The Summit’s goal was to launch a national influenza campaign by bringing federal, state, and local officials; emergency managers; educators; and others together with the nation’s public health experts to build on and tailor states’ existing pandemic plans and to share lessons learned and best practices during the spring and summer H1N1 wave and discuss preparedness priorities. www.continuitycentral.com/news04652.html/, July 6, 2009.
USASFA works to amend 1986 IRS code re sprinklers
The USA Sprinkler Fitter Association (USASFA) is lobbying for the passage of H.R. 1194, which would amend the Internal Revenue Code of 1986. According to the USASFA, the current code “provides a disincentive for adding building safety improvement, such as sprinkler systems.” The proposed bill, sponsored by Rep. James R. Langevin (RI), would “amend the Internal Revenue Code of 1986 to classify automatic fire sprinkler systems as five-year property for purposes of depreciation.” Under the current tax system, sprinklers are viewed as “straight-line depreciation” items and return a low rate on the investment. The USASFA recently joined the Congressional Fire Services Institute’s National Advisory Committee.
Sprinkler ordinances do not jeopardize construction
The existence of sprinkler ordinances do not negatively affect the cost and number of homes built in an area in comparison with areas that do not have such ordinances, according to a new study conducted for the National Fire Protection Association (NFPA). The study, Comparative Analysis of Housing Cost and Supply Impacts of Sprinkler Ordinances at the Community Level, was conducted by Newport Partners.
The study compared residential construction in Montgomery County, Maryland, vs. Fairfax County, Virginia, and Prince George’s County, Maryland, vs. Anne Arundel County, Maryland. Montgomery County and Prince George’s County have sprinkler requirements; Fairfax County and Anne Arundel County do not. The selected areas are all developmentally mature, cover a wide geographic area, and contain a variety of housing stock and income levels.
“This study clearly demonstrates that home fire sprinkler requirements do not impede housing development starts,” says Jim Shannon, NFPA president. “This report is another point to make the case for enacting life-saving sprinkler requirements in local communities.”
Montgomery and Prince George’s Counties had ordinances implemented in several stages beginning in the late 1980s. None were introduced in Fairfax County. Anne Arundel County adopted a requirement for single-family detached residences this year. This study assessed Anne Arundel County housing starts prior to the ordinance and found no reduction in the number of single-family homes built in either Montgomery County or Prince George’s County compared with the other two counties in the study that do not have sprinkler ordinances. On the contrary, Montgomery and Prince George’s Counties saw larger relative increases in construction in the year after the ordinances went into effect, compared with the other two counties, according to the researchers.
The study analyzed annual single-family building permits, surveys of housing and households, local documents, and news reports released before and after the adoption of the residential sprinkler requirements. Also, the research included reviews of other housing regulations and interviews with key builders, trade association staff, and local government officials.
In interviews, builders and staff of the Maryland-National Capital Building Industry Association indicated that the sprinkler requirements did not significantly affect the volume, character, or price of new homes.
All model safety codes now require the use of fire sprinklers in new one- and two-family homes. The report may be reviewed at the Fire Sprinkler Initiative’s Web site at www.firesprinklerinitiative.org/ under “Research and Reports.”
Emergency physicians issue H1N1 strategic plan
The American College of Emergency Physicians (ACEP) has released a National Strategic Plan for Emergency Department Management of Outbreaks of Novel H1N1 Influenza. These guidelines will help the nation’s emergency departments and first responders plan for and manage the surge in H1N1 flu cases that may arrive as early as September.
ACEP President Nicholas Jouriles explains: “When H1N1 first hit the United States this spring, we saw big surges in patients, many of whom had been sent to us by their primary care physicians. We know the emergency room is the place people turn to in a medical crisis, and we are dedicated to being prepared for the worst-case scenarios, even as we hope they will not occur.”
Threat awareness, protection and prevention, surveillance and detection, and response and recovery are the key components of the strategy for managing the threat of widespread influenza infection. The strategic plan was developed to define critical capabilities and suggest actions to achieve them. It is intended to guide emergency departments; hospitals; and local, state, and federal governments as they make tactical and operational plans for the fall flu season.
“While H1N1’s virulence is not predictable, it is expected to be highly contagious and will place added strains on the emergency care system,” says Jouriles. “Emergency medical and hospital planning for an H1N1 pandemic will be successful only if there is cooperation between first responders and public health officials. ACEP will work with relevant groups and the federal government to dispense information to its members on how best to handle a potentially dangerous and unpredictable flu season.”
The Plan was produced under contract to the Office of the Assistant Secretary for Preparedness and Response (ASPR) and the Emergency Care Coordination Center (ECCC) and represents a collaboration among ASPR, ECCC, and ACEP.
APCO opposes NENA’s broadband network position
The Association of Public-Safety Communications Officials (APCO) International, in June, announced that it opposes a proposal from the National Emergency Number Association (NENA) to auction both the 700-MHz band D-block and adjacent 10 MHz of public-safety spectrum for commercial use.
“NENA’s proposal gives back scarce public safety spectrum and undermines progress made during recent meetings among major public safety organizations to further address matters related to the development of a nationwide interoperable broadband network,” says APCO International President Chris Fischer.
Even though APCO International understands NENA’s perspective on this issue as it relates to how a national broadband network may eventually be used for 911 networks, Fischer explains that APCO is concerned that the NENA proposal “does not provide for the controls needed by public safety to ensure a nationwide deployment and network reliability.”
Fischer explains that the NENA proposal is contrary to APCO International’s position and that of many other public safety organizations. “Public safety fought long and hard for a clear, dedicated spectrum, and it would be a huge mistake to give that up in exchange for discounted service from a commercial provider that will not meet mission-critical communications requirements,” cautions Fischer.
Central Texas College Offers Homeland Security/Emergency Management Degree
Central Texas College is offering an associate of applied science degree in homeland security and emergency management. The program is for individuals interested in entering the field of emergency management planning and homeland security, as well as those in an emergency response profession seeking to update or broaden their skills. The degree will prepare students for decision making; problem solving; and planning, implementing, and coordinating resources necessary for preparedness, mitigation, response, and recovery from disasters. A number of the courses are preapproved equivalents of courses offered by the Texas Department of Emergency Management and the Federal Emergency Management Agency. The course program, offered completely online, includes the following components:
First Year, First Semester
- Introduction to Homeland Security, 3 credits
- Principles of Basic Emergency Management, 4 credits
- Military and National Security Legal Issues, 3 credits
- Business Writing, 3 credits
- American Government I, 3 credits
- Physical Activity Course, 1 credit
Second Semester
- Integrated Software Applications I, 4 credits
- Homeland Security Emergency Communications Management, 3 credits
- Homeland Security Intelligence Operations, 3 credits
- Critical Infrastructure Protection, 3 credits
- Understanding and Combating Terrorism, 3 credits
Second Year, First Semester
- Physical Activity Course, 1 credit
- Humanities/Fine Arts Selection, 3 credits
- MATH 1332, 1342, or higher level, 3 credits
- Elective, 3 credits
- Social/Behavior Science Selection, 3 credits
- Disaster Recovery OR Principles of Management, 3 credits
- Homeland Security Emergency Contingency Planning, 3 credits
Second Semester
- Developing Volunteer Resources and Decision Making, 3 credits
- Leadership and Effective Communication, 3 credits
- Managing Mass Casualty and Fatality Incidents, 3 credits
- Managing a Unified Incident Command, 3 credits
- Final Project in Homeland Security and Emergency Management OR Internship-Homeland Security and Emergency Management, 4 credits
Total Hours: 68 credits
For additional information, contact Dr. Gene Silverblatt; Central Texas College; PO Box 1800; Killeen, TX 76549. Phone: (254)-526-1460; E-mail: gene.silverblatt@ctcd.edu/. Additional Information is available at: http://www.ctcd.edu/catalogs/2008_2009_TX/hsem_aas.pdf/.
