By DAVID “CHIP” COMSTOCK JR.
The City of Pleasant Hill, Io- wa’s, Code of Ordinances (Code) established the Pleasant Hill (IA) Volunteer Fire Department (PHVFD) “to prevent and extinguish fires … [to] protect lives and property against fires, … [to] promote fire prevention and fire safety, and [to] answer emergency calls.” The department consists of the chief and such other officers and personnel as may be authorized by the city’s council. The council appoints the chief after giving due consideration to the recommendation of the department members. The chief is authorized to appoint 45 volunteer firefighters who are subject to call at any time.
Pleasant Hill adopted the 2003 edition of the International Fire Code (IFC), subject to certain amendments. The IFC created a “Department of Fire Prevention” in Pleasant Hill “under the direction of the Fire Code Official.” The fire code official has authority to (1) enforce the IFC; (2) render interpretations of the IFC and adopt policies, procedures, rules, and regulations to clarify the application of its provisions; (3) receive and review construction documents and issue construction permits implicating the IFC; and (4) enter nonconforming property in accordance with the law, including the right to seek a judicial warrant. (See IFC Sections 104.1-104.3.) The IFC defines the fire code official as “[t]he chief or other designated authority charged with the administration and enforcement of the [IFC], or a duly authorized representative.”
When Pleasant Hill adopted the IFC, the council specifically provided “the term Fire Code Official is intended to also mean the Building Official and his or her representatives or designees, who are herewith delegated the same powers, authorities, duties and responsibilities as designated for the Fire Code Official.” Pursuant to the IFC, “the Fire Code Official shall be appointed by the chief appointing authority of the jurisdiction.” The adopted IFC provides: “In accordance with the prescribed procedures of [the city] and with the concurrence of the appointed authority, the Fire Code Official shall have the authority to appoint a deputy Fire Code Official, other related technical officers, [i]nspectors and other employees.” (See IFC Section 103.3.) “[T]he Fire Code Official shall not be removed from office except for cause and after full opportunity to be heard on specific and relevant charges by and before the appointing authority.” (See IFC Section 103.2.)
Matthew Preston began serving as a part-time volunteer firefighter for the PHVFD in 1993. One year later, the chief assigned Preston fire investigator/inspection duties. In addition to his normal firefighting duties, the official job description for the fire investigator/inspector position contemplated that the individual assigned to the position would, “[u]nder direction, provide a full range of duties in fire prevention, inspection, fire investigation, hazardous materials investigation, and fire safety education, to enforce state and city fire codes and ordinances.” As fire investigator/inspector, Preston might “assume … command in the absence of other commanders and to perform job related work as required.”
Pleasant Hill’s code provided that PHVFD members would be designated by rank and receive compensation as determined by the council. Members could also be paid expenses as determined by the chief. Preston was paid approximately $4,500 in one year. Despite receiving compensation, Preston was referred to as a volunteer, and the fire department was referred to as an “all-volunteer” force.
Preston assisted others in fire investigations, inspected multitenant complexes, conducted inspections for verification of liquor licenses at local drinking establishments, and notified the city clerk of their completion. Preston did not have any authority to enforce the IFC, as only the chief had that authority. Preston was not involved in the adoption of the IFC in Pleasant Hill. At no time did the council appoint Preston to any position within the fire department. The council did not ratify or vote on his fire investigator/inspector assignment. Preston repeatedly requested additional titles such as “deputy chief,” “assistant chief,” and “fire marshal.” The council refused these requests.
In January 2005, the council appointed Reylon Meeks as its new chief. In March 2008, the chief discovered that the Iowa Department of Public Health (IDPH) had placed Preston’s basic emergency medical technician certification on probationary status six months earlier. The order placing Preston on probation required Preston to notify the chief of the decision, but Preston failed to do so. Preston claimed that he initially tried to call his chief but, after attempting to do so, forgot about it. The chief suspended Preston from all firefighting duties for one month and relieved him of his fire investigation and inspection responsibilities. The chief and Preston thereafter met to discuss the suspension. Preston cautioned Meeks that she lacked authority to remove him from his position absent of just cause. Meeks informed Preston that violation of the scope of his certification and the failure to meet the terms of probation provided just cause for suspension.
At the conclusion of Preston’s suspension, Meeks insisted that Preston be placed on two years of probation, attend 75 percent of the department’s training sessions, and respond to a minimum of 20 percent of fire calls. Preston thought these attendance conditions were unfair and refused to agree to them. After months of unsuccessful negotiations, Preston filed a lawsuit against the chief and the city in state court in Iowa. The city and Preston removed the lawsuit to the federal district court, as Preston claimed a violation of his federal constitutional rights. Preston claimed that the chief and city violated his constitutional rights of procedural due process rights under the 14th Amendment, in violation of 42 U.S.C. Section 1983. Preston claimed that the chief and city unconstitutionally deprived him of a property interest when he was relieved from his responsibilities to fight, inspect, and investigate fires on a volunteer basis for the fire department. The city and chief claimed that Preston lacked a property interest in his volunteer position with the fire department. Preston claimed that he was a “fire code official” under the code and IFC and could not be fired except after a hearing and on a showing of just cause. The city and chief filed a motion for summary judgment (motion to dismiss), which was granted by the district court. Preston filed an appeal to the United States Court of Appeals for the Eighth Circuit (642 F.3d 646, 2011 U.S. LEXIS 12466 (8 Cir. 2011).
The parties agreed that a “fire code official,” as defined in the city code and the IFC, has a protected property interest in his or her employment because a fire code official may be fired only for just cause after a hearing. Preston argued that the plain language of the IFC indicates a fire code official “includes the ‘chief’ and duly authorized representatives of the chief.” They relied on the fact that Meeks assigned a portion, if not all, of the fire code official’s responsibilities to him, which made Preston Meeks’ duly authorized representative and thus a “fire code official.” Preston pointed out in his argument to the court that the official job description for his fire investigator/inspector position included many of the responsibilities the code and the IFC assigned to a “fire code official,” including investigations and inspections. Preston stressed that he actually conducted many investigations and inspections and suggested that anyone who does so must be a “fire code official,” because “[t]he purpose of the [IFC] is to prevent individuals responsible for fire inspections or investigations from political reprisal for adverse conclusions drawn during inspections.” To summarize, Preston maintained that a factual issue existed as to whether he was a fire code official because he performed some of the duties of a fire code official.
The appellate court disagreed and found that Preston was not a fire code official. The court initially pointed out that Preston cited no legal authority for the fundamental premise of his argument-when a firefighter performs some of the duties of a fire code official, a genuine dispute exists as to whether that firefighter is a fire code official. The court noted that the IFC explicitly states “[t]he Fire Code Official shall be appointed by the chief appointing authority of the jurisdiction.” The “chief appointing authority” in the Preston case was the city council, and there was no evidence in the record that the council ever appointed Preston as a fire code official. In fact, the record revealed that the council did not appoint Preston to any position in the fire department, nor was his assignment of fire inspector/investigator duties ratified or voted on by the council. The court further noted that Preston did not exercise many of the most significant responsibilities of a “fire code official.” For example, he did not interpret the IFC; adopt policies, procedures, rules, or regulations to clarify the application of the IFC; or enforce the code. Meeks did not view Preston as a fire code official. Further, there was no evidence in the record that Meeks, in her capacity as fire code official, or anyone else, appointed Preston as her “duly authorized representative.” Finding Preston to not be a “fire code official,” the appellate court affirmed the trial court’s dismissal of Preston’s case against the city and chief.
In the Preston case, one of the federal appellate court judges wrote a concurring opinion to express his discontent with “the confusing maze of the International Fire Code provisions relevant to who may be considered a Fire Code Official entitled to the protections of the Due Process Clause.” In his concurring opinion, Judge Bye pointed out that “given the Code’s acceptance in a growing number of U.S. jurisdictions, some clarification is desirable as to the precise scope of these provisions and the fire code official’s property interest in the continued employment with the respective fire departments.”
Bye noted that the IFC contemplates that the fire code official manages the political subdivision’s department of fire prevention, which implements, administers, and enforces the provisions of the code. The IFC defines the fire code official in the disjunctive, as “[t]he chief or other designated authority charged with the administration and enforcement of the code, or duly authorized representative.” (IFC Section 202.) In the Preston case, the City of Pleasant Hill expanded the definition to include “the building official and his or her representatives or designees.” In viewing this ordinance and other provisions set forth in the 2003 edition of the IFC, Bye argued that a jurisdiction could have more than one fire code official. The judge pointed out that the only official certain to be invested with a property interest entitled to due process under the code is a fire code official appointed by the chief appointing authority of the jurisdiction-in the Preston case, the city council.
Beyond that, questions abound. For example, Bye noted that the code empowers the fire code official to “appoint a Deputy Fire Code Official, other related technical officers, inspectors and other employees,” but specifies the appointment must be “with the concurrence of the appointing authority.” (See IFC Section 103.3, 2003 edition.) According to the concurring opinion, it is unclear, then, whether the deputy fire code official appointed with concurrence of the city council is entitled to the same due process protections as the fire code official expressly appointed by the city council or whether one needs the city council’s concurrence to qualify as the chief’s duly authorized representative. Bye noted that there also remains a question of whether an official who did not receive the formal blessing of the city council but was authorized by the chief to perform some of her tasks enjoys the power conferred on the fire code official elsewhere in the code. Finally, it is unclear whether the for-cause termination provision would protect a building official under the Pleasant Hill code who does not have to be appointed by the city council.
In conclusion, Bye wrote in his concurring opinion:
“These questions are difficult to answer, for there is virtually no commentary or case law interpreting the provisions of the Code. The International Building Code, which has been litigated more frequently, does not aid the discussion either, because it does not confer a property interest on the building official. (See Int’l Blg. Code § 103.2) Ultimately, I believe the majority is correct that Preston does not have a protected interest in the job because the city council never took any formal action concerning his appointment. I am concerned, however, that this interpretation frustrates the intent of the developers of the Code and does not go far enough to protect Fire Code Officials from political pressures on the part of their employers. I also feel the restrictive reading of the term ‘Fire Code Official’ will pose barriers to effective enforcement of the Code by limiting the jurisdictions enforcement cadre. Accordingly, I urge the International Code Council and the individual jurisdictions that adopt the Code to resolve the ambiguities found in the relevant provisions.”
This lawsuit against the City of Pleasant Hill was dismissed, based on a lack of evidence that Preston was appointed to a position that would be afforded due process rights under the International Fire Code. However, this case is significant in that it does provide a property interest and due process rights to any individual who serves as a fire code official in a jurisdiction that has adopted the International Fire Code. There are many states that already afford due process rights to volunteer firefighters. In Ohio, for example, volunteer firefighters can only be terminated for cause and after a hearing on whether or not the firefighter is guilty of misconduct. Other states, however, do not provide a property interest to volunteer firefighters; those firefighters may be relieved of their duties by the political subdivision, a private fire company, or the chief without a hearing. In those states, and for those political subdivisions that have adopted the IFC, special care and consideration must be given before the code official is relieved of his or her duties. Procedural due process requires, at a minimum, that the firefighter be notified of the allegations against him or her. This notification should be in writing. The firefighter should be given an opportunity to be heard, which generally requires a hearing at which time the evidence should be presented to the firefighter, and the firefighter should be able to present favorable evidence to his or her defense, including the presentation of witnesses.
In the Preston case, there was no formal hearing. Had Preston been entitled to due process under the IFC and had a hearing taken place, it is likely that the evidence would have been sufficient to uphold the suspension and the implementation of additional probationary requirements. However, the removal should have been made by the mayor or city council, not the chief.
Many states are served by private fire companies. Private fire companies should not assume, in those jurisdictions that the IFC has been adopted, that the requirements of due process do not apply to the private fire company. If a member of a private fire company has been appointed to the position of a fire code official pursuant to the IFC, that member of the private fire company may be entitled to due process. There are a number of court cases that have held that constitutional requirements apply to private fire companies, as they stand in a position of a government actor in providing fire protection services. However, this is not necessarily bad.
All volunteer fire departments should consider providing due process to their members. Although it is certainly more cumbersome, the requirements of removing members for just cause, providing specific charges against the member, and providing an opportunity to be heard are procedurally and substantively fair and ultimately ensure that the fire department is being administered correctly. This benefits not only the members but the public served by that department.
DAVID “CHIP” COMSTOCK JR. is a 30-year fire service veteran and chief of the Western Reserve Joint Fire District in Poland, Ohio. He is a chief fire officer designee and lectures and writes on fire service topics relating to chief and company officer operations, liability, and personnel issues. Comstock is also an attorney in the firm of Comstock, Springer & Wilson Co., L.P.A. in Youngstown, Ohio. His law practice is focused on insurance defense litigation including governmental liability and insurance fraud/arson cases.
