BY DAVID C. COMSTOCK JR.
Over the past three years, volunteer, part-time, and career firefighters were charged with committing numerous criminal acts, including arson. Recently, two Texas volunteer firefighters were charged with multiple counts of arson resulting from seven Harris County fires. What is unusual about this case is that one of the firefighters was twice convicted of theft, including equipment theft from another fire department he once served. These incidents generate negative press for the fire department, which erodes years of hard work within the community the department serves. Worse yet, a firefighter’s previous employment or criminal history may result in a lawsuit based on the department’s negligent hiring of the employee.
A negligent hiring lawsuit may have various elements or requirements based on state law. In New Jersey, for example, a fire department would be liable for the negligent hiring of an employee when the fire department knew or had reason to know of the particular unfitness, incompetence, or dangerous attributes of the employee and could reasonably have foreseen such qualities creating a risk of harm to other persons and, through the employer negligence in hiring the employee, the employee’s incompetence, unfitness, or dangerous attributes proximately caused some injury. [See DiCosala v. Kay, 91 N.J. 159, 172-74 (1982).]
Ordinarily, an injured person attempts to hold the fire department liable simply because the firefighter causing harm is a department employee. These cases are based on the “respondeat superior” theory, which means that a master is liable, in certain cases, for the wrongful acts of his servant, and a principal for those of his agent. Negligent hiring claims seek to hold a fire department liable based on a separate act of negligence by the department itself. Accordingly, negligent hiring claims are not analyzed under the same principles as agency law-based claims; in many states, immunity for agency-based claims do not extend to a fire department committing an independent act of negligence in the hiring of a firefighter. For example, the New Jersey Tort Claims Act (N.J. Stat. Ann. Section 59:2-10) infers immunity on public entities for the criminal, malicious, or willful acts of their employees and bars any negligence claims against public entities arising from the same conduct. However, the employer may remain liable for the negligent hiring or supervision of an employee. A federal court in New Jersey addressed this issue in 2007 when it refused to dismiss a complaint against the New Jersey National Guard Youth Challenge Program, which allegedly hired a program supervisor who physically and sexually assaulted and raped a 16-year-old cadet. A New York trial court also refused to dismiss negligent hiring and training claims against the City of New York when an off-duty police detective unintentionally discharged his department-issued firearm inside a bar, causing injury to a bar patron. [Barton v. The City of New York, 15 Misc. 3d 504, 831 N.Y.S. 2d 882 (2007).]
In alleged negligent hiring claims, the injured party will focus on the firefighter’s preemployment history, including prior terminations and criminal charges. In Texas, a plaintiff introduced an employee’s 10-year-old driving while intoxicated (DWI) and drug possession charges in a negligent hiring, retention, and supervision claim resulting from a fatal motor vehicle accident with a garbage truck. [See Best Disposal Services, Inc. v. Burch, 2005 W.L. 762619 (Tex. App. Waco).]
Current law trends permit negligent hiring or supervision claims against political subdivisions to remain where there is evidence suggesting that the employee was unfit for hire. Clearly, fire departments hiring an employee with a negative history do so at their own peril. Political subdivisions, fire department administrators, and chief officers who want to avoid negative publicity and potential liability can take a number of steps to reduce the risk:
- Require the prospective employee to fill out a thorough, written application. The application should require the employee to provide information relating to his prior residential addresses, educational and employment history, employment terminations, traffic citations, criminal convictions, and participation in civil litigation. The department should also request a history regarding the prospective employee’s prior training, education, and experience in fire and emergency medical services, as well as personal references. The application should include an authorization form permitting the department to later contact and obtain information from private and public employers or to otherwise obtain information that a business or other organization may be reluctant to release without such a document. If needed, authorization forms may also obtain credit information.
- Although it is likely that a fire officer has met with and interviewed the prospective candidate prior to submission of an application, the fire officer should review the application with the candidate in person. The interviewer must ask detailed questions regarding all parts of the application. Thereafter, the fire department must call the candidate’s former employers and references.
- The fire department must conduct a public records search, which begins at the local police department and courthouse. Check the police department serving the jurisdictions where the prospective employee worked or lived, or conduct an online Web search. You can learn significant information about younger firefighters by checking Web sites such as MySpace.com.
- Although often slow to provide a response, every department must use a government fingerprint-based search if available. Although not every criminal index database is checked by fingerprinting, a search will certainly prevent a fire department from hiring a known felon. Even if the search misses a prior conviction, the fire department will demonstrate due diligence in making its employment decisions.
The number of volunteer firefighters is declining on a national scale. Many volunteer fire departments are desperate for young, able-bodied men and women to provide emergency services for the public. Seldom do volunteer departments conduct thorough background checks prior to employing a volunteer. This practice may work in the short term, but it will cost the fire department if it refuses to acknowledge the potential risks of hiring a suspect candidate.
A fire department must not be concerned with its refusal to hire an unqualified employee. Courts will support an employment decision where a prospective employee is rejected based on an unfavorable history. Even where an employee may be protected based on a classification such as race, sex, nationality, or religion, courts will place the burden on the prospective employee where the department can clearly articulate a reasonable basis for not hiring the employee. A chief must remember that once the employee is hired, it is much more difficult to remove him if he later turns out to be undesirable. For that reason alone, a fire department should be extremely cautious in making its employment decisions.
Ignorance is no longer bliss. Fire departments must be proactive and willing to discriminate based on a negative history. Many journalists look for a story about a corrupt public servant. Don’t let your department be the subject of negative press based on poor hiring decisions.
DAVID C. COMSTOCK JR. is a partner with the Comstock, Springer, and Wilson, LPA law firm in Youngstown, Ohio. He is a 25-year veteran of the fire service and chief of the Western Reserve Joint Fire District in Poland, Ohio. He also lectures on company officer operations, liability, and personnel issues. His articles have appeared in many fire service magazines, including Fire Engineering. He is president of the National Association of Fire and Emergency Service Attorneys.
