Fire Service Law

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ISBN: 9780131552883 | 0131552880
Cover: Hardcover
Copyright: 2/16/2007

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This first-of-its kind text is written for the growing fire administration/officer markets. Author Larry Bennett is both an attorney and a firefighter, and he is well-connected at the University and National Fire Academy levels. This book has been closely monitored by the folks at FESHE, and an online course is being developed around this text by Empire State College for seven campuses. Full of current cases/decisions relevant in todayrs"s communities and lots of related readings/links.

Foreword	p. xvii
Preface	p. xix
About the Author	p. xxi
Acknowledgments	p. xxiii
Introduction	p. xxv
Overview of the Law	p. 1
American Legal System: Search Warrants in Arson Investigations, Fire Code Enforcement, and Civil Litigation	p. 1
Introduction	p. 3
Violations of the Fourth Amendment	p. 3
Arson Searches without Warrant	p. 4
Conviction Reversed-Evidence Seized Illegally from a Meth Lab	p. 4
Fire Code Enforcement-Qualified Immunity of Fire Marshals and Fire Inspectors	p. 5
Lawsuits by Survivors Alleging Failure to Enforce	p. 5
Failure to Correct Fire and Municipal Code Violations	p. 5
Failure to Enforce Building or Fire Codes	p. 5
Key Statutes	p. 6
Fourth Amendment to the U.S. Constitution	p. 6
State Constitutions	p. 6
Case Studies	p. 7
Search of Arson Site without a Warrant	p. 7
Cause and Origin Search of Detached Storage Shed	p. 10
Hotel Fire/Governmental Immunity	p. 12
Chapter Review Questions	p. 13
Expand Your Learning	p. 14
Line of Duty Death (LODD) and Safety: Litigation and Fireman's Rule	p. 15
Introduction	p. 17
Litigation-Shock the Conscience	p. 17
NIOSH Fire Fighter Investigation and Prevention Reports	p. 17
Firefighters with Cardiac Arrests	p. 18
Federal Death Benefits-14-Year-Old Junior Firefighter's Death	p. 18
Fireman's Rule	p. 19
Occupational Safety and Health Act (OSHA)	p. 19
Whistleblower Protection	p. 19
NFPA Standards	p. 20
Key Statutes	p. 21
42 U.S. Code 1983	p. 21
Public Safety Officers' Benefits (PSOB) Act of 1976 (42 U.S.C. Sec 3796)	p. 21
Public Safety Officers' Benefits Act Amendment, October 2000 (Public Law 106-390, Sec. 305)	p. 22
The Mychal Judge Police and Fire Chaplains Public Safety Officers' Benefits Act of 2002 (42 U.S.C. Sec 3796)	p. 22
Hometown Heroes Survivors Benefits Act of 2003 (Public Law 108-32)	p. 22
Case Studies	p. 22
Line of Duty Death	p. 22
Highway Safety/Fireman's Rule	p. 24
Building Code Violation/Fireman's Rule	p. 26
Chapter Review Questions	p. 26
Expand Your Learning	p. 27
Homeland Security: National Incident Management System, USA Patriot Act, and War on Terrorism	p. 28
Introduction	p. 30
National Incident Management System (NIMS)	p. 30
Threats to Dispatch Centers	p. 31
NFPA Standards	p. 31
Key Statutes	p. 32
Air Stabilization and System Stabilization Act	p. 32
Assistance to Firefighters Grant Program (AGFP) (2000)	p. 32
Emergency Management Assistance Compact (EMAC) (Public Law 104-321)	p. 32
Foreign Intelligence Surveillance Act of 1978 (50 U.S. Code 1808)	p. 32
Intelligence Reform and Terrorism Prevention Act of 2004	p. 33
SAFER Act of 2003	p. 33
USA PATRIOT Act of 2001	p. 33
USA PATRIOT Improvement and Reauthorization Act of 2005	p. 33
Case Studies	p. 34
Failure of Radios at the World Trade Center	p. 34
Al Qaeda Prisoner Held in Navy Brig, South Carolina	p. 35
Mutual Aid (Indiana, 2005)	p. 37
Chapter Review Questions	p. 39
Expand Your Learning	p. 39
Incident Command: Fire Scene Operations, Training, and Immunity	p. 41
Introduction	p. 43
Governmental Immunity and Qualified Immunity	p. 43
Firefighter Drowned During Scuba Training	p. 44
Death of Children	p. 44
NFPA Standards	p. 45
Key Statutes	p. 46
Emergency Management Assistance Compact of 1996 (Pub. L. 104-321)	p. 46
Intelligence Reform and Terrorist Prevention Act of 2004 (S.2845)	p. 46
Constitutional Claims (42 U.S.C. 1983)	p. 46
Case Studies	p. 46
Power Lines Down in Rear of Home: Electrocution of Child after Fire Department Leaves Scene	p. 46
Titanium Fire/Fire Department IC Orders Water Sprayed on Fire	p. 48
Incident Command: Four Children Died-Allegations of IC Gross Negligence	p. 50
Chapter Review Questions	p. 52
Expand Your Learning	p. 53
Emergency Vehicle Operations	p. 55
Introduction	p. 57
Intersections-Slow Down or Full Stop	p. 57
NFPA Standards	p. 57
Key Statutes	p. 58
Commercial Drivers Licenses (CDLs)	p. 58
Due Regard Statute (Ohio Revised Code 4511.24)	p. 58
Case Studies	p. 58
Civilian Motorist Killed in Collision with Fire Engine	p. 58
Ambulance Exceeding Fire Department's 20 mph Speed Limit when Traveling against Traffic	p. 60
Government Immunity-Police Chase in California/U.S. Supreme Court	p. 62
Chapter Review Questions	p. 63
Expand Your Learning	p. 64
Employment and Personnel Issues	p. 65
Employment Litigation: Age, Beards, Free Speech, and Promotions	p. 65
Introduction	p. 67
Age Discrimination	p. 67
Beards	p. 68
Free speech-U.S. Supreme Court Limits Protection of Public Employees	p. 71
Free Speech-Retaliation for Union Activity	p. 72
Promotions	p. 72
NFPA Standards	p. 73
Key Statutes	p. 73
Age Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C. 631)	p. 73
ADEA Amendments of 1978 [29 U.S.C 631 (b)]	p. 73
Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) (38 U.S.C 4301)	p. 74
Case Studies	p. 74
Age Discrimination	p. 74
Firefighter Mandatory Retirement Age	p. 75
Alleged Retaliation after Winning Lawsuit for Failure to Promote	p. 76
Chapter Review Questions	p. 78
Expand Your Learning	p. 78
Sexual Harassment: Hostile Work Atmosphere, Pregnancy Discrimination, and Gender Discrimination	p. 79
Introduction	p. 81
Pregnancy Discrimination	p. 81
Physical Fitness Tests	p. 82
NFPA Standards	p. 82
Key Statutes	p. 82
Title VII of the Civil Rights Act of 1964 (42 U.S.C. Section 2000e)	p. 82
Pregnancy Discrimination Act of 1978	p. 82
Equal Pay Act of 1963	p. 83
State Laws	p. 83
Case Studies	p. 83
Hostile Work Atmosphere-PA State Police Barracks/U.S. Supreme Court	p. 83
Employer "Mixed Motive" When Terminating Female-Circumstantial Evidence Admissible to Prove Anti-Female Workplace/U.S. Supreme Court	p. 85
City Failed to Train Employees and Supervisors/U.S. Supreme Court	p. 87
Chapter Review Questions	p. 89
Expand Your Learning	p. 90
Race Discrimination	p. 92
Introduction	p. 94
Title VII and EEOC	p. 94
Affirmative Action	p. 94
Consent Decrees	p. 94
Boston Consent Decree Set Aside	p. 95
Louisiana Consent Decree Not Set Aside	p. 96
New EEOC Guidance on Race Discrimination	p. 97
Prompt Investigations	p. 97
NFPA Standards	p. 98
Key Statutes	p. 98
Civil Rights Act of 1964 (42 U.S.C 2000e et seq.)	p. 98
Civil Rights Act of 1991 [42 U.S.C 1981a (b)(3)] 98 42 U.S.C. 1983	p. 98
Case Studies	p. 99
Fire Apprentice Program to Recruit Minorities-Added Points on Entrance Test	p. 99
Caucasian Lieutenants Alleging "Reverse Discrimination"	p. 100
African-American Battalion Chiefs Allege Race Discrimination	p. 103
Chapter Review Questions	p. 109
Expand Your Learning	p. 109
Americans with Disabilities Act (ADA)	p. 111
Introduction	p. 112
U.S. Supreme Court Narrows Definition of Disability	p. 114
Firefighters with Disabilities	p. 114
Firefighters with Attention Deficit Hyperactivity Disorder	p. 114
NFPA Standards	p. 114
Key Statutes	p. 115
Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.)	p. 115
Rehabilitation Act of 1973 (29 U.S.C. 791 et seq.)	p. 115
Case Studies	p. 115
ADA and Access to Courthouses/Implications for Fire Stations/U.S. Supreme Court	p. 115
Firefighter with Back Injury Offered Light Duty in Police Department	p. 116
Applicant for Recruit Firefighter with 20/100 Vision	p. 119
Chapter Review Questions	p. 122
Expand Your Learning	p. 122
Family Medical Leave Act (FMLA)	p. 123
Introduction	p. 125
Department of Labor Guide	p. 125
Eligibility under FMLA	p. 125
NFPA Standards	p. 125
Key Statutes	p. 126
Family and Medical Leave Act of 1993 (29 U.S.C. 2601)	p. 126
Case Studies	p. 126
Employee on Leave for Wife's Illness Decides Not to Retire; Previous Position Already Filled	p. 126
FMLA-Application to State and Local Governments/U.S. Supreme Court	p. 129
FMLA-Returning Employee's Prompt Reinstatement to Previous Job	p. 131
Chapter Review Questions	p. 134
Expand Your Learning	p. 134
Operational and Managerial Issues	p. 136
Fair Labor Standards Act	p. 136
Introduction	p. 137
U.S. Department of Labor Regulations	p. 137
Sick Leave Buy-Back	p. 138
State Overtime Laws	p. 138
Salaried/Exempt	p. 138
Junior Firefighters-Child Labor Laws	p. 139
Key Statutes	p. 140
Fair Labor Standards Act of 1938 (29 U.S.C. 201-219)	p. 140
FLSA Amendment Applicable to EMS [29 U.S.C. 203 (y)] (December 9, 1999)	p. 140
FLSA Law Enforcement and Fire Protection Provision [Section 207(k); 29 U.S.C. 207 (k)]	p. 140
Case Studies	p. 140
Paramedics Who Are "Cross-Trained" but Do Not Perform Fire Suppression Duties	p. 140
U.S. Supreme Court Decides When "Get Ready" Time Is on the Clock	p. 143
Comp Time-Public Employers Offering Instead of Overtime Pay/U.S. Supreme Court	p. 146
Chapter Review Questions	p. 148
Expand Your Learning	p. 148
Drug-Free Workplace: Random Drug Testing and Firefighter DUIs	p. 149
Introduction	p. 150
Fire Department Policy	p. 151
NIOSH Firefighter Fatality Report	p. 151
Split Samples	p. 151
State Laws	p. 151
NFPA Standards	p. 152
Key Statutes	p. 152
Drug-Free Workplace Act of 1988	p. 152
Omnibus Transportation Employee Testing Act of 1991	p. 152
Case Studies	p. 152
Random Drug Testing-No History of Drug Problems on Fire Department	p. 152
Last-Chance Agreement-Assistant Fire Chief in Drug Treatment Told He Must Sign	p. 155
Random Drug Testing in Collective Bargaining Agreement-Firefighter Tests Positive for Marijuana	p. 157
Chapter Review Questions	p. 158
Expand Your Learning	p. 159
Emergency Medical Service (EMS) and the Health Insurance Portability and Accountability Act (HIPAA)	p. 160
Introduction	p. 161
Health Insurance Portability and Accountability Act (HIPAA)	p. 162
DUI Consensual Blood Draw	p. 162
Enforcement Access to EMS Run Reports	p. 163
HIV Patients-U.S. Department of Justice Lawsuits	p. 163
EMS Exposure to Infectious Disease	p. 163
NFPA Standards	p. 165
Key Statutes	p. 166
Controlled Substances Act of 1970 (21 U.S.C 301, 304, and 1008)	p. 166
Health Insurance Portability and Accountability Act (HIPAA; 42 U.S.C. 1320)	p. 166
HIPAA-Criminal Penalties under the Health Insurance Portability and Accountability Act (42 U.S.C 1320d-6)	p. 166
HIPAA-Law Enforcement Access to EMS Records [45 CFR 164-512(f)]	p. 166
Bloodborne Pathogens (29 CFR 1910.1030)	p. 166
EMS Peer Review and Quality Improvement Records Are Not Public Records	p. 167
Case Studies	p. 167
EMS Sued for Alleged Failure to Transport Gunshot Victim	p. 167
Defibrillator Would Not Shock-Cardiac Arrest Patient	p. 170
Revocation of EMT's Certificate-Crimes of "Moral Turpitude"	p. 174
Chapter Review Questions	p. 177
Expand Your Learning	p. 177
Physical Fitness	p. 179
Introduction	p. 180
NIOSH Recommendations on Firefighter Fitness	p. 181
Litigation: Mandatory Fitness and Off-Duty Activities	p. 181
NFPA Standards	p. 183
Key Statutes	p. 184
Public Safety Officer Death Benefits Act	p. 184
U.S. Department of Justice Regulations	p. 184
EEOC Regulations	p. 184
Firefighter Health and Wellness Programs	p. 184
Public Safety Officers' Benefit Act of 1976	p. 184
Case Studies	p. 184
Physical Fitness and Wellness Program-Annual Medical Exam	p. 184
Blood Draws, Invasion of Privacy, and Physical Fitness and Wellness Program	p. 186
Physical Ability Testing, Adverse Impact on Female Firefighters	p. 187
Chapter Review Questions	p. 189
Expand Your Learning	p. 189
Critical Incident Stress Management	p. 190
Introduction	p. 192
Ohio Enacts CISM Privilege Law	p. 192
NFPA Standards	p. 192
Key Statutes	p. 192
Ohio Enacts a CISM "Testimonial Privilege" Law	p. 192
U.S.C. 1983	p. 193
Case Studies	p. 193
Threats by Firefighter: Warning Posters Posted in Fire Stations	p. 193
9-1-1 Calls Ignored-Dispatcher Never Sent Police to Reports of Drunk Driver Weaving Down Highway-Head-On Crash into Innocent Driver	p. 196
9-1-1 Audio Tapes: Prosecutor Offers Transcript-Newspaper Demands Audio Tape	p. 200
Chapter Review Questions	p. 202
Expand Your Learning	p. 202
The Fire Official as Rule-Maker and Enforcer	p. 203
Discipline: Misconduct On Duty and Off Duty and Ethical Decision Making	p. 203
Introduction	p. 205
Ethical Decision Making	p. 205
Off-Duty Conduct-Termination	p. 205
Internal Investigations-Fifth Amendment Rights	p. 205
Jury Verdicts and the First Amendment Right of Free Speech	p. 205
Key Statutes	p. 206
Employee Polygraph Protection Act of 1998 (29 U.S.C. 2002)	p. 206
Sarbanes-Oxley Act of 2002	p. 206
Rights of Firefighters in Investigations	p. 206
Ohio Statute Protecting Career Personnel from Termination Except for Serious Offenses	p. 207
Case Studies	p. 207
Internal Investigations-Police Officers Compelled to Answer Questions or Lose Jobs-Fifth Amendment Rights/U.S. Supreme Court	p. 207
Fire Chief Did Not File Fire Reports with State Fire Marshal-Termination	p. 210
Home-Made Sex Videos-Police Officer Off Duty, But in Uniform/U.S. Supreme Court	p. 212
Chapter Review Questions	p. 215
Expand Your Learning	p. 216
Arbitration/Mediation	p. 217
Introduction	p. 218
Uniform Mediation Act	p. 218
U.S. Supreme Court-Upholds Arbitration	p. 219
Fire Service-Mediation to Resolve Pending Grievances	p. 219
Key Statutes	p. 219
Uniform Mediation Act	p. 219
Case Studies	p. 219
Firefighter Fails to Obtain Paramedic Certificate within Two Years-Results in Termination	p. 219
Firefighter Fired for Having Sex On Duty-Arbitrator Reinstates with No Back Pay: City Seeks Court Order to Reverse Arbitrator	p. 224
Cincinnati Fire Department and IAFF Local 48 Mediation Process	p. 225
Chapter Review Questions	p. 225
Expand Your Learning	p. 226
Legislative and Political Foundations	p. 227
Legislative Process: Getting Helpful Laws Passed for the Fire Service (Amending the Fireman's Rule)	p. 227
Introduction	p. 229
Modifying the Fireman's Rule	p. 229
Widow of Firefighter Settles with Insurance Companies	p. 229
Key Statutes	p. 230
Florida Has Abolished the Fireman's Rule	p. 230
Minnesota Has Abolished the Fireman's Rule	p. 230
California Has Modified the Fireman's Rule	p. 230
Nevada Has Modified the Fireman's Rule	p. 230
New York Has Modified the Fireman's Rule	p. 230
State Appellate Court Opinion	p. 231
Case Studies	p. 231
EMT Injured by Toxic Fumes-Files Suit against Chemical Company	p. 231
EMT Severely Injured in Gas Explosion-Sues Company Laying Underground Cable That Punctured Gas Line	p. 234
State Trooper Responds to Accident on Snowy Highway and Is Struck by Second Motorist-Sues First Motorist	p. 238
Chapter Review Questions	p. 238
Expand Your Learning	p. 239
Expand Your Learning Activities	p. 241
Real-Life Legal Lessons Learned Scenario	p. 260
Example of Fire Chief Promotion Process	p. 262
Diversity Goals	p. 267
Sample Labor-Management Agreement	p. 268
Sample Labor-Management Agreement: Letter of Agreement-Health and Wellness	p. 269
Sample Labor-Management Agreement: Grievance Mediation Procedures	p. 271
Glossary	p. 273
Index	p. 277
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Fire Service Law

Summary

Author Biography

Table of Contents

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