The Bravest
OFFICIAL PUBLICATION OF THE
UNIFORMED FIREFIGHTERS ASSOCIATION OF GREATER NEW YORK
VOL. XLIV NO. 4, 2008
5-5-5-5 President’s Message By STEPHEN J. CASSIDY
O
n December 24th, in response to the Manhattan District Attorney Robert Morgenthau’s report on the Deutsche Bank Fire, I wrote the following op-ed for the New York Post. It comes down to this: The Fire Department of New York - and, particularly, its Commissioner and other top brass - bear chief responsibility for the deaths of two firefighters in the August 2007 blaze at the Deutsche Bank building in Lower Manhattan. That’s what the Manhattan DA, in essence, has found. And now, Mayor Bloomberg needs to act on it. The 16-month investigation ended with the indictments of three construction supervisors who oversaw the contaminated building’s demolition - highlighting many failures that led to the deaths of firefighters Robert Beddia and Joseph Graffagnino. But the report states that, whatever the failures of other agencies and/or criminal activities
Lt Robert J. Ryan
Prob FF Jamel Sears
to throw three other fine fire officers under a bus, by blaming them for failures to inspect the Deutsche Bank building. Morgenthau reported that the FDNY leadership did this with full knowledge that it was its own failures that sent hundreds of firefighters into this toxic highrise building with no water to fight District Attorney Robert the fire and virtually no way out. Morgenthau went to great lengths to What’s more, the DA deterhighlight the failures of Fire mined that, as early as February Commissioner Nicholas Scoppetta 2005, a critical FDNY memo conand then-chief of operations and now Chief of Department Sal taining recommendations for an Cassano, naming them repeatedly emergency firefighting operations plan for the building was sent to the (if only by title). then-FDNY chief of operations. The DA showed that the The chief failed to act and, as a FDNY leadership knowingly acted result, there was no fire-operations (Continued on Page 2) of contractors responsible for abatement and deconstruction of this toxic tower, the New York City Fire Department had the ultimate responsibility to ensure that firefighters could operate safely in the building. It absolutely failed to do so.
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(Continued from page 1) plan in place the day firefighters clear that rank-and-file firefighters have lost confidence in the leaderBeddia and Graffagnino died. ship of the department in light of The DA also found that just the DA’s findings. three months before the fatal fire, The DA’s report cries out Scoppetta himself responded, visiting Engine 10 and Ladder 10 after a for accountability. “Sovereign 15-foot length of pipe fell from the immunity” prevented him from takDeutsche Bank building, crashing ing further actions. Morgenthau has through the roof of the firehouse. done his job. The ball is in the The report details that the fire com- mayor’s court. missioner, accompanied by senior **************** staff, ascended to the roof of the The UFA Contract was ratifirehouse to assess the damage. fied on December 11th with 97% of An event that drew the fire the membership voting to accept commissioner to the scene of the the terms and conditions. I would Deutsche Bank building was a like to thank the membership for golden opportunity to right all of their support.
the department’s previous failures, We continue to mourn the but instead, the DA found that loss of two firefighters who recentScoppetta and his staff took no ly died. Probationary Firefighter action. Jamel Sears, 33, collapsed after “Time and again the fire completing a training exercise on department missed opportunities to Randall’s Island. He was taken to uncover the dangerous conditions at Mount Sinai hospital but never the Deutsche Bank building,” regained consciousness and died on Tuesday, November 11th. Morgenthau said. Firefighter Sears, a four-year Navy Now, after more than 16 veteran, joined the FDNY in July. months of waiting for a conclusion He was a Bronx native and is surto this report, the roles of the fire vived by his wife Sherita Sears - a commissioner and the current chief city cop in the 41st Precinct - and of department are raising many their two children, son Mahlek, 12, questions about their ability to lead and daughter Jya, 8. the FDNY. On Sunday, November 23rd, Lieutenant Robert J. Ryan, They hid their actions 46, a 17-year veteran of the New before the fatal Deutsche Bank fire York City Fire Department, died and never brought them up during wile fighting a fire in Staten Island the FDNY’s own internal investiga- when a ceiling in the attic of the tion. If not for the grand jury and burning home collapsed on him. He the DA’s investigation, no one was assigned to Engine 155 more would have known that these fail- than two years ago. He was ures existed at the very top of the appointed to the Fire Department fire department. on April 14, 1991. He was previously assigned to Engines 228, 280 and The willingness of 282 in Brooklyn, Engine 6 in Scoppetta and Cassano to blame Manhattan, the 4th Battalion in others for their own failures shows Manhattan, and the 22nd Battalion a lack of integrity and an abdication in Staten Island. He was promoted of the right to command others. It is
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to the rank of lieutenant in March 2001.A lifelong Staten Island-resident, he is survived by his wife, Kathleen; a son, Chris, 17; a daughter, Kayla, 12; a stepson, Alex, 10; and a stepdaughter, Emma, 8. On December 4th, the Department announced its budget cuts in response to the Mayor’s request. The Department has said that on January 17th it will close the following units at night: Ladder Co. 53 in the Bronx, Engine Co. 271 in Brooklyn, Engine Co. 4 in Manhattan, and Engine Co. 161 in Staten Island. The fire-response presence at Governor’s Island will also be permanently closed. The Department has announced they expect an eventual $8.9-million per-year savings because of the closings. Nonetheless, this move clearly compromises public safety and threatens civilian and firefighter lives. In spite of all the recent turmoil in the Department, the UFA remains committed to fighting for the safety and interests of firefighters. With this in mind, the Executive Board and I would like to wish each of you and your families a very happy and enjoyable holiday season. We look forward to representing your interests in the New Year. I can assure you that the UFA will tirelessly fight to protect against cuts in manning and fire service. Our hope is that 2009 will be healthy and happy for each of our members and their families! As always, stay safe!
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Tough Times in Albany and City Hall James Slevin UFA Vice President Legislative
T
he past 6 years have been very successful for the UFA. We have seen groundbreaking legislation passed as a result of a successful Political Action and Lobbying program. Some of the most important pieces of legislation that were passed were the Stroke Bill, Citizen Soldier Salary Act and the World Trade Center Bill along
with the various improvements and refinements. Now for the first time ever, retirees that develop World Trade Center related illnesses following retirement, qualify for a disability pension. More importantly if it is a fatal illness their spouse will continue to receive their pension. This past election we saw the Republican majority decrease in the Senate. At the time of this article going to press it appears that the Democrats will be in control come January. We believe that the current Minority Leader, Malcolm Smith will be the new Majority Leader. We have worked extremely well with the Republican majority in the past and will work with whoever is in charge come January. The UFA has always had a nonpartisan
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approach to politics. We support those who we believe can best help the members and will continue to do so in the future. In Governor Paterson’s recent budget presentation, he put forth a new pension tier for New York City Firefighters and Police Officers at the request of the Mayor. This new pension tier would affect new hires and not any incumbent employees. It calls for a minimum of 25 years of service and a minimum age of 50 in order to collect a service retirement. It also calls for an elimination of any VSF benefits. This is unacceptable to us. The current pension benefits that we worked hard to get should in no way be taken away for any new firefighters. This current fiscal crisis was not caused by firefighters (Continued on page 8)
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GENERAL COUNSEL’S COLUMN The charges briefly describe the offending conduct and the section of the Department Regulations that were allegedly violated. BITS INTERVIEWS Michael A. Block THE DISCIPLINARY PROCESS
A
s UFA General Counsel, I often find that firefighters have a lack of familiarity with the Department’s disciplinary process.Therefore, this column will provide a general outline of the governing procedures. THE CHARGES If a firefighter is alleged to have committed a violation of the Rules and Regulations of the Department, he can be disciplined informally through a device known as “command discipline.” If that is not available or fails to succeed, he may be the subject of formal Department charges. Command discipline, done at the Company level, can involve several possible penalties, including, but not limited to, loss of mutual privileges, loss of vacation, removal from the chauffeur’s seat, etc. However, a firefighter is not obligated to accept a command discipline offer. If the firefighter decides to reject the recommended command discipline penalty, the Department can proceed with actual disciplinary charges. The charges must be in writing and served upon the firefighter who is then asked to sign the charges to acknowledge receipt. Some firefighters are reluctant to sign for the charges fearing they are admitting guilt. In fact, they are only admitting that they received the charges and they need not hesitate to sign for them.
The Department’s Bureau of Investigations and Trials (“BITS”) is the prosecuting arm of the Department. It employs investigators and attorneys to manage the disciplinary process.
extra departmental employment; (c) conflicts of interest; (d) injuries or illnesses; (e) residency; (f) performance as a volunteer firefighter; or (g) loss or improper use of Department property.
The testimony given at these interviews can be extremely critical in determining how or if the Department will proceed and the defenses that may be available to a firefighter.Thus, the firefighter should always be available to counBITS’ attorneys often con- sel prior to the interview to go over duct interviews of firefighters who the questions that are likely to be are “witnesses” or “subjects” in the asked. disciplinary process. These interviews can be held before or after STEP I PROCEEDING charges are served. Prior to a trial of a disciplinary case, The UFA attorneys are firefighters are entitled to particiavailable to represent both witness- pate in a procedure known as a es and subjects at a disciplinary pro- “Step I Conference.” The conferceeding. No firefighter should sub- ence is held at the BITS office in mit to such an interview without headquarters. It is attended by the requesting representation from the firefighter who is the subject of UFA! charges, his counsel and his UFA Borough Trustee. The conference is The interviews are generally chaired by the Borough under oath and recorded by tape or Commander of the Borough to by a stenographer. If an employee is which the firefighter is assigned. the subject of charges, he can obtain a copy of the transcript of the interThe conference is informal view. and not recorded. A BITS representative presents the Department Firefighters are required to charges to the Borough answer the questions posed at these Commander. Thereafter, the fireinterviews and to tell the truth. If fighter, his attorney and/or his the firefighter being interviewed is union representative briefly presa “subject,” anything he says can be ents the firefighter’s defense. The used against him in a disciplinary Borough Commander also usually proceeding - but not in a criminal asks questions. The Commander proceeding. If a firefighter is a “wit- will render a written recommendaness,” nothing he says can be used tion to the Fire Commissioner as to against him in a subsequent disci- how he believes the charges should plinary or criminal proceeding. If, be resolved. The Fire during an interview, a “witness” Commissioner can adopt the recbecomes a “subject,” he must be ommendation or he can reject it and advised of that fact. offer an alternate resolution. For example, in cases involving drug As noted in the Collective use and the zero tolerance policy, Bargaining Agreement (“CBA”), the Commissioner invariably will firefighters cannot be questioned offer only resignation or terminaabout off duty, out of uniform tion as a remedy, even if the behavior, except when the ques- Borough Commander recommends tions relate to: (a) official a more lenient resolution. Department routine or business; (b)
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Similarly, the firefighter has the right to accept or reject the resolution approved by the Commissioner. If he accepts, the case is resolved. If he rejects it, the case will then proceed to a disciplinary trial. THE TRIAL All Fire Department disciplinary trials are conducted at the City’s Office of Administrative Trials and Hearings (“OATH”). It is located at 40 Rector Street in Manhattan. OATH was created by the City Charter. The Chief Administrative Law Judge at OATH is appointed by the Mayor. The remaining Judges are appointed by the Chief Judge. Trials at OATH are nonjury. The OATH Judge assigned to the case hears the evidence and thereafter issues a written nonbinding Report and Recommendation to the Fire Commissioner. Although the strict rules of evidence do not apply at OATH trials, they are formal proceedings. They are on the record and held in an OATH courtroom.
It must be noted that the Report and Recommendation of the OATH Trial Judge is only that - it is not binding on the Fire Commissioner. The Commissioner may accept or reject the recommendation on the issue of guilt or innocence and may also accept or reject the recommendation on penalty. For example, in several recent cases involving the use of cocaine, the OATH Judges have found firefighters guilty, but recommended leniency in light of the firefighters’ emotional condition.In each case, the Fire Commissioner has rejected the recommendation of leniency and issued an order of termination. It should also be noted that pursuant to the Administrative Code, the only penalty options available to the Fire Commissioner are a penalty of up to ten (10) days’ pay per charge or termination. Although the Fire Commissioner could still effectively impose a
Prior to the actual OATH trial, an OATH Judge who will not sit at the trial of the case, will meet with the parties in an effort to settle the matter, if possible. If a case is not settled, the trial proceeds before a different Judge with testimony from witnesses (including the firefighter if he so chooses) and the use of documentary evidence. When all of the evidence has been introduced, the record is closed and the OATH Judge thereafter issues the Report and Recommendation noted above. The OATH Trial Judge can either sustain the charges or find the firefighter innocent. If the charged are sustained, the OATH Trial Judge will also recommend a penalty that the Judge feels appropriate under the circumstances.
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greater pay penalty without termination based upon the agreement of the firefighter, the Commissioner often uses the limited penalty options as a reason for recommending termination. APPEALS If the Fire Commissioner renders a decision that is not acceptable to the firefighter, the firefighter may seek judicial relief by means of a proceeding in Court known as an Article 78 proceeding.Such a proceeding must be brought within four (4) months of the Commissioner’s final decision. The Court’s job generally is to determine whether there was substantial evidence to support a finding of guilt and whether the penalty rendered was so severe as to shock one’s sense of fairness. Article 78 proceedings appealing disciplinary findings are rarely successful given the limited scope of review available to the Court. (Continued on page 8)
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2008 UFA WIDOWS’ & CHILD
Toys “R” Us graciously hosted the 2008 UFA W seventh time in its Times Square flagship sto Executive Vice President Ron Boire, Regional with UFA President Steve Cassidy, John G. K members of the Executive Board and Officer The store was closed to the public until 11:30 store. Toys “R” Us donated gift cards and the gift certificates. Santa arrived at 10:00am on T bucket of Ladder 35. This year, we were fortu Starks join in the festivities. Thank you Toys “
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DREN’S CHRISTMAS PARTY
Widows’ & Children’s Christmas Party for the re on Sunday, November 23rd. Toys “R” Us l Vice President Kevin Van Der Griend, along Kelly, Jr, UFA Holiday Party Chairman, and rs, welcomed over 400 widows and children. 0 am so that the kids could have the run of the e UFA provided each family with Toys “R” Us Truck 343 and proceeded to take kids up in the unate to have NBA stars David Lee and John “R” Us!
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(continued from page3) Tough Times in Albany and City Hall and it is not up to us to bail the city out. We will do everything possible to fight this legislation. We have already begun the process of letting the City Council and Albany know how we feel about it. We will keep you informed about this fight and will be asking you to help us fight it in the near future. In addition to this fight we will be pushing to get all of our extender legislation passed. This includes the Stroke Presumption, Heart Presumption, and Cancer Presumption. In the coming months we will be updating you on this process and will be asking for your help. It is more important now than ever to be politically active.
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(Continued from page 5) The Disciplinary Process INVESTIGATIONS BY DOI Finally, I note that possible disciplinary matters are occasionally investigated not by BITS, but by the City’s Department of Investigation. Usually, but not always, DOI is involved because there has been possible criminal conduct by a firefighter. DOI’s position is that since they are not the FDNY but a separate agency, they are not bound by the Collective Bargaining Agreement. As a result, they often feel no obligation to warn firefighters, even possible subjects of an investigation, of their right to representation. You cannot be punished for refusing to speak to a DOI inves-
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tigator unless they have formally advised you that they are invoking Mayoral Executive Order 16 and that you have a right to counsel and that nothing you may say can be used against you in a criminal proceeding unless you lie to them. As a result, I strongly advise firefighters NOT to speak to DOI investigators until consulting with UFA attorneys. CONCLUSION This article is intended only as an outline of the disciplinary process. Hopefully, none of you will be personally involved in a disciplinary case. If there is even a possibility that you will be involved, I strongly recommend that you call your UFA Borough Trustee immediately so that your rights are properly protected.
On December 16th, John G. Kelly, Jr., Brooklyn Trustee and Chairman of the Board of Trustees, together with Steve Cassidy, UFA President, were honored by Sol Moglen, who created and developed the Brooklyn Wall of Remembrance in KeySpan Park. The memorial is a tribute to those who made the ultimate sacrifice on September 11, 2001. For more information visit: www.brooklynwall.org .
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To:
RETIRED FIREFIGHTERS SECURITY BENEFIT FUND OF THE UNIFORMED FIREFIGHTERS ASSOCIATION OF GREATER NEW YORK - LOCAL 94 I.A.F.F., AFL-CIO 204 EAST 23RD STREET, NEW YORK, NY 10010 TEL: (212) 683-4723 FAX: (212) 683-0693 All Participants
From:
Board of Trustees
Re:
Annual Membership Report
Page 9 TRUSTEES: STEPHEN J. CASSIDY Chairman ROBERT STRAUB Treasurer JAMES M. SLEVIN JOSEPH A. MICCIO WILLIAM ROMAKA JOHN G KELLY, JR. DONALD RULAND STEPHEN G. HUMENESKY EDWARD BROWN DANIEL MURPHY
In compliance with Directive 12, Employee Benefit Funds – Uniform Reporting and Auditing Requirements, issued by the Office of the Comptroller of the City of New York, set forth below is a report of the financial condition and operations of the Fund for the fiscal year ended June 30, 2007. The Retired Firefighters Security Benefit Fund of the Uniformed Firefighters Association provides prescription drug, dental, optical, hearing aid, life insurance, supplemental health insurance, certain widows’ benefits and other benefits to eligible participants, which include retired firefighters, fire marshals, and uniformed wipers, pursuant to an Agreement and Declaration of Trust entered into between the Uniformed Firefighters Association of Greater New York, Local 94, I.A.F.F., AFL-CIO (the UFA) and the Trustees of the Fund. Such benefits are funded through employer contributions, which are established by collective bargaining agreements entered into between the UFA and the City of New York. The value of Fund assets, after subtracting liabilities of the Fund, was $11,269,487 as of June 30, 2007, compared to $8,439,711 as of July 1, 2006. During the fiscal year the Fund experienced an increase in its net assets available for benefits of $2,829,776. Additions to the Fund totaled $20,324,489. These additions included investment income of $429,214, contributions of $16,387,738, and other income of $3,507,537. Deductions from the Fund totaled $17,494,713. These deductions included benefits paid to or for participants of $16,992,369 and administrative expenses of $502,344. For additional information write or call: Board of Trustees Retired Firefighters Security Benefit Fund of the Uniformed Firefighters Association 204 East 23rd Street New York, NY 10010 (212) 683-4723
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SECURITY BENEFIT FUND OF THE UNIFORMED FIREFIGHTERS ASSOCIATION OF GREATER NEW YORK - LOCAL 94 I.A.F.F., AFL-CIO 204 EAST 23RD STREET, NEW YORK, NY 10010 TEL: (212) 683-4723 FAX: (212) 683-0693 To:
All Participants
From:
Board of Trustees
Re:
Annual Membership Report
Page 10 TRUSTEES: STEPHEN J. CASSIDY Chairman ROBERT STRAUB Treasurer JAMES M. SLEVIN JOSEPH A. MICCIO WILLIAM ROMAKA JOHN G KELLY, JR. DONALD RULAND STEPHEN G. HUMENESKY EDWARD BROWN DANIEL MURPHY
In compliance with Directive 12, Employee Benefit Funds – Uniform Reporting and Auditing Requirements, issued by the Office of the Comptroller of the City of New York, set forth below is a report of the financial condition and operations of the Fund for the fiscal year ended June 30, 2007. The Security Benefit Fund of the Uniformed Firefighters Association provides prescription drug, dental, optical, hearing aid, life insurance, supplemental health insurance, certain widows’ benefits and other benefits to eligible participants, which include firefighters, fire marshals, marine engineers, pilots, and uniformed wipers, pursuant to an Agreement and Declaration of Trust entered into between the Uniformed Firefighters Association of Greater New York, Local 94, I.A.F.F., AFL-CIO (the UFA) and the Trustees of the Fund. Such benefits are funded through employer contributions, which are established by collective bargaining agreements entered into between the UFA and the City of New York. The value of Fund assets, after subtracting liabilities of the Fund, was $35,371,208 as of June 30, 2007, compared to $33,205,161 as of July 1, 2006. During the fiscal year the Fund experienced an increase in its net assets available for benefits of $2,166,047. Additions to the Fund totaled $18,296,366. These additions included investment income of $2,554,611, contributions of $15,146,212, and other income of $595,543. Deductions from the Fund totaled $15,980,215. These deductions included benefits paid to or for participants of $15,427,069 and administrative expenses of $703,250. For additional information write or call: Board of Trustees Security Benefit Fund of the Uniformed Firefighters Association 204 East 23rd Street New York, NY 10010 (212) 683-4723
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COMPENSATION ACCRUAL FUND OF THE UNIFORMED FIREFIGHTERS ASSOCIATION OF GREATER NEW YORK - LOCAL 94 I.A.F.F., AFL-CIO 204 EAST 23RD STREET, NEW YORK, NY 10010 TEL: (212) 683-4723 FAX: (212) 683-0693 To:
All Participants
From:
Board of Trustees
Re:
Annual Membership Report
Page 11 TRUSTEES: STEPHEN J. CASSIDY Chairman ROBERT STRAUB Treasurer JAMES M. SLEVIN JOSEPH A. MICCIO WILLIAM ROMAKA JOHN G KELLY, JR. DONALD RULAND STEPHEN G. HUMENESKY EDWARD BROWN DANIEL MURPHY
In compliance with Directive 12, Employee Benefit Funds – Uniform Reporting and Auditing Requirements, issued by the Office of the Comptroller of the City of New York, set forth below is a report of the financial condition and operations of the Fund for the fiscal year ended December 31, 2006. The Compensation Accrual Fund of the Uniformed Firefighters Association is a defined contribution pension plan that provides retirement benefits to New York City firefighters, fire marshals, marine engineers, pilots, and uniformed wipers pursuant to collective bargaining agreements between the City of New York and the Uniformed Firefighters Association of Greater New York, Local 94, I.A.F.F., AFL-CIO (the UFA). Participants are eligible to participate in the plan on the date they commence employment. Benefits are funded through employer contributions, which are established by the collective bargaining agreements. The value of Fund assets, after subtracting liabilities of the Fund, was $116,737,438 as of December 31, 2006, compared to $105,170,080 as of January 1, 2006. During the fiscal year the Fund experienced an increase in its net assets available for benefits of $11,567,358. Additions to the Fund totaled $19,206,386. These additions included investment income of $9,322,705, and contributions of $9,883,681. Deductions from the Fund totaled $7,639,028. These deductions included benefits paid to participants of $7,280,729 and administrative expenses of $358,299. For additional information write or call: Board of Trustees Compensation Accrual Fund of the Uniformed Firefighters Association 204 East 23rd Street New York, NY 10010 (212) 683-4723
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Uniformed Firefighters Association Of Greater New York 204 EAST 23rd STREET, NEW YORK, N.Y. 10010-9998 Tel (212) 683-4832 • Fax (212) 683-0710 www.ufanyc.org
STEPHEN J. CASSIDY President ENG 236 JAMES M. SLEVIN Vice President
LAD 7
DONALD RULAND Trustee-Staten Island
ENG 157
JOSEPH MICCIO Recording Secretary
ENG 295
ROBERT STRAUB Treasurer
JOHN G. KELLY, JR Trustee-Brooklyn ENG 201 Chairman, Board of Trustees
ENG 45
STEPHEN G. HUMENESKY Trustee-Queens ENG 301
WILLIAM ROMAKA Health & Safety Officer Sergeant-at-Arms LESTER LAYNE Fire Marshal Representative
STEPHEN J. CASSIDY Editor-In-Chief
ENG 238
BF1
DANIEL MURPHY Trustee-Manhattan
ENG 74
EDWARD BROWN Trustee-Bronx
LAD 48
STEPHEN N. SYMBOLIK Managing Editor
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