Fighting Fire with Due Process - 06/03/07

In America, where the U.S. Constitution is the basic law of the land, governments are required to operate under the rule of law. Laws and rules having the force and effect of law must be enacted by regular processes and applied fairly.

A fundamental principle, in America, is that governments must follow their own rules in most cases. If a law or regulation is violated arbitrarily or capriciously by public officials, this may constitute a denial of legal interests or rights of citizens. In political theory, this is the rule of law. In administrative law, which examines the legal powers of governments, this is due process.

If you know the term "denial of due process," you know now that it means that a legal right or interest has been taken without proper notice; or in a defective, unfair or unlawful proceeding; or that the government violated its own rules in a manner that unlawfully took away a person's rights. Of particular importance is that, in America, a denial of due process is unconstitutional.

In one sense, due process is about procedure. In a more comprehensive sense, in the making or breaking of rules by the government, due process is about fairness and justice in the way that rules are made and how they are applied to individual cases, and under what circumstances the government may disregard their own rules to the detriment of private interests and rights.

Let's take this concept, due process, and set it into a concrete example that may be clearer.

Let us suppose that the City of Deerfield Beach established procedures and criteria for the promotion of employees within a particular department or agency of city government. Let's suppose, for the purposes of discussion, that Deerfield Beach is in America, subject to the U.S. Constitution.

We cannot assume this without deliberation of thought, because public officials in Deerfield Beach have often acted as if they do not operate under the rule of law or the constitution, or, for that matter, under any other inconvenient rule.

Recall, for example, attempts by city officials in the past to interfere with citizens who demonstrate, petition or express their opinions, using police in at least two instances, in clear violation of First Amendment rights. Also recall that at an official meeting of the highest council of the city (we now know), there was discussed a harassment lawsuit to intimidate citizens who had exercised their constitutional right to petition for a referendum.

But let us suppose that a court would decide, in a relevant case, that the City of Deerfield Beach is subject, nonetheless, to the Constitution.

Let's suppose further that the rules promulgated by the City of Deerfield Beach created classes of persons, employed by that particular department, who are promotable. These rules conferred specific rights to certain individuals, and a legal interest to be considered for promotion ahead of persons who are not members of the class. Now let us say that the department promoted someone from one grade to the next who was not a member of the class promotable to that grade, and by an irregular procedure. Applying the abstract principles explained above, would this be a denial of due process?

This is, more or less, the question to be answered by the Circuit Court, in a case brought by three Deerfield Beach fire department lieutenants. The suit has a twist to it, a tortious twist. The plaintiffs charge that the fire chief, Anthony Stravino, berated them in a public meeting, and committed, by thus doing, slander. The city, Stravino and the Uniform Civil Service Board of the city are named as defendants in the suit.

The complaint states that Chief Stravino conducted a meeting with members of the Deerfield Beach fire department where he discussed the plaintiffs' complaints which form the basis of the present lawsuit. It alleges that Stravino called the plaintiffs traitors and cancers on the department, and compared the plaintiffs to the terrorist organization, Al-Qaeda. Because this was an official meeting held on city property, the plaintiffs argue that the city, along with Stravino, is liable.

The plaintiffs are John Calandra, Doug Watler and Robert Keefer. The gravamen of the complaint is that the plaintiffs were denied promotion to the rank of division chief (or more specifically denied consideration) because the fire department did not comply with the city's (its own) regulations concerning promotions in the department.

There is no doubt that the facts stated by the plaintiffs in the complaint will be disputed by the defendants in their responses. However, if it is found that the procedures applied were as stated by the plaintiffs, what may be determinative is an additional claim by the plaintiffs that the testing and evaluation phase of their examination for promotion to battalion chief (from which promotion list, promotion to division chief was to be made) was conducted with prejudice and bias by fire department "superior officers" who had been "wrongfully" promoted into their positions and whose demotion had previously been sought by the plaintiffs. "The intent to demote these officers had been discussed at several meetings of the [Uniform Civil Service Board]," according to the complaint, "and this fact was well known in advance to these officers as they were present at one or more of the meetings or were otherwise privy to the proceedings thereof."

The plaintiffs had alleged that the "superior officers" in question had been promoted from an "illegally re-certified" battalion chief promotion list. "Defendants in late 2006, instead [of creating a new promotion list based on the regular process as prescribed in the city's ordinances and regulations] took an existing Battalion Chief’s promotional list and certified it, by resolution after the fact, that it was now a Division Chief’s promotional list in direct violation of the Ordinances and Rules governing the promotion of Fire Officers."

"No announcement or competitive examination was made or held to certify the Division Chief’s Promotional list," in contravention of the city's rules and regulations. "Defendants’ actions in doing so denied the Plaintiffs the right to compete competitively for promotion to the rank of Division Chief."

For years now, rank-and-file firefighters, cadré and the city have been in conflict over contracts, pensions, a possible merger with BSO, mismanagement, alleged malfeasance and favoritism by the former fire chief, Gary Lother, and now, promotions. This lawsuit, it seems, is the latest skirmish in a protracted war. Lother resigned under pressure after a poll of rank-and-file members conducted by the union disclosed that most firefighters lacked confidence in his administration, and was replaced by the current chief, Stravino. Lother was also under pressure for his (mis)management of fire inspections which were months, or even years, behind schedule. Mr. Lother refused to answer questions of the commission concerning this matter on the advice of his attorney; a department head's refusal to respond to the commission, which is the highest public authority of the city, was unprecedented, and implied that his response could be prejudicial.

The lawsuit by plaintiffs Calandra, Watler and Keefer is also a classic case of "administrative due process." While most people are aware of due process as it pertains to criminal justice and civil court cases, perhaps not as many know how it applies to rule-making and decision-making by public agencies. It is something that activists should know about, and this case may serve as a primer.

This case is also of interest, or should be, because if the plaintiffs prevail, it could cost taxpayers some bucks. But, then again, the fire department over the past few years has had a talent for making personnel decisions that have resulted in substantial awards, at taxpayer expense.

The facts stated in this article are as they are stated in the plaintiffs' petition to the court. The city and Chief Stravino are also entitled to present their version of the facts to the court and jury, if the case progresses to that point.

Before we receive e-mails, we should state that we have abstracted the case according to our own interpretation of the legal issues presented and without the benefit of any response or elaboration of the facts. The complaint does not, in exact words, claim a violation of due process, but states that the actions by the city were "wrongful" and that "Defendants exhibited a marked disregard for the enforcement of their own procedures, Ordinances and Regulations, and violated the rights of the Plaintiffs thereby."

It should be further noted that administrative due process does not exist only in the abstract. It applies to practical cases. Therefore, the jurisprudence not only considers the rights of individuals, but also the efficient and effective operation of governments. Are there cases in which exigencies override the rights of individuals? The simple answer is yes.

Whether this case is one of those cases remains to be decided.