Off-duty drug rules weren't too vague for firefighter

By Allen Smith Jun 1, 2006
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A firefighter who claimed foul when he was discharged for using cocaine and marijuana off duty lost his argument that the fire department’s disciplinary rules were unconstitutionally vague.

Chris Gentilli had been a firefighter with the Madison, Wis., fire department since 1980. The city police department, the Federal Bureau of Investigation and the Dane County Drug and Gang Task Force obtained information about illegal drug use among Madison firefighters. The investigation revealed that while off duty Gentilli possessed and used cocaine and marijuana. Gentilli initially denied most of the allegations, but ultimately he admitted that he had shared and consumed cocaine and marijuana over 10 years, the Wisconsin Court of Appeals noted.

As a result of the investigation, the fire chief filed disciplinary charges against Gentilli and other firefighters before the Board of Police and Fire Commissioners for violating several fire department rules. These rules included one that stated that employees “shall hold themselves in readiness, at all times, to answer the calls and obey the orders of their superior officers” and “shall conform to the rules and regulations of the department, observe the laws and ordinances, and render their services to the city with zeal, courage and discretion and fidelity.”

In addition, the fire chief said, Gentilli violated a rule that states that “members must conform to and promptly and cheerfully obey all laws and ordinances, rules, regulations and orders, whether general, special or verbal, when emanating from due authority.” A hearing before the board confirmed that the rules had been violated, and Gentilli was discharged.

He protested the termination, saying that the rules were unconstitutionally vague and “breathtakingly broad in their potential application.” Gentilli had to concede that the fire department rules were not unconstitutionally vague on their face, but he contended that they were too vague as applied to him.

He claimed that in light of the board’s previous application of the rules, he did not have fair notice that his off-duty conduct could result in discharge. And he argued that he did not receive notice that his off-duty conduct could result in a rule violation.

The board had never before fired a firefighter for unlawful drug use, Gentilli asserted, so how was he to know that he might be sacked for this misconduct?

Wrong question, the court responded. “The germane question is not whether, in general, anyone had previously been discharged for drug use, but rather, whether someone engaging in conduct comparable to Gentilli’s conduct, brought to the attention of the board, was or was not discharged,” it stated.

And the answer to that question was a definitive “yes,” as reflected in at least two prior decisions. One involved a federal court upholding the board’s dismissal of a firefighter for violating a rule that prohibits off-duty conduct that would bring the fire department into disrepute, and the other involved the discharge of a firefighter for a crime committed prior to his becoming a firefighter.

To prevail on his claim, Gentilli needed to point to evidence showing that the board allowed off-duty rule violations to go undisciplined. “He has not done so,” the court observed (Gentilli v. Board of Police and Fire Commissioners of the City of Madison, Ct. App., No. 2005AP1818 (May 9, 2006)).

Allen Smith, J.D., is senior legal editor for HR News.

Editor’s Note: This article should not be construed as legal advice.

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