By Anita L. Pelletier, Esq., Michael J. Cooney, Esq. and Brian W. Mahoney, Esq.
Local volunteer fire companies and the men and women who serve enjoy a special position of trust within our communities. Firefighters are called upon to serve some of the most vulnerable members of our communities, and their exemplary performance is essential to building this relationship of trust. To ensure the highest quality of community service and moral character, fire companies are careful and selective about who they admit as volunteer firefighters.
New York Senate Bill S1885C-2013, which was signed into law by Governor Cuomo on August 4, 2014 (the “Act”), reinforces the importance of this community trust by requiring that all fire companies screen new applicants and transfer firefighters for previous sex offenses before accepting the applicant or transfer as a member. The Act does not prohibit fire companies from admitting persons with prior sex offenses, nor does the Act require fire companies to screen or remove any current members. Rather, the Act requires that fire companies inform themselves of any applicant’s prior sex offenses and carefully consider the community impact of admitting such individuals as volunteer firefighters.
The new law takes effect December 2, 2014.
The Screening and Admission Process
Before being signed into law, the Act went through several revisions in the legislature. Prior versions of the Act, which were not signed into law, would have created an absolute prohibition on persons with prior sex offenses from serving as volunteer firefighters, similar to the arson conviction prohibition.
The final version of the Act, however, takes a more flexible approach—one that provides fire companies with flexibility to make the right decisions for their communities.
The Act requires that fire companies submit a request for a background check on an applicant to either the local Sheriff ’s Department or the Office of Fire Prevention and Control in the same manner that they currently request a background check for arson-related offenses. The Sheriff ’s Department or Office of Fire Prevention and Control is required to respond within ten (10) days. The response will simply indicate whether the applicant does or does not have a prior sex offense. If the applicant has a prior sex offense conviction, the fire company must conduct additional inquiry.
It is important to note that, unlike prior arson offenses, a fire company cannot automatically refuse to admit someone with a prior sex offense conviction based on that fact alone. Rather, the Act requires fire companies to consider other factors as well as the conviction, with admission only being denied if the prior sex offense conviction creates an unreasonable risk to the safety and welfare of the general public. Specifically, a fire company must consider all of the following factors before deciding whether to admit an applicant who committed a sex offense:
• New York’s public policy of the state to “encourage employment of persons with criminal records” as expressed in Corrections Law Sections 752 and 753;
• the specific duties of the applicant and the impact the criminal offense may have on his or her abilities to perform those duties;
• how long ago the offense occurred and how old the applicant was when the offense occurred; and
• the fire company’s legitimate interest in protecting the safety and welfare of specific individuals or the general public.
Before reaching a conclusion regarding whether to admit the applicant, a fire company must go review, consider and weigh the factors listed above. Only after such consideration may the fire company determine whether the applicant’s prior sex offense conviction threatens a fire company’s ability to safely serve the public.
The fire company should document the information it reviewed and considered as well as document its decision in writing, including the rationale for its ultimate decision. Courts are generally deferential and will not second guess a decision as long as the prescribed process is followed and adequately documented.
If the fire company ultimately determines that it is in the community’s best interests to deny admission to the applicant, the fire company must inform the applicant about the fire company’s decision. The notice must include information advising the applicant, in writing, of the applicant’s right to challenge the decision in court. The fire company must also provide a copy of Corrections Law Sections 752 and 753, which set forth the criteria used to make the decision. Lastly, if the applicant requests, the fire company must provide a written explanation describing the reasons the applicant was denied admission. When providing this information, the fire company should refer to the criteria set forth in the Corrections Law (and described above)—it is not enough simply to refer to the applicant’s prior sex offense.
Removal of a Member
As discussed above, the law does not require fire companies to screen current members for prior sex offenses. Fire companies may screen current members for prior sex offenses if they desire to do so. However, before a decision to screen current members is made, the fire company should consider discussing the issue with its members to ensure that there is general agreement to conduct such screening.
Because the Act does not provide any new grounds for removal of any current member, members of fire companies may only be removed: (a) by the municipal body with oversight of the fire department of the town, village, city or fire district (removal can only be done for reasons of incompetence or misconduct); or (b) by the individual fire company for failure to comply with the constitution, by-laws or code of conduct of the fire company.
Regardless of whether a member is removed by the members or Board of Directors of the fire company in accordance with their bylaws or the municipal body (if any) that has authority over the fire companies within its district, the substantive decision (whether or not to remove the member) should be made according to the same criteria to review a new or transfer applicant described above.
If a municipal body is available to review the removal of a member based on that member’s prior sex offenses, fire companies are advised to pursue that approach, rather than handling the removal entirely “in house.” Engaging the municipal board imbues the removal with a public process, which may eliminate doubt as to the fairness or impartiality of the removal decision. In addition, some courts have taken the view that removal of a member of a fire company for prior criminal convictions is a matter of public interest that should always be resolved by a municipal body when available. Using municipal review as first resort may reduce the likelihood of a successful legal challenge by the member subject to the proposed removal and reduce the cost of defending such a challenge.
If a municipal body is not available to oversee the removal (e.g., fire company is not subject to any municipal body), then the members or the governing board of the fire company must refer to the bylaws to determine how to remove the member. Fire companies need to take care to follow the requirements of the bylaws strictly. If a removed member challenges removal, the challenge would be with respect to the procedures the fire company used to make its decision. Failure to follow its stated procedures could result in a court ordering the fire company to go through the entire review process again.