Legal Considerations

In the case of _____________drug testing of firefighters is constitutionally permissible as a reasonable search provided the three-prong test set forth by the Supreme Court is satisfied

Wilcher v. City of Wilmington

_________ establish the procedure by which an injured party can file a damage claim against a governmental entity.

tort claims acts

A clearly defined offer combined with an _________, supported by mutual consideration, creates a contract

unambiguous acceptance

As a general rule, a _________ to do something is not legally enforceable

unilateral promise

Liberty interest claims have been rejected in cases in which the employee was accused of:

Being tardy, failing to schedule leave, and engaging in horseplay Questioning the authority of his supervisor Failing to meet performance standards Failure to submit required documentation Being a poor manager

A ___ specifies the legal authority of the municipality and designates its boundaries

Charter

On the local level, the most commonly used organizing law is not a constitution, but rather it is a

Charter

_____ represent generally accepted industry-wide practices and recommendations

Consensus standards

The term _______ refers to an organizing law that is established by the people themselves

Constitution

__________ serve as the supreme law of the local jurisdiction and set up the form of local government

Municipal Charters

_____ serve as the Supreme Law of the local jurisdiction and set up the form of local government

Municipal charters

The criminal mental state in which the perpetrator should have been aware that a substantial and unjustifiable risk of harm would result from his or her conduct

Negligence

__________ is a non-intentional act. It is about things that happen by accident

Negligence

__________ is the least culpable of the four criminal mental states

Negligence

Fire departments are also subject to a variety of laws, such as (3)

OSHA regulations, Fair Labor Standards Act right-to-know laws

On the local level, the legislative body of a municipality, such as a city or town council, has the authority to enact laws called

Ordinances

_________ must comply with the local charter, the state constitution and the U.S. Constitution

Ordinances

When the purpose of a meeting is simply to discuss or convey management's complaints about the employee's performance in a non-disciplinary manner, the _________ have not been denied.

Weingarten rights

It may also be advisable to offer the firefighter the opportunity to make a _________ without being compelled because ____________ are not entitled to any protection under Garrity. Under Garrity, fire department investigators are limited in what they may inquire about

voluntarily statement

In addition to an act, every crime also has a mental state requirement, called a

mens rea

The employment of a person is a contractual arrangement. A contract provision, civil service regulation, charter provision, ordinance, or statute stating that an employee may be terminated only for "cause" or "just cause" changes the status of the employee from

"at-will."

Frequently the term "_____ " is used to describe the mental state necessary for someone to be convicted of most serious crimes

"intentional"

There are 2 aspects of the business necessity defense: the requirements have a "___________" to the position and the requirements are necessary for safe and effective ________.

"manifested relationship"; job performance

The phrase frequently used in FLSA cases to define an employee is anyone who is " ."

"suffered or permitted to work"

A ___ is that which must be obeyed subject to sanction or consequences by the government

A law

____________ policies must be based upon statistical analysis that indicates an underrepresentation of woman or minorities in the workforce

Affirmative action

_____________, or the failure to act, can be grounds for negligence only when one is under a legal duty to act. The creation of the duty is based on the relationship between the parties.

An omission

In theory, each branch of government is considered to be co-equal with a series of checks and balances that are designed to keep any one branch from becoming too powerful. This arrangement is often referred to as the

Balance of power

The basis for promissory estoppel is:

Detrimental reliance

___________: those of a policymaking nature that go to the heart of our democratic form of government (i.e. should a community have a paid fire department or should it rely on volunteers?)

Discretionary acts

In the case of ___________ a firefighter who has an expectation of continued employment has a protected property interest in his employment, and cannot be terminated without first being afforded his due process rights

Dorf v. Sylvania Twp. Bd. Of Trustees

The _________ branch is responsible for enforcing the laws and running the day-to-day operations of governement

Executive Branch

In the U.S., there are actually three distinct levels of government

Federal, State and Local

In the case of ________, employers may agree to use race-conscious affirmative action goals in an effort to correct imbalances of minority members in the workplace

Firefighters (IAFF Local 93) v. City of Cleveland

As seen in the case of the ________ even where a fire department has immunity protection, if a special duty exists between a particular victim and the fire department, and that duty is breached, the fire department may be liable for damages

Gary v. Odie

In the case of ________ governmental actor is not liable to members of the general public for negligence in the absence of a duty that is greater than the duty that a public official owes to the public at large. This includes suits against government for failure to enforce laws such as the ________.

Grogan v. Commonwealth of Kentucky; fire code

The _____ branch applies the laws of Congress in the context of a case, and interprets the meaning of a law where it is questioned. This branch has no authority to apply or interpret laws in the absence of someone bringing the case to the court

Judicial

The __________ branch is responsible for conducting trials, handling appeals, and interpreting laws within the context of cases

Judicial

The _________ branch has no authority to apply or interpret laws in the absence of someone bringing it to the court

Judicial Branch

The criminal mental state in which the person knew to a substantial certainty that a particular outcome would follow from his or her act, even if the person did not intend or desire it.

Knowing

The _________ branch is responsible for creating laws and imposing taxes

Legislative Branch

___________ requires a greater analysis of the circumstances than merely finding a "but for" connection. Harm that is remote or not __________ to the conduct of the defendant is not actionable

Proximate cause; proximately related

The criminal mental state in which a person intended or desired to engage in certain conduct or cause a certain outcome.

Purposeful

_________ sexual harassment occurs when a person's employment opportunities or benefits are granted or denied because of the individual's submission to sexual advances or request for sexual favors. It usually involves an employer, manager or supervisor as the harasser

Quid pro quo

The mental state in which a person consciously disregards a known and substantial risk of harm involving a gross deviation from the standard of care of law-abiding citizens.

Reckless

__________ must be distinguished from cases in which an employer is sued directly for the employer's own negligence arising out of something that an employee did

Respondeat superior

In the case of ________, an employer may not disregard the results of an otherwise valid promotional examination process simply because the racial results show a disparate impact, absent a strong basis in evidence that the process used would subject it to impact liability

Ricci v. DeStefano

In ___________, a firefighter who was seriously injured in a live burn was allowed to file suit alleging willful and wanton negligence as well as intentional misconduct against the department and the instructor who ran the training, under an exception to exclusivity

Seymour v. Lenoir County

_________ provide the legal authority and jurisdiction for the various parts of the state government including political subdivisions such as cities and towns

State Constitutions

_________ provide the legal authority and jurisdiction for the various parts of state government, including political subdivisions such as cities and towns

State constitutions

_________________ that is incorporated into tort claims acts commonly contains qualify language that limits its coverage to activities that involve a discretionary act while engaged in a governmental function

Statutory immunity protection

The jurisdiction of each level of government is initially defined by: (3)

The US Constitution The State Constitution The local charter

__________ has been considered to be an exception to the rescue doctrine, as well as being founded on both the assumption of risk and last clear chance doctrines

The fireman's rule

The focus of strict liability crimes are solely on the

act.

Compelled statements given by an employee cannot be used as evidence in a criminal case against the employee, nor can they be used as part of a criminal investigation. Compelled statements can be used against the employee for purposes of

administrative discipline.

Emergency medical exception to firefighter's exemption-the most controversial and frequently litigated issue regarding the definition of a "public agency engaged in fire protection activities" involves fire personnel assigned to ________. Cases interpreting the ambiguity applied the

ambulances or rescue squads; 80-20 rule

In order for an action for negligence to exist, the following three elements must be present: (3)

an act or omission, damages to the plaintiff, breach of the standard of care

Any unpermitted, offensive touching can constitute __________, including a push, a shove, poking someone with a finger, or even spitting

battery

a ______ specifies the legal authority of the municipality and designates its boundaries

charter

______________ are violations of law that are not criminal in nature, but for which a person may be penalized by government

civil infractions

Crouch v. Regional Emergency Medical Services-gross negligence involves conduct that demonstrates a lack of

concern for the consequences

______ represent generally accepted industry-wide practices and recommendations

consensus standards

If possible _________ is involved and the firefighter is compelled to answer questions, the firefighter's answers and any evidence generated from those answers are protected by Garrity and may not be used against the firefighter in any subsequent criminal prosecution, except for perjury or obstruction of justice

criminal activity

The availability and admissibility of evidence ultimately determine what cases will be brought to court and which side will prevail. Real evidence is also referred to as

demonstrative evidence

As a general rule, persons with a temporary condition or impairment are not regarded as having a ________. Reasonable accommodation includes changes to an application process that will allow a qualified individual with a disability to participate in the application process Job duties that are not fundamental or essential are characterized as __________.

disability; marginal functions

In one of the most important labor law cases in history, the U.S. Supreme Court upheld a NLRB determination that it is an unfair labor practice for an employer to deny an employee the right to have union representation at an investigatory meeting where the employee's answers to questions could result in

disciplinary action

The right to have union representation only applies in situations where an employee reasonably believes that the investigation will result in ___________ against the employee himself. The meeting must be ________ in nature.

disciplinary action; investigatory

The operational decision making of city firefighters at a fire scene is a _______________ and therefore the fire department is immune from liability

discretionary function

Proof of __________ requires proof that a decision, action, or pattern of behavior was directed at a particular person or group of people because of their race, sex, religion, or other prohibited classifications. It is based upon an intentional act of discrimination.

disparate treatment

At a minimum, in cases where ________ are found to exist, the person has a right to be informed of the allegations against him or her, and given the opportunity to explain the circumstances. The leading case on due process requirements for public employees is:

due process rights; Cleveland Board of Education v. Loudermill

OSHA regulations are: They are not voluntary, nor are they guidelines

laws

Unlike the executive and legislative branches of government, the judicial branch has the inherent power to

enforce its own orders

only the ____ branch can enforce the laws

executive

Most crimes are defined by ______ and ______ statutes. These statutes identify the activities that constitute the crime and specify the penalties, such as the crime of arson

federal and state statutes.

Police Powers jurisdiction: includes matters pertaining to: (4)

fire protection emergency medical response fire codes criminal offenses

The test of proximate cause relates to ________ "A person is not required to foresee all results but only those consequences which are reasonable." As seen in the case of _______________.

foreseeability Ford v. Peaches Entertainment Corp

As a general rule, where immunity protection is available, it applies to conduct that constitutes negligence, but offers not protection for

gross negligence or recklessness.

On the other hand, accusations of ________, inability to meet _______ or ________ are not sufficiently "stigmatizing" to trigger a liberty interest.

incompetence expectations negligence

Some states recognize an exception to exclusivity immunity, when an employee is injured through ________ by an employer or coworker (3)

intentional, reckless, or grossly negligent conduct

While not as demanding as the scrutiny applied to racial classifications, the ____________ nevertheless requires the governmental entity to have some "exceedingly persuasive justification" for the policy, action, or law to be upheld

intermediate standard

When submission to or rejection of sexual harassment conduct affects an individual's employment, work performance or creates an ______, ______ or _______ work environment, it is illegal

intimidating, hostile or offensive

To determine if a law is criminal or civil, one must look at the law itself. If the law clearly states that its violation is a crime, whether a felony or misdemeanor,

it is a criminal law, otherwise it is a civil law

The American courts have taken the approach that, absent negligence, there is no liability on the part of a _________ for fire that damages a neighbor's property

landowner

A _____ is that which must be obeyed subject to a sanction or consequence by the government

law

_____ serve as the supreme law of the local jurisdiction and set up the form of local government

municipal charters

Without _________, a contract is not created, and any promises that are made cannot be enforced

mutuality

The criminal mental state of __________ involves a gross deviation from what the reasonably prudent person would have done under the circumstances

negligence

When it comes to civil liability, one of the biggest areas of concern to fire and emergency personnel is

negligence

The reasonably prudent person standard is sometimes referred to as the

ordinary standard of care.

Modifying workplace _______, _______ and/or ___________ are examples of how an employer might accommodate an employee's religious beliefs.

practices, policies and/or procedures

In an analogous way, criminal law looks at a perpetrator who acts ________ as being more culpable than one who acts knowing , and one who acts knowingly as being more culpable than one who acts __________

purposefully, recklessly

Discrimination on the basis of pregnancy can also constitute

sex discrimination

One of the most important types of insurance policies that firefighters should be familiar with are policies that provide coverage in the event of a fire. Cases that involve "increasing the hazard" frequently arise when _________are shut off or the property is allowed to ___________ for an extended period.

sprinkler systems are shut off: remain vacant for an extended period.

The term _____ refers to voluntary guidelines and recommendations that do not carry the force of the law

standards

The purpose of the worker's compensation system is to provide a worker who sustains a job-related injury or illness with medical care and a fixed income, without the need to resort to costly and contentious litigation against his or her employer. The system is one of _________ which means it does not matter whether the employer was negligent or not, nor does it matter that the employee's own negligence contributed to the injuries

strict liability

The term often used when courts analyze race discrimination cases is __________. In order for a policy, action, or law to be upheld under _______, it must be "narrowly tailored to address a compelling governmental interest."

strict scrutiny

As seen in the case of Hack v. Gillespie, the fireman's rule prohibits a firefighter who is injured in the line of duty from

suing the owner or occupier of land for negligence

The right to a name-clearing hearing may apply to situations that do not involve

terminations

Ethics codes go beyond addressing conflicts of interest and involve matters such as: (4)

the acceptance of gifts purchasing procedures employment practices governmental decision-making

A name-clearing hearing is required only when the allegation would be stigmatizing to an individual in such a way that it seriously damages his or her reputation in the community, or the ability to obtain other employment. The requisite stigma could arise when an employee is accused of: (6)

• Committing a crime • Dishonesty • Immorality • Moral turpitude • Racism • Similar charges impugning the employee's moral or character