When Discharge of Municipal Firemen is Legal
IT is true that municipal firemen may be discharged for valid reasons. And, also, it is established law that for a discharge order to be legal various valid laws must be complied with and no law, nor public policy, can be violated. The matter of “public policy” is important.
Modern courts recognize that adequate fire protection is a thing not only of local concern, but in which the general public has a vital interest. The owners of property and the general public are not the only ones affected by legislation for fire protection. There is a vast army of men employed in that occupation, which is obviously fraught with hazards uncommon to many other callings.
Therefore, in the interest of the public, firemen are entitled to receive adequate compensation for their services, commensurate with such hazards. Otherwise, few men would seek that avenue for a livelihood. The protection of life and property from fire conserves the resources of the country, and is, therefore, a matter of public welfare.
In view of these recognized facts exercise of “public policy” rule tends to prevent indigency, with its corresponding burdens on the public, and to maintain the strength and health of the citizens. Public policy, therefore, is a basis for prevention of illegal discharge of firemen; elimination of unreasonably low salaries; payment of pensions as an inducement to enlist services of competent persons to act as city firemen; and declaration of contracts and agreements made by firemen as void and ineffective, where such contracts and agreements are against public policy.
Cannot Reduce Legal Salary
Recently, a modern higher court held that a public officer, as a municipal fireman. cannot “estop” himself from claiming his statutory salary by agreeing to accept or accepting less than such salary. In other words, according to modern higher courts a fireman can collect from a municipality the full amount of salary to which he is entitled by law, irrespective of a contract in which he agrees to accept less than the lawful salary particularly if he makes such contract to avoid being discharged.
For example, in Morrison v. City of Fort Worth, 155 S.W. (2d) 908, it was disclosed that the Legislature of Texas passed a law fixing minimum wage scales and working hours for firemen. Such act provides a minimum wage scale of $150 per month for firemen in cities of more than 75,000 inhabitants, and provides certain working hours for firemen and pay at the rate of “time and one-half” for overtime work. A city and its firemen entered into a written contract to the effect that the Budget of the City had not provided for funds to pay members of the Fire Department any compensation in addition to what they were receiving, that if the city would comply with the state law it would be necessary to make a very substantial reduction in the force now employed in the fire department. It was further provided that in consideration of the city continuing the present number of employes in the fire department the firemen agreed to “waive, relinquish and release and discharge” the city from the payment of any additional compensation or other rights and privileges that may arise under the provisions of the above mentioned state law which fixed the minimum salary for firemen.
A fireman who signed the above contract was being paid a salary of $125 per month. He drew such salary for several years. He died and his surviving widow, since remarried, brought suit against the city asking for the difference between the salary paid to him after the effective date of the state law and the minimum salary provided by the law. The lower court held that the city was not liable because the fireman had signed the above mentioned contract. However, the higher court reversed this verdict and established the law that a fireman cannot make a valid contract with a city to accept less than the salary specified by state laws. This court said: “Regardless of the question of authorities, we think it is the law that a public officer cannot estop himself from claiming his statutory salary by agreeing to accept, or by accepting, less than the salary provided by law.”
Also, see George v. City of Danville, 42 N.E. (2d) 300, reported June, 1942. In this case it was shown that a state law provides that the salary to be paid to a fireman in any municipality with 25,000 or more inhabitants shall be not less than one hundred and seventy-five dollars per month. A meeting of the city firemen was called at the request of the corporation counsel. At this meeting the corporation counsel requested the firemen to sign an agreement wherein they consented to accept for the ensuing fiscal year, salaries less than the statutory minimum. The firemen were told at this meeting that unless they executed the proposed agreement it would be necessary to discharge twenty-five members of the department.
In holding the contracts void and that the firemen could recover from the city the difference between the salaries received and specified by the state law. the court said:
“It cannot be controverted that it is the public policy of this state that adequate fire protection should be provided by every municipality and it must be assumed that the General Assembly determined that such protection couid be provided only if firemen were assured of compensation commensurate with the the hazards inherent in their work so that capable men would be attracted to the job.”
Therefore, it is quite apparent that although a city fireman is threatened with discharge he is not responsible for contracts and agreements that he makes in violation of state laws and for the purpose of avoiding being discharged.
Extra Payments Valid
Another important point of law is that modern courts hold that a fireman who has rendered services in addition to those stipulated in an express salary contract can recover therefor where the services rendered were performed at the request or with the knowledge or consent of municipal officials. In other words, acceptance of the services by the municipal officials raises the presumption that such services were given by the firemen in expectation of extra payment. This rule of law is applicable, although such services are rendered contrary to law.
In other words, where a county or municipality receives benefits under a contract which is illegal because it was not made in conformity with the Constitution or statute of the state, or charter provision of the city, it will be held liable on an implied contract for the reasonable value of the benefits which it may have received. While such contracts are void the courts hold that common honesty and fair dealing require that a county or municipality should not be permitted to receive the benefit of money, property, or services, without paying just compensation therefor.
For illustration, in City of Galveston v. O’Mara, 146 S.W. (2d) 416, it was disclosed that a state law provides that members of a fire department could not be required to be on duty for more than six days per week. The legal question arose, as follows: In view of this law, are firemen entitled to recover extra payments for the time they render service above the six-day week period?
The counsel for the city contended that the services for which the firemen sought recoveries were rendered in violation of a state law which prohibits a fireman front working seven days a week and that therefore they cannot recover.
In holding the city bound to pay for the extra service, the higher court said:
“It is the established rule that one who has rendered services in addition to those stipulated in an express contract can recover therefor where the services rendered were performed at the request or with the knowledge or consent of the other party.”
Law of Forced Resignation
Modern higher courts have established the law that whenever a member of a municipal fire department is severed from his employment by coercion the severance is effected not by his own will but by the will of a superior. A person who is forced to resign is thus in the position of one who is discharged, not of one who exercises his own will to surrender his employment voluntarily.
Obviously, therefore, a fireman who is forced by coercion to resign must comply with laws relating to discharge. Otherwise he cannot expect a court to authorize his reappointment.
For instance, in Moreno v. Cairns, 127 Pac. (2d) 914, it was shown that a city charter contains a clause which requires any city employe claiming that he has been unlawfully suspended, laid off or discharged to file a written demand for reinstatement with Board of Civil Service Commissioners within 90 days following the date of the alleged unlawful discharge.
An assistant fire chief resigned July 1, 1939. After expiration of the above mentioned 90-day period he appealed to the court to authorize his reappointment on the grounds that he had under duress, misrepresentation, fraud and undue influence, been forced against his will and desire, to resign from his position. Although he was deprived of all pension rights the higher court refused to hold in his favor, saying:
“He cannot escape from the dilemma, however, that the coercion attending his nominal resignation, while affording him a ground for reinstatement, also identifies that resignation as an actual involuntary severance from employment tantamount to an unlawful discharge of section 112 1/2 of the city charter and the ninety-day period would run from the date of such unlawful discharge.”
Various higher courts have held that when a fireman commits an act which, according to valid laws, must result in his discharge from service he is automatically discharged. Therefore, special agreements between the fireman and municipal officials are not valid or effective.
For illustration, in Grant v. City of Topeka, 121 Pac. (2d) 224, reported February, 1942, it was disclosed that a state law provides for the creation of firemen’s pension fund in all cities. Any member of the fire department who has attained the age of fifty years and has served for twenty years in a municipal fire department may retire voluntarily and shall be entitled to claim and receive a pension of $75 per month.
A fireman who was 57 years old had begun his employment as a fireman in 1912 and he had served in that capacity continuously for 26 years. While he was actively employed as a fireman on the force of the fire department he tendered his resignation to the city. He demanded payment of a pension. The city refused payment and alleged that the fireman had been discharged from his job as a fireman because of habitual drunkenness during the time he was in the performance of his duties as a fireman for the city.
Fireman Signed Pledge
During the subsequent trial, testimony was given that the fireman had filed with the fire chief a pledge, pledging himself to abstain from the use of intoxicants and agreeing to ‘immediately tender my resignation to the chief of the department’ if he violated the pledge. Later when the fireman failed to abstain from intoxicants the assistant fire chief told him “to go home and report to the Chief in the morning.” The following morning the fire chief told him that his services with the department were over. In holding the fireman not entitled to pension, the higher court said:
“Neither the statute, the city ordinances, nor the bylaws conferred power upon the fire chief to make an agreement that appellant (fireman) could resign and receive a pension if he breached his pledge to abstain from the use of intoxicants. The legal consequence attached to appellant’s delinquency was to be discharged, and the duty to discharge him under such circumstances was one the fire chief could not avoid.”
Free Speech Defined
It is well known that the Constitutional rights of all citizens include “free speech” and the right to express thoughts and opinions. However, the reasonable limitations of these Constitutional rights may be provided by state laws, city ordinances anad city charters.
For example, in McCrory v. City of Philadelphia, 27 Atl, (2d) 55, reported July, 1942, it was shown that a member of the Bureau of Fire of the Department of Public Safety was charged with political activity in that he wore a political badge or banner and solicited votes on November 4 and November 7, contrary to provisions of the City Charter. The charter clearly provides that no employe shall “take any active part in political management or in political campaigns, or use his office to influence political movements.”
Fireman Ordered Dismissed
A hearing was had before the Civil Service Commission, testimony was taken and transcribed, and the fireman was ordered dismissed. On his petition a further hearing was held, testimony was retaken and transcribed, and the commission filed an opinion, holding that he was guilty of the charge and confirming its prior order of dismissal. The fireman then appealed to the court alleging that the testimony produced against him was not sufficient, as a matter of law, to show that he was guilty of illegal political activity, and that the commission abused its legal discretion in removing him from his position. The fireman further alleged that the charter is invalid because its provisions violate the Constitution which gives all citizens the right to free speech and communication of opinions.
During the trial testimony was given that the fireman had approached various persons, acquaintances and strangers, and urged them to vote Democratic at the impending election.
Higher Court Approved Discharge
It is interesting to observe that the higher court approved discharge of the fireman, and said:
“The act is intended to prevent political activity or taking an active part in a campaign or in the management of a campaign by employes of the municipality. It relates to personal activity, and does not in any way conflict with the Constitutional provision in relation to ‘the free communication of thoughts and opinions,’ or the right of the citizen to ‘freely speak, write and print on any subject.’”