-1-
Fire Dep’t v. Brown
OATH Index No. 1423/08 (June 6, 2008)
Petitioner proved that respondent EMS lieutenant submitted a false ambulance inspection report certifying an ambulance as clean and ready for use, even though he had not done the inspection, failed to report blood, garbage and deficient supplies on the vehicle, or to take steps to have the ambulance cleaned, and was insubordinate when he disobeyed a captain’s orders to hold a conference about procedure with two subordinate emergency medical technicians. ALJ recommends 25-day unpaid suspensionbecause false health report was a serious breach of the public trust.
______
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
FIRE DEPARTMENT
Petitioner
- against -
TIMOTHY BROWN
Respondent
______
REPORT AND RECOMMENDATION
JOAN R. SALZMAN, Administrative Law Judge
The Fire Department brought this employee disciplinary proceeding pursuant to section 75 of the Civil Service Law and Operating Guide Procedure (OGP) 101-01 against Lieutenant Timothy Brown, a veteran of the Department’s Bureau of Emergency Medical Services (EMS). The Department alleges that respondent violated various sections of OGP 101-01 when he falsely and improperly completed a form documenting an inspection of an ambulance, indicating that the ambulance was clean and ready for use, when in fact it was not clean and lacked supplies, and that he deliberately disobeyed the orders of a superior to hold informal conferences with two subordinate emergency medical technicians (EMT’s), and to submit to the captain the forms documenting completion of the task by a date certain, despite numerous reminders and directives (ALJ Ex. 1). Respondent denies the charges and contends that his superior officer “set him up” by knowingly ordering him to complete the inspection form falsely. Respondent further contends that the order to hold the conferences with subordinates exceeded the captain’s authority and that, in any event, he did hold the conferences, but was not required to document his completion of the task.
At the hearing held at this tribunal on April 18, 2008, petitioner presented testimony from two Department witnesses, former Captain, now Deputy Chief, Stuart Belsky, and EMT Hilda Vannata, a decontamination expert, who inspected the ambulance shortly after respondent submitted the report of his inspection of the same vehicle. Respondent testified and was the only witness called in his defense. For the reasons set forth below, I find that the Department proved the charges by a preponderance of the credible evidence and recommend that respondent be suspended without pay for 25 days.
ANALYSIS
The Department alleges on the first set of charges, numbered 285/06D, that on May 29, 2006, respondent willfully falsified information on the Part 800[1] check-off list pertaining to the health and safety inspection of ambulance number 363, in violation of OGP 101-01, section 4.2.48 (prohibiting falsification of “official statements, records, or reports”); did not maintain a safe and hazard free work environment when he failed to report that ambulance 363 had garbage in the patient compartment and crew cab as well as blood on the countertop, in violation of OGP 101-01, section 4.1.21 (requiring members of service to keep their workplaces “free of all recognized safety and health hazards . . . [and] to follow all established policies and procedures as they relate to workplace health and safety and to report unsafe conditions immediately to their supervisor”); and failed to report deficiencies on the ambulance in that there was missing equipment, in violation of OGP 101-01, section 4.1.18 (requiring all members of service to “[r]eport all losses, damage or impairment to FDNY property, equipment, and supplies, to their supervisor immediately upon becoming aware of the loss, damage or impairment”).
As for the second set of charges, numbered 288/06D, the Department alleges that as of February 11, 2006, respondent failed to obey an order from his supervisor to conduct a “Quality Assurance Conference (Q/A)” with two employees, in violation of OGP 101-01, section 4.2.54 (prohibiting members of service from disobeying an order given by a supervisor and providing that “[f]ailure to comply with a direct order is insubordination and, therefore, an act of misconduct”).
First Set of Charges: The Ambulance Inspection Report
Deputy Chief Stuart Belsky was recently promoted in EMS. He was an EMS captain at all relevant times and will be referred to herein as captain where the discussion concerns the time period when he served in that capacity (Tr. 16). Mr. Belsky testified credibly that respondent completed and signed a Part 800 health inspection form, entitled Vehicle Certification Checklist, showing that ambulance 363 at Station 14 (the unit assigned to the South Bronx nearLincolnHospital) was clean, fully stocked with supplies and ready for use (Pet. Ex. 1). There was no dispute that respondent completed and signed this form. Respondent signed the form, dated May 29, 2006, as Inspecting Supervisor, beneath the following entry: “My signature affirms that this vehicle meets all requirements set forth by the NYS DOH Part 800 and FDNY” (Pet. Ex. 1). A scheduled follow-up inspection by EMT Decontamination Specialist Hilda Vannata, a 19-year veteran of the Department with 12 years’ work in that title (Tr. 57), whose job it is, as a matter of routine (Tr. 72), to complete detailed inspections of ambulances that are “off-line” or not in use and to clean equipment and stock the ambulances in accordance with Part 800 so that they can be made ready for use on a subsequent shift, showed that a number of items were in short supply and that there was blood on the counter in a patient compartment and garbage left inside the ambulance.
Captain Belsky learned of these deficiencies from Ms. Vannata, whose shift was 5 a.m. to 1 p.m. She completed an Employee Statement Form and testified to the following deficiencies in supplies: “cling” bandages (there were only two rolls of the six required), ice packs (three of four were missing), and an emesis receptacle used for patient vomit (one of two was missing). She also observed unsafe, unclean and unsanitary conditions in the ambulance. In particular, she noted blood on the counter in the rear patient compartment, and garbage left in the front cabin and patient compartment, including “sharp containers” for needles that should have been emptied, but were not (Tr. 59-60; 64-70). The countertop is used for supplies and should have been clean (Tr. 66). In addition, Ms. Vannata found the advanced life support (“ALS”) equipment left inside the vehicle even though that equipment must be removed from the ambulance and secured in the office. She also noted that one fire extinguisher of the two required on the ambulance was missing; one must be in the patient compartment and one must be on the small compartment door outside on the rear of the vehicle. The missing fire extinguisher was the one that should have been in the patient compartment (Tr. 67-68; Pet. Ex. 9). Shown respondent’s Vehicle Certification Checklist, Ms. Vannata testified credibly that his checklist was inaccurate because it states that the ambulance was clean and Part 800 compliant, had the requisite supplies on board, and that both fire extinguishers were there. According to her observations from her shift, ambulance 363 was not in fact clean and fully stocked (Tr. 69-70).
Captain Belsky testified that on May 29, 2006, respondent advised him that respondent had inspected an ambulance and that he then gave the Captain the Vehicle Certification Checklist for vehicle 363 (Tr. 20). Respondent wrote on the form that he had conducted the inspection at 2:00 a.m. (Tr. 16-18; Pet. Ex. 1). Respondent certified that he had completed the Part 800 inspection, indicating that the ambulance met the minimum standards for the ambulance to be deployed and placed in service (Tr. 18). The Captain testified that performing such inspections is part of the duties of a lieutenant, as of every officer (Tr. 18). The form indicated that there was nothing wrong with the ambulance, when in fact there was blood and garbage inside and important supplies were missing (Tr. 19). Captain Belsky heard this from EMT Vannata, then made his own inspection of the ambulance and confirmed with his own eyes that her report was true (Tr. 19). The Captain recalled seeing blood, “blood-borne pathogens on the countertop.” He noted missing “software” items, meaning bandages, a missing fire extinguisher (although respondent checked off an entry for two extinguishers, EMT Vannata and Captain Belsky found only one on board later that morning), garbage in the front compartment and advanced life support equipment (a drug bag and a “life pack” monitor or EKG machine) that was not secured. According to regulations, when a vehicle is not in service, such ALS equipment must be secured because of its value; paramedics use this equipment (Tr. 20-21; 23-24). Under dressings and bandages, respondent indicated that there were the necessary 4x4 gauze pads and a minimum of 12 triangular bandages. At the bottom of the page respondent checked “Yes,” indicating that the vehicle was “Clean and sanitary.” At the top of the form, under “Fleet Services” respondent wrote that the “Vehicle Condition” was “Ready for Inspection” (as opposed to unsuitable for inspection, damaged or carrying waste), and also checked “PASS,” instead of “FAIL” in the bold box at the bottom of the form for “Inspection Results” (Tr. 22; Pet. Ex. 1).
Captain Belsky stated that there is a risk to other EMS employees of infection from blood-borne pathogens if blood is not cleaned from the counter of the ambulance (Tr. 22-23). Similarly, garbage left on board presents a hazard to the oncoming crew, and also invites an infestation of rodents or insects. He also confirmed a risk to patients if a fire extinguisher is missing (Tr. 23). When “software” (i.e., bandages, gauze, tape, ice packs, water) is missing, “[y]ou’d have an inability to treat a patient that required some of these items” (Tr. 23). The Part 800 forms are filed in the station and maintained there in case of audit by the New York State Department of Health (Tr. 38). Based on his completion of the Vehicle Certification Checklist, respondent was obliged to remedy the deficiencies found on ambulance 363 on May 29, 2006 (Tr. 39).
There was no dispute that ambulance 363 was not specifically assigned to respondent for weekly inspections (Tr. 42, 46), but he volunteered to check it. It was also undisputed that the EMT’s or paramedics assigned to work on that ambulance were responsible to clean it at the end of their tour (Tr. 42-43). As a result of the incident with ambulance 363, Captain Belsky issued a memorandum on the morning of the incident, May 29, 2006, to all Station 14 Lieutenants stating that EMT Vannata is the decontamination specialist, “not the clean-up person for crews that have utilized a vehicle. That responsibility falls upon the crewmembers assigned to the vehicle.” Lieutenants were directed that if a vehicle is found to have been left in unsatisfactory condition, the lieutenants must educate the crew and improve their future performance (Resp. Ex. A). An earlier memorandum from Captain Belsky, dated February 12, 2006, to all Station 14 Officers, regarding “Vehicle Assignments (Amended),” directs:
To ensure ambulance part 800 compliance and quality assurance, each Lieutenant will be responsible for a specific vehicle(s). Lieutenants will be responsible [for] conducting a Part 800 inspection and submitting a Vehicle Certification Checklist to the C.O., for their assigned vehicle(s) on a weekly basis. Deficiencies found during ambulance inspections must be corrected immediately to insure Part 800 compliance. This procedure does not preclude Lieutenants from conducting inspections on other vehicles other than those specifically assigned.
(Resp. Ex. B, emphasis supplied). This memorandum shows that ordinarily ambulance 363 was assigned to Lieutenant Dragotto. It is also true, as respondent contended, that a Medical Equipment Unit (“MEU”) inspection is a different inspection from the Part 800 inspection, and both are recorded on the same form (Tr. 45).
It was EMT Vannata’s job as a matter of routine, after respondent’s inspection, to perform another Part 800 inspection on ambulance 363, and to take contaminated equipment off the vehicle and clean it in a separate decontamination area. Her work was part of the agency’s back-up system to ensure that clean ambulances were sent back out to serve the public (Tr. 48-49). On cross-examination, Captain Belsky recalled speaking with respondent only to the extent that respondent informed the Captain that respondent had done an inspection on ambulance 363, but the Captain did not recall respondent saying that he was volunteering to inspect this ambulance only as to the MEU (mechanical) inspection and not the Part 800 (health) inspection (Tr. 49-50). Lieutenant Dragotto did not perform a Part 800 inspection on this same vehicle on May 29, 2006 (Tr. 50). The Captain denied inquiring of respondent why he was inspecting a vehicle that was not assigned to him (Tr. 50). According to Captain Belsky’s memorandum about inspections of ambulances, respondent was not precluded from inspecting vehicles that were not specifically assigned to him, even though respondent was not ordered to inspect this particular vehicle (Tr. 50; Resp. Ex. B).
Respondent’s counsel moved ab initio to dismiss charges, which he argued were picayune (Tr. 14), on multiple grounds, none of which I find persuasive. Upon consideration of the full record of this proceeding, I must deny the motion. Respondent’s defense that he cannot be held responsible for his certified inspection report because all the staff at Station 14 had an expectation that EMT Vannata would perform a routine inspection of ambulance 363 (Tr. 73-74), which was not specifically assigned to respondent, is unavailing, however, because once he undertook to complete a Part 800 inspection report on an ambulance not assigned to him, he was required by agency regulations to complete the inspection form accurately and truthfully for obvious health and safety reasons. That others may have failed in their duties along the way before respondent saw the ambulance does not release him from his own responsibilities once he undertook to complete the inspection form.
Respondent also contended that three and a half hours had elapsed between the time of respondent’s 2:00 a.m. inspection and 5:30 a.m., when respondent submitted the inspection report (Tr. 47), and that with EMT Vannata making her inspection at 7:00 a.m. (Belsky: Tr. 48), conditions may have changed between the time he saw the ambulance and EMT Vannata’s shift. Therefore, the argument goes, one should not assume that the ambulance was in the same condition in which respondent found it hours earlier. But there is no reason to believe that the unclean conditions were changed overnight, especially because respondent flatly admitted that he had falsely certified the Part 800 health inspection stating that this ambulance was clean, even though he admittedly knew he had not even done the underlying Part 800 inspection (Tr. 92), and, therefore, could not say what the conditions were when he checked for mechanical issues. Captain Belsky testified that no other employees would go onto the ambulance because the vehicle was “off service” (Tr. 48). Thus, the defense of intervening change of conditions is unconvincing. Alternatively, if as respondent argues, the Captain asked respondent to complete the Part 800 health inspection section of the form at 5:30 a.m., when the Captain began his shift, upon seeing respondent’s form with only the MEU part filled in, there was very little time between the point of respondent’s completion of the form and EMT Vannata’s inspection, and little time for any other staff to have altered the condition of the ambulance. There was no evidence that anybody tampered with or even used the ambulance after he saw it or that others intervened and created the deficiencies after he saw it.
In addition, respondent, a 25-year veteran of the agency (Tr. 78), argued that he was merely volunteering to inspect this ambulance, even though it was not assigned to him, that he was doing only a mechanical equipment check on ambulance 363, an MEU inspection to make sure the vehicle was functional, not the Part 800 health checklist. Respondent further sought to prove that there was no missing fire extinguisher when he looked at the ambulance, and that he did not see any blood on the counter because he would not have noticed specks of blood that would be hard to see in the dark at 5 a.m. (Tr. 82, 94), though he wrote on the inspection report form that he inspected the ambulance at 2 a.m. (Pet. Ex. 1). It does not make sense that respondent would walk through an ambulance on the night shift without lighting the inside of the ambulance. Respondent testified that according to the captain, lieutenants like himself were each assigned one ambulance on which they performed a Part 800 inspection once a week. In 2006, the ambulance normally assigned to him was number 156 (Tr. 79). He admitted that he inspected ambulance 363 on May 29, 2006, but for a limited purpose (Tr. 80-81). It is undisputed that he volunteered to perform an MEU inspection on that ambulance, pursuant to a practice he said he established with the commanding officer who preceded Captain Belsky and continuing under Captain Belsky (Tr. 81). He described the MEU inspection as an inspection of the mechanical condition of the vehicle, and MEU equipment, to ensure that equipment such as the traction splint, the scoop stretcher, the stair chair, the main oxygen tank, the portable suction, and similar items were on board and working, that the lights and brakes were working, and that there was oil and transmission and brake fluid under the hood (Tr. 79-80). EMT Vannata testified on cross-examination that the commanding officer assigned lieutenants at some point in 2006 to various ambulances for purposes of conducting MEU inspections, which are different from Part 800 inspections (Tr. 75), lending credence to respondent’s assertion that he was not performing a full Part 800 inspection.