This article is part of a series of articles in which Curt Varone will address questions on important fire service legal issues. If you would like to submit a question, please email Shannon Pieper at spieper@lexipol.com.
Question: If a department has specific requirements prohibiting nepotism and the administration ignores its own policies, what problems can it create going forward?
Answer: Your question raises concerns that go well beyond nepotism, and into the realm of unenforced rules, selective enforcement, arbitrary governmental actions and even bad faith enforcement of rules. These raise serious constitutional issues.
Let’s start with nepotism, or more precisely anti-nepotism requirements. Nepotism in its strictest sense refers to the use of one’s power or position to benefit family members. Some jurisdictions extend the definition beyond family to close friends, romantic partners and business associates.
Beyond an organization’s own policies, nepotism is often prohibited by state law, local charters and local ordinances. These laws will typically define the relationships that trigger nepotism concerns. Some of the more draconian anti-nepotism laws and/or policies prohibit two family members from being employed by the same fire department. In my humble opinion such requirements, however well-intentioned, are unfair and unnecessary. There was a case a while back where a firefighter had to resign in order to marry the daughter of a fire captain who worked at a different station on a different shift. More commonly, anti-nepotism laws and/or policies prohibit family members from supervising each other or making discretionary decisions that may benefit a family member.
When poorly written or overly broad anti-nepotism requirements are applied to firefighters, difficult problems can arise. Unlike most public employees, firefighters sleep either in the same dorm room or at least same building two or more times per week. They shop together, cook together, spend holidays together and often socialize together off-duty. Under a poorly worded anti-nepotism policy that extends to roommates, firefighters could qualify as “cohabitating together.” At a minimum, most firefighters would certainly qualify as “close friends” with their colleagues. Furthermore, many firefighters jointly run part-time businesses off-duty together, or provide services (carpentry, electricians, plumbers and yes – even attorneys) to other firefighters and could easily qualify as “business associates.” Each of these categories could violate a broadly worded anti-nepotism requirement.
My point here is that well-intentioned anti-nepotism laws and policies can create an unfairness in the fire service, which can lead fire department leadership to either ignore them or interpret them in a way that attempts to do justice to those involved.
Ignoring such laws/policies can create problems of a different sort. Some anti-nepotism laws are part of an ethics code, for which civil fines and possible criminal penalties could attach. Someone who is aggrieved by the failure to enforce the law (such as someone who was passed over for a promotion that was given to a family member, close friend or business associate) may be motivated to challenge the promotion as being illegal under the ethics code.
Not enforcing anti-nepotism requirements also raises concerns about selective enforcement. Two primary fact patterns give rise to selective enforcement allegations. The first is where the fire department ignores the anti-nepotism requirement for Firefighter A but enforces it for Firefighter B. Selectively enforcing rules in an arbitrary or capricious manner risks violating the 14th Amendment’s due process clause. Arbitrary or capricious governmental actions that injure a party can be a substantive due process violation. In other words, ignoring a nepotism requirement for one employee while enforcing it for another employee – without a reasonable basis for the distinction – can be a civil rights violation.
The second fact pattern can be even more problematic: where the fire department ignores the anti-nepotism requirement for Firefighter A, but when Firefighter C is disciplined for violating a different requirement, C claims the department is selectively enforcing its rules. This creates the potential for a different type of arbitrary, capricious or bad faith allegation that has the potential to undermine discipline throughout the organization on a broad range of topics.
Beyond the risk of violating people’s substantive due process rights is the risk of a discrimination claim. If Firefighter B or C in either of the above scenarios were in a protected class, they may file suit claiming the enforcement of the policy against them constitutes employment discrimination.
A common defense to claims of civil rights violations and/or employment discrimination in scenarios like this is the “business necessity” justification. Ignoring anti-nepotism policies calls into question the actual business necessity of such a requirement. The fire department cannot claim an anti-nepotism policy is a business necessity in a given situation while having ignored it for other firefighters.
In summary, anti-nepotism laws and/or policies are a reality in many jurisdictions. They have the potential to impact fire departments in ways that may not have been well thought-out by those who drafted them. The solution is to seek to have the laws amended to address the inequities. Ignoring them creates additional problems that may lead to unnecessary litigation for those involved.
