Arbitrator Reinstates Fire Captain Fired For Surreptitiously Tape-Recording On-Duty Conversations

Captain Carla Stachura was hired by the Toledo, Ohio Fire and Rescue Operations Department in 1993. After receiving a series of positive performance evaluations, she was promoted in 1997 to lieutenant, and in 2002 to the position of captain.

In November 2005, Captain Stachura along with two other female firefighters filed a lawsuit against the Department alleging gender-based discrimination, retaliation for opposition to discriminatory employment practices in violation of their constitutional right of due process. During the discovery proceedings in the civil lawsuit, the City learned that over a one-and-a-half-year period of time, Stachura had surreptitiously tape-recorded staff meetings held at departmental headquarters and conversations with individual members of the Department that took place mainly in her office. Twenty-one such recordings totaling some 3.5 hours and involving 14 departmental officers and employees were provided to the City.

The City launched an internal affairs investigation into Stachura’s conduct. At the conclusion of the investigation, the City fired Stachura for violating the Department’s rule prohibiting conduct unbecoming a firefighter, a rule known in Toledo as “Rule 23.” Local 92 of the International Association of Fire Fighters challenged the City’s discharge decision in arbitration. An arbitrator reversed Stachura’s discharge, and ordered the City to make her whole for all lost wages and benefits.

The City argued that surreptitious recording demonstrated unprofessional and devious conduct that could be destructive to morale and could interfere with the effectiveness of the Fire Department. The City also contended that “the use of recording devices allows for easy tampering, calling into question its credibility. The effectiveness and proficiency of Fire Department operations depends on the ability of firefighters to operate as a team. Stachura’s surreptitious recording severely hampers her ability to build the trust necessary to lead firefighters into harm’s way.”

The Arbitrator was primarily unconvinced that Rule 23 – the Department’s conduct unbecoming rule – could be applied to Stachura’s behavior. The Arbitrator reasoned that “of course, Rule 23 says nothing at all about the unconsented-to recording of members of the Department. It is formulated as an open-textured catch-all prohibition against unforeseen forms of misconduct that offend against the otherwise efficient operations of the Department. Due process requires that public employees must know or have reason to know that their conduct is wrongful before they may be subject to discipline therefor. Employees are not subject to discipline for bad guesses in gray areas, they are liable for transgressing bright lines.”

The Arbitrator found no such “bright line” that Stachura crossed. The Arbitrator commented that Stachura “undertook no investigation. She was a passive recipient who recorded comments directed her way as a prophylactic against what she feared would be further victimization through unfair or conflicting orders or veiled threats. True, she could have taken notes, as the City allows would have been proper, in order to document what she believed to be harassing and discriminatory treatment. But, that kind of documentation is vulnerable to charges that the notes were inaccurate and represented a biased account of what was said.

“There is persuasive authority that in the absence of the stated prohibition, undisclosed recording of co-workers may not form the basis for discipline. Even attorneys who are under the strictest obligation to avoid deceptive and unethical conduct are not barred from secretly recording conversations, or aiding clients to do so to protect themselves against discrimination by their employers. A review of the law does not provide any basis for concluding that Stachura had any reason to believe her conduct was inherently wrongful and against public policy.”

The Arbitrator then turned to the City’s allegation that undisclosed taping of other firefighters is inevitably disruptive, sows distrust and disunity and undermines the ability of the Department to carry out its mission. In the Arbitrator’s eyes, “this assumption is subject to a reality check. Obviously, no such consequences ensued, or were judged likely to ensue, in the Police Department, which permits undisclosed recording of colleagues. As to the situation in the Fire Department, the Union offered in evidence a petition that had been signed by over 70 members of the Department who supported Stachura. To be sure, these affirmations of support could have been given because of pressure from Union representatives, and may not have represented the signatories’ true feelings. But, the burden of proof on the issue is upon the City, not the Union.”

City of Toledo and International Association of Fire Fighters, Local 92, (Alan Miles Ruben, 2008) (Unreported decision, copies available from LRIS).

This article appears in the May 2008 issue