A three-person city panel ruled that J.R. Harris, the Charlottesville Fire Department mechanic who was fired in October because his bosses said his work was a safety hazard and because a liquid alleged to be alcohol was found in his desk, should be reinstated.
The one-sentence February 26 letter to Harris said, “After considering oral testimony heard on February 23, 2015, and reviewing written material provided at that time, the Personnel Appeals Board disagrees with the City’s decision to terminate your employment.”
Board member Melvin Mallory declined to elaborate.
The decision came three days after a 10-hour hearing in which the fire department’s top brass defended their termination of Harris with testimony about the work he’d allegedly done improperly or not done at all, and with videotape from a hidden camera put in his office by Charlottesville Police after his supervisor discovered an unmarked bottle that he said contained alcohol.
Harris’ attorney, Janice Redinger, contended that the allegations about shoddy work were “completely and utterly fabricated or hugely overstated,” and that Deputy Chief Emily Pelliccia had previously said she didn’t want Harris working there.
As for the alcohol, Chief Charles Werner testified that he didn’t believe it belonged to Harris because it was well-known that he didn’t drink, but Harris should have reported it to management and he was fired because the spycam captured it in his possession, a violation of city policy.
Redinger argued the bottle was planted as an excuse to fire Harris, and that he threw it out to keep others from trying to hide booze in his desk.
After the reinstatement, Redinger said in a statement that Harris is thrilled to have his job back, but “is cautiously optimistic about returning to the Charlottesville Fire Department under the same administrative leadership that targeted him, brought false charges against him and fired him.” The hearing made clear, she said, “the firing was not based on any misconduct on his part.”
Reached after the decision, Werner said he supported the grievance procedure and would honor the appeals board decision. “We’re working on a plan for a smooth transition to get Mr. Harris back on the job,” he said. The chief dismissed a question about Harris’ fears of retaliation. “I think we’re going to sit down and work on a plan going forward,” he said.
Harris will go back to work March 16 and collect back pay and benefits. Werner said he didn’t know if the city would pay Harris’ attorney fees.
Harris will seek payments to cover all of his out–of–pocket expenses and other losses he incurred “since his unjustified firing, including thousands and thousands of dollars in legal fees,” said his attorney.
The grainy snippet of footage showing Harris grabbing something from his desk, wrapping it and removing it has raised questions about the city’s use of spycams. Charlottesville has no policy on use of hidden cameras, and Detective Blaine Cosgro, who installed the device, said the city has done it 10 to 12 times in the past decade.
Pelliccia said she contacted the city attorney’s office, and was told it was legal.
Civil libertarian John Whitehead, founder of the Rutherford Institute, questioned city government’s surveillance in a place where an employee might have a reasonable expectation of privacy. He also found it troubling that out of a week’s worth of surveillance, only a few minutes were turned over to Harris and his attorney. “If you edit it, how do you know you’ve seen the whole story?” he asked.
Deputy City Attorney Allyson Davies presented the case against Harris and said the city based its use of hidden cameras on a 2014 case, Chadwell v. Brewer, with similar facts from the U.S. District Court in the Western District of Virginia. A Lee County special ed teacher was fired after school administrators suspected he was drinking in his office, and a hidden camera in a teddy bear filmed him drinking a beer.
An employer’s search is “‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct,’’ said the court. In a public school setting, there are lowered expectations of privacy because school administrators have the heightened burden of providing a safe haven for students, said Judge Glen Conrad in his decision.
Chief Werner said at the hearing someone drinking in the fire department was a safety issue and that’s why they used a camera to find out who the secret swiller was—although that was not accomplished in this case.
Judge Conrad also said, “An employer’s work-related search of an employee’s office is judged by a reasonableness standard that is less stringent than the probable cause and warrant requirements imposed on law enforcement officials in the criminal context.”
Whitehead said Judge Conrad’s decision may not really support the legality of the city’s video surveillance.
“Judge Conrad did not hold that it was not a constitutional violation, only that it may not have been clear to the defendants that this was a constitutional violation, and so they were not liable for damages,” said Whitehead.
“The city should definitely have a policy on the use of spycams,” he said. “It should be structured on the strict privacy requirements of the Fourth Amendment and not on ambiguous case law. Police officers take an oath to defend and uphold the Constitution and that should be the standard by which they use any kind of surveillance.”
Davies said the city’s policy is to follow all applicable federal, state and local laws when conducting video or photographic surveillance to ensure the safety of the workplace and of the citizens of Charlottesville. She also noted that under the city’s personnel policy, all employee workplaces can be searched.