You’ve worked hard to become a firefighter or other certified fire protection professional and build your career. Unfortunately, you are now facing a complaint against your professional certification for violation of a rule or law that applies to your profession. Even if the complaint is groundless, you must proactively protect your professional certification and career. Contact a fire protection professional certification defense lawyer to help you with the complaint and any disciplinary proceedings before the Texas Commission on Fire Protection (TCFP).
Complaints Against Fire Protection Professionals
TCFP certifies and regulates all fire protection professionals, including Basic Fire Fighters and Basic Inspectors, which encompass Fire Fighter I or II, HazMat Awareness or Operations, Inspector I, II or Plans Examiner, as well as higher levels of certification. This agency also provides ongoing training, education, and certification renewals.
Under Tex. Gov. Code §419.011, the TCFP receives, processes, and investigates complaints about fire protection professionals. The TCFP has jurisdiction to prosecute and discipline fire protection professionals who violate any rules or laws that apply to them. The TCFP must open a complaint based on a violation found during the mandatory biennial inspection carried out pursuant to Tex. Gov. Code §419.027 within 30 days of its giving notice of the violation to the party.
Disciplinary Proceedings Before the TCFP
Once the TCFP opens a complaint for investigation and notifies the fire professional of a violation, the individual has an opportunity to show compliance with the rule or law that the TCFP alleges that they have violated. At this point, the case begins to move through the several different stages of the disciplinary process.
Preliminary Staff Conferences
A fire professional may request a preliminary staff conference under 37 Tex. Admin. Code § 401.31 if the TCFP recommends the assessment of administrative penalties or any other type of disciplinary sanction as a result of a violation of a rule or law. Upon request, TCFP staff will schedule the preliminary conference within 30 days of the request or as soon as practicable. During the preliminary conference, the individual and TCFP staff will meet to discuss the alleged violations of rules or laws.
Consent Orders
Under 37 Tex. Admin. Code § 401.41, TCFP staff may present a consent order to the individual. The consent order is an agreement by which the individual admits to a violation and agrees to recommended sanctions. The individual may accept the consent order, in which case the TCFP executive director is likely to approve the entry of the consent order, thus resolving the case.
Administrative Hearings
Whenever the TCFP proposes to suspend, revoke, or refuse to renew the certificate of a fire protection professional based upon a violation of a rule or law, the individual is entitled to a hearing before the State Office of Administrative Hearings (SOAH) under 37 Tex. Gov. Code 419.0365. When a case is transferred to SOAH, that agency will appoint an impartial SOAH administrative law judge (ALJ) to schedule the case for preliminary matters, discovery, and hearing.
After both parties present their cases, the ALJ will issue a proposal for decision (PFD). Under 37 Tex. Gov. Code §401.57, the parties have 20 days to file exceptions to the PFD and then another 15 days to file replies to those exceptions. The ALJ also will rule on the exceptions. The ALJ then sends a PFD to the TCFP executive director, who can adopt the PFD as it is, or as modified.
Potential Sanctions by the TCFP
TCFP has a matrix for determining penalty amounts for certified personnel who violate applicable rules or laws, as prescribed by Tex, Gov. Code §419.036. The matrix is based upon consideration of the following factors:
- compliance history;
- seriousness of the violation;
- the safety threat to the public or fire personnel;
- any mitigating factors; and
- any other factors the commission considers appropriate.
Under Tex. Gov. Code § 419.036, the TCFP may take any of the following disciplinary actions for violating a law or rule that is applicable to fire protection professionals:
- revoke or suspend a fire protection professional’s certificate;
- place an individual with a suspended certificate on probation; or
- reprimand an individual.
If the TCFP chooses to probate a suspension or place the individual on probation, it may require the individual to do the following:
- Report regularly to the TCFP on matters related to the basis for the probation,
- Limit practice to areas designated by the TCFP, or
- Continue or renew professional education until attaining a degree of skill satisfactory to the TCFP in areas related to the basis for the probation
In addition to or instead of these remedies, the TCFP also may assess administrative penalties that may not exceed $1,000 for each violation under Tex. Gov. Code § 419.906. To determine the proper amount of the administrative penalty, the TCFP must consider the following factors:
- the seriousness of the violation, including but not limited to the nature, circumstances, extent, and gravity of the prohibited act, and the hazard or potential hazard created to the health and safety of the public;
- the economic damage to property or the public’s interests or confidences caused by the violation;
- the history of previous violations;
- any economic benefit gained through the violation;
- the amount necessary to deter future violations;
- the demonstrated good faith of the person, including efforts taken by the alleged violator to correct the violation;
- the economic impact of imposition of the penalty or forfeiture on the person; and
- any other matters that justice may require.
Appealing TCFP Decisions
If the fire professional wishes to further challenge the decision of the TCFP executive director, they have two options. First, they may file a motion for rehearing within 20 days. Alternatively, they can appeal the Director’s decision to the TCFP within 30 days of the date that the order becomes final. However, the TCFP may hear an appeal that is filed more than 30 days from the date of the final order upon good cause shown. Under 37 Tex. Gov. Code § 401.63, there is no requirement that the individual file a motion for rehearing before filing an appeal to the TCFP, but it is required if the individual intends to pursue a judicial appeal.
Get the Advice You Need About Your Fire Protection Professional Certification
When facing the potential loss of your career and ability to earn a living, you cannot take unwarranted risks. Handling such a challenging situation on your own can have disastrous results. A fire safety certification defense lawyer at Bertolino LLP, can look at the facts surrounding your situation and determine the best strategy to protect your professional certification. Call us today at (512) 515-9518 or get more information about us online.
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