For Immediate Release: March 6, 2014
FDNY Abuses Subpoena Power to Retaliate Against, Deny Promotion to Veteran Woman Firefighter
Fire Commissioner Cassano Uses NSA-Style Invasion-of-Privacy Tactics for Access To Personal Cell Phone Records in Obsessive Search for Unnamed Source in News Report
FDNY Commissioner Sal Cassano and other leaders of the New York City Fire Department may have committed serious abuses of the Department’s subpoena power to gain access to the private personal cell phone records of Firefighter Elizabeth Osgood and used that ill-gotten information in retaliation against the 13-year veteran to deny her well-deserved promotion to the rank of Lieutenant.
In a chilling incident reminiscent of the National Security Agency’s controversial collection of the private communications of U.S. citizens, Commissioner Cassano authorized subpoenas for an unspecified number of female firefighters’personal phone records in an attempt to identify an unnamed source quoted in a news article that criticized Commissioner Cassano and his policies.
Uniformed Firefighters Association (UFA) Special Legal Counsel Ron Kuby joined Firefighter Osgood and UFA leadership today on the steps of City Hall to denounce the Department’s actions. Mr. Kuby draws a straight line from the information Commissioner Cassano obtained through his abuse of the department’s subpoena power and the wrongful denial of Firefighter Osgood’s promotion on February 28, 2014.
In a letter to Commissioner Cassano, Mr. Kuby wrote, “There is no basis for your failure to promote Ms. Osgood except for an unlawful one - retaliation for her opinions.” Mr. Kuby noted that in the article, which appeared in the New York Post on November 10, 2013, Firefighter Osgood made clear that she was not speaking for the Department and was on her own time. Her offense, according to Mr. Kuby, was that she offered her opinion that Commissioner Cassano’s attempt to alter the physical standards for a clearly unqualified female recruit was “undermining everything we’ve strived for and achieved of our own accord.”
Mr. Kuby’s letter continued that “This and similar comments were expressions of her viewpoint on one of the most important public and legal controversies in which the FDNY is embroiled. They are fully protected under the First Amendment to the Constitution of the United States, and the State of New York.”
Firefighter Osgood’s career and record in the Department have been exemplary. In November 2001, she began the FDNY cadet program, graduating second in her class, and was named salutatorian and selected to give a commencement address. She then took her physical and written examinations to become a New York City Firefighter and achieved a perfect 100% score on both. She entered the department’s cadet class that began December 2004, graduated third in her class, and was assigned to Engine Company 47 in Morningside Heights, where she has served since, except for her time as an Engine Operations instructor at the Fire Academy at Randall’s Island.
Firefighter Osgood was scheduled to be promoted to Lieutenant last Friday but was denied that well-earned promotion in retaliation for her comments published in the New York Post after her identity was uncovered by Commissioner Cassano as a result of what appears to be a gross violation of the department’s subpoena power.
The FDNY’s subpoena power is narrow in scope and requires the agency to act through the Corporation Counsel of the City of New York (N.Y.C.A.C. §15-219). The provision is designed to provide legal oversight of the FDNY’s use of compulsory process to prevent it from using this enormous power to punish ideological opponents. UFA attorneys have requested a copy of the subpoena used to obtain Firefighter Osgood’s phone records as well as all others that were used to investigate other women firefighters.
“It is a chilling invasion of privacy and trampling of individuals’ 1st Amendment rights when a city agency can serve a phone carrier, in this case Verizon, with a blanket subpoena demanding the phone records of the FDNY’s female firefighters, simply to find out who provided an unattributed comment in a news article critical of the agency’s policies,” said UFA President Steve Cassidy. “Liz Osgood is a top flight firefighter, a credit to the department, and a role model for women everywhere. For the FDNY leadership to derail her career advancement in retaliation for answering a reporter’s question is beneath contempt.”
While Commissioner Cassano claims to pursue the goal of increasing the number of female firefighters in the FDNY, his retaliatory denial of a promotion to a highly-qualified female firefighter because she expressed an opinion at odds with his tells a different story. His apparent willingness to abuse his authority to obtain the confidential records of Firefighter Osgood and possibly other women firefighters to determine who spoke to a reporter is a blatant invasion of privacy rights and suggests an unhealthy preoccupation with tracking down and punishing dissident voices.
Mr. Kuby noted, “Unfortunately, the previous administration waived its oversight obligations, although the new administration, once it is placed on notice of your conduct, may wish to reclaim them.”
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