Firefighter defends using sick leave to care for adopted son

Former Clark County firefighter Donald Munn pores over stacks of legal documents, doctors' notes, union letters, emails and work schedules at the kitchen table in his Henderson home.

It's evidence he hopes will save the career he has had for 18 years.

The 57-year-old, who was fired in May after being accused by county officials of abusing his sick leave, has become the poster child for the hot-button issue in the community.

His fate soon will be sealed by an arbitrator who decides whether he's reinstated. That ruling is expected to come by this month or May.

Munn argues that the county violated his contractual rights and that he was deserted by the union when it refused to legally represent him in the fight for his job.

In a brief filed with the Local Government Employee-Management Relations Board, county officials argue that Munn "was dishonest in his use of sick leave," that he lied to Chief Bertral Washington when questioned about his absences and that he had "a pattern of sick leave utilization that was fraudulent."

During an informal meeting called by Washington two weeks before Munn was fired, Washington questioned whether Munn "truly had an adopted and handicapped child," according to a copy of the brief.

Munn, who worked in the department's Laughlin station, said he followed the rules for taking time off to help his wife care for their 21-year-old adopted son, Brian, who has developmental issues caused by fetal alcohol syndrome. The Munns adopted him at 2 months old.

The living room walls of the Munn household shake as Brian pounds his fists in a room down the hall and yells uncontrollably. The home, nestled in a sprawling neighborhood at the base of a mountain, is secured with extra locks and gates to keep Brian safely inside where his parents can keep an eye on their son.

"If he gets out of control, he can hurt people and tear stuff up. ... He gets aggravated and can't control himself," Munn said. "He doesn't mean to be mean."

As a result of Brian's condition, the man trapped in a boy's body squeezes too tightly when he shakes your hand and has a tendency to grab for purses, cameras and anything else within reach in his attempt to be friendly.

"If you like it, don't let him near it," his father warns.

Munn said that he was shocked the fire chief questioned his son's existence and that he followed department protocol for taking time off to care for Brian by notifying his bosses.

But Munn's son never comes up in work emails provided to the Review-Journal about why he was taking sick leave.

Firefighters are only allowed to use sick leave for medical reasons and not as a substitute for vacation.

Munn contends that his sick leave usage fell in line with the procedure widely accepted throughout the department.

"You can imagine over the years the consensus was that sick leave, even though it was termed 'sick leave,' was basically leave to use whenever you wanted to take a day off," Munn said.

USING SICK LEAVE

According to the contract language, sick leave is only used for "bona fide illness/injury of the employee or a member of his/her immediately family."

It can be used for three consecutive shifts for bereavement and to attend the funeral of a member of the employee's or spouse's immediate family.

After five unexcused absences, a firefighter is subject to proving the sickness with a doctor's note.

A joint investigative task force found that Munn had exceeded his allotment of sick leaving during the months of March, April, July and August 2009, and June through August of 2010, but that he didn't violate the union contract because he did not use sick leave in excess of three consecutive shifts.

From February to March 2010, Munn missed 20 shifts, which are all labeled as sick leave, according to his schedule. He said he was excused under the federal Family and Medical Leave Act to take care of his wife, who was recovering from surgery, and make sure his son attended school.

This time off was not an issue for the county, Munn said. The federal act allows an employee to take unpaid, job-protected leave to care for relatives.

VACATION EMAILS

Other summer days Munn took off were for trips to the family's seasonal home in cooler Utah to help Brian, who is easily aggravated by hot temperatures, escape the Las Vegas Valley's heat.

Munn sent emails to a colleague in June 2010 regarding the Clark County Firefighter Benefit Association, an internal group of department employees who pool their money for firehouse perks, including televisions and pay-per-view movies. Munn was responsible for getting televisions and paying the cable bills. In those emails, Munn writes about "leaving for the summer," that he "might not be around much longer" and that he has "come to a point that it just doesn't matter."

In a June 11, 2010, email, he talked of combining vacation and sick days to take the summer off.

"How does one get the entire summer of vacation?" a co-worker asked. "Who do you have pictures of?"

"No one," Munn replied. "Between being sick & vac it will seem like most of the summer."

Munn was scheduled to work five 24-hour shifts every other day in a 15-day work week that includes six consecutive days off. During the time of the email, Munn's schedule shows him working seven out of 18 scheduled shifts from the beginning of June to the end of August 2010. Munn called in sick 11 times. He also took 15 vacation days during that time period.

County officials argue that the emails and Munn's work schedule point to abuse of sick leave and that he didn't want to work for the department any longer.

Munn said that the emails were taken out of context and that he only meant he didn't want to be involved with the benefit association anymore. Munn called it "a bad sequence of events."

"It's very time-consuming," Munn said. "It had nothing to do with my job or the department. I've been hounding them for months to find someone else. Most people don't want to volunteer for it."

More than 230 Clark County firefighters took excessive sick leave in 2009, with some missing one out of every six shifts because of sick calls, according to county management.

Munn was one of only two firefighters fired after the county completed its internal investigation into sick leave abuse.

But Munn said that county officials unfairly made an example out of him and that he "didn't do anything wrong."

Assistant County Manager Ed Finger said that there was no "headhunting" and that Munn was fired because he abused sick leave.

A county audit of sick leave usage included emails among firefighters, which appeared to show some "gaming the system" by scheduling sick time in advance. If one called in sick, another could fill in and receive overtime, which is worth 1.5 times regular pay, or callback pay, worth overtime and a retirement account payment, county officials said.

A joint FBI and Metropolitan Police Department investigation into the matter of sick leave abuse is still ongoing.

Firefighters' sick time can be costly to the county because the tight staffing often requires those who fill in for absent co-workers to be paid overtime, and usually for 24 hours. The county paid $7 million for firefighters' sick leave in 2009.

County officials recently said sick leave in the Fire Department dropped by 57,000 hours in the two years county officials have questioned whether some were abusing the system.

In 2010, overtime helped push firefighters' average annual wages to about $130,000 and battalion chiefs' average pay to $180,000.

According to Transparent Nevada, a salary database compiled by Las Vegas-based conservative think tank Nevada Policy Research Institute, Munn's average salary ranged from about $140,000 to $182,000 from 2007 to 2010. His overtime and callback pay dropped from about $27,000 to $2,000 in that four-year period.

NO INTENTION OF RETIRING

Union officials argue they didn't represent Munn in arbitration proceedings to get his job back because Munn told them that he had retired, would seek disability benefits for a work-related accident and that he would not return to work.

Ryan Beaman, president of Local 1908 -- Munn's union -- said it would not have been "fruitful" for the union. Beaman said the union filed two grievances on Munn's behalf regarding larger sick leave and disability payouts because Munn had rights under the contract. Beaman declined to comment further, stating the union wants to allow Munn his due process.

Munn's attorney argues that the union didn't represent his client because "it would be politically unpopular or unpopular with the general populace," according to the EMRB brief.

Munn denies ever telling anyone he intended to retire.

According to documents the Review-Journal obtained through a records request, Munn's name appears on an email list of four firefighters who contacted the county in June 2010 for exit physicals because "they are retiring."

Munn attributes his name appearing on the list to some sort of mix-up.

"I don't know how they got my name," Munn said. "I wasn't ready to retire. ... There were other Munns who worked there, too."

Munn also is involved in other unresolved disputes with the county for disability benefits and sick leave pay.

Munn has neck and back injuries caused by an October 2010 incident in which a fellow firefighter fell on him during a call. He filed his claim before he was fired and said he deserves his full disability benefits, which would amount to about $400,000 for two years of pay, according to the EMRB brief filed on his behalf.

Munn contests that figure, saying it probably would be smaller, although he didn't know by how much. Should the arbitrator decide Munn was wrongfully terminated, the county would owe him a year of back pay.

County officials say if Munn gets his job back, it would signify a broken system. But for Munn it would mean being a firefighter once again, a job he's not ready to give up yet.

"I did nothing wrong," he said.

Contact reporter Kristi Jourdan at kjourdan@reviewjournal.com or 702-455-4519.