By Jeff Morganteen
Staff Writer Posted: 12/15/2008 02:42:20 AM EST
STAMFORD - A judge today will hear a motion to dismiss a lawsuit the city filed against the fire marshal of the volunteer Turn of River Fire Department.
The lawyer representing the fire marshal, Antonio Olive, is trying to dismiss the suit, which challenges Olive's authority in the 15-square-mile Turn of River fire district.
The city claims that Turn of River is an incorporated fire department and lacks the authority to appoint a marshal, court documents say. The state law that dictates which entities can appoint fire marshals includes incorporated fire districts but not departments.
Mark Kovack, the lawyer who represents Olive - and Turn of River in two other lawsuits with the city - said incorporated fire districts are defined as districts that have authority to tax residents.
The city has long recognized Turn of River as the corresponding authority in that fire district, and so it is recognized under state law as having the power to appoint fire marshals, Kovack said.
City Attorney Thomas Cassone said the lawsuit was filed after Olive refused to sign off on the temporary structure built on Long Ridge Road to house former Turn of River paid firefighters who were assimilated into the paid city department, Stamford Fire & Rescue, this summer.
The city claims Olive refused to sign a building permit application because Turn of River Chief Frank Jacobellis ordered him not to, citing reasons unrelated to public safety. The city and two of the five volunteer firehouses, including Turn of River, are fighting for control of fire districts.
"As far as we are concerned, the fire marshal is concerned with safety," Cassone said.
The firefighters were moved to a temporary structure on Long Ridge Road and another on Vine Road when mediation between the paid firefighters' union and the volunteer department collapsed.
Turn of River named Olive as fire marshal when its paid employees moved out July 1. The former fire marshal was paid and merged into Stamford Fire & Rescue.
Olive also serves as the paid fire marshal of Long Ridge Fire Co., a combination paid and volunteer department. Kovack said Olive eventually did sign off on the Long Ridge Road structure, though it was not required.
"On the one hand, the city says he has no authority, and on the other, they say he needs to sign this permit," Kovack said. "This is really a moot issue, but the lawsuit still continues."
This is a rare case in which the entire burden of proof rests upon the defendant instead of the plaintiff, Kovack said.
The lawsuit essentially calls for Olive to prove he is authorized to act as fire marshal under state law.
- Staff Writer Jeff Morganteen can be reached at jeff.morganteen@scni.com or 964-2215.