Legal Challenges Likely to Continue, Chiefs Told at 108th IAFC Conference
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Chiefs attending the 108th annual conference of the International Association of Fire Chiefs in St. Louis heard speakers discuss subjects ranging from legal suits against testing practices to managing a disaster scene and financial planning for retiring personnel.
Some chiefs described the pressure of increasing legal challenges as an overall no-win situation.
“Sooner or later you will all be sued” (over testing practices), warned Ed Knowles, personnel research and development manager for the City of St. Louis. In discussing the racial discrimination suit against the fire department. which has occupied much of his time in the last few years, Knowles said the rash of suits across the country is working down from big cities to smaller ones. Meanwhile, Justice Department lawyers become experts in the matter, winning 98 percent of cases.
Avoiding trouble
Now is the time to examine your statistics, Knowles continued. If the representation of minorities in the department is not in line with the local population, and especially if examinations are of the traditional written type, he said, you’re likely to be “in trouble.”
St. Louis changed from the traditional written exam to an assessment center with some written portions after hundreds of hours of consultat ion with black and white experts. Computers were even used to randomize certain steps to prevent any human bias in processing applicants.
But the assessment center was voided, too, when it required written answers to one exercise and blacks did not score well. They sued, along with the Justice Department, and won. Beyond the discrimination issue, the court found that the fire scene simulation written response was “far removed from the content and context of the candidates’ actual work behavior” in that directing a crew on the fireground does not involve pencil and paper actions.
Multiple choice
Multiple choice test questions, used extensively by many fire departments, was disfavored by the Court of Appeals, too, which said, “The captain’s job does not depend on the efficient exercise of extensive reading and writing skills, the comprehension of the peculiar logic of multiple choice questions, or excellence in any other skills associated with outstanding performance on a written multiple choice test.”
Knowles went on to say that although their assessment center was ruled invalid, immediate promotion was ordered for the eight blacks who scored highest on the assessment center.
“Written tests are valid measures of certain knowledge and abilities,” added Jim Wardlow, a project manager for the Michigan Municipal League, “but fire departments tend to use them incorrectly.” It’s not going to benefit anyone, he said, “if a person can memorize a lot of things over a short time, get a promotion and be rotten on the job.”
For chiefs facing unions’ insistence on pure seniority as a basis for promotion, Wardlow asked this question. “Do you want a promotion system that is fair and equitable, or do you want the Justice Department coming in and taking you to court?
Attention to details
Legal considerations were also the topic of discussion in the workshop on code enforcement. In a film of a simulated code enforcement hearing, a fire inspector showed first how to lose the case and then how to properly present the relevant information. Attention to details, more than anything else, determines which way a code hearing is likely to go, according to the film.
After the testifying inspector went to the trouble of maintaining detailed notes, considered all the details of the applicable code, followed through on requirements for notification of a violation, and related all the details to the prosecuting attorney—only then was the judge ready to throw the book at the film’s chronic offender. Before, the judge had been throwing disgusted looks at the careless enforcement duo of inspector and prosecutor.
The film came out of the United States Fire Administration’s code enforcement and compliance strategy program with the American Bar Association (ABA), The program was started to improve efficiency in code enforcement.
“Most of the cases are not well prepared,” said one municipal court judge. “The inspectors haven’t done their jobs right in far too many situations. Many complaints just have to be dismissed.”
On the other hand, a code enforcement agency head was quoted in an ABA newsletter as saying, “We avoid the courts when we can. Prosecuting cases now doesn’t make any sense. The judges won’t take code enforcement cases seriously.”
The USFA/ABA program is designed to bring the two sides together.
Retroactive codes
Retroactive building and fire codes, according to many code enforcement and city officials, are other items certain to become involved in legal challenges. But Professor Vincent Brannigan, from the University of Maryland and also a lawyer, says retrospective (the term he prefers) code requirements are both useful and defensible.
Retrospective building laws, in Brannigan’s definition, prohibit the future use of a building in certain ways unless changes are made, even though the need for change (such as installing sprinklers) was not anticipated in a previous law.
“In this action,” wrote the Supreme Court of California in one such case, “the city does not seek to impose punitive sanctions for the methods of construction used in 1929, but to eliminate a presently existing danger to the public. “It would be an unreasonable limitation on the powers of the city to require that this danger be tolerated ad infinitum merely because the hotel did not violate the statutes in effect when it was constructed . .. .”
Brannigan cited numerous cases with similar effect and concluded that there is no constitutional barrier to applying the new code, provided “the hazard be real, the means to control it have at least some evidence that they reduce the hazard, and the private burden is reasonable compared to the public benefit.”
Concerning an owner’s burden, Brannigan added that the owner can even be required to demolish his building for public safety, and that there is no constitutional requirement that the repairs be within his economic capability.
“While there are lower court decisions that ignore these points,” Brannigan conceded in his written report, “… these principles seem to have been followed in virtually all state supreme court opinions on retrospective cases.”
Retirement planning
With all the other weighty items occupying a fire chief these days, it is at least understandable why they don’t seem to find the time for retirement planning. But that is not a good excuse for avoiding this necessary chore, according to University of Arizona Professor Lester Tenny, who conducted a special workshop for chiefs and their spouses.
Tenney discussed the paradox of chiefs who are deeply involved in planning for their departments yet don’t plan their own financial security. As was observed in a related article in the May 1981 issue of Fire Engineering, “… most employees spend more time planning their two-week vacations than their retirement years.”
While Tenney went into many specifics of managing money before and after retirement and coping with the effects of inflation, he emphasized a general rule that applies to everyone: You should have a will. If you die without a will, he said each state has its version ready for you. Of course it was drawn up in the state’s interest rather than your family’s.
You should have a will no matter what your age or health, Tenney said. Those who don’t are trying to deny reality by indicating “I’m not going to die anytime soon,” to which Tenney replied: “I didn’t know you could plan it so well!” He said one-third of the deaths last year occurred without any hint of trouble or illness in the 24 hours before the death.
Disaster in Kansas City
By far the most heavily attended presentation was a description of the Hyatt Hotel skywalk collapse and rescue operations by the Kansas City, Mo., Fire Department. Although it was a story of large-scale tragedy, the training and operations of the department were something to appreciate.
“If we had it to do over again,” said Deputy Chief Arnett Williams, who directed the rescue effort while the chief was in the hospital, “I would not handle it any differently.”
The chaos of that incident was made more manageable by having a disaster contingency plan, which Williams urged all chiefs to develop and keep current. “This is not an urban problem, necessarily,” he said, pointing out that the structure involved was essentially only four stories.
Even with a plan, there were unanticipated conditions to cope with, and an officer must remain flexible. For example, Williams described how the exterior walls remained intact, blocking access of the heavy equipment needed to lift large structural members. Most planned scenarios of collapse would assume all walls to be down with any other part of the building.
Another concern was whether the roof over an underground parking area would support the heavy cranes called in. Making the decision to go ahead—after experts studied the situation—consumed valuable time.
Meanwhile, there were other immediate problems which the department solved, such as water from broken sprinkler pipes flowing around the trapped people, the need for large quantities of cribbing materials (and finding white pine to be too soft), the need to ventilate exhaust gases from equipment, and the loss of natural lighting. But all of those, of course, were only peripheral to the main task of freeing trapped persons.
And yes, Williams said, there was a psychological effect from the stress of the 14-hour operation. He described a recurring nightmare. But it did not affect his work.
Is the Fire service a hostage of shoddy building codes and architectural practices? Williams was asked from the audience. The code is OK, he answered, but enforcement and administration is not good enough.
Paramedic James Taylor described his direction of emergency medical forces at the scene in Kansas City, saying there were things he would do differently in any future disaster. He said he needed a portable public address system to help coordinate the numerous workers he was directing. Many bystanders volunteered valuable help, Taylor noted, but this increased the need for effective relaying of instructions.
Other suggestions he offered included having personal identification for key people such as the triage and communications officers. An armband is simple but Taylor said it wouldn’t have been visible enough. Instead, he suggested a marked pullover vest. Also needed was identification for off-duty fire fighters and doctors, who had trouble crossing police lines or were challenged when they took certain actions inside.
It would help, too, Taylor said, to have a uniform location of equipment on apparatus and ambulances so necessary supplies could be found by someone from another crew.
Calling CHEMTREC
It’s been 10 years since CHEMTREC, the Chemical Transporation Emergency Center, began providing information to those involved in chemical hazardous materials emergencies. CHEMTREC is a public service of the Chemical Manufacturers Association in Washington, D.C.
Commissioner James Kerr, from Falls Church, Va., described CHEMTREC’s operation. He said 150,000 calls have been received through the system’s emergency number (800-424-9800), but only a third were emergency incidents.
Even after a decade, the role of the center is still misunderstood by some. Kerr said the nonemergency calls often interfere with the handling of legitimate emergencies, so potential callers should understand the center is neither intended nor equipped to function as a general information source.
CHEMTREC is designed to provide immediate advice on the nature of the product involved and steps to be taken in handling the early stages. The information is read from a prepared card. Because of the vast number of chemicals in existence, the center’s staff cannot be expert with all of them and cannot make all of the decisions for the fire chief. Indeed, the staff is instructed to strictly abide only by the prepared information.
CHEMTREC also will track the source of the shipment to get the real experts involved, including on-scene assistance when feasible. The center also provides information in nontransportation situations.
Handling haz-mat incidents
Vent and burn is a new technique of the Environmental Protection Agency (EPA) to speed up the conclusion of some major hazardous materials incidents when the situation is too dangerous to remedy with an aggressive fire fighting attack, according to Chief Warren Isman of the Montgomery County, Md., Fire and Rescue Services.
Rather than wait for the fire to burn itself out, the EPA has ordered the vent and burn procedure for some incidents in isolated areas, said Isman, who described the procedure simply as detonation. He said the technique has been used to blow up 16 LPG tank cars derailed in Florida and two of vinyl chloride in Kentucky, among others.
Personal protection at hazardous materials accidents was emphasized by Isman and Gene Carlson, IFSTA editor at Oklahoma State University. Isman referred to decontamination of fire fighters as another problem at a chemical spill, and he asked those listening what they do with men leaving the Fireground. Carlson described the need for full protective clothing at spills and suggested that throwaway polyethelene protective clothing may be something to look into.
U.S. Fire Administration
“The greatest hazard to fire fighters is in the fire station,” according to B. J. Thompson, acting administrator of the U.S. Fire Administration. He meant that the station is where loss of the spark of motivation can occur. The next step, Thompson said, could be the retirement syndrome, where an employee is looking forward to getting out rather than doing a good job.
Describing his restructuring of the Fire Administration, Thompson said it would be organized around the role of the fire chief “from this day forward.”
The units now making up the new administration are the office of fire protection engineering and technology, the office of fire protection management, and the National Fire Data Center.
Operations under fire protection engineering and technology will be divisions focusing on fire protection systems, standards and product safety, fire fighter safety and health, and building and fire codes.
Under fire protection management will be divisions involved in arson prevention and control, fire service resources management, and public fire education.
The Fire Data Center will have the national fire incident reporting system, computer systems operations, and analysis and management studies.
Management skills will be emphasized, he said, because “We’re not going to solve the fire problem with more personnel.” EMS will be deemphasized, however, because it was never mandated in the law setting up the fire administration, Thompson added.
But EMS will not be forgotten. “We realize when 60 to 70 percent of calls are EMS, then we should attempt to assist.”
In a talk at the final session of the conference, Fred J. Villella, Federal Emergency Management Administration deputy director for training and education, told the chiefs that FEMA Director Louis O. Giuffrida “has just announced he is nearly doubling the outreach effort” of the National Fire Academy in the next fiscal year. Villella, who heads the National Emergency Training Center that includes the academy, reported the development of a “new, strong, team emphasis on state and local efforts.”
Villella commented that President Reagan is concerned about the protection of the population and “the fire service is a vital member of the team” that can provide this protection in various types of emergencies. The speaker promised the chiefs that the “National Fire Academy will retain its own identity” and it “will fulfill the role you mapped out for it.” Villella voiced the hope that the chiefs will continue to support the academy and he pledged his wholehearted support to future academy programs.
In the IAFC elections, Stanley Hawkins, chief of the Tulsa, Okla., Fire Department, moved up to president; St. Louis Chief Charles Kamprad became first vice president; and Doug Pollington, chief of the Cambridge, Ontario, Fire Department, was elected second vice president. Chief William Stewart, Fargo, N.D., Fire Department, was reelected treasurer.
