Preparing to Survive the Legal System, Part 1

By Dennis L. Rubin

The job responsibilities of a chief fire-rescue officer are daunting. New challenges emerge regularly. Your fire department is expected to quickly and effectively respond to these issues in a compressed time frame without any additional resources. Not many people notice, but the work of the typical fire-rescue management team is extensive considering the external parameters for success and the community’s expected reaction time to changing conditions.

No doubt, the community needs and situations are always changing. Our operations have to be adjusted accordingly. Of course, one of the emerging, high profile, and pressing topics of today is fire-rescue’s response to “active shooter” events. Does the fire department enter the hazard zone with the police teams and treat patients in place? Should paramedics and emergency medical technicians (EMTs) be issued and required to wear ballistic helmets and bulletproof vests? Next, what sweeping changes are needed for our structural fire attack tactics based on the work of the National Institute of Standards and Technology (NIST)? What about our need to provide the highest levels of service without budgetary increases. How long will it be before the next mission critical system or process will have to be developed or adjusted to meet emerging community needs? Most likely, it will be sooner rather than later.

Then, out of left field, a civil lawsuit names the municipality, the department, and the chief as the defendants into this time-compressed picture. Now, what should the chief do to protect the department and himself? How can the chief maintain all of the day-to-day activities of the agency while focusing on the detailed efforts that must go into aggressively and properly defend oneself in a legal action? How can the chief continue to have the confidence and support of the governing body; bosses; members; and the public during the trying times that comes with a lawsuit? A few chiefs are fortunate enough to have been trained as attorneys and can put the “big picture” into perspective. Some other chiefs have direct access to legal counsel and advice through their municipality or other agreements. However, most fire-rescue chiefs have limited access to defense attorneys. Those chiefs have to struggle to get an overworked legal office to spend time on their case. Perhaps the chief must identify the funds for outside attorney fees to working on a legal dispute in which he is a named defendant. Regardless of the internal situation, the chief needs to handle a lot of issues that may not be as familiar as managing a fire or rescue alarm. This article will take a step-by-step approach to help the department and chief survive one of the most difficult times of their career—the dreaded lawsuit.

For the record, I am not an attorney. This article was written from a fire-rescue service practitioner’s view of how to prevent, prepare for, and work though legal actions that may (and likely will) be directed at the chief, personally and professionally. If you need to research, interpret, or obtain details about the law or the legal process, please consult a licensed attorney. However, if you are looking for a user-friendly, practical approach from someone with experience in the court room, please continue reading.

RULE #1: STAY AWAY FROM THE LEGAL SYSTEM, IF YOU CAN!

This is your first and best choice. Use everything that is available to you and your agency to prevent being dragged into the courtroom in the first place. Make the best organizational decision the first time and every time. When you are working on issues like policies, promotions, disciplines, and just about every other significant topic, make the best decision. Know the impact that a final decision can have six months or a year later. Do not misunderstand what is being said here; this rule is not a pass to sit on your hands and do nothing because of the fear of future legal action. What is being transmitted in this rule should be the freedom to move your organization forward and answer all of the emergent issues to keep your place on the leading edge of service delivery to your customers. However, you must slow down long enough to make sure that you have the legal “authority to act.” Further, the decision you are making must be reasonable and prudent based on the needs of the community, the agency, and the law.

Attend all of the training programs that are offered by your parent government to learn as much as you can about preventing harassment, hazing, discrimination, hostile work environment, and any other topic that is presented to avoid negative workplace issues. Some chiefs believe that they are above this type of required and repetitive human relations training. Do not fall into this trap; the chief’s presence will send the right message by leading from the front as well.¹

Let’s face it, the legal world is ever changing, so take that annual refresher course. If you find yourself in the courtroom, you will be glad that you attend the updated training programs.

RULE #2: BE WELL PREPARED AND KNOW YOUR JOB WELL!

Always follow the various national and state standards that describe how to run a fire-rescue department. Of course, the department must follow all legal requirements that go along with operating a fire-rescue agency. Some of the mandated items/programs would be on-going breathing air quality monitoring and blood-borne pathogen training.² If the department operates within the “standard of care” as recommended by national authorities, the agency will be as insulated as possible from legal scrutiny and challenge. There is nothing that can stop anyone from bringing legal action against another person or entity. However, if you follow sound advice and a proven process, your chances of being successful in winning the dispute will greatly improve.

Don’t forget to “sharpen the saw” whenever you can.³ As I briefly discussed in Rule #1, a good fire officer must be a lifelong learner. Just about every aspect of your business is changing, not to mention the transformation that the legal world is undergoing. So, the need for continuous training and education is a reality if the chief is to steer clear of legal actions directed at him. In fact, the two items that may have the greatest effect the on staying out of the witness box is to be smart and be nice.

RULE #3: LEGAL SUFFICIENCY

Nearly every nonemergency decision the chief makes should be reviewed and measured for “legal sufficiency.” In layman’s terms, does the chief have the authority to take the action that he desires and which is the action within the laws, regulations, and standards of the department and government? Legal sufficiency review is a critical part of the standard operating process, outside of emergency responses. This element needs to be part of the overall business practice. The best practice is to have an attorney (general counsel) assigned to fire-rescue administration staff and become involved early in the process.

The general counsel provides legal guidance on a routine basis; it is wonderful to have when the legal front presents unknown territory (a legal issue never faced by the chief before). Next, use a “government attorney.” This process is a little more difficult in that it may be nearly possible to get the needed time from a law department that may be understaffed. The next way to provide a realistic review is to have an outside attorney on retainer to conduct the legal reviews. Hiring outside attorneys takes both additional time and budget dollars. However, one of these steps to obtain sound legal counsel is a must to keep out of a judge’s view. Always get professional advice and guidance on legal issues.

A few actual situations requiring a legal sufficiency reviews that I have experienced include placing blue fire hydrant makers on the public highway, ordering construction workers off a job site that featured a fatal building collapse the previous day, and extinguishing a “controlled” burn. I was once visited by the city’s on-duty police shift commanders. The lieutenant was direct and to the point; I had implemented a fire hydrant testing and location marking program. The newly implemented policy required in-service fire companies to place blue reflective marker in the middle of the highway on the yellow line nearest to the fire hydrant. It was painfully clear to me that what I had ordered was necessary and greatly improved public safety for all citizens and visitors of this wonderful southern city. The lieutenant was not interested in my opinion or my policies; he wanted my authority to act.

With a quick call to the state fire marshal’s office, I learned that a statute did exist in the state code that gave the local chief the authority to install blue highway makers on public right-of-ways to mark the location of fire hydrants. I was in possession of the law citation in a few minutes (thank goodness for fax machines) and the lieutenant left satisfied, no longer feeling the urge to stop our fire hydrant marker installation program. I am sure that if he would have stopped the marker installations, the personal embarrassment would have been significant. The fire hydrant marker situation could become a “watershed event” for the newly appointed chief (me).

After this challenge, I had a better understanding for the need to have legal standing to take action. So, of course when the building contractor asked me for my authority to shut down his job site, I was ready for him. I was able to provide the builder with a copy the state law that gave the local fire chief the authority to stop actions that placed the public at an emanate risk for injury.

In fact, after learning the power of having an understanding for the laws, I found myself searching for documents that provided clear insight about the duties and authorities of the fire chief. The state of Georgia has developed an annotated user friendly packaging of Georgia State Code—Title 25 Chapter 3, “Local Fire Departments” section. These collections of laws have been placed in a stand-alone book for easy and quick reference. This perfect street-side job aid fit very nicely in the back of my fire department cruiser. The key to Rule #3 is to be able to quickly locate the source of your authority when you take action on just about any issue.

RULE #4: KEEP DETAILED RECORDS

Of all of the rules for surviving the legal system, this one is perhaps the most obvious and easiest with which to comply in spirit and intent. For years, fire and emergency medical officials have been pounded on to make sure that all of the “paperwork” is completed before the job is finished. The same can be said for helping to insulate yourself and your organization from various civil liabilities. The spoken word is good if you can get all parties to agree to what was said and when it was discussed. However, when properly documented in writing, the “evidence” of what was said and when, becomes a little clearer to all parties involved. So, when agencies needs to be very clear on an issue, such as implementing an operational policy or a notice for promotion, do it in writing.

A learning management system (LMS) is an outstanding tool for any agency that provides employee/member training or “must know” information to their troops. Of course, every department must distribute training materials and need to know information, so all departments can use the LMS process. There are several very good companies out there that provide this type of electronic service at a wide range of prices, so go for the best one that fits your organization’s budget, training, and communications needs. For example, I was confronted with an employee grievance where the member was not informed about the test date for promotion. Therefore, this member indicated that he could not get prepared to take the advancement examination.

This dispute indicated that the member did not know the test date or location, hence the person could not prepare and test. The requested relief was a promotion to company officer with the corresponding back pay and seniority in rank. If this employee grievance would have been successful, the system-wide impact would have been devastating. I feel certain other members that did not take this specific promotional test would have made the same claim and could have obtained the same outcome. The promotional process would have been null and void for that cycle. The testing would have been discarded at a great expense under the cloud of embarrassment and suspicion. Enter the department’s LMS. With the LMS critical information employee receipt in hand, I was able to respond back to the member with the date; the exact time (to the second), and location that the member had downloaded and acknowledged receiving the promotional information. Once the employee had this data presented to him, the grievance was resolved to the employee’s satisfaction. Rather than receiving similar complaints from others, the notion of failure to communicate never was discussed again by the workforce during my watch in that department.

Although I have asked you to consider documenting everything, there is a potential downside of this solid leadership behavior. Be careful of what you say and how you say it when using any communications medium. I have had dozens of examples where an officer was trying to be humorous, and the words on paper became the focal point of a dispute. Always think what the impact of your communications—of any type—will be in a week, a month, a year, or longer.

I worked with one great chief that would send out emails and say just what he was thinking. The word selection was generally accurate but inflammatory. The side-handed comments would become the focal point of an employee complaint. After one or two times, the chief stopped adding his truthful commentary, relieving the stress caused by the unnecessary comments.

Another time, a senior chief officer teased a member taking off sick. The boss called the new member by an unflattering name. The chief assured me that he meant the name calling to be a term of endearment, but the new member accepted the chief’s comment as unprofessional chiding. After apologies and some mandatory retraining for the shift commander, all was well once again in the “kingdom.” Always take the time to communicate and document, but do it in a professional and proper manner. If you follow this rule, you will not have to explain why you said something off-color to anyone.

RULE #5: KEEP YOUR BOSS INFORMED

When notified or suspect that legal action is headed your way, “sound the alarm.” Let your boss know as soon as possible that a “storm is brewing.” Don’t wait – news always travels fast in our business. Please do not keep information secretive, unless it is clearly sensitive and protected in some fashion. Most everything that a fire department does happens in the public arena. The earlier point under this rule is not to suppress public information because it may make you or your agency look bad. For instance, the chief was notified that the agency’s response times are not up to agreed and published standards. Let that information get out rather than creating a long delay in releasing this news. Most fire chiefs will want time to put a positive spin on the message, which is reasonable if the time delay is hours and not days; they call it news for a reason.

Once the media or public has a sense that the agency is withholding negative public information for any reason, they will see through the “spin” screen. The pressure will begin mounting up, and soon the trust of the agency and its leadership will be called into question if it appears that information is being intentionally held or, worse yet, covered up.

A good boss will add advice or insight into an emerging issue, if possible, to situations where the legal action is more or less a “witch hunt” and not a sustained claim. I doubt that the boss will be supportive if the chief was just caught on camera robbing the local bank. When you are guilty, you are typically on your own. However, in the most legal cases, the situation is an item or items that are being disputed by various parties and the department. It is amazing how quick legal action documents make it to the media. Sometimes, the plaintiffs and their counsel want to start the case out with the support of the public; perhaps the plaintiff’s counsel thinks the mere mention of a lawsuit may cause action in the form of a settlement or, at least, discussions. So, most times the media is “served” (receives a copy of the planned action) notice of the action only a short while after the defendant parties receive their copies of the same.

Because the media notifications process is a real possibility, time will be of the essence to notify your boss. I cannot overstress the fact that you should not delay letting your boss know about a pending legal action. Even if you get the notice at five minutes to 5 p.m. on a Friday, make the calls before you start the weekend. Include your defense team, e.g., general counsel, city/county attorney’s office, or outside legal counsel held on retainer in the initial notification.

It always helped me to hear my boss’s insight. Couple that level of administrative support with the legal defense team pointing out that they have your back, and before you know it maybe your blood pressure will go down a few points. The first time that I had to make a lawsuit notification to the boss, it was a difficult and distressing feeling. Once I realized that most governments are sued routinely and for all types of reasons, passing the notices up the chain of command became a standard action.

RULE #6. DON’T “GO IT ALONE” OR TAKE THE CASE PERSONAL!

I have alluded to building a support team for legal issues earlier in this article. Develop a relationship with the person or persons that will likely defend you in a civil action long before the sheriff shows up to serve the defendant a notice. Maybe the best analogy for this is working with a mutual-aid fire company. Conventional wisdom says to build a relationship with all departments with which you may have to work long before the alarm sounds.

Besides building relationships, resolve all of the issues that could cause confusion on the fireground such as hose couplings and radio frequencies. Get the preliminary introductions out of the way before you need the attorney to represent you so that when the time comes, “all systems are go,” and the process can go as smoothly as possible.

Along with your legal counsel, don’t forget to call on your boss, the human resources department, perhaps the police department, and any other department that can help you prepare and defend yourself and your agency. I always have a few close fire-rescue colleagues on speed dial to help provide me with information and advice.

With quick Internet research, you may find another chief that experienced the same situation or had to respond to a similar lawsuit. Use your professional network system to provide insight and support, much like you would use for any other topic or evolving issue. Further, a lot of information is available in various fire service legal blogs; they seem to be popping up everywhere and loaded with relevant and current information.

Unless you did something to intentionally cause an employee dispute (such as using your position to retaliate against a member), don’t take being named in a lawsuit personal. I know that this is easy advice to give but difficult to heed when the paperwork shows up. For me, the first lawsuit was devastating. I must have read that thing a dozen times the day that I was officially “served” in my personal and professional capacities.

After the first lawsuit, more would follow, with the next one being a bit more far-fetched than the last. So, remember that anyone can sue anybody for just about any reason if he has the funds to pay to have a complaint drawn up or the ability to prepare the claim “pro-se” (i.e., without an attorney. The most ridiculous complaints filed against me were prepared pro-se) and pay for the filing fees. Unless your actions were outside of your authority to act, put the suit in perspective. Lawsuits and employee disputes are the new norm in America. Don’t personalize the lawsuit; if you do, it can ruin your mental health.

For the second part of this rule, I was ordered into court to answer why I didn’t promote 28 white fire captains to battalion chief. The captains felt like I only promoted black members to the rank of battalion chief. The record did not reflect that nor did the jury buy their complaint. However, before the jury would rule in my favor, each of the captains, with whom I once worked, had the platform of the witness stand to describe the impact of not being promoted to battalion chief. The captains’ impact list was presented in court under oath. The list is best described as farfetched. Their impact statements included but were not limited to:

Exposed to Agent Orange 35 years earlier in the Air Force in Vietnam. After failure to be promoted, started removing tumors regularly.
Caused cancer in one individual.
Child was born with multiple scleroses.
Needed complete knee replacement.
Two captains contracted severe Type 2 diabetes.
Severe mental illness; needed to be treated with strong medications.
Became anorexic.
Severe weight gain following severe weight loss.
Multiple cases of high blood pressure.
Multiple cases of spousal abuse.
Multiple cases of child neglect.
Multiple cases of severe depression.
Multiple cases of animal cruelty.
Multiple cases of severe weight loss.
Multiple cases of severe eating disorder.
Multiple cases of sleeping disorder.

So, if you take this process too personally, it will take its toll on you, physically and mentally. Always keep the legal action process in the proper perspective to get through the tough days. This specific case caused me to realize that there are some firefighters that have a deep seated bias, which is, “No promotional process is fair unless, I get promoted.”

Stay tuned for Part 2 of this article, which will be posted Tuesday, December 17.

REFERENCES

Rube’s Rules For Leadership: Rule Number 7
Fire Engineering, August 2013, p.61
Covey S. The 7 Habits of Highly Effective People. Simon & Schuster, Inc., 1989.

Dennis L. Rubin is the principal partner in the fire protection-consulting firm D.L. Rubin & Associates. His experience in the fire and rescue service spans more than 35 years. He has served as a company officer, command level officer, or fire chief in several major cities, including Dothan, Alabama; Norfolk, Virginia; Atlanta, Georgia; and Washington, D.C. He served on several committees with the International Association of Fire Chiefs, including a two-year term as the Health and Safety Committee chair. He is a graduate of University of Maryland. He also hosts a monthly radio show on Fire Engineering Talk Radio called “Contemporary Issues.”

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