Being a fire chief in today’s environment is not for the faint of heart. Chiefs face numerous management, operational, and legal issues, plus the daily challenges of leadership in today’s fire world appearing from all directions, internally and externally.
Chiefs lead and manage fire departments as large as the Fire Department of New York [more than 17,000 personnel, including firefighters, emergency medical service (EMS), and civilian employees] and as small as the Pleasantville-Jefferson Township (IN) Fire Department, with 12 volunteer members and one station equipped for fire and medical emergencies. In a small department, the appointed or elected fire chief often has the same obligations as a chief of a department thousands of times larger.
In any organization, the chief must master numerous disciplines involving operations (finance, strategic planning) and personnel (hiring, promotions, discipline, terminations). Some personnel matters may get you and your department sued for potential discrimination or harassment.
As chief, your duties include the phrase “all other duties as assigned” in addition to those posted in your job description or job analysis. The chief is a “jack-of-all-trades”—i.e., politics, finance, personnel, operations, and issues known and unknown.
Legal Protection
The chief’s position has numerous leadership perils. Public policy would dictate that the chief do no harm in his community. However, in some states, the chief’s actions are protected by legislative language specifically applied to the fire chief or by the various immunities that protect public service employees in performing their duties.
In New Hampshire’s Revised Statutes, Section 154:1-d – Fire Department Liability; Public Duty Rule; Status of Firefighters, provides some liability protection for the fire department and the fire chief’s action found in Section E III,
“ … decisions of a fire chief or the chief’s subordinates concerning the allocation and assignment of firefighters and equipment, and the strategies and tactics used, shall be the exercise of a discretionary, policy function for which neither the officer nor a municipality shall be held liable in the absence of malice or bad faith, even when such decisions are made rapidly in response to the exigencies of an emergency.”1
Several years ago, after attending an educational seminar on this very topic, a chief resigned from his position because he feared he would be held personally liable for actions he took on behalf of the department. Shocking? Seemingly, this chief had an irrational fear of litigation (we all like to think that we are immune from such litigation), but a recent Web search reveals that chiefs should be aware of the potential for litigation involving them as a named defendant and in a few cases as the plaintiff.
Generally, qualified immunities apply to all public safety personnel nationwide, including fire chiefs. Recently, there has been a great effort toward reversing qualified immunities in light of several deaths caused by police officers and at times fire and EMS responders. The general displeasure with the political process has extended to removing elected officials’ immunities as well.
Not that chiefs are immune from all liabilities; you are at the tip of the leadership spear and thus the lightning rod for problems within your department. In several cases, litigation has named the chief involved in fire operations and personnel matters, also naming the department, the municipality, and its elected or appointed positions. Suits against departments have characteristically originated from within the department (e.g., discrimination litigation) as opposed to litigation regarding fire damage to a building in your community. Always remember, in the absence of gross negligence, immunities protect your position and your actions as the chief.
Internal Litigation
My legal colleague Curt Varone asked in 2017, “Is Mrs. Smith suing the fire department?” The not-too-surprising results reveal that we being sued by ourselves, not by Mrs. Smith. His research indicates the following:
- A fire department is 6.9 times more likely to be sued by a member.
- A fire chief is 5.0 times more likely to be sued by a subordinate.
- A chief officer is 4.0 times more likely to be sued by a subordinate/colleague.
- A company officer is 1.8 times more likely to be sued by a subordinate/colleague.
- A firefighter and department are more likely to be sued by Mrs. Smith for medical malpractice or motor vehicle accidents.
Although outside direct litigation against the chief is rare, the chief is often named in a lawsuit affecting the department. We have also seen some direct action against the chief from city leadership that may result in litigation against the city, the mayor, or other elected officials.
Former Flint (MI) Fire Department Chief Raymond Barton sued the city and the mayor for $10 million in U.S. District Court. He claimed that he was fired after refusing to lie in the aftermath of a fatal house fire in which two children died. The federal complaint states his discharge violated his federal rights, including his free-speech rights under the First Amendment, and the public policy of Michigan. In addition, the mayor’s wrongful conduct constituted tortious interference with the chief’s contractual relationship with the city. The chief brought this action to seek redress from his personal injuries and to vindicate the public’s interest in honest and transparent conduct by the public servants who have the duty to protect the public’s health safety.2
The chief of the Montebello (CA) Fire Department filed a claim against the city for unspecified damages, accusing the mayor of harassing him, usurping his authority, and violating the state’s open-meetings law.3 The claim states the mayor weakened the fire chief’s position by cutting him out of the chain of command by trying to find a way to fire him and investigate his personal life. This city has several other lawsuits finding in favor of individual firefighters who also sued the city. The chief’s attorney indicated the mayor has done everything in her power to destroy the chief’s professional and personal life.
Liabilities
What are your actual liabilities? Before you pull the resignation or self-demotion trigger, let’s look at the actions that will result in litigation when you’re the primary defendant. These include equipment theft from the department (numerous examples here), sexual harassment and sexual assault in which the chief is the antagonist, breach of fiduciary duty including embezzlement, failure to comply with state and federal safety standards, and failure to abide by the National Fire Protection Association (NFPA) standards. Alan Baird of Lairdsville, New York, was convicted in a firefighter death during a training exercise violating NFPA 1403, Standard on Live Fire Training Evolutions. In addition, willful failure to enforce regulations and willful failure to provide services can result in litigation [fire chief loses motion to dismiss in $6 million suit over death of pregnant woman denied ambulance service (Re Pettee v. Hulett, U.S. Dist. Ct. (N.D. Ill. 1975))]. Also listed in litigation against the chief is a failure to provide a safe working environment, a working environment free from discrimination and harassment or to respond to complaints of such behavior. There are many more examples.
Immunities
You have a qualified immunity against litigation related to the nature of your job as a public service governmental employee. This protection evaporates in the face of willful or wanton conduct or gross negligence. You have immunity against negligent conduct if you are administering under a discretionary duty as opposed to a ministerial duty. A discretionary duty is defined as “one requiring the exercise of judgment in its performance, in contrast to a ministerial duty, which is one where nothing is left to discretion—a simple and definite duty, imposed by law, and arising under conditions admitted or proved to exist.” [See: Crowell v. Kirkpatrick, 2009 U.S. Dist. LEXIS 105410 (D. Vt. Sept. 14, 2009).]
Discretionary acts are those where an individual official has been given some power to decide what action to take, whereas ministerial actions are those where “the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” Fire chiefs are often protected by official immunity if their decisions or actions cause harm but meet certain criteria, including that the duty was “discretionary” and not “ministerial.” These determinations are made on a case-by-case basis. A compromise doctrine subsequently developed at common law, whereby government officers could be held liable for the negligent performance of ministerial functions (operational acts involving carrying out policies) but not for discretionary functions (those involving policy setting and decision making). [See Restatement of the Law, Second, of Torts, § ٨٩٥D (١٩٦٥).] Immunity from liability for discretionary acts developed as an extension of the immunity afforded judicial officers to similarly shield legislative and administrative officials.4
Usually, chiefs are sued when an action or decision they make injures a person or their property or violates some civil right such as freedom of speech or right to due process. Remember, these actions, if not willful, wanton, intentional, or grossly negligent, or if the chief is not the perpetrator of egregious actions, are covered by immunities that protect the chief if his actions or decisions meet these aforementioned criteria. Also remember that a lawsuit against you as the chief in your official capacity as a public official is considered a suit against your governmental entity as well. These suits are unlikely to lead to personal liability on your part.
Other common causes of action against fire chiefs and their elected or appointed superiors include state torts, 42 USC§ 1983 claims, and other actions that allege a violation of a property or civil right. 42 USC§ 1983 is a federal law that gives individuals the right to sue the government when the government violates some constitutional right.
In “How Fire Chiefs Get into Trouble,” my colleague Chief Gary Ludwig wrote about several issues that could potentially affect us all, but especially fire chiefs. Certainly, they are preventable if there is some forethought as to the consequences. I have taken some liberties with his article, and some of those issues include the following:
Substance abuse. A chief who uses alcohol excessively, abuses prescription drugs, or uses illegal drugs will eventually be caught. Usually, the substance abuse begins to impact the job. Some chiefs are even caught driving their staff vehicle while intoxicated. Others are arrested in their personal vehicle while driving under the influence of drugs or alcohol.
Sex with subordinates. Sex is a common theme and can involve a variety of troublesome issues: making unwanted sexual comments to someone else, telling sex-focused jokes to department members, or soliciting sex from an employee or someone from the community. Here, if the conduct involves a department member, the chief may be the subject of an Equal Employment Opportunity Commission (EEOC) complaint dealing with perceived unfair treatment of a member of the opposite sex.
Personnel problems. You are dealing with people on your team; personnel issues are a daily issue in the fire service, especially if the chief fails to adequately, timely, and properly address these issues. Many personnel issues lawsuits are related to harassment and discrimination claims involving age, race, and gender and a failure to adhere to the department’s policies on discrimination, harassment, hazing, or bullying.
Hiring or promotional challenges. There are many issues with hiring qualified firefighters and promoting them. There are many steps to hiring a firefighter including the application, the written examination, the candidate physical ability test (CPAT), the oral boards, the offer of employment, and the medical and psychological testing. Failure to adhere to your hiring practices become a problem when you make exceptions for one candidate and not all. You must have a hiring or promotional process, adhere strictly to its policies, and not be a part of those processes until you must make the final hiring or promotional decisions.
Money. This includes embezzlement, credit card theft, and stealing cash from the department. Yep, it’s easy and tempting and you think you’re going to get away with it. A little bit here, a little bit there, and soon you’re stealing real money. Resist the urge to take money from your department. Your department must have rules related to the use of the department’s credit card, and many times chiefs are found to expend or allocate money from those cards on impermissible items. Remember, your department’s money is public funds and is subject to an audit. Careless use of the credit card, checkbook, or petty cash will be discovered and you will be in personal legal jeopardy.
Failure to apply established and adopted codes and policies. Included in your obligations is to create a safe workplace for your firefighters and employees. NFPA standards were established with safety in mind. Blatant disregard for these standards that harms a firefighter or someone in the community can land the chief in legal jeopardy. Ignorance of department policy is no reason for disregarding those established standards.
Social media. Many times, chiefs will post something on their social media sites that will get them terminated. The First Amendment right of free speech is severely limited in public safety and governmental agencies. You must have a policy, adhere to it, and enforce it or you or your firefighters will be seeking other employment. Many chiefs were terminated as a result of their social media postings, since they violated their department’s ethics, code of conduct, or values. These are only a few reasons chiefs end up in legal hot water.
As Gordon Graham states, “Predicable is preventable,” and “There are no new ways to getting in trouble.” Let’s learn from other people’s misjudgments and avoid those legal pitfalls.
Preventing Litigation
How can you prevent lawsuits against you and your department? Do the right thing at the right time; make the right decisions based on the best interests of your firefighters’ safety and community safety; understand the law and, if in doubt, consult with your department’s legal counsel; do not harm your reputation by stealing or engaging in unethical conduct; have a high moral and ethical standard; and do not tolerate wrongdoing by department members.
Yes, you may be sued, but if you can sleep at night and are not developing an ulcer, you are probably doing the right thing.
Endnotes
1. https://law.justia.com/codes/new-hampshire/2022/title-xii/title-154/section-154-1-d/.
JOHN K. MURPHY, JD, MS. PA-C, EFO, deputy chief (ret.), has been a member of the career fire service since 1974, beginning his career as a firefighter and paramedic and retiring in 2007 as a deputy chief and chief training officer. He is a licensed attorney in Washington State since 2002 and a licensed physician’s assistant since 1977. Murphy consults with fire departments and public and private entities on operational risk management, response litigation, employment policy and practices liability, personal management, labor contracts, internal investigations and discipline, and personal injury litigation. He serves as an expert witness involving fire department litigation and has been involved in numerous cases across the country. He is a legal and management educator, frequent legal contributor to Fire Engineering, participant in Fire Service Court Radio, a blogger and a national speaker on fire service legal issues. He is a distance learning instructor with the University of Florida Fire and Emergency Services undergraduate program.
