FIRE SERVICE COURT ❘ By JOHN K. MURPHY
Every day, the fire chief and his staff face issues, some having a legal impact on the department. Many of these issues do not rise to the level that needs an immediate response. Some issues may be put off for 24 hours, while others will not be resolved at all. If this is your department, it will seem like you are kicking the can down the road but, in reality, it is because your well-trained staff, policy management, and education were the key aspects of temporarily delaying or not even addressing those legal issues that come into play. Twenty-four hours of time makes a big difference in clarifying the issues that need immediate short- or long-term action. Sometimes, you need to take that precious time to let the issues clarify themselves or dissolve.
Laws are in place for many reasons: to act as guidelines; to be a reminder that firefighters need to play by the rules; to be a deterrent for any current or future action; and to model behavior with staff and firefighters on how to act, respond, manage, and mitigate situations facing your department. The fire service is in the risk prevention and mitigation business, designed to prevent and resolve situations that harm the general public we are bound to protect. Many times, those risk mitigation actions place us in harm’s way; firefighters or civilians can get killed or injured and property is damaged or destroyed. Many guidelines such as the National Fire Protection Association; state and local laws and ordinances; and your own policies on training, response, and safety are in place to protect you, your fellow firefighters, and the community.
At times, departments are focused outwardly, and less attention is paid to internal risk management addressing our firefighters—staff that are important to a well-functioning and efficient fire department operation. Many times, our visual scope of the current issues narrows to the immediate and not the long term. Immediate issues are personnel fires, money, politics, and services provided. We deal with the daily stress of adequate staffing, station brownouts or closures, response times, and political pressure. At times, we forget that, behind us, all hell may be breaking lose. Even our own personal lives come into play, either as a support or challenge to our actions as a chief officer, fire officer, or firefighter. We inadvertently bring “stuff” to work with us that may redirect our focus.
Related to internal risk management, there are too many examples of employees treating each other badly, violating their rights to include assault and battery, rape, domestic violence, tampering with firefighter safety equipment, embezzlement, child pornography, theft, and other examples of malfeasance or criminal activities in and out of the fire station. These issues are ripe for litigation.
In addition to criminal activities, there are also career- and reputation-damaging events involving social media, driving violations, and training accidents as added issues requiring proactive management and enforceable policy including Codes of Conduct to guide the behavior of your firefighters on and off duty.
The highest risk hazards placing the department and employees in harm’s way include the following:
- Title VII civil rights violations.
- Discrimination.
- A hostile workplace environment.
- Harassment.
- Sexual harassment.
- Hazing.
- Bullying.
Fire officers must understand the largest litigation payouts affecting departments are based on civil rights violation claims where your firefighter employee sues you and the department for violation of his protected rights under the law. Fire departments are held to a higher standard by the public, and that standard is created by you, the firefighter; your department; and the public at large. It is our responsibility to create a safe place for your firefighters in the fire station and on the emergency scene.
Your job, among many, is litigation prevention and risk management as well as understanding the means and methods to prevent these adverse legal processes, which are the cornerstone of a well-organized and managed department. It’s not rocket science; it’s education, experience, focus, and proactive action on your part.
One of the prevention methods to avoid litigation is developing solid and up-to-date enforceable polices and standard operating procedures and training your firefighters annually with updates and scenario-based situations. These, coupled with well-written and articulated best practices, help departments avoid legal jeopardy, while a well-constructed Code of Conduct and Ethical Standards policies guiding department behavior will reinforce the polices you already have in place.
It is nearly impossible to write a policy for every conceivable action affecting your firefighters. Codes of Conduct and Ethical Standards provide expectations for the firefighters to adopt and follow, on and off duty. The simple remedy of “see something, say something” and “getting involved early” is available for those employees squaring off in the station. However, it is not a well-used tool in our personnel toolbox. This failure to use those tools at the right time ultimately places us in the courtroom to resolve an issue or disagreement, generally at a cost to the department—financially or a loss of personnel—because of terminations or resignations.
It is imperative that fire leadership and elected officials are well-versed in the laws affecting our departments’ operations and can present a process of identifying and avoiding risk; understanding your professional and personal accountabilities; and knowing your supervisory responsibilities to the department, your firefighters, and yourself. These laws are designed to prevent most, if not all, of the legal jeopardy that will challenge your department.
You can solve many of your department’s legal issues with knowledge of the situation, focusing on the resolution, familiarity with the applicable laws, working on an equitable resolution, and carrying through on your promise that “This will never happen again in my department!”
JOHN K. MURPHY, JD, PA-C, MS, EFO, retired as a deputy chief after a 32-year fire service career. He is a licensed attorney in Washington with a focus on employment practices liability, training safety, employment policy and rules, and internal investigations. He is a subject matter expert on prehospital emergency medical services (EMS) and fire operations, consults with private and public services on risk management, and serves as an expert witness on fire department litigation. He is a frequent local and national speaker on legal issues affecting fire and EMS services.
