Fire Service Legal Issues - 2017 Year End Review

This year has certainly been interesting related to the legal issues facing the fire service. We continue to see the fire departments in the news for many high profile fires, rescues, service calls and the other good things we do on a daily basis.

We also continue to see the fire departments bogged down in legal controversies that reduce the effectiveness of organizational cohesiveness and at times polarize our personnel and departments especially in the area of personnel management and litigation.

We can only read about the legal effects of the claims or egregious actions by fire chiefs or firefighters, but we do not see or hear how it affects our firefighters or communities due to the discord created by litigation and possible breach of the public trust.

The general demeanor of our citizens is favorable towards the fire service. 2017 was a year of challenges, some failures and many successes. We find ourselves facing similar challenges for rolling into 2018 with new technology, challenging building construction, financial shortfalls, politics and reduction of firefighters in some areas, difficulty in finding sufficient volunteer firefighters in other areas, apathy and sometimes boneheaded decisions by our elected officials.

Attorneys out there are getting smarter in litigating against fire departments, many times using our own material against us such as the absences of policies, procedures and practices, failure to enforce policies already on the book, institutional thinking, unyielding culture and tradition, looking the other way when bad behavior occurs and other similar cracks in an otherwise solid organizations.

Yes, there are departments that need to be sued to change the behavior by the leadership, but that is an unnecessary process to get smart on those issues that harm us.

Many of the following legal examples are gleaned from the news media (not fake news), other reliable sources and from personal knowledge gained from my legal comrades whose legal practices attempt to assist fire departments and firefighters through the legal quagmire in their efforts to extinguish the legal fires.

This year-end review is a small sample and tip of the iceberg examining how we legally shoot ourselves in the foot with the following examples ripped from the headlines:

Training - We are not dying in any new way as many of the causes of death have remained consistent. Many of our firefighter fatalities are related to cardiac or health related events. Over 70 firefighter death have been reported as of September 2017 and deaths involving vehicles are on the rise. Over 60% of the deaths did not involve emergency duty and about 4% involved traumatic death while directly involved in firefighting operations. The most recent report from USFA (2106) there were 89 firefighter deaths. Of those, 23 were career firefighters, 56 were volunteers and 10 were part-time or full-time members of wildland or wildland contract agencies. 9 of these deaths resulted from training activities and many of those were medically related – heart attacks most often.

As we reduce the number firefighter deaths due to emergency action, we still depend on a rigorous training schedule as we are noting a decrease in actual fires which remain more dangerous than ever. Much of the danger originates from building construction and material contained within those buildings. We are an all hazardous organization and must train to a higher standard and maintain training records. Certainly the attorneys will be looking for them and they will be your best line of defense.

Failure to train – NY Firefighter dies in house fire.
A 19 year old firefighter was among the firefighters who responded to a NY house fire in 2015. He was lieutenant with the department and he went into the basement of the burning building with a hose team and got separated. The family of the firefighter sued the homeowners and arrived at a settlement agreement, based on the cause of the fire. However the State Department Labor investigation found that the Mount Marion Fire Department and the Centerville Fire Department, which was in command at the scene of the fire, broke a total of 14 regulations.

Those violations included two key points: the first one, the deceased firefighter had taken an air tank unit off a Centerville Fire Department truck instead of using his own tank, investigators determined and the Centerville air tank was a different brand and size from his own and he had not been trained in its use, a violation of safety regulations. Second, state investigators ruled and firefighters who battled flames with Rose in the basement of the house failed to notice when he disappeared. Firefighters monitoring from outside lost contact with Rose as well.

Technology - Social media continues to thin the ranks of the fire service. As we say in the industry, these firefighters are committing Social Media Career Assisted Suicide (SMCAS)

• A NY volunteer firefighter who was suspended for a Facebook post earlier this year, has filed a lawsuit in federal court against the city, the fire chief, three assistant chiefs, four fire wardens and the fire company secretary. The firefighter alleges that his Constitutional rights were violated when the volunteer department suspended his employment. The incident was over a photo of him in his turnout gear holding his baby that he posted to Facebook. The post included the comment: “WE ARE VOTING XXXXX FOR MAYOR.”
• A Texas firefighter was fired after posting a comment on social media calling for the man who shot and killed nine people in Charleston, South Carolina, to be “praised” for his actions. The firefighter stated his comments were taken out of context as he indicated he was posting on a thread from another reader indicating the donation of large sums of money to the family of those killed.
• Even Curt Schilling, a former All-Star pitcher and one of the highest-profile baseball analysts on ESPN, was fired from the network, a day after he drew intense criticism for promoting offensive commentary on social media.
• We should refresh Dave Statter’s October 2010 blog posting entitled “Is It Time for a Firefighter Social Media Ethics Course” where an example of a firefighter from a Texas fire department posted nude selfies on his Social Media site. The offending and much exposed firefighter was suspended. The suspension states that the sexual activity clearly represents conduct unbecoming and this activity brings discredit to the department by identifying him as a firefighter with the Department. The suspension also cites a violation of the rule against firefighters, “committing acts showing a lack of good moral character”.
• There are hundreds of additional examples and all you need to do is Google “firefighters fired due to social media activities”

Cell Phone Cameras – Firefighters downloading pictures of events on their social media sites. Four states on the East coast (NJ, NY, WV and Conn) have made it a crime to for first responders to post pictures of accidents and other emergencies on their social media sites. There are numerous incidents where firefighters have been terminated, departments sued by surviving family members because pictures of their injured or deceased loved ones have been posted on a firefighter’s social media site.

Driving – getting to our emergencies is an important part of our job. All too often, we collide with other vehicles including tangling with our own co-responding vehicles, mostly at intersections. Following some recognized training standard is a must for your volunteer and career firefighters. You must also document those training sessions as well listing the curriculum, skills testing and the qualifications of the instructors. Also, training should incorporate the mandatory use of seatbelts for the firefighters as part of your driver training program. 

Lack of a driving training kills your firefighters and the citizens they protect and results in large payouts by the department. We have determined over time that responding at high speed does not change the outcome of the emergency especially when response speeds causes accidents. Hopefully over time we can reduce the use of Lights and Sirens helping us arrive at the scene safely. It is also important to have an alcohol response policy preventing this type of incident. In Indiana a volunteer firefighter was killed responding to a crash Friday night when police say another firefighter arrived drunk, hitting him and three vehicles.

Embezzlement/Stealing – Of course, we have to include this criminal act, as every year we have fire chiefs or their staff members think they can steal money from the department. A South Carolina fire chief who was convicted of embezzling funds from his department has been sentenced to 33 months in federal prison. The sentence was handed down to former St. Paul’s Fire District Chief. A co-defendant, was also convicted. She was sentenced to 14 months in prison. Both will be required to serve 3 years of supervised probation upon their release. They both faced up to ten years in prison and a fine of up to $250,000. Prosecutors claim they embezzled approximately $215,000 in federal funds from a FEMA grant for a new fire station.

• In another case a former Humphreys County volunteer fire officer, was charged with theft after an investigation by the Tennessee Bureau of Investigation and the Tennessee Comptroller's Office. A Humphreys County grand jury indicted him and charged him with stealing about $75,691 from the County and its fire department. He reportedly used the money for a variety of things like his home satellite system, credit card bills and Apple iTunes purchases.

Personnel – our greatest asset and greatest liability. Millions of dollars are spent defending our departments and firefighters who discriminate against each other in our departments. Here are some cases:

• Voyeurism – Firefighters videotaping female firefighters in the shower or locker room rears its ugly head again. A few years ago, the New Mexico fire department underwent national scrutiny and firefighters were terminated due to videotaping female firefighters in the shower. This year we have a Texas fire lieutenant resigned amidst a criminal investigation into his having secretly filmed female subordinates in fire station locker rooms. This is a rebounding case as this particular fire department has been accused again of not responding to complaints related to female firefighter’s discrimination. Firefighters are claiming they reported inappropriate behavior to the department years ago and nothing was done to stop this behavior. The former lieutenant, was charged with invasive visual recording and the news report indicates the Fire Department has confirmed that the department received complaints about inappropriate behavior by this firefighter involving female patients in 2013, but they were treated as EMS competency investigations and as such they were investigated by the department’s medical director, and not as a disciplinary matter. The firefighter, who was initially relieved of duty while the 2013 claims were investigated, was found to have met the standard of care for the patients and allowed to return to work. That prompted a fire captain to email management about additional concerns his colleagues had about his behavior. This is an ongoing issue for this and other departments.
• Assault - A junior firefighter who claims to have been sexual assaulted by a firefighter is now suing an Oregon fire department for $3.5 million. The suit alleges senior firefighter sexually abused the female firefighter starting when she was 14. The senior firefighter was supervising the junior firefighter program at the time. Criminal charges have not been filed against him at this time. The suit claims that the fire department failed to properly investigate the girl’s claims once they were made. It also alleges the fire department failed to comply with Oregon’s mandatory child abuse reporting requirement. In another case, a Milwaukee Fire Department acting lieutenant repeatedly groped a co-worker and gave her low marks on her work evaluation after she complained, according to a criminal complaint charging him with a felony. The firefighter, was charged with second-degree sexual assault after his arrest. He is accused of a pattern of inappropriate and retaliatory behavior, which began earlier this year. 
• Pregnancy Discrimination – under the Pregnancy Discrimination Act (PDA) it is illegal to discriminate against a pregnant employee. In one case a former Tampa firefighter sued the city in federal court, alleging sex discrimination due to her desire to work through her pregnancy and was treated differently than the males in her department. In December 2017 following a four-week trial in US District Court for the Middle District of Florida the firefighter won $245,000.00 award. She filed the suit on March 23, 2016 alleging gender discrimination, sexual harassment, and retaliation. The firefighter had been complaining to city officials about her working conditions going back to 2010, including being: treated differently on account of her gender, unfairly given poor evaluations by supervisors, subjected to numerous sexually harassing comments, many by officers, propositioned by superior officers, passed over for promotion, harassed about pumping breast milk and reprimanded for violating rules that male firefighters broke without consequence. One day after she filed the suit in 2016, she was terminated for “falsification, misrepresentation, or material omission of statements, testimony, or any document or record completed in the course of employment or in obtaining employment, including group insurance claims.”
  • A reminder of  a 2015 case brought by the Justice Department concluded in a consent decree with the town of Davie, Florida, to resolve allegations that the Davie Fire Department discriminated against a firefighter/paramedic because of her pregnancy and retaliated against firefighter/paramedic because she complained about gender discrimination. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, sex, national origin and religion. The decree resolves allegations of disparate treatment based on pregnancy that resulted from light duty policies implemented by the Davie Fire Department.
• Lactation Rooms – tucked away in the ACA is a provision indicating that employers must provide lactation rooms for their returning nursing mothers. Found in Section 4207 of the Patient Protection and Affordable Care Act (PPACA), now codified as 29 U.S.C. § 207(r)(1)-(4), is the new federal mandate, requiring that employers provide reasonable break time for nursing mothers to express breast milk. Some departments will do the minimum to accommodate their lactating mothers.
  • In a 2014 lawsuit, a Tucson Fire paramedic sued the city for $300,000 over what she claims is a failure to provide her with a private place to pump her breast milk.
  • For departments struggling with creating a basic policy on pregnant firefighters, I suggest you review this site. http://fswnj.org/PREGNANCY_GUIDELINES.htm
• #MeToo Movement – For a long time, most women defined their own sexual harassment and assault in this way: as something unspoken, something private, something to be ashamed of acknowledging. Silence, although understandable, has its cost. When the actress Alyssa Milano used her Twitter account to encourage women who’d been sexually harassed or assaulted to tweet the words #MeToo, the hashtag was retweeted over a half of million times. The power of #MeToo, is that it takes something that women had long kept quiet about and transforms it into a movement. Unlike many kinds of social-media activism, it isn’t a call to action or the beginning of a campaign, culminating in a series of protests and speeches and events. It’s simply an attempt to get people to understand the prevalence of sexual harassment and assault in society. We are now seeing a cascading fall of those who were alleged to have committed sexual assault, intimidation, rape and other assaults against women. (Sophie Gilbert, Atlantic Magazine 10/2017) Currently we are seeing, publishers, actors, politicians, celebrities in the news, resigning, terminated, or other action that will significantly affect them in the future. Most if not all has recognized this behavior as bad and others are denying these events actually occurred. It is important to treat all of our employees in the fire service with respect and recognize the abilities and talent they bring to your department. Women firefighters are an important part of our service deserve the utmost respect.

Inspection Liability - Ghost Ship Fire – Recently a Judge in this case permitted the plaintiffs to pursue their claim against the City of Oakland, Alameda County and the State of California who have been added to a mass-tort lawsuit arising out of the Ghost Ship fire. The December 2, 2016 fire in a converted warehouse known as the Ghost Ship claimed the lives of 36 concert-goers and injured scores of others. The amended lawsuit alleges that city, county and state officials were aware of fire and building code deficiencies in the warehouse and failed to address the problems. Those deficiencies included inadequate means of egress, lack of emergency lighting, lack of an adequate fire alarm system, lack of an effective sprinkler system, and electrical problems. I crafted an earlier article related to inspection liability and some of the immunities offered to fire departments in this important activity. This case may reset that thought process about your immunities under the law.

http://community.fireengineering.com/profiles/blog/show?id=1219672%...

Finally, you have to have a healthy set of up to date policies. When enforced, they will help guide your department and hopefully prevent legal jeopardy. We should add a Code of Conduct and Ethical Standards as well. We've discussed in numerous forums, a fire department MUST develop polices and enforce those policies. You cannot discipline someone if there is no policy in place.

OK, that’s enough for now and is only the tip of the fire service legal issues iceberg. I could provide some moral and legal anecdotal comments to these examples, but I think you get the message. Let’s do good things out there and stay out of the press and especially out of the courtroom.

I would like to thank my legal cohorts and fellow fire officers: Chief Chip Comstock JD (OH), Chief Brad Pinsky JD (NY) and Chief Curt Varone JD (RI) for their valuable contributions to the legal side of the fire service. Listen to us monthly on Fire Service Court Blog Talk Radio for the latest legal issues facing the fire service. Have a safe and legally sane 2018.

Sources: Firelawblog.com; numerous newspaper articles; classes taught at national conferences; consultation with firefighters and fire chiefs; firefighter rumor network and many others.