When Words Become Weapons, Part 2

by Dennis L. Rubin

In this article, Dennis Rubin recounts his experiences being brought to trial on charges of reverse discrimination. Read part one of this case HERE.

Here's Jack to the Rescue

It seemed like just about every avenue to defend myself was being closed off and forbidden by the rule of law. I was getting very nervous as the Judge was reviewing the pretrial instructions with the attorneys. The three city lawyers were busy taking notes and asking questions of the judge during this phase.

All I could do was to sit at the defense table and think about the line right out of the motion picture "A Few Good Men," in which Marine Colonel Nathan R. Jessup (Jack Nicholson), who was assigned to protect our boarder with Cuba. The colonel was being grilled on the witness stand at a murder trial when he final lost his composure and yells out something like, "The truth! Sonny boy, you can't handle the truth!"

At this point in the trial, the actor summed up my feelings. I was very discouraged that there would be no discussion about qualifications and the reasoning behind promoting some members and not promoting others. The false claims of the reverse of this case would not be allowed as evidence. It appeared that the burden of proof was going to be an uphill battle to see if I had violated any laws in the selection of deputy and assistant fire chiefs for the Atlanta (GA) Fire-Rescue Department.

The Testimony Begins

Judge Forrester directed the bailiff to bring in and seat the jury. Everyone stood as the eight jurors enter the boxed in area set aside for them. Once they were sitting down the bailiff announced for everyone to be seated and all comply. His Honor gave appreciation to the jury and explained the role they will be fulfilling in this proceeding. Along with the legal instructions, the judge mentioned why everyone (but him) will be standing when the jury enter the courtroom or when they adjourn to the jury room. "This is because all of you are judges as well," he went on to explain, "and are due the respect of the position." The Judge verbalized that they would be the judges of facts and of the truth. After a few dozen visits to various courthouses, I had never heard that explanation until that day.

Each side was allowed 30 minutes for their opening statements, with the judge pointing out to the jury that the attorneys have a lot of latitude to describe how they believed what happened and why. Next came the witnesses and testimony of the plaintiff's case. It was not very flattering listening to an opposing attorney and three retired battalion chiefs try to convince the jury that I only had an interest in promoting one specific racial group to higher ranks in the department because I was under pressure to do so by city hall.

Gentlemen--Draw Your Weapons!

After the three city workers testified about their lack of promotion and why they were so deserving of the same, it was now time to call me up to the witness box. This was the first time that I can remember being as a witness for the plaintiff's side of the case first. The term "hostile witness" was most likely redefined that day. I could not believe the number of the previous memos and other promotional related documents that were being dredged up for me to identify and discuss on the witness stand.

As I can recall, the plaintiff's exhibit list was something like more than 80 different items. I was asked to remember some documents that dated back into 2004 and asked why I used some of the words that I choose. The opposing attorneys seemed to want to make the case out of two specific documents from the nearly one hundred that they have been culling through for years. The first item was a promotional tracking document. I know, right, what the heck is that all about? The origin of maintaining this document goes back to the time that I was serving as the fire chief in Dothan, Alabama (what a great place!) When I was appointed as Dothan's fire chief, the city was under the rule of a federal judge's consent decree as it related to all fire department hiring and promotions. The city had gotten out of balance in our personnel practices prior to my arrival. The judicial system deployed a decree to make sure that fairness, honesty, openness, transparency, and accountability would be ensured in the personnel selections moving forward. As spelled out in this decree, in the selection process (new hires or promotions), each pick had to be justified to include an explanation has to why a person of color was not selected, if that impacted person was available for the position being filled.

From the first time that I promoted an officer or hired a firefighter, I had to complete a lot of paperwork. It was a great learning experience and the decree held the department's toes to the fire to make sure that we were hiring and promoting everyone as fairly as possible. Every six months or so, a detailed report would be submitted to the human resources department for the various executives in that office to review. It had all of the related information about new hires and promotions broken out into five separate spreadsheets (i.e. new hires, sergeant/drivers, paramedics, captains, and battalion chiefs). This simple spreadsheet system had a column for a person's name, the type of action occurring, the date, and the subject's gender and race. It also included a running balance of percentage of folks that were hired or promoted on the bottom of the document listed by various classification categories.

This demographic information was required to be submitted in a timely and accurate fashion during my watch in Dothan. In fact, the process was started by the city attorney as part of his effort to ask the judge in Birmingham to rescind the decree and allow the city the flexibility to hire and promote without providing a lengthy explanation. To our betterment, the city manager stopped the process and kept this control in place relating to every single personnel action. I think that it was a great way to learn how to justify each personnel decision and make sure that we were hiring or promoting the best person possible for the vacant position (remember, I am the guy that will always repeat never hire idiots, thugs, or military misfits--if you hire them the organization will pay for the foolishness).

Once I left Dothan Fire Rescue Department, I keep a lot of the effective, learned behaviors as it related to the administrative process. There are always rumors about legal action or negative news coverage would be exposing alleged inappropriate hiring, promotions and/or discipline practices by fire departments. Of course, I would make this quarterly demographic chart available for reporters or attorneys to reflect on the accurate information rather than working with conjecture and "folklore." When the actual information is presented in black and white, it tends to slow down the runaway train and stops the veiled threats. It is simply a good management practice to have this data available when the media, elected officials, attorneys, or special interest groups ask for it. I really like being responsive in a few minutes to these requests and not taking a few weeks to research to fill the freedom of informational requests.

To my amazement, this simple spreadsheet was a major part of the plaintiff's attack strategy. During the trial, this document was described as secretive and its purpose to ensure racial purity in the Atlanta Fire-Rescue Department. Neither description was the truth, as the facts showed in this trial. The informational spreadsheets were sent out on a regular basis to the elected officials and to the media when requested. I distributed the information to the department members at monthly staff meetings to stimulate open and frank discussion about how the department was operating at an administrative level. We would discuss (over and over again) that the fire department executives would need to take responsibility for the management of the diversity of the agency or we would lose that control to an outside authority, such as a judge's order or a consent decree. This choice has always been a clear-cut one to me. The department must do the right thing, all of the time, and keep control of the future of the agency.

The plaintiffs painted this document as a secret form that I keep hidden from sight in my desk drawer and maintained to make sure that I was selecting enough of the right type of people based on marching orders from city hall. This simply was not true. I still believe that it is good document to have and maintain to properly manage the department. Some folks will play any angle against the administration of the organization to try to move their personal agenda forward. I can honestly say that nothing is off-limits with those that believed that they have been harmed in some way or another by the organization. Hiring, firings, and mishandled promotions seem to be the issues that most often surface. When I can provide my bosses, the governing body, neighborhood and civic groups, and the news media with the facts relating to hiring, promotions, and discipline, it tends to resolve about 95 percent of the claims being made. It is amazing what the facts can do to a rumor when the issue is properly investigated. Keeping the list of who received promotions and when they were promoted is a great way of doing business. The complaints by these three Atlanta city workers did not change the administrative process that I used to track information, in fact this lawsuit simply reinforced it as a positive way to keep important records.


Stay tuned for Part 3 of this article, which will run in June 2013.

If you enjoyed this information, Dennis Rubin has written a book that has more details and case studies about being a fire chief in a fairly busy city--Washington, D.C.--published by Fire Engineering: D.C. Fire. For more info, CLICK HERE.

Dennis L. RubinDennis 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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