When Words Become Weapons, Part 3

By Dennis Rubin

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

The other documents in this case targeted by the plaintiffs' attorneys were the various promotional announcement memos that were distributed to all members of the department. The focus was on the last sentence in the first paragraph of the promotional memos, which read, "The system that has been chosen will allow me the opportunity to select the most likely candidates that will be successful in these positions while protecting the rich diversity of this organization."

I was directed to read this statement into the record of the trial and asked questions relating to the intent of the statement. The plaintiff's team was positive that this was the "smoking gun," some underground way of expressing that only or mostly black members would receive the coveted promotions to chief officer. I have worked my entire career to ensure that fairness, equity, honesty, openness, and accountability were demonstrated by my administration and delivered to all.

I have said dozens of times that we (the administrative team) had to properly and effectively managed the diversity of the department or lose that control to someone outside the agency. Could this be one of my worst fears becoming a reality? I have been a strong advocate for fairness in every aspect of this job; now would this statement come back to haunt me? Is there a way that hiring, promotions, and discipline can be fair and honest or are there always barriers to prevent honest and open fairness? When I was being grilled on the witness stand, I could not help but think that words can sometimes be used as weapons.

In this case, I was on the witness stand for quite some time. The judge allowed several breaks to occur during the period of time that I was questioned. As I mentioned earlier, the plaintiff's side called me as a witness as part of their case. That was a very difficult session of questioning on the stand.

Subsequently I was directed to take the witness stand for testimony on behalf of the city. Finally, a friendly voice and face would be asking the questions. I would talk about what it is like to run fire department, trying to keep nearly a thousand employees happy. I discussed how I learned and why I kept track of the hiring and promotion process with a simple spreadsheet. In the words of the Atlanta lead attorney, we would be "cleaning-up a few issues" that were raised and that were designed to make department practices look like bias.

I will not bore you with the mundane courtroom exchanges. I am sure that you could find the court case transcript somewhere on the Internet, if you are looking for the details. But I will mention what I think was the tipping point in this case and what carried the day for the city of Atlanta. We had been hammered with questions by the plaintiff's attorney of why the fire department should even worry about diversity. Does diversity extinguish fires or saving lives? What does having a work force that "mirrors the community" have to do with running a fire department? When the Atlanta Fire-Rescue Department responded to Katrina, why did I insist that the deployed group be diverse (I think that attorney described this concern as "deplorable behavior" on my part)? I was mentally drained after being rebuked about focusing on diversity (which I think is actually the same as "fairness" for all) by the plaintiff's attorney. I flashed back to repeating that I did not want to lose the ability to hire, fire, and promote the members of the department. I was aware of a few fire departments that were forced to hire folks that should never have been allowed to be in the department (using Gordon Graham's quote one more time, "Never hire idiots or thugs;" and I have added military misfits to that profile). I knew that if I took this position, the jury would not get a complete picture of why diversity is a critical important element to the operation and functioning of the department.

THE REASON FOR DIVERSITY

Soon after the exchange about why diversity is considered as being an important part of the fire department, the judge tapped the gavel and adjourned the trial for the evening. Once I got back to the hotel, I spent the next couple of hours on the phone talking to the city attorneys to prepare for the next day. One of the lawyers asked me, "What is a compelling reason for diversity within the fire department relating to responding to emergencies?"

What a great question! There was silence for a few seconds followed by my discussion about fairness, equity, honesty, transparency, and accountability. Two attorneys agreed that nothing that I just described was a "compelling operational reason" for the city to focus on maintaining a diverse agency. Almost in unison, they asked me to think about the reason to include diversity and be ready for that question when I was back on the witness stand, tomorrow morning.

I didn't get much sleep that night! As I was tossing and turning, I kept thinking of what and how to explain why diversity was a critical element in managing a fire department. Specifically, how does the diversity aspect affect and improve the operations of the department. All of the arguments about fairness and accountability discussed so far would not be effective. Does the citizen that is in great need and dialing 911 want relief from their emergency situation--removing them from harm's way--or are they calling to check on the diversity of the workforce? The lawyers had a point; making sure that the department controlled hiring, promotions, and discipline would fall short of the mark of being a compelling argument, and I would fail to convince the jury.

Time slipped into the next day and once again I was sitting back in the witness box waiting for the judge and jury to enter the courtroom. After a few warm-up questions about my background and confirming the time that I was employed in Atlanta, the city's attorney just asked the most direct, simple question: what is the compelling reason why the fire department should be a diverse agency"? I drew in a long breath. I remember feeling very warm all over.

I started off my response by stating that having a diverse work force is directly related and inseparable with public trust. The fire department can only be effective in delivering emergency services if the public is trusting of what they are doing and supportive to them in this effort. I described the fact that someone in Atlanta will, for example, call the fire department in great distress and need medical assistance. Further, that the same person will be alone and many of their valuables will be spread out on the dresser next to the bed. That person's valuables need to be right where they were when the first responders leave the home headed to the hospital. Next I mentioned a hypothetical car accident in Atlanta that will require the same medical responders to cut all of the clothing off of a teenager. The expectation is that the person will not be violated in anyway and that their modestly will be protected. Without public trust, the fire department will not be effective.

I pointed out that it was not too long ago that one fire department in the Deep South was captured on television hosing down thousands of civil rights protesters and that those firefighters were all male and all white. There were segments of that community who did not trust the fire department to do anything for them, much less take care of a defenseless citizen in distress. I closed the answer to the "compelling reason" question by stating that when some of the responders look like and talk like the people that they serve, it is more probable than not that the responders will be accepted and trusted by the folks in need. Further, I would hope that we could have a department that most of the community could relate to and trust during any emergency. Once I said my piece about this pretentious issue, I felt relaxed on the witness stand. I guess the jury liked my reasoning, as they delivered a not-guilty verdict on all three sets of charges relating to reverse discrimination.

TEACHABLE MOMENTS

To summarize this experience, I would remind all fire executives who prepare and distribute memos to be very careful with your words. Although it may not seem like it, words can quickly become weapons and can be used against you. Adding the phrase to the promotion memo about "protecting our rich diversity" was not necessary and served no purpose other than to remind everyone that this was going to be a fair, honest, transparent, and open process for promotion. When this phrase was "weaponized" by the plaintiffs, they described it as a coded message meaning that I was going to promote only black members.

In a similar way, keeping demographic information about new hires, promotions, and discipline cases was described as keeping score to hire and promote members of color. I was amazed to learn how these simple documents were turned into something completely different from their intended purpose. Be careful and understand that impact that any written documents, memos, and/or charts can have in the hands of people that oppose the values of the agency.

Do not misconstrue my message. There is no need to change your administrative process if it is working and you are comfortable. However, be willing and capable to justify each and every word as being appropriate for the circumstance. Perhaps have a quick review by a general counsel (a fire department attorney or other governmental attorney) to ensure that your documents meet legal sufficiency and follow the common sense rule. For instance, I will still keep all of the demographic data to best manage and understand what is happening inside the department. When a rumor gets started about hiring or promotions, I would much rather let the facts speak for themselves. Being able to retrieve the requested information quickly points to the fact that somebody is serious about tracking and understanding what is happening inside the organization.

As an aside, we have determined several organizational behavior trends based on reviewing the discipline data, such as DUIs and domestic violence issues. This insightful information allowed various prevention programs to be put into place to change the likelihood of a member being a repeat and/or new offender.

Finally, I must admit that the "rule of law" was becoming an irritant to me at the start of this trial. I saw it has a long list of items that would not be allowed into evidence at this hearing. However, the judge and the attorneys had the situation under control. All of the needed information was expressed and I am certain that the jury arrived at the correct verdict. Every once in a while, a well-meaning but untrained citizen will attempt to tell the incident commander (IC) how to attack a fire. This situation causes a lot of undue stress for the IC. If the folks are not trained to command a fire, they should not try to direct those that are well qualified. The same rule applies for practicing law.

MORE DENNIS RUBIN

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.--to be published soon 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.

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