Fifty Ways to Leave Your Lawyer, Part 2

By John K. Murphy

For Part 1, click HERE

Discipline and Termination

These are areas of frequent and costly litigation. Quite frankly, we do not discipline or terminate our firefighters very well. Many times, the chief or city manager pulls the termination trigger without adequate investigation and due process. Look at the story of "Erie Firefighter Wins Lawsuit Against City," about a female firefighter who was terminated and subsequently sued to get her job back. She won as the city failed to understand her rights under the American with Disabilities Act (ADA).

In addition to not understanding the federal or state laws protecting your employees against discrimination, many firefighter terminations result from fabricated charges, insufficient investigations, no current policy in place prohibiting such behavior, lack of witnesses, bias on part of the chief toward the offending employee, failure to apply a due process standard, and several more violations. These firefighters will sue to get their jobs back, and if the department did a horrible job of proving its case, they will return to work with a lot of money in their pockets. Make sure your department has a set of policies applicable to your department and an ironclad policy on investigations, due process, and termination.

 

Training Safety

This is an area of concern because fire department training events kill several firefighters and injure about 7,000 firefighters annually. Associated with these deaths and injuries are lawsuits related to the failure to adhere to safety policies and practices. In one case, NFPA 1403, Standards for Live Fire Training Evolutions, was cited during the criminal trial of a fire training officer in upstate New York in 2001. There are also other fatal incidents related to this standard, which includes a firefighter who fell from a ladder truck drill in Kilgore, Texas, and a Florida firefighter who died during wildland fire training after a tree fell on him.

All of these tragedies could have been prevented with preplanning and adherence to the established training guidelines. All of these events and many more training deaths and injuries have been litigated with large settlements. Many of these cases settle out of court, and the awards are confidential, but the ones brought to court with testimony and evidence have demonstrated numerous violations of established safety standards, published guidelines, and best practices. We have an opportunity to provide a safe training environment for our firefighters and not commit fratricide during those events by providing well-trained training officers, safety officers, and creating a safe training ground.

 

Fiscal Accountability

Stealing from departments seems to be increasing, most notably in volunteer departments. However, it has also been found in some combination or fully paid organizations. It is actually easy to steal from your organization. Although I am not willing to offer any insider secrets, I can offer some preventative tips. Do a background check on the person who manages your money, have two signature checks for any amount over $500.00, have your accounts audited annually by an independent third party and on a surprise date, annually check out all of vendors to ensure they are legitimate (and not dummy) businesses set up by your treasurer to line their pockets, watch for signs of imbalances in your accounts and, if your treasurer (or money manager) is living beyond his means, pull the accounts from his control and audit those accounts. Simple steps so often overlooked by many departments.

 

Open Public Meetings Act

Every state has some form of Open Public Meetings and Public Records Act its government is required to follow. The Open Public Meetings Act is to provide transparency related to government activities. As it deals with your fire departments or municipalities, the public has a right to attend and to express their opinions. There are limited exceptions to this, whereas the elected officials have the right to move to executive sessions to discuss personnel issues and bids for property; to consider matters affecting national security, the selection of a site, and the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would cause a likelihood of increased price. They can also review negotiations on the performance of publicly bid contracts when public knowledge regarding such consideration would cause a likelihood of increased costs, receive and evaluate complaints or charges brought against a public officer or employee, evaluate the qualifications of an applicant for public employment, or review the performance of a public employee and any action discussed with legal counsel. There are a number of additional conditions and the reader should look at his applicable state law. You must comply with those rules related to open public meetings.

 

Public Records Act

Every record created by government is available to the public for review unless there are applied limitations. The purpose of this act is to provide records created by government to satisfy the public’s right to know how its elected officials are conducting the business of the public. There are certain requirements to obtain this information, and some records are not available for public prevue as outlined in your state’s statutes. E-mail and other correspondence are available to the public, which not only includes your elected officials but your employees if they create e-mails or documents in the course of conducting their business. It is important the department has a records management officer who can review the public requests for department records. This position needs to be well versed in the public disclosure laws for your state. If there is a problematic request, run it by your legal counsel for an opinion and possible letter to the requestor indicating the reasons for denial.

 

Ethics and Code of Conduct

Ethics are defined as moral principles that govern a person's or group's behavior. As a fire department, there are not enough policies to cover on- and off-duty behavior. A well-written and posted code of ethics provides that governance of behavior when there are questions posed by the firefighters. A model code of ethics can be found in the United States Fire Administration Web site. Likewise, a code of conduct guides firefighters on- and off-duty conduct, meeting the standards of the department and the community. Look at the Glassy Mountain Fire Department (Landrum, South Carolina) Code of Conduct as excellent example.

Although the fire department does not need an attorney on every emergency response or at every municipal council or district commissioner meeting, it is imperative the department use the services of a competent attorney who understands the complex issues of agencies providing essential emergency services and the nuances of fire department or fire district law. Many departments only call an attorney when he is needed and mostly only AFTER a problem is dropped on their doorstep.

Retaining the services of an attorney is all in the timing. My free advice (for what it is worth) is to bring in legal counsel prior to making critical decisions that affect the department such as elections, referendums, funding or levy issues, purchasing property or equipment, personnel issues, contract negotiations, or—if the department is sued for any reason—to have an attorney educate the chief and staff as to those critical issues affecting your department and, when necessary, to retain competent counsel to assist you out of your legal troubles.

 

JOHN K. MURPHY, JD, MS, PA-C, EFO, retired as a deputy fire chief after 32 years of career service; is a practicing attorney; and is a frequent speaker on legal and medical issues at local, state, and national fire service conferences. He is a frequent contributing author to Fire Engineering and a podcast host.

 

 

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