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FDIC 2011: FIre Service Court Panel Review

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Fri, 15 Apr 2011|

David "Chip" Comstock, John K. Murphy, Brad Pinksy, and Curt Varone run down the major legal challenges they believe firefighters will face in the coming year.


Automatically Generated Transcript (may not be 100% accurate)

You my name is Brad -- what are your host. Today -- -- -- -- third round and John Burton and the girl I bet FBI. 2000 left. Sitting here amongst the exhibit -- And -- -- -- for you today. Or I will call us and -- it's very clear speaking not throughout. Different topics and did -- we want to talk about is all things. -- -- -- -- and -- I think we've done. Hot topics he calming so yes. -- won't talk about wherever we want to talk about. We're gonna go or about it here don't be afraid don't be scared because we're up -- like we're gonna try to worry to death here. And though we will have a good time like we always do so. It's partly right. Favorite topics frankly was -- will it. -- -- that -- -- -- What what are the department doing so want to jump in the let's highlight his. But. I don't think they're doing it. And we have people here and I hate to say it and and I love the fact we get all these people have to see everybody's learning but it really concerns me when I see somebody pushing a walker on the ticket -- on oxygen and can you say -- look I know the retired what are we certainly happen people who -- shape overweight. Who were exposing to the risks of -- Friday and the question is does -- department have some responsibility. Legal moral or otherwise for people who were -- I think that what we're gonna be seeing under the NFPA standard 1582 and 1583 -- like take a look at this -- Statistics last year. Her 53% number firefighters died from cardiac arrest and -- -- other heart condition strokes diabetes hypertension. We're going to be seeing. Organizations trying to implement. Those either fitness. Standards while people are in the organization. Which is a big challenge to an organization because they have to have. -- -- create a standard -- apply the standard and you find practitioners. That can. Do the physical ability you know physical exams on people -- and people are gonna fall out either have hypertension area high cholesterol they -- bad heart disease and if the programs are set up where. The you know these firefighters which we spent a lot of money on. Bringing into the organization and training them to do some sort of you know treatment like -- -- bad heart disease. Than you do -- four way bypass Ortiz got the lower the cholesterol in the blood pressure. Take care -- IV is you know the careers continue its going to be that one individual who maybe you know the 400 pound firefighter. You know is that individual might be able to do the job. So then -- had to take a look at it from a legal perspective -- -- legal standards. That we're going to be seeing over the next year too when firefighters are now you know we know that there's a known. Hazard. And the firefighters the hazard. Is there an obligation on the firefighter whether apartment and home to mandate. Physical. Physical medical medical physicals. I think job recognizing that there's a problem is the easy part that the hard part is figure out where to draw the line. And you know we can look at -- -- medical standard we can look at it from. You know. Organizational standard and in terms of we. In -- and in various types of -- performance. Standards in that regard but I think fundamentally the simplest -- the easiest way to draw the line -- -- physical fitness. In the annual physical fitness evaluation. Some sort of the hands on obstacle course. Quote physical abilities. In. Not look so much at the person's total body -- -- look at their body composition if you can if you can complete the obstacle course didn't complete the physical abilities test then you can continue with your organization if not we've got to put -- into some sort of remedial program and in particular hope that you -- that's dietary -- It's physical fitness or whatever but I think we're better off looking at it from. That perspective than trying to say he's to -- the she's she's okay and because you you just given this -- -- too many outside issues that -- in turn I'm gonna lead to legal issues. -- -- -- -- I I think we get we were you like -- we can't ignore. And I again I think there's an awful lot of reasons why we can't ignore and we're here to protect firefighters and we always talk about trying to bring ourselves up to the the most recent standards in trying to keep firefighters' lives that everybody goes home and that's one of the basis that the most simple things that we can do -- Sure we're taking care of our efforts by having exams and and haven't faced -- That's about that's coming on this is you know I'm I'm not always a pusher of an NFPA standard -- an employer. But there are some that are must look at. And to be an FP 1582. Is great guidance in this -- -- great guidance and so how can -- -- 1582. You've got to send somebody -- good physical it gets a 1582 physical. That that's my two cents in and I guess I'll end -- this topic witnesses it's cheaper to provide physicals. Then it is to pay for the death. It's got. Chip to figure out what are your favorite topics or your hot you know hot and upcoming topics of the next year. I think when that we've seen on on many occasions is one it's I'm gonna actually -- to a court and that has to deal with FaceBook. -- social media which is what he's speaking on and and we're seeing that come up all the time so I think those are some the issues that need to be addressed some departments have to have policies on. So -- any comments to. Well. I think you have to be living in a cave not to realize the problems that social media. In digital imagery are posted the -- service that just barely get a couple of days go go by without someone on getting themselves in trouble getting their organizations. In trouble. Over something to -- posted on FaceBook. Video war photo that gets out from an -- -- war even situations where one firefighters sets -- the video cameras secretly records -- -- -- -- later in -- bathroom more -- some other private area. And you know these these cases -- -- took a boat you know medical requirements of physical requirements and the people's career these things are are these cases -- and -- the careers of dozens and dozens of firefighters and there's very little guidance so that's the thing that since. Answers there's very little guidance out the -- in terms of what a fire department should do in order to educate their firefighters. It's establish standards for how old the fire department expects people -- to deal with the issues. That route and it's a changing world it's a moving target. And we've got the National Labor Relations Board -- recently jumped in on. One arena of the one aspect of this. Case in his First Amendment -- going to be comfortable First Amendment issues. On this privacy issues both on the employee's part but also on. Would you wanna call the victim's part or the other coworkers. Of the person who's. Possibly taking videos and it's just this is just the big it's big -- and that's what I'm going to be focusing on tomorrow. So let me let me just kind of -- -- heralded because I think that it's important because I've gotten a lot of questions in the class like -- did this morning -- -- liabilities -- social media. Which didn't seem to have much of a connection. Until we start. You know videotaping training exercises videotaping a lot of the stuff that people do and -- -- posted out on on the web -- -- -- -- -- or whatever so the question is -- -- -- departments to do apartments. And a better off not to have a policy and just know what the -- drew -- to stand. Or -- create a policy which put you in jeopardy like with the NLRB. AMR. -- ruling it just just -- a month or so ago and so you know what we try to do with lawyers -- -- to Gaidar. Clients into the right in the right direction and and sometimes you can have overbearing. Policy. Basically they can others case in Pennsylvania -- the department. -- -- we don't want any social media. Exposure no pictures -- and so does the pendulum swing so part of the left. And we really can't engage in -- social media environment. -- -- positive benefits social media long -- its control. And so do you have like 45. Do no -- policies. Or you know -- -- policy -- had no policy and when somebody violated no policy. Situation and a deal that -- -- if you don't have a policy after the fact it's easy to tell someone you you know you you -- you've committed conduct unbecoming. It's a lot hotter up -- had to do the the hard work up -- to identify you know we'd we want you to go. In terms of getting training information in and been able to share information. And -- -- -- do you say you're going too far what we've got a we've got to work get doing that up front what. Technology issues and treating issues we talked about earlier on was helmet cams and dash cams I thought -- can't stop the great topic because it's it's everything you're talking about. On and helped -- we now create -- what -- -- liability for creating eight one I watched I think was from New Jersey. Was going to be -- was completely out of control. And you could see there was no incident command. Which -- back -- something we've talked about before where you have no command structure in place which using millions requirement to have an incident command structure the most basic means requirements. And you could elders know. There's no incident command because nobody is -- the scene. And now you're recording your own liabilities and quality whenever -- it's okay yup yup and everything yourself. As you Seattle think we're creating -- were just as you said we're documenting life building where we're making some plaintiffs where really easy easily easy -- Look at what these guys -- do. Maybe that's not a bad thing. I see that that's approval if he's spoken as a -- and a solar because we have a big discussion. The couple days ago here in -- classroom. And the idea that you'll sometimes and fortunately we have departments out there who wore. The magazines in the books in the Oracle's. And go about doing things the way they've done it for eighty -- hundred years and sometimes you only thing the changes that causes them to change -- losses. -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- So don't know another. Thing of existing in favor of videos is on my used to Rodney King video and some classes that idea that I teach and I don't think any of the police officers involved in that -- -- -- virtually it's it's guaranteed none of the police officers involved in that beating. Realize they would be in videotape in if they had. Realize they were on videotape may -- it wouldn't have going down the way it did. But the fact is that once but it. You know why would people's behavior change when did being videotaped but the reality is -- you know it it it does and so maybe that's not a bad thing maybe people will -- a little bit better if they know Libyan videotapes and I don't see being videotaped necessarily a bad. And -- using an example -- from Rodney -- that that exposes -- -- -- particular culture now people say we have to deal with -- and we have to -- remedial measures into place to deal with that so again it's how we improve ourselves either. Internally by viewing what -- filmed it or externally by having other people bring it -- -- but it is what it is like us. Well let me let me just don't think this is a word occurred likes to -- this Foley issue we could hardly pronounces my favorite -- not -- -- -- So you know of course -- here. And if I don't think -- -- -- -- -- -- could be -- I'm not sure they way you talk about data recording and an audio archive that sort of stuff and so is there a shelf life you know as a years -- a month as it. No after the -- you just to lead all of them of the -- off your webcam and Paula sort of stuff so part of that policy issue again we go back. The policy you're gonna have web -- or helmet cams or any other sort of recording device I think organization. Is their responsibility to make sure that dust -- was preserved. For a finite period of time. Right and -- and I think this -- area were really talk and we we talk about it in terms of being one. Issue what is really a couple of different issues and in particular department should have a digital imagery and photography policy. And a separate social media policy that really separate issues they the intertwined they they have to all related to policies -- go to work together but I think it -- it helps me anyway -- keep my -- straight to look at them as two separate issues. It it is the third issue that is is also records retention policy because you should have a standard on on all type of paper -- electronic media as to how long you -- them. Right and New York State. At least at federally also freedom and freedom of information all the stuff is all going to be. All available for the public display -- you something horrible or that should be should be released but this is all -- be. Available for the public as a result federally -- my state your you do have to archive it after the record -- -- on the request that type of document. Com so -- these things that we think are going to. On state pride and and truthfully they -- it's it's a shame because we should be able to record all our training videos and our. Our hectic emergency in which the public doesn't understand why -- -- they've never been in there. We should be able to use that for our. Screening and unfortunately it is gonna come back either to help us or hurt us. But we shouldn't that's certainly not do without fear. On what what's your. Favorite upcoming topics. -- always think well I think we're we're talking about probably I think one of the most critical topics. It is a social media. That that the next most critical topic I think I'll pass that John. I think it you know like what I've talked about in my training session this morning was the the awareness son now 1403. Like part training. And -- -- several organizations that are out there are trying to qualify. Like -- training it's like instructors or. Monitors are mediators were never to make sure that we do like training safely. And I think a lot of that you know you take a look at a couple of cases around the country. -- firefighters died because. You know that the training officer of the staff -- chief was unaware what the requirements are. Litigation ensued. Which created change. And you know we we keep going back to litigation. Reached this sort of change and -- -- Florida we've we've seen we've seen -- in New York. Hours we're gonna -- and more of it. -- where I think that. When you take a look at how we -- training sessions. We need to ensure that there's you know safety is Paramount and what we have seen. Again is you know back in the day we should just acquire -- house. And is going to burn the hell out of it and then you know thing you know by the grace of god nobody got -- contaminated letter that we know about it well we -- -- dead by -- But there's rules and I think that you know there's other agencies like -- EPA gets involved and you know NFPA gets involved and and these regulatory agencies take a look at. Or are we doing snobbery states -- vacancy. And so I think this training for 1403 is going to be a good. -- the injured may be hard to achieve some areas and in the class I did this morning some organization says we don't do it acquires. Structure fires anymore they'll have to be fixed buildings. With known you know burn patterns -- thermal couple hours -- you know special material inside and ventilation and you know exits and stuff in case things go bad but that's an expensive proposition. A lot of our firefighters across the country -- here. And they don't have a lot of the resource. And so they do the best they can but I think -- they're gonna use. Acquired structures or other buildings -- identity they need to have their training people trained you know for the proper standards and enforce the codes. As we see -- because lawyers are gonna come -- There's a training -- up again. And we're gonna make an example out of -- or department. Which kind of ramps it up for awhile we have a tendency to forget stuff -- -- -- industry or any kind of rises up. When when it hits the fan and all drops off -- -- happen for six months or years and so it's a shame that we have to do that. As you say is that true unfortunately with so many fire service to us that there we see -- the same. Issues coming -- repeating themselves repeating themselves reload or -- -- really. Miller wasn't it wait until happened decades and it's amazing immediately learn from that people heard it -- -- -- right. Well what -- -- -- issues. That I I'd like to see I would like to see his next year's issues. Because frankly. I understand economic times. And generally in all municipalities municipalities are you -- their decisions not to spend money -- -- right. But municipal cutbacks. Where the wire services under attack primarily because our pensions and other. We're going to you know we're we're violating use that word -- seventeen Kennedy at the end with minimum staffing. You know we're requiring two people were three people out -- -- in her vehicle which can -- ridiculous we're cutting back equipment. I added and what cheap -- he said and I loved what it east head. Our system is the lowest bid process you're getting the cheapest equipment that money can -- -- -- -- -- Our municipalities. And this is where the lawyers didn't take the -- -- the task at some point we don't do legal community some power going to have to succeed. Q stop allowing or to cause the in his abilities to stop spending the least amount on dangerous situations. And I don't know how we're going to do that but I hope -- minimum staffing and horrible here -- equipment we're gonna stop. All -- you know one thing is I think that the -- and fortunately though -- going to be reluctant. To get into its second guess. Legislative decisions as to what resources they wanna allocated to communities. And so. While I agree with you. I think realistically the courts for other reasons are going to stay out of the issue. I I think from a fire department standpoint what -- things we have to do is if we're gonna be. Learned about our profession. And what the limitations -- -- from -- lack of staffing or inadequate equipment. It's up to the fire service leaders to go to the politicians and say. We can't do interior firefight. If you're not gonna give us it is sufficient manpower sufficient equipment then. We're gonna stand outside a -- water on the on the -- that switcher yet and that's -- willing to pay for. And in make the decisions and have fire commander stand up the make it very clear this is what you yet. And in if something happens after -- -- it's the politicians responsibility because again the fire. Chief the head of that department -- I think -- responsibility to his firefighters to not put them in a position apparel. Because of a lack of funding. I agree and you know I know why I don't think the courts. Really wanna get involved and sometimes that they are getting dragged into the battle but I don't think they're really into good position. Be able to evaluate all of the issues and and I wish. I wish. That that more chiefs would step forward in and have that frank conversation with the politicians I wish politicians would have that frank conversation. With the taxpayers but it doesn't happen in the politicians say what we can close the station and it's really not going. Impact firefighters and we're gonna go from four to 33 to two what 21. And it's it's really not going -- which is gonna make sure that we do -- safely. But it's it's. It's not happening you know when the analogy guy uses -- you have a 747. You -- flight from Boston the Paris. Okay in the and so some forty sevens flying in all of a sudden an engine goto. And another wrenching his house tonight -- flying with two engines. And put. The jets still makes it the Paris safely because you know -- had some reserve capacity and now the airline calls the pilots is okay now fly it back. And since it's not safe to fly the plane back -- -- to -- -- -- -- on it is the whole way what you mean and don't you made it the whole way how can see it comes. You know and you know it's just it's. I just keep -- Labor -- you know it's it's universally true I believe department labor standards require. The employer to provide SEC workplace so short we -- we can't we will we find a way to say. There at some point certain things are universally accepted as not easy workplace. And maybe we should pushed back. You know I might village which I'm -- captain doesn't provide -- physicals do we not know that that's not an issue. You know my village on at the moment has been found to have -- all over the walls. One -- -- stations is that not an issue I -- don't know these. -- -- the Department of Labor not getting involved some of these issues maybe that's an avenue the firefighters can approach. I -- you know I think one -- responsibilities of us as attorneys and you know firefighters. Is to try to find a solution and I think and we can't help mold problem -- it is. It taken. Make sure that the environment -- And I know we've had a lot of conversation about legalization consolidation. Which is highly controversial and a lot of areas and in Washington State as you know pretty much the -- you know if you're finding yourself in kind of a -- financially and look for a partner -- department and you but when you take a look at the controversy from the rest of the country. Some others shall rule. We may have 5000 squat square mile part -- -- -- join unity ready at a 101000 square mile part -- you know when you what purposes of that but I think as we get. More into the urban and suburban areas. -- -- take a look at you know budget restrictions I think we need to take a look at a larger -- as you know -- joining forces with other organizations. To try to you know hold down costs and make sure that environment is safe for the -- apartment and as attorneys I think it's incumbent on us when everybody's all fight about money is that we need to take a look at may be taken a step above and look at these sort of you know new organizations. -- new legal entities. You know which are formulated as part of this consolidation. And realization. Programs. We are not just about out of time but what I'd like to do -- go around or final closing thoughts comments about where we're gonna go where we'd -- -- we'd like just. -- -- In a -- a -- I did one of the recurring themes and we talked a little bit today about is do you need to have policies and procedures or are you better off. Not having a policy and procedure. -- so that if it. You do something wrong they can't use that policy and procedure against -- It's the head and that the ostrich with -- head in the stand. And there are so many issues out there at that that should -- policies and procedures to avoid issues and make sure people are training to those policies and procedures you can avoid a lot of legal issues and we know it is is -- I talked we've talked before he can't have policies and procedures for everything there are some critical -- -- need to be addressed we -- for one is -- -- -- -- -- so I think departments have to be proactive and have to if you don't have anything start with one and say we're gonna have one policy would work on that we'll get that done a work out we'll move on to the next -- whether it's social media or whether it's. -- accountability. Try to determine what those risky. Issues or for your department. -- -- -- -- On one of the issues that I've been working on the last couple years has been firefighter discipline. This there's a lot of misinformation out there above certain rights that firefighters have the Garrity right. Weingarten writes. And -- things and I I think that you know all. Given the amount of of discipline and I'm seeing across the country on various levels. I I I think that fell one of the -- I don't wanna focus on that we we possibly -- future podcast and focus on is going to be -- but it discipline. And -- like class that he was -- not training liabilities. I find that you know there's a lot of training officers out there that are volunteered. They're not volunteering or you know or assigned to just get it. Into an apartment her position they're really not prepared to do and so I think it's incumbent on our organization to make sure that the people -- into a training position -- Trained. To be a trainer Erica because we're seeing in these sort of you know my way or the highway boot camp sort of mentality especially recruit academies. And then not complying with the standards. That are already available to them and takes a little bit of time -- a little bit of research on their part. To make sure that when the -- conducted training session it's safe. Because we injured last year over 8000 firefighters and training events. And then -- last year there were seven firefighters killed. In training events in a majority of that has to do with cardiac health productive cardiac arrest. And one of those one of the simplest things that we can identify and and fix and so I'm encouraging are -- training officers to put in to their --

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