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.
[MUSIC] Welcome to Fire Service [UNKNOWN] Radio. My name is Brad Penski and I am one of your hosts. Today we have with me Chip Comstack, Kurt Broan, and John Murphee and we are all live at FDIC 2011 sitting here amongst the exhibit halls and the speakers. And we're gonna do a live show for you today, we are the four I will call us FDIC attorneys, we're speaking throughout this show on many different topics. And today what we want to talk about is all the things, all the hot topics we've had over the last 27 shows I think we've done now. Hot topics we see coming so I think we should just. Throw them out, talk about whatever, whatever we wanna talk about. We're gonna go for about 30 minutes here. Don't be afraid. Don't be scared just cuz we're four attorneys. I think we're we're going to try not to bore you to death here, and hopefully we'll have a good time like we always do. So I'm just gonna start. One of my favorite topics frankly was physical fitness. You know, how fat is too fat? what, what are the departments doing? So, anyone wanna jump into the, let's say the highlights of the physical fitness topic? >> I don't think they're doing anything. That's the problem. [LAUGH] That's the problem. I mean, we have people here, and I hate to say it, and, and I love the fact that we get all these people at FDIC, everybody's learning. But it really concerns me when I see somebody pushing a walker down the exhibit booth. Or on oxygen and you say okay I know they're retired or whatever but we certainly have people who are out of shape, are overweight who we're exposing to the risks of, of firefighting. And the question is does the department have some responsiblity legal, moral or otherwise for people who weren't in shape? What I think that what we're going to be seeing, under the NFPA standard 1582 and 1583, and take a look at the statistics last year. 53% of our firefighters died from cardiac arrest, and other heart conditions. Strokes, diabetes, hyper tension. We're gonna 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, you know, create a standard, you have to apply the standard, and you need to find practitioners that can due to physical abil, you know, physical exams on people. And then, people are going to fall out. They either have hypertension. They got high cholesterol. They got bad heart disease. And if the programs are set up where you know, these firefighters, which we spend a lot of money on bringing into the organization and training them. To do some sort of you know treatment like if somebody has bad heart disease, then you do the four way bypass. Or you lower the cholesterol, lower the blood pressure. Take care of the diabetes. You know the careers continue. It's going to be that one individual who may be you know the 400 pound firefighter. You know, is that individual able to do the job? So then you had to take a look at it from a legal perspective. Are there legal standards that we're gonna be seeing over the next year or two when firefighters are now, you know, we know that there's a known hazard and the firefighter is the hazard. Is there an obligation on the fire fighter or the department, and, you know, to mandate physical, medical, medical physicals? >> I think recognizing a problem is the easy part, the hard part is figuring out where to draw the line and you know, we can look at it from a medical standard, we can look at it from a, you know. >> organizational standard in terms of weight and height and, and various types of performance, standards in that regard. But I think fundamentally the simplest way, the easiest way to draw the line is through a physical fitness annual physical fitness evaluation. Some sort of a, hands on obstacle course of physical abilities test. And not look so much at the persons total body weight. Not look at their body composition. If you can, if you can complete the obstacle course, if you can complete the physical abilities test, then you can continue with the organization. If not we've gotta put you into some sort a remedial program and, and get you the help that you need. If it's dietary, if 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 too heavy, she's, she's okay, and, because, you, you just get in this, to way too many, side issues that are, in turn, are gonna lead to legal issues. >> Chief, anything, or >> I think, again, we were. I disagree, we can't ignore it, and I, and again, I think there's a whole lot of reasons. Why we can't ignore it, and we're here to protect fire fighters. We always talk about trying to bring ourselves up to the most recent standards, trying to keep fire fighters alive. Everybody goes home, and that's one of the basis, the most simple things that we can do is make sure we're taking care of the fire fighters by having exams and have them face reality. My last comment on this is that I'm not always a pusher of an NFPA standard as a lawyer. But there are some that are must-look ats. And to me NFPA 1582 gives great guidance in this. Just gives great guidance. How can we ignore 1582? You've gotta send somebody to a good physical, that gets a 1582 physical. that, that's my two cents. And, and I guess I'll end on this topic with this is, it's cheaper to provide the physicals than it is to pay for the death's; it's gotta be. Chip, what was your, one of your favorite topics or your hot, you know, hot and upcoming topics of the next year? >> I think one that we've seen on, on many occasions is one that's, I'm gonna actually punt to, Kurt, and that has to deal with. Facebook. You know, social media, which is what he's speaking on. And we're seeing that come up all the time, so. I, I think that those are some of the issues that need to be addressed and departments have to have policies on. So, Kurt, any comments? >> Well I think you'd have to be living in a cave not to realize the problems that social media. And digital imagery are posing to the fire service it just barely a couple of days go, go by without someone getting themselves in trouble, getting their organizations in trouble over something that's either posted on Facebook. > Video or photo that gets our from an incident scene. Or, even situations where one firefighter sets up a video camera, secretly records another firefighter, in a bathroom or in some other private area. and, these, these cases, we talk about medical requirements and physicals requirements ending people carriers, these things are, are. These cases are ending the careers of dozens and dozens of firefighters and there's very little guidance out there. That's the thing that concerns me. There's very little guidance out there in terms of what a fire department should do in order to educate their firefighters and establish standards for how the fire department expects people to deal with the issues that are out there. It's a changing world, it's a moving target, and, we've got, the national labor relations board recently jumped in on, on, one arena of the, one aspect of this, case and this first amendment chip's going to be talking about first amendment issues. This privacy issue's both on the employee's part but also on. Whether you want to call the victims part or the other co-workers of the person who's possibly taking videos and it's just, it's just a big, it's a big mess. And that's what I'm going to be focusing on tomorrow. >> So let me, let me just kind of dig in here a little bit. Because I think that it's important because I've gotten a lot of questions in the class I did this morning on training. Liabilities and social media which didn't seem to have much of a connection. >> Hm. >> Until we start you know, video taping training exercises, video taping a lot of the stuff that people do. >> Mm-hm. >> And then post it out on the, on the web or the net or Facebook or whatever. So the question is what are departments to do? Departments are they better off not to have a policy? >> The old ostrich routine >> Yeah stick your head in the sand, or do you create a policy that puts you in jeopardy like with the NLRB AMR A ruling that just, just occurred a month or so ago. And so, you know, what we try to do as lawyers is try to guide our clients into the right, into the right direction and. And sometimes you can have overbearing policy. That basically, I think in, there's a case in Pennsylvania where the department said, we don't want any social media exposure. No pictures, nothing. And so, does the pendulum swing so far too the left, that we really can't engage in a social media environment. Where there's positive benefits in social media, as long as it's controlled. And so do you have like, four or five, you know, do no harm policies? Or, you know, paragraphs in a policy. Or you just have no policy, and when somebody violates a no policy, situation, then how so you deal with that? >> It's easy. If you don't have a policy after the fact, it's easy to tell someone that you, you know, you you committed conduct unbecoming. It's a lot hotter up front to, to do the do the hard work up front. To identify, where do we want you to go, in terms of getting training information, and, and being able to share information. And where, where do you say you've gone too far? But we've gotta, we've gotta work at, doing that up front. >> One of the technology issues and training issues we talked about earlier on. Was helmet cams and dash cams. And I thought the helmet cam topic is a great topic. Cuz it's everything you're talking about. And the helmet cams we now create. One are we creating liability. One I watched from New Jersey was from a scene that was completely out of control. And you can see that there was no incident command. Which ties back to something we've talked about before where you have no command structure in place which is a NIMS requirement to have an incident command structure, the most basic of NIMS requirements and you could tell there's no there's no incident command because nobody has control of the scene and now you're recording your own liability while on the one hand it's okay for training on the other hand are we hanging ourselves. >> Well I was gonna say I don't think we're creating liability we're just as you said we're documenting liability we're, we're. Making some plaintiffs lawyer really easy his life easy so look at what these guys didn't do. Maybe that's not a bad thing. >> Spoken like a true lawyer. [LAUGH] >> [LAUGH] >> I say that, it's spoken, it's spoken as a, it's spoken as a lawyer because we, we had a big discussion a couple days ago here in a class room we the idea of it, you know, sometimes unfortunately we have departments out there who ignore. The, the magazines, and the books, and the articles and go about doing things the way they've done it for 80 or 100 years. And sometimes, the only thing that changes, that causes them to change are lawsuits. And, and it's, I'm not saying that lawsuits are something that, that I'm in favor of, but I'm a realist. >> But not that you're against them either? >> I'm not against them either but I, you know, seriously, I, I guess I look at it, sometimes, that we have departments that are so far out there, the only way we correct behavior. Is from litigation, so if somebody's being doing something and they're that bad at it and it's captured on film, maybe a lawyer won't change it, but maybe somebody else who sees it will. And that's a way to bring it to people's attention. It documents the actual facts. >> You know, now that, now that, thing I'd like to say in favor of videos is I use the Rodney King video in some of the classes that I teach. And I don't think any of the police officers involved in that, virtually it's guaranteed, none of the police officers involved in that beating realized they were being video taped. And if they had realized they were on video tape maybe it wouldn't have gone down the way it did. But the fact is, it was. But, you know? Why would people's behavior change when they're being videotaped? But the reality, you know, it, it does. And so maybe that's not a bad thing. Maybe people will behave a little bit better, if they know they're being videotaped. So I don't, I don't seeing being videotaped as necessarily a bad thing. >> Well, in using that example, I mean, from Rodney King, that, that exposes maybe a particular culture. Or now, people say we have to deal with this. >> Yep. >> And we're gonna have to put remedial measures into place. >> Right. >> To deal with that. So again is how we improve ourselves internally by viewing what we filmed or externally by having other people bring that to our attention. It is what it is, I guess. >> Let me throw a thing in. This is a word that Kirk likes to use. Exfoliation. We can hardly pronounce it. >> My favorite word. [LAUGH] >> That's how you spell it. So, you know. >> No spoliating in here. >> [LAUGH] I don't think we're going there. Yeah, that could be illegal, I'm not sure. But anyway, you talk about and how do you archive that stuff? And so is there a shelf life? You know, is it a year? Is it a month? Is it. You know after the call you just delete all of the video off your webcam and all of that sort of stuff. So part of that policy issue and again we go back to policy, if you're going to have webcam or helmet cams or any other sort of recording device, I think the organization, it's their responsibility to make sure that that stuff is preserved for a finite period of time. >> Right and I think this whole area, we're really talking, we talk about it in terms of being one. Issue but it's really a couple of different issues and in particular a department should have a digital imagery and photography policy and a separate social media policy. They're really separate issues, they, they intertwine, they have to overlay the two policies that gotta work together. But I think it, it helps me anyways, it helps, keep my brain straight to look at them as two separate issues. >> It, it is the third issue then is, is record retention policy because you should have a standard on, on all type of paper or electronic media as to how long you save them. >> [CROSSTALK] Right. >> And in New York state at least, and I, federally also, freedom, freedom of information law. This stuff is all going to be. Available for the public display unless it shows something horrible or that shouldn't maybe shouldn't be released, but this is all going to be available for the public. As a result federally and both in my state of New York, you do have to archive it, you do have to have a record in case somebody requests that type of document. so, you know, these things that we think are going to. Stay private and, and truthfully they should. It's, it's a shame because we should be able to record all of our training videos and our, our hectic emergent scenes, which the public doesn't understand why they're hectic because they've never been in there. We should be able to use that for our training, but unfortunately it, it is gonna come back either to help us. Or heard of. But we shouldn't necessarily not do it out of that fear. What was one of your favorite out coming topics, I think, are we on, are we on you now? >> I think we're, we're talking about probably I, I think one of the most critical topics is, is the social media. that, that, the next most critical topic I think I'll pass to John. I think, you know, what I talked about in my training session this morning was them the awareness of 1403, live fire training. And theres several organizations that are out there that are trying to qualify live burn training like instructors or monitors or mediators or whatever to make sure that we do live training safely. And I think a lot of that, you take a look at a couple of cases around the country where firefighters died because the training officer, the staff, or chief, was unaware of what the requirements are. The litigation ensued, which created change. We keep going back to litigation. Can reach the sort of change, and. You know in Florida, we, we have seen it. We've seen it in New York, we're, we're going to be seeing more of it. Where I think tha, when you take a look at how we conduct our 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 used to just acquire a house and just go in and burn the hell out of it. And then, you know, thank, by the grace of God, no one got hurt or contaminated, that we know about, they're probably all dead by now. But there's rules. I think that, you know, there's other agencies like the EPA gets involved. You know NFTA gets involved and these regulatory agencies take a look at what are we doing that's not very safe? Let's make it safer. And so I think this training for 1403 is going to be a good, standard. It may be hard to achieve in some areas and in the class I did this morning some organization said we don't do any acquired. Structure fires anymore. They all have to be fixed buildings. With known, you know, burn patterns. They have thermal couplers. They have, 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 are volunteer, and they don't have a lot of the the resource. And so they do the best they can. But I think if they're going to use, acquired structures or other buildings, then I think they, they need to have their training people trained, you know, to the proper standard. And enforce the codes as we see them. Because lawyers are going to come in if there's a training death again. And we're going to make an example out of that poor department. Which kind of ramps it up for a while. We have a tendency to forget stuff. I think our industry, you know, everything kind of rises up when it hits the fan and then it all drops off because nothing's happened in six months or a year. It's a shame that we have to do that. >> Isn't that true unfortunately with so many fire services deaths that we see. You know, the same, issues coming, you know, repeating themselves, repeating themselves. >> Lessons relearned. >> Yea. We're not, yeah. Relearned or not learned. >> Lairdsville wasn't new. >> [COUGH] >> Lairdsville happened decades beforehand. >> Sure. Yeah. >> It's amazing we didn't learn from that, beforehand or that didn't stay, stay intact. >> Right. Yeah. >> Well it. One of my, one of my issues that I, I like to see, I would like to see as next years issue. Because frankly I understand economic times, and generally in all municipalities, municipalities are immune for their decisions not to spend money on certain items. But the municipal cutbacks, where the fire service is under attack, primarily because of our pensions and other things. We going to, you know, we're, we're violating, if you can use that word, what 1710 of the NFPA, with minimum staffing. You know, we're requiring two people or three people out on an engine or a vehicle which to me is ridiculous. We're cutting back equipment. I sat in on what Chief Lasky said, and I loved what he said. He said, well, our system is the lowest bid process. You're getting the cheapest equipment that money can buy. And at some point our municipalities and, and this is where I hope the lawyers do take municipalities to task. At some point we, the legal community, somehow are going to have to succeed to stop allowing or to cause the municipalities to stop spending the least amount on dangerous situations. And we have to. I don't know how we're going to do that. But I hope with minimum staffing and cheap equipment we're gonna stop that. >> One thing is that the courts unfortunately though are gonna be reluctant to get into and second guess legislative decision as what resources they want to allocate in the community. and so while I agree with you, I think realistically the courts for other reasons are going to stay out of the issue. I think from a fire department standpoint, one of the things we're going to have to do is if we're gonna be learned about our professional and what the limitations may be from a lack of staffing or inadequate equipment. It's up the fire service leaders to go to the politicians and say, we can't do interior firefighting. If you're not going to give us sufficient man-power or sufficient equipment, then we're going to stand outside and lob water on the, on fire and that's what you'll get and that's what you're willing to pay for. And in make the decisions and have fire commanders stand up and make it very clear this is what you get. And, and if something happens after that then it's the politicians responsibility because again, the fire chief, the head of the that department owes, I think, a responsibility to his fire fighters to not put them in a position of peril. Because of a lack of funding. >> I agree and, you know, I know, I, I don't think the courts really wanna get involved in it. Sometimes they are gettin' dragged into the battle, but, I don't think they're really in a good position to be able to evaluate all of the issues; and I, I wish, I wish, That, that more chiefs would step forward and, and have that frank conversation with the politicians. I wish politicians would have that frank conversation with the taxpayers. But it doesn't happen, and the politicians say, well we can close this station, and it's really not gonna impact. Firefighters. We;re gonna go from 4 to 3. Or 3 to 2 or 2 to 1. And it's really not gonna. We're just gonna make sure we do it safely. But it's not happening. The analogy I use is. You have a 747, you're gonna fly it from Boston to Paris. So the 747 is flying and all of a sudden an engine goes out. Then another engine goes out. So now you're flying with two engines. And, but the jet still makes it to Paris safely because, you know, it had some reserve capacity. And now the airline calls the pilot and says okay, now fly it back. And, see, it's not safe to fly the plane back. Don't you understand? Two engines are gone. >> They made it the whole way with two. >> When you made it, you made it the whole way, how can you say it's unsafe? You know. >> The department of labor, though. It's universally of true, I believe, department of labor standards require the employer to provide us a safe workplace. Should we, couldn't we, can't we, will we find a way to say. At some point certain things are universally accepted as not a safe work place. And maybe we should push that. And you know I, my village in which I'm a captain, doesn't provide us physicals. Do we not know that, that is not an issue. But you know my village at the moment, has been found to have molds all over the walls. Of one of our stations. Is that not an issue? I mean, don't we know these things? Why is the Department of Labor not getting involved in some of these issues? Maybe that's an avenue the firefighters can approach. >> I got, you know, I think one of the, responsibilities of us, as attorneys and, you know, firefighters. Is to try to find a solution and I'm thinking we can't help your mold problem, we can take a D10 bulldozer. >> I wish you could, you should come visit. >> A D10 bulldozer will take care of that and big hefty bag. But I think that, you know we take a look at, you know, how do you, make sure that the environment is safe and I know that we've had a lot of conversation of regionalization and consolidations which is highly controversial in, in a lot of areas. And then Washington State is pretty much the norm. If you're finding yourself in a jam financially, you look for a partner Fire Department. When you take a look at the controversy from the rest of the country, some of the areas are so rural. They might have a 5000 square mile fire district, and then if you join with your neighbor, now you've got a 10,000 square mile. Fire district, you know, what do you, what purpose is that? What I think is we get into more of the urban and suburban areas and you're taking a look at, you know, budget restrictions, I think we need to take a look at a larger scope as, you know, a joining forces with other organizations to try to, you know, hold down costs and make sure that the environment is, is safe for the fire department. And as attorneys, I think it's incumbent on us when everybody's all fighting about money is that we need to talk a look at maybe take another step above and look at these sort of, new, organizations, new legal entities, you know which are formulated as part of this consolidation and, regionalization program. We are, just about out of time, but what I'd like to do is, go around for final closing thoughts, comments about where we're going to go, where we've been, where you'd like to see us go starting with Chip. >> In a class that Kurt and I did one of the recurring themes and we've 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 you do something wrong they can't use that policy and procedure against you. It the head in, the ostrich with the head in the sand. And there are so many issues out there that, that should have policies and procedures to avoid issues and make sure that people are training to those policies and procedures you can avoid a lot of legal issues and. We know, as, as Kurt and talked, and we've talked before. You can't have policies and procedures for everything. There are some critical things that need to be addressed. And we talked for one is driving. Driving liability. And 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. We're gonna work on that. We'll get that done, and we'll work on, we'll move on to the next one. And whether it's social media, or whether it's, accountability. Try to determine what those risky, issues are for your department, and, start working on it. Crick >> One of the issues that I've been working on the last couple of years has been five foot of discipline. Is there's a, there's a lot of mis-information out there about certain rights that firefighters have, legality right. Un winegarden rights and various things and I think that, you know Given the amount of, of discipline that I'm seeing across the country and on various levels I think that one of the areas that I want to focus on and that we possibly in a future podcast can focus on is going to be firefighter discipline. >> John? >> And I, I, my class today was on training liabilities. I find that, you know, there's a lot of training officers out there that are volunteered. They're not volunteering, or assigned. They just get into a department or position that they're really not prepared to do. I think it's incumbant on an organization to make sure that the people they put into a training position are trained to be a trainer. Because we're seeing these. You know, my way or the highway, boot camp sort of mentality, especially in recruit academies, and then not complying with the standards that are already available to them. It takes a little bit of time and a little bit of research on their part, to make sure that when they do conduct a training session it is safe. Because we injured, last year, over 8,000 fire fighters in training events. And then last year there were seven fire fighters killed at training events. And a majority of that has to do with cardiac health. They died from cardiac arrest. And one of the, one of the simplest things that we can identify and, and fix. And so I'm encouraging fire training officers to put into their.