Dealing With Seriously Bad Behaviors, Part 3

By Dennis Rubin

In this series, Dennis Rubin discusses the steps fire chiefs must take when dealing with criminal investigations of fire department members.

Step 4 – – Internal Assistance

In most places where I have worked, a lot of internal resources are available through a simple phone call or visit. Likely, you will be required to coordinate with your boss’ office. Everyone for whom I have worked for was deeply connected to the political process. At a minimum, the executive wanted his press secretary directly involved in crafting the public messages to be released. Some cases required an extensive amount of coordination with the chief executive’s office because of the topic and the impact it might have on the executive. The Rosenbaum Emergency Medical Service (EMS) Case would fall well within this category, in that the discussions lasted for several years and compelled the mayor of Washington, D.C., to reorganize the city’s emergency medical services. The actual Rosenbaum event happened about a year and a half before I arrived, yet I attended no less than two dozen related press conferences with the mayor presiding over all of them.

The human resources (HR) department is typically one of the unsung heroes in bad-behavior cases. The folks in the HR shop generally deal with these types of issues throughout the government and have seen just about everything under the sun. There is likely a liaison that works with each department, and this individual is the gatekeeper to provide other needed assistance. Reach out early and often to HR for help to make sure that all personnel policies are followed and enforced. Further, the HR director is usually the supervisor of the labor relations’ officer. Most likely, an internal investigation will generate some organizational stress between the department’s labor and management teams. Having the labor relations officer helping early on will hopefully reduce the potential impact of this case on labor-management relations. Once this issue has been resolved, you need to get back doing the work of the department. Taking the time on the front end to keep peace in the house is generally a good investment.

The legal office should be the chief’s next stop. The investigation or resulting action plan must meet legal sufficiency from the beginning to the end of the case. It is the job of the government’s attorney to ensure that all of the actions taken or planned are based on sound legal advice and that there is authority for taking them. Some fire chiefs call the attorney’s office “The Land of No!” This is one time that the legal team needs to be brought into the process early to review each step and make sure that no fatal flaws develop along the way. Here, the attorney’s office becomes the “Land of Know.”

Step 5 – – External Assistance

Obtaining external assistance to conduct and resolve the issue depends on many factors that must be considered on a case-by-case basis. How capable is the department of conducting a fair and impartial investigation? Who are the players alleged to be involved in the supposed wrongdoing? What resources does the government have that it can employ to conclude this issue? Just a few the factors you must consider before you call for outside help. In most organizations, needing to go outside for this type of help typically results in a standing relationship (i.e., an annual retention agreement) with a law firm and human resources consulting agency.

I have helped some departments that have used outside attorneys to research legal-sufficiency questions and to conduct the investigation as well. Generally, the external group completes a final draft and meets with the community decision makers to close out the report. Once the consulting firm presents the report, the executives select the action plan most appropriate to resolve the issue at hand. Departments that go for outside help are typically small organizations or departments that do not have the capability to conduct an investigation and make recommendations to resolve personnel issues.

Step 6 – – Discipline Phase (Action Plan Component)

Once the investigation is completed, the notifications made, and all of the documents are prepared, it is time to develop the comprehensive action plan. Determining the required discipline to resolve a bad situation is the first phase in building a comprehensive action plan. Just like the incident action plan at an emergency scene, this plan describe what actions you will take to resolve the situation. First, what discipline (if any) will you enforce? Just about everyone dreads this part and finds very difficult to implement. No one can possibility enjoy harming someone’s fire-rescue service career. We are known as a brotherhood, so suspending someone without pay (or worse) seems to go against everything we stand for when we joined the fire department.

The way that I approached it is to remember that, if we cannot “police” (instill proper discipline at all levels) our own folks, eventually someone else from outside the agency will be called in to oversee this critical system component. Perhaps the personnel department, the executive’s office, or the court system will be called in or will insert itself to instill the needed discipline if we fail to handle this most difficult situation. The external authority called in will determine the process to be used and penalty to be implemented without the input of the department (more unappealing and embarrassing than handling the situation internally). This possibility is always motivation enough for me and it seems to work with the departmental leaders (formal and informal) of our outfits.

Once again, follow the rules, regulations, and procedures identified by your government and make sure that you are protecting “due process” and “employees’ rights.” The goal is to implement the smallest penalty possible effect the needed behavioral change from the member involved while doing the least amount of harm to the organization. The analogy of a hot stove is a good philosophy to remember: A person is usually warned that the stove is hot by their mom (standard operating procedures and training). Next, the stove will only burn you if you touch it (break the rules or laws). The stove doesn’t discriminate–touch it and it will burn you regardless of who you are (it is fair, honest, unbiased, and transparent). The person touching the hot stove is burned immediately (discipline is swift and timely). Finally, the hot stove delivers harm according to the degree in which the person decides to violate the “hot stove” rule. If a person merely glances the stovetop (say a minor infraction–few minutes late to work), the stove delivers a very small injury. If the same person decides to sit on the top of the stove (a major rule infraction, like committing a felony) the burn is severe. The analogy here is that the stove always makes the penalty phase fit the crime committed.

Disciplinary actions range from taking no action (complaint not founded) to the organizational death penalty (termination). One way to implement the correct measure of discipline (ensuring that the punishment fits the crime) is to use a chart of uniform discipline (if one exists). One axis of the chart represents the infraction committed, the other axis is the number of occurrences (how many times has the member broke the rules and regulations over the course of a 12-month period?). You determine the penalty by finding the specified area in the matrix body using these two headings. Some folks call this the “cookbook approach” to determining the correct level of punishment to fit the infraction, but it is open, transparent, and known by and fair to all.

Never use discipline as a tool for revenge. Most everyone will see through this veiled attempt at retaliation. Instead of resolving the seriously bad situation, the chief who thinks that this is his chance to get revenge usually ensures that another chapter will be written, usually in the appeal process. If the investigation involved the chief or someone close to the chief (a relative or high-ranking member), the chief should consider recusing himself and step down from any aspect of the case. When the chief takes this high ground (stepping down when it is necessary), the focus will stay on the case and the bad behavior will be resolved without unnecessary distractions.

Step 7 – – Political Considerations (Action Plan Component)

There is a chance that the situation the department is working diligently to resolve can become a political issue. In dozens of discipline cases that were brought on my watch, I had this situation occur one time. Because it is so unusual and difficult to live through, I thought that bringing it up here would be a safe and respectful way to discuss it and open the chief’s eyes to this possibility. This can happen when the elected officials determine that the action plan must be based on public opinions or overall organizational needs and not on due process. I walked in to a major case that had occurred more than 18 months before my selection as fire chief. This case was full of issues and problems of which that I was not fully aware until later in my tenure. A multi-million-dollar lawsuit directed at the city was pending. The inspector general’s office had released a voluminous and searing report described the fire department’s lack of action at this EMS event. Dozens of newspapers and professional journals covered this horrible situation. To put some distance between the government and the errant workers who let this situation go sour, the mayor decided the discipline disposition of this case and guided me towards implementation. The two folks most directly involved would be terminated–that was the end of the discussion and process.

After a day or two to prepare the documentation and to notify the labor organization, it became very clear that this action was well beyond the government’s authority. I most respectfully made my boss aware that we would certainly lose the termination actions on appeal and that the dismissed employees would regain their standing in the department with back pay and potentially other benefits that a judge or jury may see fit to award. The boss made it very clear that the termination was not open for discussion. Further, he fully understood the legal position that he was placing the city in as it related to not having the authority. However, the public outcry and the need to send the message to underperforming employees demanded action. The action against the employees was carried out and was the topic of a mayoral press conference. The firefighters were returned to duty by the court, and this case has been in ligation ever since.

The purpose of sharing this step is to underscore the fact that sometimes the “best laid plans of mice and men” are set aside for political purposes that the fire chief has no control over. I thought about this situation over the course of a few days and thought about its implications. It was a career-low for me when I had to inform the union president a few days before the directed action. A letter I received from one of the union’s vice presidents described me in terms that I have never heard before, since I generally had good labor-management relations on my watches. I was shocked by the language directed at me personally. It was a tough position to find myself in, but I am sure that the mayor got it right. The department needed to “stop the bleeding” from this incident and work toward future improvements. The close to this case study was that I did what I was told and understood that even though it was painful, it was the path that the department needed to take. It was not worth falling on my sword for the actions two members took 18 months before my arrival. The department needed a fresh start and this political decision was a major step in the healing process. So, don’t take political actions personally, but be a good solider and follow orders when it is outside your control. If the political direction that you forced to follow is illegal or immoral, then it’s time to find your sword.

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 by Fire Engineering near the end of the year: D.C. Fire: It’s Not Just a Job.

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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