Dealing With Seriously Bad Behaviors, Part 2

By Dennis L. Rubin

Part 1 of this series looked at the fact-finding portion of a potential investigation involving fire department members.

Step 2 — Document, Identify and Protect the Issue(s)

As the internal investigation moves forward, the facts of the case must be properly and thoroughly documented. Open a detailed file for each case. Absolutely every document collected must be filed and reasonably accessible as the investigation moves forward. The filing process must follow the document-retention policy for your community (most likely this will be found in your state code). This will become the information for the basis of the decisions you make to develop the action plan to resolve this case. To put this into incident-command terms, the internal investigation materials are roughly the equivalent of gathering the size-up information at an emergency event to determine and develop an effective incident action plan (IAP).

Given that the materials gathered at this point in the investigation process will likely be turned over to the accused employee’s defense team and will be available as public records once the case is completely resolved, spelling does count. Before they are accurately dated and signed, make sure that the documents are typed, in good order (meaning written in proper English with correct spelling, punctuation, grammar, and no jargon or slang). These may seem to be small details, but if there are a lot of errors and mistakes, the department could be embarrassed in the long run. Furthermore, poorly prepared or organized reports will be deemed less valuable as evidence by outside reviewing sources such as employee-appeal reviews, courts, and media accounts of the case. Many firefighters will have to overcome their aversion to writing reports in the first place, but if the investigation ever leaves the agency and the documents end up being reviewed externally, you will be patting yourself on the back for being on top of the required documentation.

The chief (or charging official) needs to identify the issues the documentation points toward (if any). If the collected evidence clears the member, with charges not sustained and dropped, no further action will be needed except to document and formally close the case. When the evidence does not support the accusations, this is a good day for everyone. If it does, however, then it’s time for the next step in this unpleasant process: to prepare the charges and specifications that will be preferred against the member(s) who have been the subjects of the internal investigation. The charges are the exact laws, rules and/or regulations a member allegedly violated. An example of the charges will look something like this: Private Dennis L. Rubin violated Section 3 Part 12 of the Rules and Regulations by failing to report to his duty assignment at the correct time. The specifications will provide the detailed background information that supports the charges being field against the member in question.

The last requirement of step 2 is that the fire department uphold its obligation to keep this “active internal investigation” confidential during the investigation process and as the file is being built. This is difficult. Sometimes the media will want to paint the chief as not taking any action to punish the guilty (i.e., “the good ol’ boys club strikes again”). One way this criticism may be presented to the public is the following: “The person under investigation is getting away with some type of unacceptable behavior without as much as a slap on the wrist.” It is very tempting to let the local media know the “insider” details, including what has been learned from the investigation and the actions that will soon be taken. Let’s face it, it would feel good to talk about all of the details of the case. This type of media interview would help to clear the good name of the fire department. It would leave the community with the notion that someone is in charge and that the department cares about building and protecting public trust.  Finally, this interview could point out that there is action happening behind the scenes and that not everyone in the agency is a bad person. But stop right there.

To defend yourself and your department at this juncture will jeopardize the entire investigation and fact-finding process. When the camera lights are in your face or the newspaper reporter is yelling your name, it seems logical that you would provide all of the investigation details and the actions to resolve the ugly issue. But to provide any of the details to the media at this point in the process will work against the department and the member in obtaining justice. All persons in this country must be allowed “due process of the law.” Being found guilty by public opinion is an interesting phenomenon, but without due process, the rule of law and protecting the legal rights of the suspected employee(s), the organization will be helping to facilitate a miscarriage of justice. In plain words, if you fail to provide due process or follow the rule of law, the person may get off without a penalty, and your agency and its agents may be held in contempt for a range of issues.

The best approach is the direct and truthful one. The departmental spokesperson should indicate to the media that the case in under internal investigation. Point out the status of the employee(s) in question and explain that the department is cooperating with other agencies (if this is actually the case) to bring the situation to a resolution as swiftly as possible. For instance, “Private Dennis Rubin has been relieved of duty with pay until further notice, and the department has opened an internal investigation to determine what happened.”

In the heat of the media moment, I always strove to point out that a sound and proper investigation takes time to complete. Tell the media that the department has to honor and observe the employee’s due-process rights during an internal investigation because it is the law. Be careful with those types of comments, because now it sounds as if you are trying to defend the employee’s behavior/actions. They; may give the appearance of the good ol’ boys club at work and that  nothing will happen except that the issues will be swept under the carpet.

Step 3 — Notifications

Now it is time to start making the appropriate and necessary notifications to the key stakeholders affected by this behavior or investigation. This is one of the few steps in this process that is clear, straightforward, and unambiguous. I always start with my boss first, either the mayor or the city manager (depending on where I was working). A logical expectation is that the media is getting this information quickly and from several sources. If it is bad news about the department (or any part of government, for that matter), it will be on the noon or evening news that day. Remember, bosses don’t usually like surprises, especially the unpleasant ones, such as when the mayor hears that a fire department member was just arrested for first-degree murder on the 12 o’clock news. Therefore, brief him with as much information as you can provide.

When any type of bad news must be sent to the “home office,” deliver those messages to the boss personally. Always try for face-to-face communications whenever possible. Remember, if you send a written letter, an e-mail, or a text message to your boss about any situation, that message becomes “discoverable” to the legal and media community. If you must send a written or an electronic message, consider how you might feel reading it back to a jury while sitting in a witness box in a courtroom. Ask the boss if the rest of the governing body (elected officials) should be notified about the issue, and follow that direction. If your government has a notification policy regarding the governing body, then, of course, follow that requirement, as well. The point here is to not overlook that group accidentally.  

Most departments have an employee-notification process that must be followed relating to any investigation or if discipline is being considered. Generally, this type of information is in the personnel rules and regulations of the government. Also, many states have a “firefighter bill of rights” that includes specific notification clauses when discipline is being considered or when an investigation is being conducted. To be effective in resolving bad-behavior situations, the chief or someone on his staff must be familiar with the laws, rules, and regulations that govern discipline and investigations. Inside and outside assistance are discussed in detail later in this series.

Next, consider the need to notify the bargaining unit or the member association about the investigation and possibility of disciplinary action. If your community has a collective bargaining agreement (CBA), most likely there is a section that spells out of all of the notification requirements relating to investigations and discipline. Make sure that you follow the CBA to the letter. In systems where there are employee notification rules, if the government fails to follow the requirements of the CBA or personnel rules, the case is over. The government will forfeit its ability to enforce any discipline if the notification timelines are exceeded and not followed. Know the rules that must be followed and live within those requirements (remember due process–this is a part of that). If the labor group doesn’t have collective-bargaining rights, there may not be a notification requirement; but to express good will and good faith, I would suggest that you provide them with a brief, basic outline of what is happening regarding one of their own (just a simple courtesy notification).

A blinding flash of the obvious: If the case being investigated involves (or may involve) a crime or if a criminal law may have been broken, it’s time to call in the police department. Some of the issues I have dealt with involved very serious felonies, so the police played the starring role and were the lead investigators; the fire department internal affairs unit assisted them.

The last notification to consider is to the media. If they are not already aware of the situation that your department is dealing with, a clear, concise, and well-written press release is in order. In fact, most likely only one or perhaps two media outlets are aware of the incident, so sending out a standard release that lets all of the local and regional media in on the scoop will be very helpful. Remember that all of the above rules and advice applies for a press release as well. Add the release to the official file, and be willing to defend it in a courtroom, because you just might have to. Disclaimer words such as “allegedly,” “apparently,” or “supposedly” are appropriate for this type of communication. Don’t give away any of the juicy details at this point. Even though releasing the “dirt” will occur much later in the process when the intense media interest most likely will be gone, the department will have its turn to describe the results and actions taken to resolve this difficult case. Sometimes, life just is not fair.

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Part 3 of this article will describe obtaining assistance for the investigation, political considerations, and the discipline phase.

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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