Steve's Commentaries on 
Why Federal Agencies Should Support Their ICs

April 1, 2004

I think there is much more to the issue referred to in the post on 3/31 where Ab. says, “If someone in the ICT3 position is not comfortable making decisions then maybe they shouldn't be in that position”. I'm afraid I agree with Ab's statement, but for all the wrong reasons.

During many years of initial attack, I was always comfortable making decisions as a Type 3 Incident Commander. I always felt I would be supported by my agency if an accident occurred. I was comfortable knowing I was qualified and certified to perform the duties of my position. But then again, I was never distracted by the concept of an event resulting in a civil court claim where I funded my own defense. Any suggestion of my agency abandoning me to fend for myself would have been ludicrous.

Evidently times are changing. Being comfortable making decisions on the fireline may no longer be synonymous with being comfortable with one’s agency support after the fire is out. What has traditionally been a respected and prized position of leadership is now under suspicion of having a built in bull’s-eye.

A little over a year ago a Region 5 Forest FMO not only resigned his position as a National Type 1 Team Incident Commander, but actually retired due to his fear of personal liability. I know of several and hear it is becoming quite common for ICs at various levels to privately obtain insurance policies. I’m afraid I understand and sadly support any IC’s decision to remove the qualification from their redcards.

Am I the only one astonished, embarrassed, and ashamed at how our agencies and government have allowed this public liability issue to devolve to such an degree? Who in their right mind will continue to place themselves, families, and futures in such a vulnerable position? There is a tragic, fundamental flaw when a public servant, operating within their qualifications and policies, risks being undefended by their own government. It is past time for our leaders to step up and deliver their unmitigated legal and moral support. Their employees willingly place themselves and lead others in harm's way to protect lives, property, and public lands. They deserve the same type of dedication and support from their leaders.

I can imagine a scene in the not too distant future, similar to when other groups gathered to publicly burn draft cards and bras, where ICs assemble to pile and burn their redcards.

And it makes me sick.

Steve

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April 7, 2004

Re: my prior post regarding federal agencies supporting their ICs,

My post on theysaid on 4/1/04 was instigated by the rumor of the USFS allowing a civil suit to be brought against USFS employees. This was the first time I've heard such a specific rumor, but the threat of such an occurrence has been looming for years. My intent was to bring attention to the alarming trend of public servants in wildland fire suppression being forced to obtain private personal liability insurance

It is my firm belief the USFS and all other federal agencies have the capabilities to hold their employees accountable and to determine and apply any punitive actions when warranted. Should an employee's conduct or actions prove negligent to the point of their being removed from service, I am open to the argument that personal liabilities may follow. However, as long as they remain a federal employee, they have the right to expect their agency's full legal and financial support.

When I first began hearing of various fire personnel obtaining private insurance I dismissed it as a "chicken little" syndrome. When Rose Davis, the F&AM Public Affairs Specialist stated in this forum recently, "it is the Department of Justice, not the FS that makes decisions on defending employees", I must conclude personal liability is now a real and immediate new hazard. It seems only logical to me that the DOJ would rely fully on the recommendations of the responsible agency. After all, what does the DOJ know about wildland fire suppression or how to interpret policies and determine culpability? I view Rose's statement as a chilling example of evasive intent and written proof of a lack of commitment by the USFS to their employees.

In hundreds of fires each year there are personal injuries, property destroyed, and lands lost. Allowing the first personal civil claim against a public safety officer will open the door to a landslide of similar claims. To think that the IC positions would be the only ones targeted is illusory. Any firefighter, at any level, who makes or fails to make a decision that results in a perceived injustice by the general public, may find themselves on trial. They could be sitting in a courtroom with an attorney funded at their expense as they defend their decisions in front of a jury composed of those who know nothing about wildland fires or firefighting. Along with having to defend your actions in front of an unqualified judge and/or jury (see next paragraph), where will you find an attorney well versed in the same issues to capably provide for your defense?

To explain my use of the term "unqualified jury", I refer to the practice of the military using the Courts Martial system to prosecute and punish their officers and enlisted personnel. In effect, their peers rightfully judge the accused. These peers have a shared background, understand the traditions and have experiences in common with the accused. It does not mean the peers will be more compassionate or sympathetic to the accused, rather that they are qualified to establish a just verdict. I would be extremely anxious to appear before a jury of so-called "peers" in a civil court who were ignorant of the complexities of the tactics and strategies used in our annual wars against wildland fire. Few of the general public have ever experienced the commonly described freight train sound of the fire dragon's furious approach. Logic then dictates they've also never been forced to make emergency decisions affecting the lives and property of others during a catastrophic fire. If I'm to be judged and found to blame for any decisions I make in the line of duty, I demand the investigation, verdict, and any punishment necessary be from my true peers, other wildland firefighters. Only they are fit to judge me.

Have any of you ever returned from a particularly exciting fire and tried explaining your feelings and emotions to your family or friends? Did they get it? Were you able to make them know how you were affected by the fire activities and how you felt about the role you played? Can they understand your dedication, commitment, and the satisfaction you receive when the fire is out? I didn't think so, I wasn't ever able to adequately express myself either. Consider for a moment, these people love you and want to understand you, would a collection of twelve people from off the street even try to understand you? Keep in mind how juries are formed. The prosecutor is aggressively looking for those liable to be sympathetic to the plaintiff. That's going to insure the prosecutor is comfortable that half the jury will side with them before the trial even begins.

Are there any Division Supervisors or Strike Team Leaders here who fought the Southern California fires last year and made decisions on which homes to allow to burn? Would you be at ease defending your decisions against the homeowners whose structures you failed to defend? Do you think a civil jury as described above is going to care you were without effective communications? Will they understand the difficulties and complexities encountered during the initial attacks across many jurisdictions as a wide variety of agencies scrambled to respond? These juries will not be composed of your friends or family who love you. As evidenced in this forum after the Southern California fires, even other firefighters were unable to refrain from blaming various agencies and resources for their perceived failures.

So, am I now guilty of promoting a chicken-little conspiracy? Or, should federal employees, who are by definition public safety officers, be exempt from personal civil liability?

I apologize to Ab. for the length of this post, it seemed each paragraph opened a new doorway. I hope I've clarified my first post in that I never intended to pass judgment or cast blame on any individual, their actions or lack of actions occurring during the Cramer Fire. I was not suggesting employees who fail to follow policies and procedures or who are negligent in their duties go unpunished. I am a firm believer in being accountable for my own actions and expect others to be responsible for their own. It's just the method employed during the process I feel strongly about.

Steve

Thanks for the eloquent clarification. Ab.