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From the PNW (Region 6) Director of Fire & Aviation Management
regarding criminal indictment of Ellreese Daniels in conjunction with
the ThirtyMile Fire of 2001. From TheySaid 1/18/07 File Code: 5100
Date: January 18, 2007
Subject: Actions Related to Thirtymile Incident
To: Forest Service Firefighters in the Pacific Northwest
Recent issues surrounding the Thirtymile IC has caused a lot of unrest
within the fire community, and has caused many to believe the agency, or its
leadership, is not supporting their employee. As the Fire Management
Director, I will address, at least in part, these issues.
In late December, the Chief had two conference calls, one with the Regional
Foresters and one with Regional Fire Directors to share his concerns about
recent developments surrounding the Thirtymile IC, and to listen to
concerns. The take home message about this call is that the Forest Service
leadership is keenly aware of the unrest within the fire community and is in
a mode of finding solutions. Some of these solutions could be politically
sensitive, and if handled inappropriately could jeopardize their success. We
will forward new information as soon as we can, but now is not that time.
This is a very difficult issue for the whole wildland fire community, and we
are aware it has implications outside of our agency.
We have discussed liability and accountability related to tragedies
associated with fire suppression in the recent past. These discussions have
been focused around improving and expanding our leadership training courses,
better understanding human factors, risks associated with normalizing
deviancy and three remedies the government and victims, or their families,
have related to tragedies. I am going to focus this letter on the three
remedies. I will speak to legal terms from a layman’s perspective, for
specifics and exceptions you should seek advice from legal counsel.
When suppression efforts do not go as planned and tragedies occur, there are
three remedies, or actions, the government and victims, or their families,
have. They are: 1) administrative, 2) civil, and 3) criminal actions. To
date, criminal actions have not been part of our vocabulary when discussing
tragedies related to fire suppression, which has allowed us to culture a
learning environment, that is, to learn from our mistakes. Threats of
criminal prosecution are making employees less willing to participate in
Safety Investigations and After Action Reviews for fear of incrimination and
prosecution. This is threatening our ability to maintain a learning
environment. We are well aware of this and are working on solutions.
I will outline the rest of this letter using the three remedies.
Administrative Actions: It is a remedy the agency has to help address
performance issues. This action is not new and is exercised at the
discretion of agency leadership. To protect themselves employees should
consider having legal or union representation during this course of action.
Professional Liability Insurance (PLI) can provide legal representation and
is considered by many good to have. Administrative actions might very well
be the primary reason to carry PLI. Since the agency is taking action
against an employee, it will not supply legal counsel, hence the need for
PLI or union representation.
The agency does provide 50 percent reimbursement for PLI for most fire line
supervisors. The national office is looking for a Congressional sponsor to
change the law to make 50 percent reimbursement for PLI available to all
firefighters that want it. In Region 6, we have asked the Fire Staff to let
us know of any firefighter that wants the PLI but does not qualify. To date
I have not received any requests. Employees can use legal representation
provided by PLI or the government to help them through civil lawsuits which
is explained below.
Civil Actions: This is where a third party brings a lawsuit against an
employee or the agency. In most circumstances, employees are covered under
the Federal Employees Liability Reform and Tort Compensation Act. Here
employees are provided “absolute immunity” for common negligence, that is, a
failure to exercise due care under the circumstances. As it related to the
current issue, if an employee was within their scope of work and did not
commit gross negligence the government would substitute itself for the
employee during legal deliberations. Most employees are aware of this, and
have some trust in it based on past cases.
There were several civil lawsuits filed related to Thirtymile. The lawsuit
filed by the Hagameyer’s against the agency was settled as reported by the
Yakima-Harold for $400,000. Based on this report, the agency did not concede
liability. There were two constitutional tort lawsuits brought against two
Forest Service employees. In both cases, employees asked for and were
granted legal representation. There was also a lawsuit filed against the
manufactures of the fire shelters. The Forest Service was not involved in
this lawsuit except to provide testimony.
Criminal Action: This action is obviously not new, but it is certainly new
as it applies to actions or lack of actions, our employees take related to
fire suppression. The following paragraphs provide some answers to questions
being circulated within the fire community about what, or why, things are
happening to the Thirtymile IC. These answers may: 1) help people better
understand why things are happening the way they are, 2) provide clues as to
what the agency might consider to better protect employees from criminal
actions in the future, and
3) help people understand why the agency has been more quiet than vocal
related to this matter.
Is there a difference between being charged by federal prosecutors and being
indicted? Yes. Prosecutors file charges, or counts (eleven in this case),
against an individual that are formally read to them by a judge. The accused
has an opportunity to enter a plea. Assuming a not guilty plea is filed, a
date is set for a Grand Jury hearing where the prosecutor (in this case the
US Attorney) presents their evidence. This is a one-sided hearing. The
accused does not have an opportunity at the Grand Jury to provide evidence
of innocence. The Grand Jury considers evidence presented and then decides
whether there is enough for an indictment, which is a formal accusation of a
crime. If the accused is indicted, the case is scheduled for a trial in the
future to allow the accused time to prepare a defense. Remember, the accused
is assumed innocent unless found guilty at this trial.
The IC involved in the Cramer incident settled using a pretrial diversion
which is a discretionary form of resolution in which criminal charges are
either never filed, or are dismissed before the case ever gets to the Grand
Jury. The Thirtymile IC, to date, has not settled and his attorney has
publicly stated she believes the case has no merit and plans to move
forward.
Why did it take 5 years before charges were brought? This is strictly up to
the US Attorney. The law allows them 5 years and they chose to use it all.
In the case of the Thirtymile IC, his attorney asked for, and was granted
and additional 6 months to allow her time to study the case.
Why didn’t the government supply an attorney? When the US Government brings
a criminal complaint, against an individual, via a US Attorney, it would be
a conflict of interest for the government to also defend the same
individual. In the Thirtymile case, a public defender was assigned.
Why is the agency being silent? Most will agree it is inappropriate to
comment on ongoing criminal proceedings. To do otherwise, could be seen as
interfering in the legal process. This should not be viewed, however, as
either agreeing, or disagreeing, with the criminal proceedings. Even so, I
know there are some that believe the agency should say something, hence one
of the reasons for this letter.
Will liability insurance cover attorney fees in criminal cases? Yes. If an
individual has taken out Professional Liability Insurance (PLI), then yes
this insurance can be used to supply legal representation for criminal
actions brought against them. PLI can be used to provide legal
representation for Administrative, Civil, and Criminal actions taken against
an employee. The US Attorney will consider providing legal representation
only for civil actions brought against an employee. For Administrative or
Criminal actions, the US Attorney will not provide representation, because
in both cases, it is the government bringing charges against an employee and
would be a conflict of interest for the government. For example, it is the
agency (in this case the Forest Service) that determined the need for
Administrative actions and carried them out; it is the US Attorney, not the
Forest Service, that determines whether the government will provide
representation in Civil cases; or whether criminal charges would be filed on
behave of the government, if, for example, they determine gross negligence
was committed by an employee.
Whatever happened to the "gross negligence" statement and how it ties in
with criminal prosecution, indictments or complaints and, most importantly,
what will the agency do/not do in support of the employee? As it relates to
the current issue, there are two questions the US Attorney uses to determine
whether they will substitute the government and provide immunity for an
employee for civil cases. They are: Did the employee act within their scope
of work? And, did they commit gross negligence?
If the US Attorney believes an employee committed any of the two actions
listed in the previous paragraph they will most likely not support the
employee in civil cases and have the discretion to file Criminal charges
against them on behalf of the US Government. Further, it would be a conflict
of interest for the US Government to provide legal representation for the
employee.
The US Attorney will determine whether criminal charges will be brought
against an employee based on information they gather. After the Thirtymile
incident, Senator Maria Cantwell helped enact P.L. 107-203 requiring that
whenever a Forest Service fatality is caused by wildfire entrapment or burn
over, the USDA Office of Inspector General (OIG) shall conduct an
investigation of the fatality completely independent of any investigation of
the fatality that is conducted by the Forest Service. The US Attorney has
access to the OIG investigative report and can use it to help them determine
a course of action.
The Thirtymile incident happened before P.L. 107-203, but the US Attorney
has always had the authority to bring charges against a party using what
ever information they deemed appropriate.
PL 107-203 applies to the Esperanza incident and the USDA OIG is doing an
investigation as are five other agencies.
Can we send an employee to the trial just to keep our office up to date on
what is happening there? Yes. But that decision lies with the local agency
administrator as does any travel authorization.
What is the FS doing to respond to the morale problem created by the
criminal action?
The agency is well aware of the morale problems this case has caused, and in
the PNW we have done a lot to address the issue. Examples: We continue to
recognize people for the good work they do. We hired Gordon Graham, from
Graham Research Consultants, to teach employees, supervisors, and managers
why things generally go wrong and how to prevent these unfortunate
situations from happening. Gordon reached nearly 2000 interagency
firefighters over a two year period. Another year we provided three sessions
to nearly 800 firefighters to help them better decide if being an incident
commander (or fire line leader) was the right career for them. We had Mike
Lohrey, a Type 1 IC, share his thoughts and provocative questions to help
firefighters better plan their career in fire management. Carl Gossard, BLM
Chief, Branch of Fire and Aviation, OR/WA, provided a “fire support
triangle” to help them with situational awareness. We have increased the
number and type of leadership training courses for employees. And, there are
other actions as well.
There are employees still upset and don’t believe the Forest Service is
doing all it can to support its employees during these trying times. I ask
those employees to visit with their local supervisors to discuss what is
happening to gain a broader appreciation of current actions and to discuss
solutions that can be used locally, regionally or nationally.
In closing, I ask three things: 1) do not use this letter as a legal
document, rather use it to help formalize your own questions when you have
access to an attorney, 2) that you keep current on the pending issue, but
don’t lose sight of the fact we need to prepare for the 2007 fire season,
and 3) remember the quote from Tom Harbour, the National Director for Fire
Management: “Don't confuse a lack of formal messages with a lack of effort
to solve the issues.”
/s/ J. A. Kendall Snell
J. A. KENDALL SNELL
Director, Fire & Aviation Management |
