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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

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