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My friends, I found myself offering my opinion interspersed between points that I believe to be facts. To separate the two, I have put the my opinion comments in italics except at the end where it's clear I am making suggestions. Mellie

My "Take" on the ICT3 Situation Resulting from an OIG Investigation
An Argument for All Federal Fire Managers getting Federal Liability Insurance

3/8/05

This also applies to ICT2s and ICT1s, OPs chief, division supts, hotshot crew bosses, handcrew bosses, dozer bosses, engine captains, helitack and helibase managers, etc, anyone that Rax would call an "engagement specialist" or an overseer of an engagement specialist. (See also my former research on the legal processes following law congress passed relating to the Thirtymile Fire fatalities.)

What we know for sure:

Whenever there's a death on the fireline of a Forest Service managed fire, there will be

  • the usual Forest Service investigation which is "administrative" (I believe this is basically an investigative "accident report". Without redactions imposed by the lawyers, such investigations are excellent.)
  • the mandatory OSHA investigation  which is "administrative" and aimed at the entire fire organization
  • a mandatory investigation by the Inspector General's Office for the USDA (OIG or IG) which explores possible criminal cause and effect.

    This last investigation - which can lead to criminal charges being brought against individual employees for the death(s)- is a result of a law created by Congress following the Thirty-mile tragedy (Public Law 107-203 enacted 7/24/02). Participation of the OIG first occurred in response to the Cramer Fire tragedy. Prior to that neither the Forest Service nor individual firefighters nor OIG nor Department of Justice (DOJ)  had any experience with this legal situation. You could say it's a precedent-setting case. (In addition, I believe that the IG usually deals with fraud, misuse of government funds and the like; heretofore loss of life investigations have been handled by the FBI. Thus, as I understand it, the process is fairly new to both OIG and DOJ.)

    I added DOJ into this step because DOJ - with appointed US Attorneys like the one who spoke in Reno - must pursue OIG's recommendations if the State Grand Jury will not. OIG/DOJ investigates and prosecutes on behalf of the fallen, so their function is prosecutorial. DOJ's purpose, like the State Grand Jury's purpose is to look at causal factors for the death to determine if there is enough "legal cause" to bring a person or persons to trial for the death. Given the charges they expect to pursue, DOJ may or may not have enough evidence to go all the way to trial, just as a Grand Jury may not. In some cases, if not all cases, they go as far as the process allows - such as they did in prosecuting the Cramer ICT3. In that case, they took it as far as offering a him a Pretrial Diversion, which is considered an "adequate non-criminal remedy". Deciding to take a "deal" is a personal decision usually based on resources at the potential defendant's disposal to fight the threat of criminal charges or the actual charges if they are brought. No criminal charges were brought against the Cramer Fire ICT3 as a result of him agreeing to the Pretrial Diversion.

    The violations of "rules" or policies that OIG/DOJ is looking for are violations of  the 10 Fire Orders and failure to mitigate the18 Watchout Situations, plus failure to perform other job-related checklists which might be causal factors leading to the firefighters' deaths. When policy for rules and checklists exist (i.e., mandatory directives), they can investigate people for violating any of them to determine if they're causal factors. They can take people all the way to trial, a jury can find them guilty and send them to jail, although the US Attorney who spoke in Reno is quick to say that hasn't happened yet. (No one told the OIG/DOJ that the 10 & 18 are all GUIDELINES. No one told them that there is no FS firefighter manager out there who intends anything but having their people have a safe assignment and come home to their families at the end of the day. No one told them that in high risk jobs sh*t happens and rational psychological processes can get hijacked by hot cognitions in spite of the best of human intentions. They need to read Deep Survival... They don't have a clue!)

One final kind of suit that may be brought  is a civil suit ("tort") brought by the family of the fallen firefighter against the individual employee or against the Forest Service if the FS chooses to act on behalf of the employee.

To reiterate, there are three kinds of investigations and different rules apply.

  1. Administrative
  2. Criminal
  3. Civil

When does the FS defend an employee?

If the Forest Service deems that the employee was not working "within the scope of their employment" when the incident occurred - that is, he or she was not doing what they were supposed to be doing to fulfill the job they've been trained to do - the Forest Service counsel will not provide legal assistance in either a criminal or a civil case. If the converse is true - that is, if the employee had a plan and followed it and didn't break any rules or policies - presumably he or she would be defended by FS counsel. The Cramer Fire ICT3 was determined by FS Counsel not to be working "within the scope of his employment".

Putting on my psychologist's hat for a minute: Research shows that our personal perspective creates a bias in what we notice, what we attend to and how we interpret the actions of others. My guess is that when push comes to shove, if the FS is threatened, the Forest Service counsel will define whether a person acted "within the scope of their employment" based on what supports the FS's own best political interests.

In FF terms, the FS counsel is likely to interpret the "working within scope of employment and training" decision in such a way that it covers the FS's ass. Similarly coming from the firefighter's perspective, counsel for the firefighter who is well versed in bureaucratic federal law might interpret "working within scope of employment and training" entirely differently. In Group-Out Group bias: we're all prone to it; we're human.

**One of my concerns last week with an individual's professional liability insurance lawyers was this: once the Forest Service determined that a firefighter was not "working within scope of their employment and training", would an outside professional liability lawyer provided by an insurance policy have grounds for not defending (or abandoning) them. This is not the case as I understand it. Professional liability lawyers (who are available via professional governmental liability insurance) make their own determination. Perhaps someone will write in with examples of when they might legally choose NOT to defend a client based on "scope of employment". Fire starting (that is not burnout or backburn) or not wearing a seatbelt might be such examples in that they're illegal.**

OK, what else do we know for sure?

The ICT3s and other employees have a basic Constitutional right to non-self-incrimination. This right was essentially violated in the Cramer Fire investigations, although some lawyers might argue "the firefighters volunteering information should have known."

Here's why I think their rights were violated de facto. People facing criminal prosecution - as in the criminal investigation by OIG - have a right to avoid incriminating themselves. They can, with impunity, "Plead the 5th Amendment" and refuse to answer. (We've all heard that in tv shows, even me.)

In administrative investigations - like the Forest Service and OSHA investigations - firefighters are often asked to cooperate and explain what happened. In the past most did that willingly. When they've asked, firefighters have been advised by Human Resources in a FS investigation simply to tell the truth. They have provided answers to questions willingly.

Now, if  firefighters are confused and unwilling, the threat is added: or loose your job. What firefighters say under these circumstances is de facto a "compelled" statement, even if given in a "non-compelled, non-criminal" situation. If records of their testimony in a non-criminal investigation are obtained later by OIG for a criminal investigation, their own testimony (obtained earlier under threat of job loss) can now be used to incriminate them. This amounts to unfair self-incrimination.

[Another impact: We all know Forest Service firefighting is a safety-oriented culture: firefighters volunteer information so we can all learn. Firefighters teach each other. Firefighters do this after incidents, close calls, at other times in AARs, Lessons Learned and in filing SAFECOMs, if not done anonymously. They hash over decisions made on the fireground all winter long! Usually records are not kept, but they may be. What firefighters say in these cases is not considered a "compelled" statement. However if records are kept, firefighters may also be putting themselves at risk if OIG gets hold of them. Puts the kibosh on a learning high reliability culture that serves to make us all safer.]

It's clear that now things are different for a number of reasons. When the "rules" OIG goes by are the 10 and 18 (which are really GUIDELINES), it's awfully easy to incriminate yourself, unless you have been instructed and know not to do that. (Oh yeah, I couldn't do the checklists, the Santa Ana winds were causing us to be overrun or... I built line downhill line, we all have one time or another, etc.)

Following Congressional enactment of Public Law 107-203, there's a further new reality. We're dealing with the outfall of that law and reality for the first time: To speed up the legal processes following the Cramer Fire fatalities, the two administrative investigations and one criminal investigation proceeded simultaneously. Information offered (freely but unknowingly?) by firefighters participating in the two administrative investigations was then used by OIG in the criminal case against the ICT3 and others. This is not fair.

In the past wildland firefighters have offered information freely because they know their own integrity. They know themselves as safe firefighters; they want to clear their name and clear the air; and in the past they expected the FS to see the integrity of their actions based on their training, forest staffing and other systemic latent mitigating circumstances. They expected the FS to back them up legally. They also know for themselves that they did not intentionally put themselves or their people in harm's way by violating the 10 Fire Orders and failing to mitigate the 18 Watchout GUIDELINES. But because they're firefighters and a fire brother or a sister - virtually a fire family member - has died, there's always guilt and/or mind-numbing regret.

In my opinion, all these investigations could have been accomplished MUCH MORE FAIRLY:
OIG/DOJ should have prosecuted (if they could) and resolved the criminal investigation BEFORE the Forest Service and OSHA proceeded with the administrative investigations. Proceeding in that order would have guarded against potential self-incrimination for all participants.

Another way to avoid self incrimination would be for your lawyer or the DOA to obtain "use immunity" or "privilege" for certain kinds of administrative investigations, AARs, etc. As I understand it, you would then be able to testify  or volunteer information in administrative investigations and your statements would not be admissible in a criminal case or to build a criminal case.

At this point, I have a sense of how ICT3s ended up in this legal SNAFU. I'm not going to give a blow by blow discourse here. It's the typical swiss cheese model with all the holes lining up.

My recommendations... I hate to say it... I don't really like it that we have to resort to lawyers... but...

  1. Make sure you feel ready for the job, your crew/team are ready and everyone you're responsible for is ready. Have a plan. Try to figure out how to meet policies and procedures to the best of your training. Document. (yeah, right! unrealistic expectations with as fast as some fires move, as many resources as we have streaming in, and as quickly as they increase in complexity!)
  2. Get the professional federal liability insurance.
  3. If a bad incident occurs, don't talk to anyone about anything before you call your lawyer (not the FS Investigation, not an AAR, SAI, etc.). Call your lawyer, even if the FS says it will represent you. Call your lawyer before speaking, even if the HR person says you need to talk to the safety officer. Remember, under the new legal paradigm, this isn't a fire family member promising representation even if it comes from their mouth. They may not know the legal side of things or they may not know that politics can change everything.

    If you do those three things, be ready with a plan, documentation, to the best of your ability, etc., GET INSURANCE, and if things go south DO NOT talk without legal counsel to advise you, I think you'll have your best chance of surviving legally. We all know about the emotional scars and the courage it takes to come back from that, but being made the scapegoat shouldn't compound the tragedy... Neither should fear of being made the scapegoat cloud your head when you need to make split-second decisions to continue protecting your folks on the line. The insurance isn't costly for the peace of mind it provides. Your part of the premium is less than $150 a year.

What are the implications for the future?

  • This legal mess won't happen exactly the same way again unless there's some poor sack out there who hasn't heard about of all this. Tell your friends. Lawyer up, you supervisors! (Dam*, I hate that it's come to this!)
  • Ed Hollenshead, our fine National Safety Officer is working on a Doctrinal Review for FAM - PARTICIPATE in the discussion! We need to know and define what we're about for the 21st century.
  • WO, a message to you. Provide leadership. Consider centralizing fire within the Forest Service. This is one way to reduce systemic latent safety problems, to increase firefighter safety and reduce fatalities. And if you think that no part of this problem is due to a dinosaur of a decentralized fire system, shame on you!
  • I understand that Congress is also looking into what can be done. They didn't mean for their law to have this kind of legal effect.
  • No doubt the legal beagles of various agencies have learned some important lessons at fire's expense. I wish they would take more trips to visit us and speak honestly and completely "off the record" or write in here on their own time and educate us, one public citizen to another. You lawyers have a right to free speech just as we do and we could learn a lot from you if you had the guts. Ab will keep your identity secret. Please correct any misinformation in my piece as a starter.

It's my experience that firefighters tell the truth and want to get to the bottom of the situation when tragedy hits. This happened and I did this... and that happened and I did that... and a, b, c contributed to the outcome... and I would do this differently and better next time... by doing x, y, z. I have seen incident management teams do this on large incidents. In fact the openness of the team members to talk about what could be done better is part of what made me do a 180 degrees in my attitude to federal fire teams on the Big Bar Complex when I was initiated into fire. In past years I have heard the hotshots share lessons learned and have been with firefighters involved in fatality incidents as they try to come to grips with the guilt and remorse they feel, even when they are not guilty of anything! In the past what has happened has generally been transparent and we and the organization continue to learn to be safer. However, as I understand it, AARs, lessons learned, etc, ICS-214s, statements made in administrative investigations, etc are not "compelled" statements and can be used against us in a court of law. My great fear is that we can't afford to speak out any longer without risking going to jail when tragedy hits. If people feel gagged, lessons learned might be curtailed and we'll all be less safe.

Thanks to all you ICs for not burning your red cards... Thanks to ALL firefighters on the line and in management! Thanks to those few true fire leaders in Boise and Washington who are working to sort out this SNAFU and move wildland firefighting into the 21st century.

Mellie

PS. Here's another article that is now online that explains from a lawyer's perspective why you might want Federal Liability Insurance given outfall from the Cramer Fire. Someone recently said, "Friends don't let fire friends lace their boots without liability insurance."

Professional Liability Insurance Your Legal Shelter in the Post Thirtymile and Cramer Environment

No "gagging" here unless in physical discomfort over the lawyer involvement. Identities are protected. Ab.

UPDATE, 3/12/09:
Hotlist thread on legal considerations for wildland firefighters: www.wildlandfire.com/hotlist/showthread.php?t=2355

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