Strategies for Managing Fire Departments in the Digital Age
Managing a fire department has never been easy, but it has never been quite as challenging as it is today. Fire service leaders face numerous obstacles, including:
- Greater regulation by well intentioned bureaucracies such as the Occupational Safety and Health Administration (OSHA), Department of Homeland Security, and health departments/emergency medical services.
- Stricter standards coming from the National Fire Protection Association, which increase training requirements and equipment costs.
- An apathetic yet demanding public that is justifiably intolerant of civilian deaths and casualties.
- Urgent fiscal constraints brought on by the current economic downturn.
- Epic labor disputes in career departments spanning decades, combined with a chronic shortage of people willing to give their time and energy to volunteer departments.
As if these challenges were not enough, modern technology seems to regularly deliver us new problems for which we are ill prepared. Recall the 1990s when computers and the Internet confronted fire chiefs with the challenges associated with email and the downloading of improper content. Then, almost overnight, cellphones went from being novelty items to necessities, clouding the distinction between work time and personal time.
Next came digital cameras, Spy Cams, Dash Cams, Helmet Cams and cellphone cameras, followed by iPods, iPads, iPhones and tablets. The latest technological nightmare to darken our doorstep merges many of the above challenges: social networking.
The past five years have seen a dramatic shift in American culture toward the acceptance of social media as a mainstream communications and networking tool. Facebook, Twitter, LinkedIn and similar sites offer the fire service invaluable opportunities to share information with colleagues from around the world. However, they also present a new area of risk and liability.
Some of the risks and liabilities that we have seen to date include: violations of patient privacy through online discussions of incidents; posting of incident scene images that create privacy and evidentiary issues; defamation of elected and appointed officials; harassment of coworkers; documentation of inappropriate activities by on and off-duty personnel; and copyright violations, to name a few.
While the risks posed by these new challenges seem to beg for stricter control, employees and employee representatives commonly resist such efforts based on First Amendment rights, collective bargaining rights, right to privacy, and due process.
How does a fire chief balance the privacy rights of patients with the First Amendment rights of employees? Can a fire chief restrict firefighters from taking and sharing emergency scene images without violating the collective bargaining rights of personnel? And how can a fire chief restrict what employees post online?
The challenge of addressing technology-based problems has caused many chiefs to throw up their hands and ignore the issue. It is hard to blame them given that chiefs have more than enough solvable problems that need to be addressed. Technology-based problems are complicated, and any proposed solution will likely be hotly contested. As a result, technology-based problems seem destined for the back burner … that is until a case occurs that is so outrageous, so sensationalized by the media, that the problem cannot be ignored. Some cases in point from the past two years:
- A firefighter responds to a vehicle accident and takes a cellphone video of a fatally injured young woman. The video is forwarded to a buddy, who in turn forwards it to another, and before long the video is seen by the victim’s parents. The resulting outrage leads to numerous personnel being disciplined, one being fired, and an independent investigation calling for the replacement of the fire chief. The victim’s family is poised to file suit.
- A group of firefighters stage a prank armed robbery in a fire station to haze a rookie. The prank is filmed, and the video showing a masked gunman is uploaded to YouTube. The video becomes the subject of intense public condemnation. One firefighter is terminated, another demoted, and several more are suspended. All are appealing.
- An emergency medical technician (EMT) responds to a murder scene and takes a photo of the deceased, a young woman with a hair dryer cord wrapped around her neck. The EMT later posts the photo on his Facebook page. The EMT is fired and is charged criminally. The victim’s family files a multi-million dollar suit naming the EMT, the fire department, and Facebook.
- Following a highly-publicized incident where an African American youth is shot by a crime watch patroller under questionable circumstances, a white fire captain posts a rant on his Facebook page attributing the shooting to poor parenting skills. The remarks prompt massive protests and allegations that the fire department is racist.
A sobering reality is that it will likely be 2020 before all of the litigation from these cases is resolved. Each case involves people (fire chiefs, firefighters/EMTs and civilians), whose lives have been forever altered. In each case fire chiefs will be tied up for years in legal proceedings, distracted from doing what they were hired to do: lead their organizations. Employees will battle for their jobs before civil service boards, arbitrators, and the courts, their morale and love for their profession all but exhausted in the process. Legal expenses will mount and likely extend to six and seven figures in each instance. It’s a classic lose-lose situation for everyone.
The situation is not hopeless. There are effective strategies we can bring to bear on technology-based problems provided we are willing to embrace the challenges.
Divide and Conquer
The old adage that the “best way to eat an elephant is one bite at a time” applies equally to addressing the technology-based challenges that confront fire departments. There are five important policy areas that fire departments need to address. Each of these topic areas requires a sound policy, along with training for all personnel.
Computers, the Internet, and Employee Privacy
The emergence of computers in our lives, and the explosion of laptops, iPads, cellphones, digital cameras and the Internet have in many ways outpaced the ability of the courts, legislatures and fire departments to keep up with the technology. Privacy concerns compete with legitimate employer needs to control how computers are used in the workplace.
Fire departments need sound computer and Internet use policies to effectively manage computers in the workplace. Many departments have also found it advisable to include a code of conduct for computer use in addition to a formal computer and Internet policy.
Electronic Surveillance of Employees
Modern technology combined with our fast-paced lifestyles has created privacy issues that were unthinkable a few decades ago. GPS tracking devices, security cameras, miniature Spy Cams, Dash Cams, and hidden recording devices raise two concerns: can a fire department lawfully use them to track and record employees in the workplace, and can the department lawfully restrict their use by employees?
Electronic surveillance policies need to serve a two-fold purpose: first, policies should put employees on notice of the types of electronic surveillance that the department may utilize so as to overcome employee privacy claims; and second, policies need to place reasonable limitations on employee use of electronic surveillance to record co-workers or members of the public while on duty.
Photography and Digital Imagery
Fireground photography is both a passion and a side industry for many in the fire service. Advances in digital camera technology have made it possible to bring durable, reliable and inexpensive cameras to emergency scenes offering exceptional incident documentation and training materials. The problem is photo taking and dissemination can breach privacy and confidentiality laws, plus trigger public record requirements.
On-duty photo taking can be managed without having to resort to a total photo ban. Firefighters need to understand the implications of on-duty photo taking and fire departments need to properly manage each and every photo taken to comply with public record laws and address evidentiary concerns.
Social media has been both a blessing and a curse for the fire service, but one thing is undeniable: social media with all its problems is here to stay. The law that applies to social media has been evolving and continues to evolve, with new cases and considerations arising daily.
The social media policy must be drafted in such a way that First Amendment, collective bargaining and privacy concerns are addressed, while reasonable limitations are placed upon employee conduct. In addition, New Hampshire law grants an additional level of protection to public employees in RSA 98-E:1, Freedom of Expression, which states:
Notwithstanding any other rule or order to the contrary, a person employed as a public employee in any capacity shall have a full right to publicly discuss and give opinions as an individual on all matters concerning any government entity and its policies. It is the intention of this chapter to balance the rights of expression of the employee with the need of the employer to protect legitimate confidential records, communications, and proceedings.
As a result, there are four key points that a social media policy should include, mindful that social media activities are a form of speech:
- No member, while speaking as a private citizen on a matter of public concern regarding the fire department, shall speak in such a way as to cause actual harm or disruption to the operations of the department.
- Members may speak on a matter of public concern as a spokesperson for the department only with permission through the chain of command.
- Members are prohibited from publically discussing fire department matters that are confidential, including matters that are under investigation; patient and employee information protected by HIPAA and/or medical confidentiality laws; or personnel matters that are protected from disclosure by law.
- Members shall not engage in speech that is false, deceptive, libelous, slanderous, misleading or causes harm to others, including speech that constitutes hate speech, or harassment; nor shall members discuss protected or confidential matters of the department.
These four points take as strict a position as current law allows. A word of caution here: the law in this area is evolving so social media policies need to be reviewed and updated at intervals measured in months, not years.
Email and Electronic Records Retention Policies
Courts are confronted with cases involving email and electronically stored information (ESI) that were unheard of ten years ago. Criminal and civil cases are being won and lost based on whether organizations have preserved emails and electronic data. Employees make thousands of individual decisions every day on what to delete and what to keep—decisions that can impact the risk profile of the department for years to come!
Besides the evidentiary aspects of emails and ESI, public records laws apply to electronic information to the same extent as information maintained on paper. That means the public has a right to access public employee generated emails and ESI. It also means that fire departments and firefighters are under a legal duty to retain electronic records for the full duration of the records retention requirement specified by the state public records law.
For these reasons, fire departments need a policy that incorporates sound record retention practices for electronic information. The policy should include a procedure to place a “litigation hold” on any information known to be subject to litigation. Given that attorneys are being trained in continuing legal education classes to exploit an opponent’s deleted emails to gain a strategic advantage, an electronic records retention policy has important risk management implications.
The world is changing rapidly these days. The fire service has historically had a slow learning curve, one that seems to depend on a periodic disaster to usher in progress. Managing in the digital age requires that we do better than that!
Addressing the five policy areas of computers, electronic surveillance, digital imagery, social networking and electronic records retention can go a long way toward keeping fire departments out of the headlines, and out of courtrooms.
Curt Varone is Director of the Legal Liability & Risk Management Institute’s Fire and EMS Services Division. He formerly served as Deputy Assistant Fire Chief in Providence, Rhode Island and has more than 39 years of experience in fire service plus 26 years as a practicing attorney in both Rhode Island and Maine. Contact Curt at firstname.lastname@example.org.