While the history of the American fire service can be measured in terms of centuries, the use of formalized, written policies by fire departments is a relatively new phenomenon. Some departments have had extensive written policies for decades. Others have few, if any, written policies even today. Between the two extremes are the vast majority of fire departments that struggle to find the right balance of how much is “enough.”
Policies prevent harm
There are several reasons why departments have few or no written policies. Some fire service leaders lack an understanding of the role of policies. Further, many organizations lack personnel with an aptitude for drafting policies, or the time and energy to devote to the project.
One the most common excuses I hear is that written policies can create liability. It is an old-school notion that so long as something is not in writing, the “boys” cannot not get themselves in trouble for doing it wrong. One well-respected chief told me that he was opposed to putting anything in writing because he wanted to give his firefighters the “wiggle room” to do what needed to be done. According to the chief, all a policy would do is allow some attorney to “hang his guys.”
The old school was not entirely wrong for having concerns with “putting it in writing.” Written policies and procedures establish an expected level of performance. However, does liability actually flow from violating a written policy?
The answer is no! The root cause of liability is not that a policy is in writing, nor even that the policy is violated. Liability arises when someone is harmed. The old-school philosophy misses the fact that the ultimate goal of a written policy is to prevent the harm from occurring in the first place. If we prevent the harm, we prevent the lawsuit and the liability.
To better understand this point, consider the danger we would all face if airlines had no written procedures on something as fundamental as aircraft maintenance—no written procedures to ensure that aircraft maintenance technicians did their jobs in a consistent way. Imagine a mechanic inspecting a jet engine based on his best recollection of how often to perform certain checks or replace certain parts, information that he learned years ago at the “mechanic’s academy.” How would lessons learned from a crash in California be conveyed effectively to aircraft mechanics in New York to prevent the same type of accident from occurring?
Do written maintenance procedures increase an airline’s liability? Of course not. Airlines recognize that written policies and procedures are tools to prevent an accident from happening. Does anyone honestly believe that after a plane crash, the airline could somehow avoid liability through not having a written policy? As absurd as that seems, there are firefighters who believe that not having policies will somehow save them from liability when the fire service equivalent of a plane crash occurs.
No doubt if a written policy is violated, then some lawyer will inevitably be able to point to it as evidence of negligence, but the only reason a lawyer would be involved would be if someone had been harmed. The liability-creating event is not the policy, nor the violation of the policy; it is the event that causes the harm. Preventing that harm from occurring is what we should be focused on when it comes to policies.
Today, the “wiggle room” advocated by fans of the old-school approach is nothing short of a liability trap. Occupational Safety and Health Administration (OSHA) regulations and National Fire Protection Association (NFPA) standards serve as objective measures of what firefighters should do in many commonly reoccurring situations. The National Institute for Occupational Safety and Health (NIOSH) and others that investigate firefighter fatalities and significant events similarly make well-reasoned recommendations that have policy implications.
There are countless expert witnesses who have gathered detailed information about how fire departments should operate based on scientifically validated research. The result is that fire service leaders today cannot expect their firefighters to “wing it” in hopes that the absence of a written policy will somehow provide “cover” in the event that someone is harmed. Today, it is much more likely that written policies and procedures will help us prevent harm than increase our liability exposure.
The reality is that the lack of written policies can create liability. For starters, without written policies, employees have no formal direction, which, in turn, can make a preventable mistake more likely. As is crystal clear with airline mechanics, the lack of policies can set the stage for a disaster that is entirely preventable. In fact, the lack of policies make disasters more likely.
There is also a fundamental leadership responsibility with regard to policies that must be considered. Leaders have an obligation to lead—to ensure that employees know what the organization expects of them in clear and unambiguous terms. Written policies and procedures are critical to ensuring uniformity and consistency day to day, member to member, company to company, battalion to battalion, and shift to shift. The lack of clear expectations, and ambiguity about what personnel should do in a given situation, is a leadership failure.
Deliberate indifference
The lack of policies can also pose a more direct liability exposure to fire departments. When a governmental entity acts in a way that “deprives” someone of their “life, liberty or property,” the possibility of a federal civil rights claim arises. Fire departments can find themselves dragged into federal court when someone is killed or injured, or their property is destroyed, where the department leadership knew of a substantial risk posed by either the lack of a policy or by outdated policies, and was deliberately indifferent to that risk.
Police departments are sued under this policy-related deliberate indifference theory on a daily basis, commonly over their use-of-force policies, high-speed pursuit policies, or policies for dealing with mentally impaired individuals. We see plaintiffs’ attorneys using this deliberate indifference theory against fire departments as well.
Organization learning
Stepping away from liability for a moment, one of the most important reasons for having a robust set of policies involves the concept of organization learning. Think about the wealth of experience that you have gained in your years as a firefighter: lessons learned, tricks of the trade, things that went right as well as things that did not. What happens to that knowledge base when you retire? Those thousands of lessons learned will walk out the door with you. Multiply that loss by the number of personnel in your organization and the loss of experience is staggering.
Written policies and procedures can be the vehicle to incorporate the thousands of lessons learned every year by our department into our organizational knowledge base. Policies and procedures should represent a collection of best practices that include those lessons learned. We can also incorporate lessons learned from other organizations to help make our operations safer and better. In this way, we can harvest the collective experiences of all our personnel and the entire fire service to make the department better, more efficient and, most importantly, safer for our brother and sister firefighters.
Essential tools
Contrary to the beliefs of some who see written policies and procedures as a liability creator, policies and procedures are an essential tool to reduce liability. Policies and procedures do not reduce liability through jurisprudential hocus-pocus; they do it by making liability-creating events less likely to occur. In this way, policies and procedures serve as an effective risk management tool. In doing so, they also happen to enhance firefighter safety. n
