Editor’s Note: This article is part of a series of articles in which Curt Varone will address questions on important fire service legal issues. If you would like to submit a question, please email Shannon Pieper at spieper@lexipol.com.
At what point does a disciplinary investigation need to become a “formal” investigation? If a firefighter is accused of doing something wrong, how do we know whether we should formally investigate, or informally “look into it”?
Not enough fire departments ask this very question, and the fact that you recognize it as a concern is an important first step in addressing a very serious problem fire departments face. In fact, problems associated with the handling of disciplinary allegations at the front end—when they first come in—are associated with many fire service lawsuits, ranging from wrongful termination to discrimination and sexual harassment. There’s a lot to unpack.
Fire departments need to have a clear and objective way to evaluate (1) whether disciplinary allegations need to be investigated, and (2) how the investigation should be conducted, be it a formal investigation or an informal investigation. Without clear and objective criteria to address both of these decisions, a department (even one that acts with utmost good faith) will at best be inconsistent in how it handles disciplinary allegations. At worst, a department’s disciplinary process can easily become weaponized against those the leadership disfavors. Of course, no one reading this would be involved in weaponizing their disciplinary process, but even departments that act with good faith will find inadvertent inconsistencies being used as evidence of a biased and unfair disciplinary process by those who are unhappy with the outcome.
Hence, every fire department needs to have clear and objective criteria that are applied consistently to address both the whether and how questions. It is not important that every fire department use the same criteria to address these questions, so long as within any given department the criteria are clearly set forth and applied consistently.
Having established that each department needs to develop its own specific criteria, let me offer my perspective on each of the two questions.
Whether an Allegation Should Be Investigated
When it comes to whether an allegation should be investigated, I recommend a two-pronged definition for what is commonly referred to as a complaint. A complaint is an allegation that will trigger an investigation.
A complaint is:
- Any allegation that if true, would constitute a violation of the department’s policies, procedures, rules or regulations; or
- Any allegation coming from an external source expressing dissatisfaction with a departmental policy, practice, level of service, action or the behavior of a member.
The department’s policy should be that all complaints will be investigated. A complaint does not have to be believed in order to be investigated. Applying a believability requirement to a complaint would allow our subjective bias to influence our decision-making. Most people find it harder to believe that someone they like did something wrong but are quite willing to believe the same allegations made against someone they do not like. The fact that an allegation meets the organizational definition of a complaint is what should objectively trigger the need for an investigation.
How an Investigation Should be Conducted
As for how an investigation should be conducted—formally or informally—once again the department needs objective criteria. The specific criteria for conducting formal investigations will differ by department, as will what a formal investigation will look like. My advice is to require formal investigations for any allegations that, if true, would involve criminal activity or would warrant termination, demotion or lengthy suspension. On the other hand, allegations that, if true, would result in reprimands or brief suspensions are candidates for an informal investigation.
My advice also is to utilize recorded interviews for investigations where discipline beyond a reprimand is possible. However, many departments limit recorded interviews to formal investigations, while allowing for the submission of written statements or unrecorded interviews for informal investigations.
The disciplinary policy cannot and should not be a “cookie-cutter” policy, or one adopted because it seemed to have worked in some other department.
Consistency Is Key
An important consideration for both the whether and how determinations is ensuring consistency from complaint-to-complaint, firefighter-to-firefighter, and time-to-time. My recommendation is that departments assign the responsibility to make both determinations (whether and how) to a designated chief officer, typically a direct report to the fire chief (i.e., a four-bugle chief). Consistency problems become inevitable when the whether and how decisions are made by different people and/or at different levels of the organization. The more people who are authorized to make these decisions, the greater the risk inconsistent determinations.
The person assigned to make these determinations, who I commonly refer to as the chief of professional standards, also has a third decision to make: who will investigate. We can leave a full discussion of this question for another time; suffice it to say it should an unbiased investigator capable of conducting a full and fair investigation.
To wrap up: The handling of complaints; the decision-making relative to the whether, how and who questions; and the actual conducting of a disciplinary investigation should not be left to the whims of those responsible for discipline. Inconsistencies lead to lawsuits. They also create a perception of unfairness that will inevitably damage the morale of the organization. For these reasons, it is vitally important that a fire department have a formalized disciplinary policy.
The disciplinary policy cannot and should not be a “cookie-cutter” policy, or one adopted because it seemed to have worked in some other department. An organization’s discipline policy must take into account local concerns and practices. The criteria that trigger an investigation in a large metro fire department may not make sense in a rural volunteer fire department, nor does the manner of conducting formal and informal investigations need to be the same from department to department.
What should be the same in every fire department is the leadership’s commitment to follow a consistent, policy-driven approach to discipline. Only then can the membership trust that the department will handle disciplinary allegations in a fair, objective and consistent manner.
