What’s it take to be a Fire Chief?

By adopting Public Act 100-425, the Illinois legislature has added a new answer to that question. This Public Act creates a new section (70 ILCS 705/16.04b) to the provisions of Illinois law that govern fire protection districts that employ career firefighters. Note that this language, because of where it is placed in the Fire Protection District Act, only applies to fire districts that have fire departments with one or more career firefighters.

Effective August 25, 2017, for affected departments, no person shall be “… appointed as the [fire] chief, the acting fire chief, the department head, or a position, by whatever title, that is responsible for day to day operations of a fire protection district for greater than 180 days …” unless the person possesses those OSFM certifications set out in the statute, or has at least ten years’ experience “… as a firefighter in the fire protection district of the jurisdiction making the appointment …” [emphasis added].

Fire Chief Gets Bells and Whistles (Siren, Too)

Everyone from a toddler on up in age knows that fire trucks come equipped with “lights and siren”, for use in responding to an emergency. Section 5 of the Illinois Vehicle Code (625 ILCS 5/12-601) has now been amended by Public Act 100-0182, effective January 1, 2018, to allow for a “… vehicle operated by a fire chief [to] … be equipped with a siren, whistle, or bell capable of emitting sound audible under normal conditions from a distance of not less than 500 feet …”. However, as might be expected, the “… siren, whistle, or bell, shall not be used except when such vehicle is operated in response to an emergency call …”. (Eff. Date 1/1/18).

Before proceeding to equip a privately-owned vehicle driven by a fire chief with such warning devices, however, it will be important to carefully consider all of the consequences that could result from such action. If the vehicle is involved in an accident, for example, which insurance company is going to provide defense and possibly pay any claim – the fire district’s or the fire chief’s private insurance? This is only one of many other questions that arise and should be considered. So, while there may be advantages to this new statute, it is not without potential downsides, which should be carefully considered by the fire district and its trustees before any equipment is purchased and installed.

Economic Interest Statements Can Pack a Punch

Those “Statements of Economic Interest” that a fire protection district trustee must file each year seem like a legal technicality and an inconvenience. However, although they may seem like a small matter, they can pack a big punch. Consider the controversy that arose when Scott Drury decided to run for the office of Illinois Attorney general, and the problems the “Statement of Economic Interests” created for Mr. Drury.

At the time he decided that he wanted to be the Illinois Attorney General, Mr. Drury was then an elected Illinois state representative. As such, Drury was required to file, and in fact did file, a “Statement of Economic Interest” in connection with that office.

Later, after that Statement of Economic Interest” had been filed for the office that he then held, Drury decided to run for the office of Illinois Attorney General. Running for this office also required him to file the beloved “Statement of Economic Interest”.

Since he’d already filed such a “Statement of Economic Interest” as a state representative, Mr. Drury did not file a new statement of economic interest regarding the position of Illinois Attorney General.

As he wished, Scott Drury’s name was set to appear on the Democratic primary ballot for Attorney General. “Not so fast” said Thomas J. Rottman, Jr. Mr. Rottman claimed that although Mr. Drury had filed a “Statement of Economic Interest” as a state representative, Mr. Drury had not filed such a statement for the position of Illinois Attorney General. That was true, no disagreement here. The disagreement came regarding whether another filing of this same form was necessary for the new office.

Mr. Drury stated that such a filing wasn’t necessary. Drury stated that since he had already filed a “Statement of Economic Interest” as state representative, there was no reason for him to again file this same form, even though a different state office was involved. Mr. Rottman disagreed, and Rottman, asked the Illinois State Officers Electoral Board to knock Drury off the primary ballot.

The Board of Elections hearing examiner agreed with Rottman, and decided that Drury should be off the ballot. But, the matter then moved to the next step, the actual State Electoral Board. This Board can overrule its hearing officer. The State Board of Elections in fact disagreed with the hearing officer, and decided Drury could stay on the ballot. Drury wins and Thomas J. Rottman, Jr. loses…. until Round Three.

Round Three is the Cook County Circuit Court, which is where Rottman next took his case. In the Cook County Circuit Court, the judge ruled in favor of Mr. Rottman. So, Drury was back off the ballot.

But again, the Cook County Circuit Court is not the ”final answer”, so off the parties go to the First District Appellate Court. The Appellate Court disagreed with the Cook County Circuit Court, and ruled in Drury’s favor. So Drury is now back on the ballot, as it is set go to the voters on March 10, 2018.

WHEN “ROUTINE” BECOMES DEADLY …

Those things that we describe as “routine” govern much of our lives, from the “routine” steps we take to brew our first pot of coffee in the morning, to the way we brush our teeth before going to bed at night. We would be lost without daily routines to follow.

But, unfortunately, routines in the wrong place or at the wrong time can prove tragic and costly. For emergency responders, something that looks “routine” can sometime be anything but that.

“Routine” perhaps helps explain how a “routine” 911 EMS call went tragically wrong. Treating the response as “routine” ended up costing a young man his life, and the City of Park Ridge, Illinois, over $5,000,000.00 in damages.

Some of the facts of the case are in dispute. However, based on the description of the call that is presented in the appellate court opinion regarding the case, the following description generally presents the picture of what happened at the time of the call, and later events that transpired as a result.

At approximately 1:00 AM, on October 31, 2004, a frantic father, Lawrence Furio, called 911 because his sleeping son, Joseph, who had a history of breathing problems and some prior drug use, was not responding to the father’s efforts to awaken his son. Fire apparatus and an ambulance, with appropriate personnel, were dispatched on a call that came in as “ …a 15 year old with difficulty breathing…”.

When the paramedics reached the Furio home, Joseph had awakened and, to a casual observer, did not exhibit any visible signs of illness or other condition of ill-being. Joseph apparently told his father, in the presence of the paramedics that some pills that he was taking made him tired. At trial, Joseph’s father testified that a “… paramedic kind of rolled his eyes like with an attitude, like why would you bother calling us, like he was put out …”. Sounds like just another “routine” call, with nothing wrong – time to return to quarters..

Perhaps because it appeared to be a “routine” call with nothing really wrong, other than a brief visual observation of Joseph, the EMTs, paramedics, and firefighters did not clinically examine Joseph, and did not provide any form of treatment to him.

Based solely on a brief visual observation of Joseph, and some level of conversation with Joseph and his father, Park Ridge personnel soon left the home and returned to the station.

If it had really been a “routine” call, the above description would probably be the end of the story. But in this case, that is not the end of the story. Unfortunately, a few hours later, Joseph again had medical problems, and again became unresponsive. His father again called 911, at which time a different set of paramedics was dispatched to Joseph’s home. On this second call, Joseph was found to be in cardiac arrest. Despite the efforts of ambulance personnel, Joseph did not regain consciousness. Paramedics transported Joseph to a local hospital, where he was later pronounced brain-dead and later died as a result of encephalopathy due to cocaine and opiates intoxication.

Joseph’s mother thereafter filed a lawsuit against the City of Park Ridge, alleging that Park Ridge personnel failed to provide appropriate emergency medical care to her son and that, as a result, Joseph died. At trial, the court found that responding personnel either were informed, or should have learned, that Joseph had a history of drug abuse.

The mother’s complaint alleged that the Park Ridge personnel exhibited “willful and wanton conduct” in the care that they provided – or failed to provide – to her son Joseph. The mother claimed that the first set of responding personnel, by failing to evaluate or assess their patient, disregarded the basic precepts of training that EMTs and paramedics receive, and failed to follow accepted hospital and EMS protocols, which protocols would have required, at a minimum, a general patient assessment. In addition, personnel failed to prepare a run sheet or document in any way any evaluation or assessment of Joseph.

There are a number of important messages first responders should take from this call and the ensuing court case. First, beware of treating any call as entirely “routine”. Significant medical issues can lurk below the surface, and patient care principles and established protocols should always be followed, regardless of how “routine” a call seems. This may be especially important, given the high level of opioid abuse that is prevalent currently.

Second, every call, even a routine call, merits an appropriate level of documentation.

Third, while the above description does not address this issue, personnel at trial were “impeached” due to prior inconsistent statements that they had made. It is always important to carefully prepare for any deposition and discovery documents in advance of trial, and to review any such depositions and other documents prior to trial.

Lastly, while not necessarily important for first responders to know, the Illinois Supreme Court ruled in this case that the “limited” immunity contained in the Emergency Medical Services System Act (210 ILCS 50/1 and following) applies instead of the “absolute” immunity for failure to evaluate or treat set forth in the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/6-105 and 10/6-106), because the EMS Act is “… more specific and a more recent statute …”.. Thus, where a plaintiff establishes “willful and wanton conduct” in the first responders’ failure to treat, recovery by the plaintiff can occur.

Abruzzo vs. City of Park Ridge, 2013 IL App (1st) 122360. Prior treatment of the case at 374 Ill. App. 3d, 743 (2007) and 231 Ill. 2d 324).

GOING TRAVELING? CHECK THIS STATUE FIRST – The “Local Government Travel Expense Control Act” (Public Act 99-0604)

On November 16, 2017, by passage of PA 100-554, the Illinois legislature amended the Illinois governmental ethics act. The act now requires that all fire protection district have a “Sexual Harassment Policy” in place that conforms to the requirements of the new law. The deadline imposed by the legislature for compliance with the new law was sixty days after the effective date of the Act, or January 14, 2018.

Working to prevent sexual harassment in the workplace is nothing new to the fire service, and many fire protection districts already have such a policy in place. It is possible that no additional action will be required on the part of your fire district.

However, the new act is very specific in what the policy must contain. To be included in the policy, at a minimum, shall be the following: (1) a prohibition on sexual harassment; (2) details of how an individual can report an allegation of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, the [Illinois] Inspector General, or the [Illinois] Department of Human Rights; (3) a prohibition on retaliation for reporting sexual harassment allegations, including availability of whistleblower protections under PA 100-554, the “Whistleblower Act”, and the Illinois Human Rights Act; and (4) the consequences of a violation of the prohibition on sexual harassment and the consequences for knowingly making a false report.

As a result of this legislation, each fire protection district should review its policies and procedures to insure that it has, by ordinance or resolution, a policy in place that complies with this law. In addition, while it is not stated in the legislation, it will be important for districts to make certain that the provisions of this policy are disseminated to current and future personnel, and that the district can establish that all personnel have been informed about the provisions of the policy.

SEXUAL HARASSMENT POLICY – Every district must have

On November 16, 2017, by passage of PA 100-554, the Illinois legislature amended the Illinois governmental ethics act. The act now requires that all fire protection district have a “Sexual Harassment Policy” in place that conforms to the requirements of the new law. The deadline imposed by the legislature for compliance with the new law was sixty days after the effective date of the Act, or January 14, 2018.

Working to prevent sexual harassment in the workplace is nothing new to the fire service, and many fire protection districts already have such a policy in place. It is possible that no additional action will be required on the part of your fire district.

However, the new act is very specific in what the policy must contain. To be included in the policy, at a minimum, shall be the following: (1) a prohibition on sexual harassment; (2) details of how an individual can report an allegation of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, the [Illinois] Inspector General, or the [Illinois] Department of Human Rights; (3) a prohibition on retaliation for reporting sexual harassment allegations, including availability of whistleblower protections under PA 100-554, the “Whistleblower Act”, and the Illinois Human Rights Act; and (4) the consequences of a violation of the prohibition on sexual harassment and the consequences for knowingly making a false report.

As a result of this legislation, each fire protection district should review its policies and procedures to insure that it has, by ordinance or resolution, a policy in place that complies with this law. In addition, while it is not stated in the legislation, it will be important for districts to make certain that the provisions of this policy are disseminated to current and future personnel, and that the district can establish that all personnel have been informed about the provisions of the policy.

Got Tires?

Financial rewards for serving as a volunteer firefighter are few and far between. That’s to be expected. since no one becomes a volunteer firefighter in order to get rich. In 2017, however, the Illinois legislature did add a small financial benefit to the volunteer service that has pretty much gone unrecognized. Public Act 100-0471 amended Section 10 of the Fire Protection District Act by adding Section 10d (70 ILCS 705/10d).

This new law allows a “volunteer firefighter” to purchase four vehicle tires every three years through the firefighter’s fire protection district’s contract to purchase vehicle tires under Section 2 of the Governmental Joint Purchasing Act. Before a firefighter seeks to take advantage of this new law, however, it’s important to note that there are some very specific qualifications that must be met to qualify for the purchases.

The firefighter must meet the definition of a “volunteer firefighter” as set out in the statute. Under that law, a “volunteer firefighter” is a person “ … who does not receive monetary compensation for his or her services to a fire protection district…”. Thus, if compensation is received by a firefighter in any form (perhaps excepting reimbursement for established out of pocket expenses), the firefighter does not qualify to purchase tires under this law.

In addition, the firefighter must be shown as a firefighter on the rolls of the fire department, and must be authorized, in writing, by the fire chief on the fire district’s letterhead, to make the purchase.

The writing must include the firefighter’s name, the license plate number of the vehicle that will receive the new tires, and must reference the fire protection district’s joint purchasing agreement.

There is no requirement under the statute that there be any reporting of the purchases beyond the fire district itself: the fire protection district itself is responsible for documenting how many tires each volunteer firefighter can purchase under the statute every three years.

As might be expected, the firefighter who receives the tires must pay for the tires, including any taxes related to the purchase. The purchases are not considered tax exempt.

One technical requirement for the purchases is that it only applies to contracts first solicited under Section 4 of the Governmental Joint Purchasing Act on or after September 8, 2017.

Records Destruction by Fire Protection Districts

Hardly a day goes by that a fire protection district doesn’t create some form of document, typically in paper from, but increasingly in electronic format. Because districts generate so many documents, an inevitable question is “how long do we have to keep these darn papers?”

The answer to this question is not a response the fire chiefs and trustees like to hear. For that answer is, unless someone in state government gives you permission, if it’s an official record of the fire district, you have to keep it forever. There is an Illinois state law, called the “Local Records Act” (50 ILCS 205/1 and following) that describes the steps to be taken in order to lawfully dispose of fire district records. In general terms, no public record can be destroyed without permission from the appropriate “Local Records Commission”.

And, to be a “record”, the document doesn’t need to be on fire district letterhead and signed by the fire chief and all the trustees. The Act describes “records” very broadly, as including “any … official documentary material, regardless of physical form (so it includes electronic materials) … made, produced, executed or received … in connection with the transaction of public business … (50 ILCS 205/3). There are some exceptions to the requirement to keep district records “forever”, primarily those documents that are described as “transitory” messages, such as announcements of office events like a holiday party.

So, if the filing cabinets are filled to the brim, and the only other solution is to build an addition to the fire house just to house all these books and records you’ve accumulated, what’s a fire district to do? When things get this bad (or, it’s recommended, even sooner), contact should be made with the “Records Management Section” of the Illinois State Archives, which is under the jurisdiction of the Illinois Secretary of State.

The “Records Management Section” of the Illinois State Archives can be contacted by phone at 217-782-7075, or by mail at the Illinois State Archives, Springfield, Illinois 62756. Personnel from this office will then help fire district personnel develop an “Application for Authority to Dispose of Local Records” that can be submitted to the appropriate “Local Records Commission” for approval. Once approval is received, a “Local Records Disposal Certificate” will be created, allowing the identified records to be destroyed. Once the “Local Records Disposal Certificate” is in place, the identified records can be destroyed, and the need for more filing cabinets or an addition to the fire house to store records avoided.

The Illinois Secretary of State also has a helpful outline of “FAQ” regarding local records at the office’s web site, cyberdriveillinois.com.