Certifications, Qualifications, and Mutual Aid

Today’s burning question: I am a fire chief. A neighboring volunteer fire department announced its new slate of officers for 2018.   In this department the current fire chief either stays in office or names his own successor. In this case the outgoing fire chief named his son as his successor.

The problem is that the son lacks any qualifications to even be a firefighter, let alone an officer or fire chief. He does not have Firefighter I or II, Fire Officer, or any credentialed certification. As with many small volunteer departments his family controls this department, holding several key offices.

My concern is for the safety of my firefighters when responding to a mutual aid call when this unqualified chief is in command. This appears to have imminent liability risks – having a person as an officer with no certification and little training.   Might their insurance company deny claims to mutual aid companies if and when they discover this situation after a serious accident?

Answer: Chief. It seems to me you are asking a liability question, but we both know that liability is not the real issue.

What I mean by that is: if I told you that your liability concerns with what is going on in the neighboring fire department are unfounded, you would not feel better! That is because your concerns are not truly about liability. You have some very legitimate safety concerns masquerading as liability concerns in hopes the liability angle will convince folks in that department to wake up.

In my experience – that won’t happen.

Folks who are oblivious to safety concerns will not suddenly say “You mean if I kill someone, I could be held liable? Holy cow!!! Well then that changes everything! I thought if I killed someone I would get off Scott-free. I am going to change my ways starting today.”

No, it doesn’t work like that. There is no doubt in my mind that the folks you are concerned about earnestly believe what they are doing poses no great risk to anyone. As a result, dire warnings of imminent liability will not change a thing in their minds.

Now, let’s talk about the real issues: should unqualified people serve as fire chiefs? Of course not. That is a common sense issue, not a liability issue. Folks who lack the common sense to recognize the stupidity of having an unqualified person running a fire department, inevitably lack the common sense to worry about the liability that will follow.

Next real issue: Are folks who lack a formal certificate indicating they met an NFPA training/qualification standard at some point in time, per se unqualified? Not necessarily. Folks of my generation were properly and competently trained back before many states had fire academies and before certificates had become the norm. In fact that was before the majority of today’s fire-certificate chasers were born. I happened to go back and get my certifications but I know hundreds of highly qualified firefighters and officers who have no formal Pro-Board, IFSAC or state fire academy credentials.

The lack of formal credentials should be distinguished from being unqualified.

One way a fire department can keep unqualified folks from becoming officers and/or fire chief is to have formal qualification requirements. Fire departments should have minimum qualification requirements because it is smart, not just out of concern for liability. However, as is often the case, liability tends to follow decisions that are not smart.

The qualification requirements should look at formal credentials, but ought to consider exceptions for those with equivalent training or experience. For example, someone who graduated from the FDNY training fire academy in the 1970s, and served as a firefighter, company officer and chief officer in FDNY (case in point is my friend John Salka) is likely to be eminently qualified to serve as a fire officer in most fire departments despite the lack of an NFPA 1001 Level 1 firefighter certificate.

It would be wrong to put form over substance and say “Well Chief Salka, despite all your training and experience, you lack one piece of paper… so we are sorry…”. In fact it would be asinine. I often hear liability concerns raised in this context. Liability cannot and should not be used to rationalize asinine rules. That is the tail wagging the dog.

Having said all this, I do not think the way that your neighboring fire department is appointing its fire chief is smart, regardless of who is being appointed. To be fair – there are plenty of cities where the appointment of a fire chief by elected officials is only marginally better than the system your neighbor uses. A fair system should be used to evaluate and promote all ranks in a fire department. Politics, including family politics, should not play a role.

That gets us to whether or not your new neighboring fire chief is qualified… something I suspect is debatable depending on who you are talking to. If he is indeed unqualified as you suggest, it should have no bearing on the insurance company’s liability obligations in the event of a claim. It may give the insurer grounds to cancel the policy… but assuming the policy is in effect when the injury occurs, an incompetent fire chief would not give a liability insurer a defense to third party claims.

As I said above… I sincerely doubt that answer gives you much consolation….

My advice:

  1. Keep a close watch on your personnel when on mutual aid runs in that jurisdiction. Ensure that adequate supervision (chief officers) from your department respond on those incidents to manage the risks.
  2. Work with your state chiefs association and/or state fire marshal/fire academy to establish minimum requirements for fire chiefs.
  3. Consider revising your mutual aid agreements/pacts to include minimum requirements for various parties, including minimum requirements for all responders, officers and perhaps even each organization’s fire chief.

One final thought: If you honestly believe your personnel are at grave and imminent risk of harm when responding to that jurisdiction, and that the risk cannot be mitigated through steps you can take, then you should terminate the mutual aid agreement with the jurisdiction. If the thought of cancelling the mutual aid agreement causes you to pause… maybe the threat is not as imminent as you are telling yourself it is.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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