Fire Law: Words Matter

The terms standard operating procedure (SOP), standard operating guideline (SOG), best practices, rules and regulations, and a host of others have been in common use throughout the fire service. Some of these terms may have been in use in your organization for decades. However, each fire department in each jurisdiction is a unique legal entity. Given that fire departments are primarily governed by state and local laws, painting with a broad brush is challenging.

Some states have extensive laws governing the administrative operations of fire departments, while other states have very few laws. The charter of most municipalities typically provides for the legal authority of the department and its members. These state laws and local charters commonly incorporate specific terminology regarding the department’s authority, and by doing so, may require the use of specific terms when drafting policies.

One simple example would be a state law that authorizes a municipal fire chief to issue “operational procedures.” If the fire chief were to issue something called a “guideline” or “best practice,” questions arise about whether such a requirement is legally authorized. In other words, does the fire chief have the legal authority to issue a guideline or best practice?

A more nuanced example would involve a city charter provision that states that the fire commissioner is authorized to issue rules and regulations, while the fire chief is authorized to issue orders. If the charter is silent on whether the commissioner or the fire chief has the authority to issue SOPs or SOGs, legal questions arise.

Workarounds exist, such as the fire commissioner enacting a regulation that authorizes the fire chief to issue SOPs or SOGs. However, for this to occur, the department must first recognize that such a limitation exists.

How to know you have a problem

For decades, NFPA standards and Occupational Safety and Health Administration (OSHA) regulations have required fire departments to have an organizational statement. While the organizational statement serves many important purposes, one relevant to this discussion is its role in identifying the department’s legal authority to operate. Armed with the information in the organizational statement, determining the appropriate terminology for a policy becomes relatively straightforward.

Without that information, a department is like a ship in heavy fog without radar or a guidance system. So long as you are in open waters, no problem, but you will never realize how close you are to an avoidable problem until it is too late.

Steps to address the problem

If your organizational statement meets NFPA and OSHA requirements, it should direct you to laws that authorize the department to operate. If it does not, local legal counsel can be engaged to research the authority of the principal players (e.g., the fire commissioners, district board members, city/town council members and/or the fire chief) to create policies. Counsel can also identify terminology-related limitations.

Attention should also be paid to the terms used in statutory or charter provisions related to the “enactment,” “issuance” or “approval” of policies. For instance, in a department where the fire chief is authorized to “enact” rules and regulations, there may be questions about the enforceability of rules and regulations that are merely “issued by” or “approved by” the fire chief. Such a department should ensure that the term “enacted” is used when rules and regulations are promulgated.

Why this matters

If a member violates a department requirement (SOP, SOG or rule) that’s issued by someone without legal authority to do so, the department may not be able to enforce it. This would invite legal challenges.

So, words matter. Aligning your department’s policies, guidelines and procedures with the legal authority that’s provided by state and local laws is critical for maintaining organizational integrity and operational effectiveness.