By Charles D. Carter

In 1991, I was in New York City to conduct a course for 9-1-1 instructors. After I entered the building at One Police Plaza, my host pointed to a courtroom just off the lobby. He said it was used for nothing but settling lawsuits against NYC police officers. How terrible that so many allegations of wrongdoing by police exist that they need their own courtroom with a judge dedicated to nothing but cases against those sworn to protect and serve.

I’m also amazed by the growing number of allegations of negligence against 9-1-1 employees and agencies. In my opinion—which is based on years of evidence I’ve seen presented in out-of-court settlements, summary judgments and trials—these allegations are occurring because 9-1-1 employees often neglect to meet a standard of care.

According to Black’s Law Dictionary, liability means “legal responsibility for one’s acts or omissions. Failure of a person or entity to meet that responsibility leaves him/her/it open to a lawsuit for any resulting damages.” The legal term for this failure to meet their responsibility (i.e., standard of care) is negligence.

In a civil action in which negligence is alleged, the following four components must all be present:
1.    Duty;
2.    A breach of duty;
3.    Proximate cause; and
4.    Damages.

A person is negligent if they “failed to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not.”

Liability exists when you accept a position of responsibility. For example, a licensed driver has a duty (i.e., liability) to obey all traffic laws. If someone fails to obey traffic laws, they have failed to meet a standard of care (i.e., breach of duty).

Liability in 9-1-1: You have a duty to follow the 9-1-1 center “law” outlined in your policies and procedures manual.

Negligence: If you fail to comply with all your agency’s policies, procedures, rules or regulations (or any other written directives), you have neglected (failed) to meet a standard of care (i.e., breach of duty) and can be found guilty of negligence.

Common Claims
Claims of 9-1-1 negligence usually involve hiring, training, supervision and entrustment. Many administrators cite a lack of funds as the reason they have not implemented programs for hiring, training and supervising employees. I can assure you that a lack of funds will not be an acceptable defense for negligence in court. If you can’t afford it now, how will you afford it when the court orders it?

Implementing hiring procedures, selecting a training program, writing policies and procedures, and monitoring employee performance aren’t expensive or difficult. They do require commitment and support from executive management.

How do you start? Start with a plan. Create a plan, submit the plan, and work the plan. It should include specific phases for hiring, training, directing, monitoring, measuring and correcting employees.

Hiring
The hiring process comprises several phases and begins with the establishment of standards that must be met by any applicant. Minimum qualifications to test for during hiring include:
•    Knowledge, skills, abilities and per­sonal characteristics necessary for success on the job as ascertained through a job analysis and linked to critical duties. These are required at the time of hire and
are not learned through a brief
orientation, an academy or on-the-job training.
•    Core skills and abilities that make up a good portion of the job and are frequently used and critical to proper performance.

Once applications are screened, any applicant not meeting those minimum standards shouldn’t be considered for employment, regardless of how short-staffed the agency is. Imagine trying to defend the selection of an applicant who your agency knew in advance was lacking minimum qualifications from the start.

Recruiting: Recruiting qualified applicants should include well-constructed announcements on bulletin boards and in employee newsletters and newspapers, and public safety announcements on radio and television. If the announcements don’t specify the minimum standards, working conditions and starting salary, then time will be wasted weeding out unsuitable candidates later.

Standards must be non-discriminatory according to federal laws involving such factors as age, sex and race, and must meet criteria under the Americans with Disabilities Act. The announcement should be reviewed by the agency’s legal counsel to ensure it complies with all laws. An application cut-off date should be announced and adhered to.

Application screening: If the human resources department will identify qualified applicants, then its assessment should be according to criteria endorsed by the 9-1-1 director.

Background & history: The background phase should include an investigation of criminal and employment history. This phase should begin once a sufficient number of qualified applicants have been identified. Personal references provided by applicants are self-serving and usually highly biased in favor of the applicant. Thus, they are usually insufficient to recommend a candidate.

Federal and state laws apply, so investigate the Equal Employment Opportunity Commission and Department of Labor websites. Your legal counsel should review the process, including any forms or documents that pertain to it.

Testing: This phase includes oral interviews and knowledge and skills exercises. Interviews must employ a standardized method­ology to ensure fairness.

If possible, the same oral review board personnel should be present for all applicants. Teams should include equally representative numbers of job incumbents, supervisors and human resources staff. Training should be administered to review board personnel to ensure the same questions are asked the same way and that responses are uniformly scored. If a board member can’t be present, it’s best to reschedule the meeting if possible.

Skill-based exercises are a must so candidates can demonstrate their ability to exhibit a measurable level of proficiency and ensure they have the core skills and abilities necessary to succeed in a high-stress environment. I recommend a standardized testing platform, such as CritiCall Testing Software. Candidates must be able to obtain information from a caller and enter appropriate data into formatted fields at the same time, and make response decisions based on rules supplied.

After oral interviews and written and skills testing have been completed, any candidate who may be offered the position should be required to sit in with an experienced calltaker or dispatcher for at least four hours during peak time on a Friday or Saturday night. If they’re still interested in the position, they should be invited to take the medical test.

Medical testing typically includes a physical and a drug screening and is usually the last hurdle. Medical clearance is a condition of employment.

New-hire orientation: If your 9-1-1 center functions as a department or subdivision of a larger agency, such as a police, fire or sheriff’s department, the agency-level orientation should be completed prior to the new employee beginning work in the 9-1-1 or emergency communications center. During this phase, the newly hired employee should be provided with all necessary information, reference materials and benefits forms. This orientation should never be put off to a so-called more convenient time.

Once the new employee has completed all agency administrative matters, they should be provided a formal orientation in the 9-1-1 or emergency communications department or division.

The department orientation should be a formal, standardized process for all new employees. Each new employee should be provided with department-specific rules and regulations, a policies and procedures manual, a copy of the written job description, a performance evaluation form and the written standards by which they will be evaluated. The employee needs to have a clear understanding of management’s expectations and standards.

Rules and regulations should cover such matters as chain of command, work hours, dress codes, departmental administrative policies, conduct, grievance and disciplinary programs, and other topics, as appropriate.
Policies and procedures cover management’s requirements and how they should be carried out. These should be provided to the employee in hard copy and digital formats and be available to access at any time. The employee should acknowledge receipt of these materials and sign a statement agreeing that they “have read, completely understand and agree to full compliance to these materials at all times and that any noted exceptions will be reported to management and documented.”

Agency and department rules, regulations, policies and procedures (administrative and operational) should be included in the agency-adopted training program, and the employee should be tested on their knowledge of current and future additions, modifications and deletions to ensure compliance and understanding.

Training
Just like hiring, training has its own phases. These include basic certification, continuing education, and advanced and professional development courses for all levels.

Basic certification: Many states have a legislative mandate requiring 9-1-1 employees to become certified through programs officially recognized as having met training standards established by a state 9-1-1 board or commission. More importantly, citizens who call 9-1-1 in times of an emergency (including those who serve on juries) expect that a trained calltaker or dispatcher will handle their call in a professional manner; it has become a national standard of care.

Your agency should adopt a training program even if your state doesn’t have a legislative mandate for basic 9-1-1 certification. Focus on meeting the minimum standards of training developed by such professional organizations as APCO International, NENA and NFPA. Many training companies have also adopted these standards. Doing so allows them to be recognized by all state 9-1-1 commissions.

Continuing education: It’s as important for 9-1-1 professionals to be recertified as it is for fire, police and medical public safety professionals. Continuing education courses may be one hour, one day or longer and include such subjects as crime-in-progress calls, domestic violence calls, suicide calls, hazmat calls, bomb threat calls, stress management in 9-1-1, interpersonal communications, liability and legal issues, and others specific to the job.

Advanced & professional development: Advanced training includes the following topics: emergency medical dispatcher (EMD), fire communications, 9-1-1 instructor, EMD instructor, fire instructor, CTO, CTO instructor certification, quality control officer, and supervisor and management-level courses on developing policies and procedures, quality assurance, EMD program implementation, employee management and 9-1-1 leadership.

Direction
Management must provide employees with direction on policies, procedures, rules, regulations and guidelines, as well as qualified supervision and quality controls to ensure compliance.

Monitoring
Employee performance management is the systematic process by which a company strives to improve organizational effectiveness and productivity through tracking, monitoring and optimizing employee behavior and activities. Elements of effective employee performance management include the ability to:
•    Monitor and track employee performance, including contributions and incidents;
•    Evaluate performance through employee reviews and appraisals;
•    Track attendance, including paid time off, vacation time and sick days; and
•    Schedule and track employee training and development initiatives.

Resources for employee performance management include:
•    A quality assurance program;
•    Quality controls designed to measure and monitor performance and identify when performance has failed to meet or may fail to meet written standards; and
•    The appointment of a quality control officer formally trained in the implementation and maintenance of the quality control program.

Measurement
The most difficult part of the performance appraisal process is accurately and objectively measuring employee performance. Measuring performance covers evaluation of the main tasks completed and accomplishments of the employee in a given time period in comparison with the goals set at the beginning of the period. It also encompasses the quality of the accomplishments, compliance with the desired standards, the costs involved and the time taken to achieve the results.

Resources for measuring employee performance include written performance standards, written job descriptions, evaluation forms, personal observations, and verbal, written and practical tests.

Correction
Employee discipline plan: A formal employee discipline plan should be provided to the employee during orientation. Employee discipline can be composed of individual or combined elements of the employee discipline plan. For example, counseling may suffice in some cases. In others, remedial training and testing may be necessary for the employee to demonstrate improvement in skills or administrative areas in which they may appear to be deficient or demonstrate a deficiency.

If the employee doesn’t respond favorably to counseling and remedial training, termination may be the best option. It’s hard to defend an agency that doesn’t terminate an employee who doesn’t respond positively to counseling or remedial training.

Documentation: In all cases of employee discipline, make sure every event, conversation, internal affairs report (as appropriate) and element of the disciplinary program is documented. If termination is eminent, make sure the basis for termination and all supporting documentation are presented to the employee at appropriate times.

Notification of any laws that relate to employee rights should be provided to the employee at appropriate times. Check with the agency’s legal counsel before implementing this program. Ensure training on the employee discipline program is provided to all employees in a supervisory position and that they comply with the program.

Conclusion
By following a structured plan for hiring, training, directing, monitoring, measuring and correcting employees, PSAPs can put themselves in a strong position to defend against claims of negligence. PSAPs are held liable to a high standard, and it’s their duty to meet that standard. [PSC]

Charles D. Carter has dedicated himself to providing training programs and consulting to the 9-1-1 profession since 1987. He represents both plaintiffs and defendants in 9-1-1 lawsuits in state and federal courts.