Public Service

Sheriff’s Office v Fire Authority in a Game of SAR ‘Airborne Chicken’

By S.L. Fuller | January 26, 2018
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Photo coutesy of the Orange County Fire Authority

Photo courtesy of the Orange County Fire Authority

Public service operators have territorial lines to which they are obligated to abide. Those lines could be geographical, or they could be operational.

An example from California, as described by Orange County Fire Authority Interim Fire Chief Patrick McIntosh:

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The Orange County Sheriff’s Department has been responsible for searches and rescues that require several moving parts. It would manage a missing persons search that entailed ground forces and could potentially last hours. The Orange County Fire Authority has been in charge of immediate, emergency medical rescue operations. It would respond to an automobile accident and transport victims to the hospital.

That dual-agency approach was written in a memorandum of understanding (MoU) that was signed in 2016. Then that memorandum approached its August 2017 expiration date, and Sheriff Sandra Hutchens gave notice June 5, 2017, of her intention to terminate the MoU at its expiration date, with the power vested in her by the state as an elected authority.

Clear delineation of operational territories is not a complete solution. Public service providers, not exclusive to Orange County, push those boundaries. The goal for the operator is to respond to as many calls as possible — those numbers help come budget justification time and if an operator feels it can respond, it will, of course, want to do so.

What happens when two different agencies feel they should respond to the same call?

Orange County supervisors cited at a Jan. 23 board meeting witness accounts and recordings of indications that the fire and sheriff’s departments were not coexisting as they should. Instead, they were engaging in a sort of standoff, competing with each other in some ways to get to a call first.

According to Supervisor and Fire Authority board member Todd Spitzer, a Fire Authority Helicopter Jan. 14 encroached on airspace that was already occupied by the Sheriff’s Department, which was carrying out a mission at that time.

Two days after that incident, Hutchens’ office issued a press release, announcing that she would let the memorandum expire.

“It is in the public’s best interest that the Sheriff’s Department serve as primary provider for remote-area search and rescue missions,” Hutchens said in the announcement. “Air rescues in remote and wildland areas represent one facet in a comprehensive search and rescue program that has been serving county residents for more than 70 years.”

The sheriff’s air support unit started operating in 1985.

As a result, Hutchens and McIntosh stood before the board of supervisors at that Jan. 23 meeting because the Fire Authority was advised by its legal counsel to disregard Hutchens’ announcement. That blatant contempt of Hutchens’ legal authority alarmed the board enough to put it on the agenda and address it.

Supervisor Shawn Nelson, vice chairman of the board, referred to the helicopter standoff as “some game of airborne chicken,” adding that the behavior “is so far outside the realm of acceptable.”

“Somebody needs their license taken — now,” he said.

Over the course of the meeting, the board noted multiple times that it actually did not know what the appropriate action was to take. Should the FAA be notified? Were the two aircraft technically too close together during that incident, making the situation dangerous?

“What do I need to do to make sure that we don’t have a catastrophe, other than … say ‘Hey, we’re right; they’re wrong?’” Nelson asked. “They don’t agree, and I don’t have authority to make them agree. Where do I go?”

Hutchens, who was standing at the microphone when Nelson posed the question, offered the suggestion of engaging a mediator — which the Sheriff’s Department and Fire Authority had already tried to no avail.

“As you know, we’ve been grappling with this issue in terms of air rescue for some time and I am, quite frankly, very frustrated that we have not been able to come to an agreement, although many, many people have tried to do that in good faith,” she said. “Our last venture was with a mediator, which I am fully prepared to go back to and ask for the mediator to present us with his recommendation.”

As for the alleged game of chicken, Hutchens said the Sheriff’s Department conducted an investigation into every claim.

Supervisor Lisa Bartlett also serves on the Fire Authority’s board. She agreed with the board of supervisors in that something needed to be done.

“When you look at 90% of the search and rescue victims who should probably be transported by ambulance to the hospital, Fire Authority puts them in an ambulance when necessary and takes them to the hospital,” she said. “When you take a look at the Sheriff’s Department, everything is air transport. So I have a concern, when you talk about cost and efficiency with regard to the air transport of these victims to the hospital via air transport, which is very expensive.”

Perhaps mediation, she said, would be a good solution.

Hutchens agreed that when there is an accessible path for ground transportation, like a road, the Fire Authority should respond. But she said she felt there were areas of operation that would favor the Sheriff’s Department.

“If you look at our capabilities and our staffing versus the Orange County Fire Authority staffing,” she said, “I think we are in a better position.”

Fire Authority management, she said, alleged “many times” that Sheriff’s helicopters were rushing to calls.

“The fact of the matter is we’re in the air so they’re probably 99.9% of the time going to be there first,” Hutchens said. “It’s not that they’re rushing to calls. What that statement does not say, and what is part of our operating plan, is certainly if we are not available, the Sheriff’s Department is not available or has an extended response, we certainly would call on other resources in the county.”

When it was McIntosh’s turn at the microphone, he noted that the Fire Authority’s air operations program has been conducting missions for 20 years. It has a commitment to safety that equals the commitment of the Sheriff’s department, and the Fire Authority has worked for decades with other law enforcement agencies. The challenges, he said, came from the fact that the memorandum of understanding “wasn’t being followed.”

“[The memorandum] clearly says for injured persons, Sheriff helps look for them; the rescue component is the fire authority. That’s clearly delineated,” McIntosh said. “It outlines communications, it outlines the incident command system. If both agencies commit to the MoU and that operating plan, putting it back in place until this issue is resolved, and commit to following it exactly as its written, we have the model program for anybody to follow.”

Where the legal counsel’s advice comes in, he said, is that within a California code is an item that does not give any additional powers for search and rescue upon sheriffs or other public agency providers that provide the service.

“We’re continuing to dispatch to remote rescues as we have done and provide those ground-based and aerial resources, make a risk assessment to determine whether it should be a ground rescue or an aircraft rescue,” he said. “And that’s what our legal counsel has directed us to do. That is within our legal authority.”

His recommendation to the board was to reinstate the memorandum and have both agencies commit to following it until another resolution is put into place.

“I think, unfortunately, to unilaterally say, ‘We’re taking over things that the fire authority has done and has done professionally and with excellence for the last 20 years,’ is wrong. It’s not fair; it’s not right,” he said. “But let’s get to a solution and let’s find the answer.”

But since the Sheriff has the legal power to end the memorandum, the board of supervisors recommended the Fire Authority recognize that and act accordingly. The Fire Authority’s board was, at that time, set to meet Thursday. And until any further direction from that board, McIntosh could not accept Hutchens’ memorandum revocation.

Even when the county counsel reiterated it was illegal not to recognize that revocation, the board ultimately decided it needed the advice of a higher government body.

That portion of the board meeting ended without a solid resolution. It did, however, end with an action. Spitzer recommended looking to the California Governor’s Office of Emergency Services and see what the cabinet-level authority would have to say.

“If there’s an incident, I’m just not sure how much good being right is going to help everyone if it turns out that their disagreement … ends up with what we all fear, which is sooner or later these birds are going to touch or they’re going to hit something because they’re swerving to avoid each other,” Nelson said. “And then I’m not sure it’s going to matter who’s right. I mean, in the end I suppose one agency will pay out a lot of liability dollars, but that’s not what I’m worried about. We’re just so much better than this.”

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