Throwing flames 

Black Forest Fire chief files suit alleging unsafe firefighting actions, wrongful termination

click to enlarge Smoke from the 2013 Black Forest Fire was visible for miles. - FILE PHOTO
  • File Photo
  • Smoke from the 2013 Black Forest Fire was visible for miles.

On the second day of the Black Forest Fire in June 2013, El Paso County Deputy Fire Marshal Scott Campbell conducted a back burn that wasn't necessary, endangered firefighters and caused damage that might have been avoided, according to a lawsuit filed by the Black Forest Fire Protection District's former chief.

Bob Harvey, replaced as chief in December 2014, also claims in the lawsuit that he never resigned and, therefore, was wrongfully terminated.

Filed in June, the lawsuit names as defendants the district, former Sheriff Terry Maketa in his "individual capacity," and unknown "John/Jane Does." Maketa's legal defense, due to file an answer on Thursday, is not being publicly funded, because the lawsuit cites his actions "outside the scope" of his sheriff's duties, notes County Attorney Amy Folsom.

The district filed a motion on Sept. 21 seeking dismissal of the case based on legal requirements and procedures of Harvey's claim and lawsuit that the district says weren't followed.

Harvey, a former Colorado Springs firefighter hired as Black Forest chief in 2012, was the target of public criticism by Maketa and also came under fire from his board and some Black Forest residents for how he handled the Black Forest Fire. The most destructive in state history, the fire broke out from an unknown cause on June 11 and claimed two lives, 14,000 acres and 509 homes.

Maketa chiefly complained that Harvey's handoff of the fire to the county about two hours after it started wasn't quick enough.

Harvey says in the lawsuit that Maketa's criticism was triggered by Harvey's filing a SafeNet report with state officials that was critical of "The ICT3" in the Black Forest Fire. Maketa's staffer Campbell was that ICT3.

The report subsequently was posted on the National Interagency Fire Center's website.

Early on June 12, the lawsuit says, Campbell, serving as incident commander for the Type 3 team that had assumed command from Harvey earlier, left the command post to initiate a "firing operation." A firing operation, sometimes called a back burn, is a strategy in which firefighters set a fire in the blaze's path to burn up fuels to prevent the fire from spreading.

Harvey alleges Campbell's back burn conflicted with local, state and federal guidelines and protocols.

From Harvey's SafeNet report: "The ICT3 did not have an established holding operation, did not brief the operating units of his intent, did not know where any safety zone or deployment site would be, did not state where his terminal point of the firing operation would be, did not ask for supporting forces to provide for a safe firing operation and did not ask [where] operating units outside his field of view were located."

"Due to a lack of due regard for proper procedures," Harvey's lawsuit states, "the operation results in the emergent evacuation of adjacent forces and personnel. Additionally, the loss of one home can be attributed to this firing operation." A mobile home on Burgess Road was destroyed, the lawsuit says; two homes survived but their surrounding areas were heavily damaged.

Maketa's public statements criticizing Harvey were "retribution" for Harvey's filing the SafeNet report, the lawsuit alleges. Campbell declined to comment on the SafeNet report through a sheriff's spokesperson.

After the report was filed, the lawsuit contends, "untrue" rumors about Harvey initially rejecting other agencies' help were promoted by sheriff's and county emergency management personnel and P.J. Langmaid, a Springs firefighter later elected to the Black Forest fire board, the lawsuit says. Several other board members also claimed Harvey mismanaged the fire, including Rich McMorran, a lieutenant for Maketa, the lawsuit says. Those people also "would leak information to the media and seek to further enflame the recovering community," according to the lawsuit.

Harvey further notes that board member Langmaid was "directly opposed" to stricter fire codes proposed by Harvey and other fire chiefs, including on-hand water requirements for larger structures. Langmaid would have been required to meet those requirements in rebuilding his own fire-destroyed home, if the new codes were adopted.

A coalition of residents including some board members presented a petition for Harvey's ouster to the board in November 2013. The following June, Harvey requested vacation and sick time "to address his personal needs and health." During his leave, "the Board repeatedly miscategorizes the leave request as a resignation and begins an executive search for a new Chief," the lawsuit says. On Dec. 14, 2014, Bryan Jack is hired as chief.

Harvey asserts several reasons he was wrongly terminated, including his filing of the SafeNet report, his leave request, his claim for worker's compensation for post-traumatic stress disorder, and his refusal to implicate himself in mismanagement of the fire.

The lawsuit seeks damages in excess of $100,000, and his notice of claim cites damages at more than $1 million.

But the district notes in its motion to dismiss that the Colorado Governmental Immunity Act requires a claim notice be filed within 180 days of the incident that allegedly caused harm and that Harvey didn't file his notice until Oct. 30, 2014.

Moreover, the notice doesn't state with precision the basis of the claim as required, the district argues, but rather alleges only that Maketa and the board "embarked on a civil conspiracy, the object of which was to unjustly and unlawfully terminate Chief Harvey from his employment with the District."

The notice, according to the district's motion, was "insufficient to put [the district] on notice of any of the claims brought against it through the subsequent lawsuit."


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