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The Anatomy of a Florida Photo Controversy

They were two images from a small digital camera; two images that only took seconds to take. Two images that would eventually fuel a complaint, a police investigation and the subsequent media frenzy that ended with the resignation of a fire chief in the small, central-Florida town of Umatilla.

Richard Shirk Jr. became Umatilla’s first full-time, paid fire chief in October 2007 after serving on the fire department as a volunteer for nearly 10 years. Shirk, a paramedic and third-generation firefighter, grew up in the neighboring town of Eustis. After only six months as a volunteer, he moved up the ranks in Umatilla to assistant chief, a role he filled until being full-time fire chief in 2007.

The incident
Shirk had been on the job as Umatilla’s chief for barely a month when he and other members of his department responded to a Lake County Fire Rescue mutual aid request for a motor vehicle accident„just outside Umatilla city limits in early November.

Umatilla responders and Lake County Fire Rescue arrived around the same time to find an unresponsive, woman in her 20s about 50 feet from her vehicle, which was wrapped around a tree. Shirk immediately recognized the young woman as the granddaughter of Umatilla councilwoman Jeannie Olson.

Shirk assumed command while his crew, Lake County Fire Rescue and Lake-Sumter EMS crews attended the mortally injured woman.(1) Local and county law enforcement agencies assisted the EMS crews. Air evacuation was requested by EMS, and Shirk directed inbound Lake County Fire Rescue engine 27 to establish a landing zone for the Life Net helicopter.

Returning to his vehicle to don his command vest, Shirk also grabbed his digital camera. He then photographed his first image of the scene that shows eight fire, EMS and police personnel working around the patient.

“I saw my crew along with the other agencies attending to the patient and thought, ‘this really dramatizes five agencies working together to save a life,'” he said. Seconds after the first image, Shirk walked around the stretcher and took another photograph of the multi-agency responders attending to the patient.

After the patient was air lifted, Shirk took 23 additional images of the crash site, which he electronically attached — with the two including the patient — to a National Fire Incident Reporting System (NFIRS) report.

Shirk learned later that evening that the patient died from her injuries. The following day, several Umatilla Fire Department volunteers purchased flowers to be placed at the scene. Shirk took the flowers to the scene and photographed two images of the flowers at the base of the tree. He later attended the patient_s funeral.

Several days after the accident, Shirk e-mailed four photographs from the 27 — including the two with the patient — to associates at neighboring Eustis and Mount Dora fire departments. Eustis Fire officials have acknowledged that at least one recipient forwarded the images to other individuals within their department. Shortly after Shirk e-mailed the four photographs, the spouse of an Eustis City firefighter complained to Lake-Sumter EMS paramedic Gwen Burgess that the images included photos of a partially naked patient.

In a written statement later submitted by Burgess to the city of Umatilla, the spouse felt the images were “inappropriate and not something that should be made public.”(2) Burgess, who had not seen the photographs, contacted Lake-Sumter EMS executive director Jim Judge and informed him of the image contents.

Judge then called Shirk and questioned him about the photos. “I told him that the contents could have multiple ramifications such as personal suits, state violations as well as HIPAA,” Judge said.

Shirk acknowledged that he e-mailed some of the photos to multiple individuals without reviewing them first.(3) After receiving Judge’s phone call, he enlarged and closely examined the two patient images Ï noting one of the patient’s breasts was exposed. The patient’s face isn’t visible in either photo.

Shirk then called Judge back and confirmed the images were inappropriate. The chief then contacted all recipients and urged to delete the images.(3)

Judge also recommended Shirk come up with a department policy that would prevent future dissemination of inappropriate patient pictures.(3) That day, Shirk drafted a policy that prohibits taking photographs at emergency medical or vehicle accident scenes.(4)

About two weeks later, Judge detailed the contents and dissemination of the photos to Umatilla City Manager Glen Irby, mentioning potential legal ramifications to the city of Umatilla.(3) The following day, Irby suspended Shirk with pay for offensive conduct and conduct unbecoming a fire chief.

The investigation„
Irby requested Umatilla Police Chief Doug Foster conduct a full investigation and placed Foster in control of administrative operations of the fire department until a new fire chief could be appointed. At Irby’s request, Judge filed a formal complaint against Shirk with the city of Umatilla on Nov. 29.

Irby and Foster did not return numerous requests for an interview.

Shirk submitted a written response to the suspension to Irby on Nov. 30. In Shirk’s letter, he defended the photos as an investigative and educational tool and said he only distributed the photos to professional persons for professional use. However, he admitted he didn’t examine them.

“I am at fault,” Shirk stated. “I am beside myself as to how Mrs. Olson and the family must feel. Ú To know that I have brought grief upon her and her family in this sad time is just about making me sick.”(5)

Although Foster’s report concludes no state statutes were broken and that Umatilla does not have a policy regarding on-scene photography and its dissemination, he stated that Shirk_s actions were unethical. “The actions Chief Shirk took at the crash scene and the wholesale dissemination of photographs of a crash victim demonstrates his lack of concern for any medical victim(s) he may become involved in during his official duties at Umatilla Fire Department. The lack of any viable Florida State Statute violation does not diminish the ethical violations or violation of City Policies that he has committed during this incident.”(6)

The termination?
On Dec. 14, the day after Foster submitted his report, Irby notified Shirk that Shirk was terminated for four violations, including misuse of city property by an employee and violating the city’s code of conduct.(7,8) “You failed to protect the photographs taken at a crash scene which documented the victim in a stage of undress,” he stated.

Later that day, Irby rescinded his termination memorandum and placed Shirk back on suspension with pay. Shirk’s attorney Michael Hatfield said Irby failed to meet federal pre-termination hearing requirements and didn’t follow Umatilla_s policy for a pre-termination hearing followed by a public hearing before the full Umatilla council.

In the Dec. 18 pre-termination, a neighboring Eustis Fire Department official testified that his fire department had used Shirk’s photographs for education.

Shirk remained on paid suspension until early January.

The media and resignation
During the first week of January, local news outlets in Florida learned of the incident, and coverage followed in newspapers from coast to coast and major television news.

In a television news interview, Umatilla City Manager Glen Irby announced his plans to terminate Shirk.(9,10) For Shirk and his attorney, Michael Hatfield, Irby’s termination remark was shocking since Shirk was still due a public hearing before the Umatilla City Council.

Shirk and Hatfield declined media interviews.

On Jan. 7, Shirk and the City of„Umatilla agreed he would resign with three months’ severance pay. “I wasn’t going to run my family and friends through this any longer,” he said. “It didn’t just affect me. It affected a lot of other people in the community itself.”

Commentary and lessons learned by author Ray Kemp
When I first saw the headlines “Nude Photos Get Umatilla Fire Chief in Trouble” and “Fire Chief Suspended for Topless Victim Photos”, I had visions of a disturbed fire chief who was getting his kicks taking photographs of naked crash victims. After all, the headlines certainly gave that impression. They must have, for within days of the news headlines Shirk was asked to appear on “The Maury Show” and the “Dr. Phil” show. Shirk declined both offers.

What I eventually filtered from the headlines during my investigation was a small-town fire chief who was unaware he had e-mailed photographs of a patient with her breast exposed. Shirk best summed it up to me in one of my interviews. “I took photographs of a scene where a patient’s breast happened to be exposed,” he said. “I did not photograph a woman’s breast.”

On request, the city of Umatilla sent me all of their investigation documents and reports as well as all of the photographs Shirk had taken of the crash scene courtesy of Florida’s broad open-record laws. The same photographs were provided to the news media that aired blurred versions of the patient photos.

While reviewing the photos I received from the city, I had difficulty locating the patient images that had gotten Shirk in trouble. I then realized I had scanned past the images, because I found it difficult to identify a patient in the photographs. It appeared Umatilla had the same problem, because the last two images sent to me were enlargements of Shirk’s original two patient photos, enlargements that were made during the investigation.

I recalled Shirk’s written response to Irby where he stated that he did not study the photographs prior to sending them out.

My interviews with Shirk’s e-mail recipients revealed that they didn’t initially detect that the patient’s breast was exposed either. Eustis Fire Department Chief Tremain recalled, “We looked at the photographs and didn’t see it ourselves.” When I asked the chief if he thought submitting the patient’s images by Shirk was intentional, he replied, “I think it was an oversight.”

Mount Dora Fire Department Captain Joe Peters acknowledged that after enlarging the image he detected the patient’s breast and immediately deleted the photograph.

To further examine the possibility of oversight, I sent the original patient photographs to fellow photographer and writer, Courtney McCain, NREMT-P. After reviewing the photographs, McCain also concluded she didn’t see anything objectionable until the images were enlarged.„

I was surprised Foster didn’t consider the possibility the incident was an oversight by Shirk, especially since this was the very foundation of Shirk’s defense and other witnesses could testify their own experience was similar to Shirk’s.

Also surprising to me was Umatilla’s failure to do better crisis management. Handling the situation before the media only further propelled the images into the public eye. Ironically, Shirk’s patient images gained nationwide distribution as a result of the city of Umatilla_s investigation. This, in turn, placed Shirk’s images into the hands of the media via„Florida’s open-record laws.

It’s not entirely surprising to me the initial position of out-right termination Irby took against Shirk. Similar cases in Missouri and Kentucky resulted in the termination of an EMT and paramedic by outraged administrative and elected officials.„(Click here for “Missouri EMT Terminated Over Photos”.)

This incident is something all photo-snapping EMS responders should be keenly aware of. It’s increasingly evident that elected and administrative officials have no constitution for any EMS photography that places them in front of the media and public when questionable patient photographs raise objection within their community.

I asked Shirk his feelings about taking the two photographs of the patient and the exposure of the woman’s breast. Shirk remarked, “Do I find the taking of those pictures offensive? No. If it was taken as a blown-up picture of a breast up close and was just a breastÚyes, I would find that offensive, absolutely that’s wrong,” he said. “The picture that was taken was not of a breast; it was the overall scene of multiple agencies working together.”

Shirk added that when he took the photo he could not remember seeing the patient in the camera. “I saw a group of people down on the ground attending to the victim,” he said.

As to the e-mailing of the photos Shirk replied, “Do I wish I could go back and look at those pictures closer? Absolutely, I would go back and change it in a heartbeat. If I had looked at the picture and seen a breast exposed I wouldn’t have sent it out.”

The question as to whether EMS responders should take any scene photographs that shows a patient can and will be long debated. Taken in the right circumstances, with proper and strict administration of guidelines as to privacy, ethics, etc., scene photography can be a useful tool for documentation, education and public awareness.

Shirk claims his photographs of the scene that included the patient were for educational purposes. As a professional EMS photographer, I can see value in this claim. I’ve been asked in the past for similar photographs depicting multiple agencies working together.

The lack of any polices that authorize and direct any scene photography and its dissemination by the Umatilla Fire Department clearly contributed to the situation. Properly developed policy with dissemination guidelines would have provided city administrators better guidance in dealing with infractions and reduce, if not eliminate, embarrassing media confrontations.

I can also see the validity of Shirk’s educational claim because he only sent the images to other professionals within other nearby fire service agencies. There is a certain trust factor that the images Shirk e-mailed would be used only in a proper and professional manner. However, trust or not, we lose control of photographs once they leave the care of the originating agency. As in Shirk’s case, recipients might forward photographs to other associates. There’s no telling how much forwarding will go on from there.

The critical aspect of this case was Shirk’s failure to closely examine the photographs for proper content, a mistake he has clearly acknowledged. This too should be addressed in policy form when a photograph contains any part of a patient. We need to carefully scrutinize photos for possible violations of local, state and federal privacy laws, such as HIPAA, before any publishing or dissemination occurs.

Two elements that kept Shirk’s photographs from possibly violating HIPAA. The first is that they do not show any identifiable features of the patient, such as a full-face image of the patient. The second is that since Umatilla Fire Department doesn’t have electronic billing because it doesn’t provide patient transport, the department isn’t a covered entity under HIPAA.

Richard Shirk has moved and now works as a lieutenant at another fire department in Florida. But, the scars of his experience still remain. “There isn’t a day that goes by that I don’t think about what happened. I’m reminded how this impacted my family, friends, fellow firefighters and most of all Jeannie Olson,” he said. “I hope that others will learn from my mistakes.”

Ray Kemp„ is a contributing photographer for JEMS and the owner of 911 Imaging, a professional EMS, rescue and police photography company. His 14 years in EMS included six years as public information officer for the St. Charles County Ambulance District in Missouri.

References

  1. Incident run time cards obtained from Umatilla report.
  2. Burgess written statement submitted to Umatilla Police Chief Foster, Nov. 30, 2007.
  3. Lake-Sumter„EMS Report Conduct of Fire Chief Richard Shirk, Nov.29, 2007.
  4. Umatilla Fire Department policy issued Nov. 15, 2007.
  5. Shirk suspension response letter to Irby, Nov. 30, 2007.
  6. Police Chief Doug Foster report Dec. 12, 2007,„„ p. 6.
  7. City Manager Glen Irby memorandum Dec. 13, 2007 Section 1.03(B) citation.
  8. City Manager Glen Irby memorandum Dec. 13, 2007 Section 1.07 citation.
  9. Interview in WCTV News Jan.6, 2008.
  10. Interview in„Orlando Sentinel Jan. 8, 2008.„„„