'07 fire inquiry stuck in neutral

Panel not viewing autopsy reports; Department may seek outside help

Four months ago Boston Fire Commissioner Roderick Fraser demanded that a department board reopen its investigation and examine autopsy reports of two firefighters who died last year in a restaurant fire. The result since then: nothing.

The 10-member Board of Inquiry, composed entirely of members of the Firefighters' Union, has not examined autopsy reports that indicated that Firefighter Warren J. Payne had cocaine in his system and that Firefighter Paul J. Cahill had a blood-alcohol level of 0.27, more than three times the legal limit to drive in Massachusetts.

Board members have not asked the Suffolk district attorney or the state medical examiner for copies of the reports. They have not even met to discuss getting them.

District Attorney Daniel F. Conley's office said Conley has tried without success to provide the board with the reports, at one point leaving copies in an envelope at the front desk of his downtown office, where they sat for days before one of Conley's employees retrieved them and put them back in prosecutors' files.

"Efforts to provide the autopsy reports to department personnel were met with silence," Conley spokesman Jake Wark said.

Frustrated, Fraser said he is considering launching a new, outside review that would include a thorough examination of autopsy results and whether chemical impairment played a role in the firefighters' deaths.

After fielding Globe inquiries last week about the status of the probe, Fraser began contacting outside medical specialists and forensic toxicologists to ask if they would review the case independently.

Members of the Board of Inquiry - made up of six fire chiefs, three lieutenants, and a firefighter - could not be reached for comment, according to department spokesman Steve MacDonald. Boards of inquiry are convened anytime firefighters die in the line of duty; they are supposed to ensure complete and thorough investigations and help reduce risk of injury and death in the future.

The commissioner said he spoke with the head of the Board of Inquiry, Deputy Chief Stephen K. Dunbar, who told him yesterday that he had decided that the board should not review autopsy reports or take any other action regarding toxicology, because making a determination about impairment is "outside their area of expertise."

A finding that impairment contributed to the firefighters' deaths would probably increase pressure on firefighter union officials to allow provisions for mandatory drug and alcohol testing in their contract.

It could also provide an impetus for legislation pending on Beacon Hill that would require random testing of all public safety officials in the Commonwealth.

Impairment questions are also certain to become a major element in lawsuits filed by the firefighters' family members against the restaurant owner, building owner, and cleaning company.

Lawyers for the firefighters' family members did not return calls yesterday seeking comment. Cheryl Payne, former wife of Warren Payne, did not respond to a telephone message. Anne Cahill, wife of Paul Cahill, declined to comment.

Media reports about Payne and Cahill's autopsy results, which were described to the Globe in October by two government officials briefed on them, touched off public demands for change in the Fire Department and prompted Mayor Thomas M. Menino to launch an outside review of department management and substance abuse policies.

The review recommended that the city implement random drug and alcohol testing of firefighters, a move that has since become the central sticking point in contract negotiations between City Hall and the Firefighters' Union. Under current policy, the department tests firefighters for drugs and alcohol only before they are hired, during their first year of employment, or after they display visible signs of impairment on the job.

The union, which has been without a contract since July 2006, has refused to accept random testing without a significant boost to pay or benefits. The testing battle has become heated with the mayor calling the union's position astounding during his State of the City speech in January, and with the union accusing City Hall of mounting a smear campaign.

The Board of Inquiry, convened by the fire commissioner immediately after the fatal fire on Aug. 29, issued its findings in February. It concluded that drug or alcohol impairment did not play a role in the deaths, though the board had not reviewed medical evidence and said without explanation that the autopsy results were unavailable.

At the time, the commissioner called the findings indefensible. He told the board to reconvene and review the autopsy reports before concluding its investigation.

The commissioner said the initial investigation did not adhere to department regulations, which mandate that firefighter death investigations follow guidelines issued by the International Association of Fire Chiefs. Those guidelines say autopsy reports, including toxicology test results, should be "incorporated into the investigation report."

The board's report also left too many unanswered questions about the firefighters' potential impairment, Fraser has said.

The report concluded that Payne died in a massive fireball in the dining room of the Tai Ho Mandarin and Cantonese restaurant, while Cahill died of smoke inhalation in the restaurant's kitchen. Cahill was not wearing his face mask, which was found on a table in the dining room, or his radio, which was left behind at the fire station. Two other firefighters safely escaped the burning kitchen while Cahill tried to feel his way out along a hose that led him farther into the building.

Fraser said the board needed to explain whether being under the influence of alcohol could have contributed to Cahill's disorientation and his decision not to wear his face mask.

Since the mayor launched the outside review of department management and substance abuse policies, the Fire Department has instituted a number of recommended improvements, Fraser said . In a progress report sent to the mayor last month, the commissioner said the department has instituted daily firehouse roll calls, at which chiefs are supposed to visibly inspect firefighters to make sure that they are "alert and free from the influences of drugs or alcohol," that they are wearing the proper uniforms and have necessary safety equipment.

The commissioner also hired two nonunion deputies following a recommendation that the department increase the number of civilian managers to offset the influence of the Firefighters Union.

Donovan Slack can be reached at dslack@globe.com.