June 1998 
Volume 12, Number 6

Fire deaths fall for third straight year 
The total number of fire fighter deaths in 1997 fell below 100 for the third consecutive year, with 94 deaths. That number represents a decrease of one death from 1996, and the fifth time in the last six years that the total has been below 100, according to data released this month by the National Fire Protection Association (NFPA). Stress and overexertion usually resulting in heart attacks continued to be the leading cause of fatal injury for on duty fire fighters, with 38 deaths. This was the fourth year in the last six that the number of heart attack deaths was below 40; however, heart attack deaths typically account for approximately half of the deaths each year. 

"NFPA's analysis pinpoints the places we need to work harder to improve fire fighters' health and safety, and helps us target effective ways to reduce the number of men and women who lose their lives while on duty. Over the past two decades, we have engineered solutions for many of the problems that previously resulted in fire fighters' injuries and deaths, including improvements in fire apparatus and fire fighting protective equipment. Nevertheless, these successes cannot deter us from continuing to look at what else we can do to prevent further deaths," said Rita Fahy, NFPA manager of fire data bases and systems and a co-author of the annual report. 

The second leading cause of fatalities was involvement in motor vehicle incidents, with 18 killed in motor vehicle crashes and four struck by vehicles. Twelve of the 18 fire fighters killed in motor vehicle collisions or rollovers were responding to alarms. Five of the 12 were either driving or were passengers in personal vehicles. The other seven were killed in six crashes involving fire department apparatus. The most commonly reported 

 factors in these crashes were speeding (including driving too fast for road conditions), failure to use seatbelts, and failure to yield at intersections. 

"Deaths involving overexertion and motor vehicle crashes are often preventable, because they are largely due to certain detrimental behaviors. It is critical that fire departments and individual fire fighters begin to more seriously address the fitness issues impacting the heart attack problem and the apparent failure by fire fighters to obey the rules of the road," states Gary Tokle, a former fire chief and NFPA's assistant vice president for public fire protection. 

"To prevent further tragedies, improvements in individual health and fitness must be a priority, along with the proper screening of applicants to the fire service," Tokle said. He added that implementing incident command systems could also help prevent further fire fighter deaths. To avoid apparatus crashes, he recommended better training and education for motor vehicle operators. 

NFPA's fire fighter fatality report findings also show that four fire fighters died as a result of set or suspicious fires, and one fire fighter died in conjunction with a malicious false alarm. Of the 94 fire fighters who died while on duty in 1997, 86 were members of local career and volunteer fire departments, six were contractors to state and federal forestry agencies, one was a seasonal employee of a state forestry agency and one was a full time employee of a federal forestry agency. Thirty of the local fire fighters worked as career fire fighters while 56 were volunteers. 

NFPA has tracked and analyzed on duty fire fighter fatalities over 20 years. The report is updated annually, and will appear in its entirety in the July/August issue of NFPA Journal. 
June 1998
Volume 12, Number 6

Mandatory Social Security coverage under consideration 
Consideration is underway in Congress to expand mandatory membership in the Social Security system to public employees not currently covered. The strategy is one of several approaches to stabilizing the funding of the Social Security trust fund. Last month, the House Committee on Ways and Means, Subcommittee on Social Security, held another in a series of hearings on solving Social Security's ills. This time, public sector representatives, including the nation's fire fighters' union, weighed in strongly opposed to being part of a cure. 

Alfred K. Whitehead, General President of the International Association of Fire Fighters (IAFF), AFL-CIO, told the committee, "The IAFF is adamantly opposed to the mandatory coverage of those public employees who are not currently part of the Social Security system. Mandatory coverage would wreak havoc with the economic security of fire fighters who are currently not covered by Social Security, and would only produce a short term cosmetic benefit to the Social Security system." 

Whitehead observed that when Social Security was created, government employees were expressly excluded. In response to this arrangement, state and local governments developed their own retirement plans, which have proven extremely successful. Whitehead pointed out, "Fire fighters retire at much earlier ages than the general population _ well before eligibility for Social Security benefits. In many cases, fire fighters are legally required to retire at a given age, and therefore do not even have the option of working until age 62 [the required age to receive minimum benefits]." 

Additionally, in years past fire fighters have foregone wage increases to create improvements in their pension plans, Whitehead emphasized. The union leader noted that a fire fighter earning $32,500 a year would pay a tax of over $2,000 if Social Security participation was mandated. Employers would pay a matching amount. 

Mandatory coverage would impose an 

 enormous financial burden on the public safety agencies that employ fire fighters. The increased cost will necessarily result in either reduced services or increased local taxes or both, Whitehead argued. 

Robert T. Scully, representing the National Association of Police Organizations, told the panel that mandating Social Security would have a "dramatic and negative impact on the recruitment and retention of well-qualified public safety officers." Scully expressed concern that placing officers and fire fighters under the Social Security tax would pressure government employers to make up the increased cost by altering pension plans or furloughing workers, thereby reducing the number of public safety personnel. 

Other public sector representatives told the congressional committee of the problems that would arise should public employees be placed in the federally controlled retirement system. 

Currently, only 24 percent of state and local public safety personnel pay Social Security taxes and are covered by the system. California, Ohio, Texas, Massachusetts, Illinois, Colorado, and Louisiana account for 75 percent of the non-covered public employees. Inclusion of these personnel in the system would reduce the Social Security shortfall by only 10 percent, according to a study by the General Accounting Office. 

The National Commission on Retirement Policy, which recommended the proposed changes in the program, has also suggested that the minimum eligibility age be moved to 70 for individuals born after 1969 and to 65 for those born after 1952. 

The Social Security Act was passed in 1935. In 1950, Congress altered the law to allow certain public employees to participate in the plan. In 1983, Congress legislated that public employees then participating in the system could not withdraw and mandated participation in Medicare. By 1991, all public sector employees who were not covered by a retirement plan were required to pay Social Security tax and join the plan. 
June 1998
Volume 12, Number 6

Sacramento fire fighters gain binding arbitration 
Election day earlier this month netted Sacramento fire fighters and paramedics the right to binding arbitration in cases of contract impasse. Voters in the California city approved the proposal, known as Measure H, with a 61.8 percent margin. The city's police officers gained binding arbitration in 1996. 

Sacramento fire fighters have had the right to meet and confer for many years. Under California law, however, an impasse leads to mediation. Under the newly adopted procedures, strikes are barred in exchange for the binding arbitration. In case of impasse, a three-member arbitration panel will be 

 constructed, one from the union, one from the city, and one neutral. A majority vote would be required on each issue submitted to the panel. In an unusual provision, the parties will have 10 days to mutually amend the arbitrators' decision or accept it as final and binding. 

Prior to the election, critics of Measure H warned that approval of the measure would cause Sacramento fire fighters' salaries to escalate, thereby increasing taxpayers' costs. Supporters argued it would eliminate strikes and protect taxpayers. City leaders, who had opposed the 1996 police effort, did not actively oppose the fire fighter proposal. 
Special feature

Teacher pay in the U.S. 
A frequent technique in wage negotiations is to compare fire fighter salaries to those of fire fighters in comparable jurisdictions. Likewise, in communities that maintain base wage pay parity, comparison to area police service employee compensation may be a factor in bargaining. Less common are efforts to compare fire fighter wages to non-public safety government employees. Fire service selection standards, training requirements, and the unique aspects of the job greatly limit the number of reasonable comparisons elsewhere in government. 

One possible comparison is to K-12 teachers. Teachers constitute the single largest group of public employees. While the education requirements for a teaching position are often higher than for a fire fighter position, both jobs demand dedicated public servants who are required to exercise their sound professional judgment across a myriad of circumstances. 

Recently, the American Federation of Teachers (AFT), AFL-CIO, released a comprehensive study of educators' salaries. The 

 study examined teacher pay and benefits across the nation. AFT found the average salary for all teachers to be $38,438. 

Table One displays the average teacher salary by state. In addition, the state ranking is shown. The data is the annual salary excluding the value of fringe benefits. Most teachers are employed on a nine or ten month contract. In many jurisdictions teachers' salaries are paid in part from state funds. Very few states provide pay supplements to public safety personnel, leaving the bulk of funding the responsibility of local government. 

Connecticut ranks the highest in average salary while South Dakota comes in at the bottom. Because of the wide variance in compensation paid teachers, only the top 17 states pay salaries above the average. In other words, teachers in two-thirds of the states earn below the national average. 

The data is instructive for public safety personnel as it indicates the relative allocation of pay between the fire service and education. Both groups of employees obviously compete for the same limited tax dollars. 
 Table One 
AVERAGE TEACHER SALARY IN 1996-97 
BY STATE 
STATE WAGE RANK 
Alabama 32,470 37 
Alaska 49,140 3 
Arizona 33,208 33 
Arkansas 30,987 44 
California 42,992 9 
Colorado 36,271 22 
Connecticut 51,181 1 
Delaware 41,436 12 
District of Columbia 42,424 10 
Florida 33,885 28 
Georgia 35,679 26 
Hawaii 38,105 19 
Idaho 31,818 39 
Illinois 42,339 11 
Indiana 38,722 17 
Iowa 33,272 31 
Kansas 33,150 34 
Kentucky 33,802 29 
Louisiana 28,347 48 
Maine 33,676 30 
Maryland 41,257 13 
Massachusetts 44,101 7 
Michigan 47,769 5 
Minnesota 38,276 18 
Mississippi 27,662 50 
Missouri 33,143 35 
Montana 29,958 46 
Nebraska 31,768 40 
Nevada 40,817 15 
New Hampshire 36,029 25 
New Jersey 49,786 2 
New Mexico 29,715 47 
New York 48,000 4 
North Carolina 31,019 43 
North Dakota 27,709 49 
Ohio 38,944 16 
Oklahoma 30,187 45 
Oregon 41,093 14 
Pennsylvania 47,147 6 
Rhode Island 43,084 8 
South Carolina 32,659 36 
South Dakota 27,072 51 
Tennessee 34,267 27 
Texas 32,426 38 
Utah 31,310 42 
Vermont 36,053 24 
Virginia 36,116 23 
Washington 37,860 21 
West Virginia 33,258 32 
Wisconsin 37,878 20 
Wyoming 31,716 41 
Source: American Federation of Teachers, AFL-CIO 
June 1998
Volume 12, Number 6
Litigation screening. Rather, it objects to the method utilized for the testing. Prior case law holds that drug screening of government employees constitutes a "search" under the Fourth Amendment. The Supreme Court has established that the special needs of the government in this situation does away with the need for probable cause or even individualized suspicion prior to the search. Rather, the entire process is to be judged by the general test of reasonableness. Reasonableness entails a three-part inquiry. First, a court examines the individual's privacy interests upon which the search at issue allegedly intrudes. The expectation of privacy must be legitimate as measured by objective standards. The fire fighter whose drug use is undetected is a source of danger, both to his colleagues and to the community at large. In addition, the fire fighter puts himself at risk of harm. Since the perils associated with fire fighting are well known, the court has no trouble concluding that fire fighters enjoy a diminished expectation of privacy. The second factor to be considered is the character of the government search and the extent to which it intrudes on the employee's privacy. Certainly, the direct observation method presents a significant intrusion on the privacy of any government employee. Urination has been regarded traditionally by our society as a matter shielded by great privacy. However, in a world where men frequently urinate in exposed urinals in public restrooms, it is difficult to characterize SODAT's procedure as a significant intrusion on the male fire fighter's privacy. The reasonableness of the direct observation method as it applies to female fire fighters is somewhat different. The presence of a monitor in a bathroom while a female urinates is not an ordinary aspect of daily life. Nevertheless, prior case law suggests that the presence of a female monitor in the bathroom when an adult female fire fighter provides a urine specimen is not in itself unconstitutional under the Fourth Amendment. The facts of this case suggest that SODAT took substantial measures to minimize the intrusion of privacy to female fire fighters caused by direct observation procedures. In one instance, 

Supreme Court update 
Last month the high court refused to consider the matter of City of Columbus, Georgia v. Jones, No. 97-1470. The inaction leaves in place a lower court's determination that the burden of proof lies with the employer to establish that emergency medical service personnel fall with the partial overtime exemption afforded by the Fair Labor Standards Act. 

Cases of interest 

Substance abuse testing 
In 1990, the city and the fire fighters' union agreed in a collective bargaining contract that the fire fighters would be subject to random drug testing through urinalysis in order to ensure that members of the fire department were drug free. For several years the city used a random testing system whereby the selected fire fighters were taken to a local medical center for testing. In 1993, in an attempt to reduce the cost of random drug testing, the city contracted with SODAT, a private drug testing company. SODAT's procedure for drug testing was somewhat different than had been previously used. SODAT monitors directly observed fire fighters as they urinated. In some instances, the direct observation permitted the observer to see the fire fighter's genitals. The fire fighters' union claimed that this direct observation method of testing was a gross violation of the fire fighters' right of privacy and constituted an unreasonable search under the Fourth Amendment. A grievance resulted in the system being upheld. A class action suit was brought by the fire fighters' union claiming that the method of testing violated the fire fighters' constitutional rights. Trial court found the method to be reasonable. Union appeals. 

HELD: The fire fighters' union does not contest the authority of the city to conduct drug 
June 1998
Volume 12, Number 6
SODAT provided a nurse practitioner as a monitor when a female fire fighter expressed discomfort with the first female monitor. The third and final component of the reasonableness test is the government's interest, which must be compelling. Testimony at trial indicated the possibility that a fire fighter could produce a fraudulent or substitute urine specimen unless closely monitored. The city need not wait for a cheating problem to develop in order to justify its use of direct observation. The mere presence of a monitor in the room where the fire fighters are urinating deters a would-be cheater from substituting or adulterating his own urine sample. The direct observation procedure serves the government's interest of preventing cheating on drug tests. So long as SODAT's monitors refrain from looking at the fire fighters' genitals, direct observation procedures remain within the boundaries of a constitutional search. The city's drug screening procedures do not violate the Constitution. Reversed for further consideration of state law privacy claim. [Wilcher v. City of Wilmington, Delaware, 139 F.3d 366 (3rd Cir. 1998)]  repeated requests to attend the paramedic training program. 

HELD: The fire department claims it considers several factors in making course enrollment decisions: manpower constraints, availability of individuals, the amortization of the cost of the training over the candidate's expected additional years of service, and the best interests of the department. Under the Age Discrimination in Employment Act (ADEA), a plaintiff may prove age discrimination in one of two ways. He may try to prove discrimination directly by presenting direct evidence that age was the determining factor in the personnel action, or he may utilize the indirect, burden shifting method of proof. Under the burden shifting method, a plaintiff must establish a prima facie case of discrimination. In order to establish a prima facie case, the plaintiff must show: (1) he is a member of a protected age group; (2) his work met his employer's legitimate expectations; (3) he was subject to a material adverse employment action; and (4) younger employees were treated more favorably. Once the plaintiff makes the prima facie case, a presumption of discrimination is established, and the burden the shifts to the employer to prove a legitimate, non-discriminatory reason for its actions. If the employer provides a legitimate explanation, the presumption of discrimination dissolves, and the burden shifts back to the plaintiff to show that the employer's offered reason are a pretext for age discrimination. Thus, the ultimate burden of persuasion remains with the plaintiff. In this case, it is undisputed that the plaintiff was a member of a protected class, that he was qualified to enroll in the course, and that he demonstrated an adverse change in the conditions of his employment by being denied the opportunity to obtain a promotion through paramedic training certification. The village argues, however, that Marsili has not established the last element necessary. The village argues that Marsili was only marginally qualified, that he had indicated a desire to retire on two previous occasions, and thus was less likely to justify the cost of training over his remaining years as a paramedic/ 

Age discrimination 
Marsili was hired by the village as a fire fighter in 1966 at the age of 32. In 1992, at the age of 58, Marsili expressed interest in becoming a certified paramedic. He made written requests several times to attend paramedic training. In 1993, in response to one of his requests, he was pre-tested for possible assignment to the paramedic instruction. At the same time, two other fire fighters were pre-tested. One of these subsequently withdrew. The other obtained a pre-test score that indicated he would have little trouble mastering the paramedic course material. Marsili's score, however, indicated a potential difficulty in mastering the course material. The other, younger fire fighter was sent for training. In 1993, Marsili filed for retirement but subsequently withdrew his request. In 1995, at the age of 61, he finally retired. Marsili then filed an equal employment opportunity claim alleging age discrimination by the department for refusing his 
June 1998
Volume 12, Number 6
Table One 
AVERAGE TEACHER SALARY IN 1996-97 
BY STATE