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Volume 15, Number 6 

Staffing, response time proposals clear another hurdle 

A controversial proposal to establish national minimum standards for fire fighter and paramedic staffing and fire service response time has moved one step further toward adoption. Representatives at the annual meeting of the National Fire Protection Association (NFPA) in Anaheim last month overwhelmingly endorsed proposed Standard 1710, Standard for the Organization and Deployment of Fire Suppression, Emergency Medical Operations, and Special Operations to the Public by Career Fire Departments. The proposal now goes to the organization's Standards Council for final review and approval. 

The standard specifies a minimum of four paid fire fighters per fire apparatus, with five and six in high density areas, and sets a four-minute response time for the first company to reach a fire. The standard also calls for two paramedics on each advanced life support call. For volunteers, the rule mandates four fire fighters to be at the scene before suppression efforts may begin. 

While the NFPA, a private organization that has been developing fire codes since 1886, cannot mandate its standards on communities, its rules are 

widely used by insurance companies to aid in the calculation of fire insurance premiums. Governmental officials also use the standards as a benchmark for fire department operations. 

While the International Association of Fire Fighters, AFL-CIO, and the International Association of Fire Chiefs strongly endorse Standard 1710, the International City/County Management Association and the National League of Cities are opposed. At issue is the question of local control of fire department operations and the cost of implementation. Opponents argue that every community is different and that staffing levels are best devised at the local level. Additionally, for many communities full staffing would necessitate substantial increases in fire department budgets. Supporters claim that minimum staffing is crucial to fire fighter safety and the quality delivery of fire suppression and emergency medical services.. 

Under NFPA procedures, the final decision rests with the Standards Council, which will consider the matter at its July meeting in San Francisco. If approved, the standard will likely go into effect in mid-August. 

President signs Medal of Valor law 

Courageous fire fighters are now eligible for national recognition for bravery thanks to a newly enacted federal law. President George W. Bush earlier this month signed the "Public Safety Officer Medal of Valor Act." The new program authorizes a medal to be awarded by the President in the name of Congress to fire fighters and other public safety personnel who demonstrate courage and bravery beyond the call of duty. 

Under the legislation, an eleven-member Medal of Valor Board will be appointed by the 

President and the leadership of each house of Congress. All members of the board must have knowledge or expertise in the field of public safety and the Presidential appointees must include one individual with experience in fire fighting, one in law enforcement, and one in emergency services. 

Once a year the board will forward to the Attorney General the names of not more than five public safety officers who have demonstrated "extraordinary valor above and beyond the call of duty." The Attorney General will then select some 


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or all of the nominees to recommend to the President for the award. 

The program is effective September 1 but no meeting of the board can occur until all members have been selected. The board is authorized to conduct hearings and take testimony as necessary 

to carry out its duties. 

Eligible for the award are both paid and non-paid individuals serving public agencies as fire fighters, emergency service officers, corrections officers, law enforcement officers, and court officers. 

ICHIEFS and union object to police posing as fire fighters 

A ruse by Webster, Massachusetts, police officers has earned condemnation from the International Association of Fire Chiefs (ICHIEFS) and brought calls for legislation declaring it unlawful for police officers to pose as fire fighters. 

The precipitating incident occurred last month when, for safety reasons, Webster police officers decided they needed to enter some drug suspects' apartment before the suspects realized the officers' identities. The police feared the suspects would dispose of cocaine when they realized the police were at the door. Officers hitched a ride to the address on a volunteer fire company's truck. The officers than told the occupants of the apartment that they were fire fighters responding to a report of smoke. Once inside, the officers seized the cocaine and arrested two suspects. 

As word of the ruse spread via the Internet, fire service professional and labor organizations responded with dismay. IAFC Executive Director said, "ICHIEFS is adamantly opposed to the use of fire fighters and other rescue personnel, their uniforms or likeness thereof, or fire apparatus to gain 

an advantage in criminal action by law enforcement representatives. This is a violation of our public trust and actions such as this compromise our ability to operate in hostile situations." 

The Professional Fire Fighters of Massachusetts (PFFM), an IAFF-affiliated union of 12,000 paid fire fighters, will vote this month on whether to support legislation prohibiting police officers from posing as fire fighters. Robert McCarthy, president of the PFFM, said, "We (fire fighters) go into people's homes all the time. We go in on medical emergencies, too. We don't want people shutting their doors on us, preventing us from coming in. We don't want to jeopardize their lives, the lives we're trying to protect. We don't want them thinking `Are these fire fighters, are they police officers?'" 

All states have statutes declaring impersonation of a public servant to be a criminal offense. Such laws are most commonly used against civilians who pose as police officers in an effort to perpetrate a more serious offense, such as a sexual assault. 

Fire fighters face suit over rescue effort 

A wise sage once observed that "No good deed goes unpunished." This certainly might be the credo adopted in the future by San Francisco fire fighters who were sued this month because of their efforts in successfully rescuing an anti-fur activist. 

In April, 2000, the activist, and plaintiff in the lawsuit, Andrea Lindsay, had placed a bicycle lock around her neck and attached it to a billboard atop a ten-story building. She unfurled a 50-foot banner advocating the boycott of a local department 

store that sells natural fur coats. 

In her lawsuit, Lindsay asserts that rescuers from the San Francisco Fire Department inflicted emotional distress when they tried to coax her down. She claims that fire fighters and police officers used expletive-laden demands for here to unlock herself and climb down, which made her "feel concerned for her safety." She claims the harsh words ultimately elevated to a battery. Specifically, Lindsay charges that a fire fighter forced her feet 



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off of the billboard scaffolding, leaving her hanging by her neck through the bicycle lock. Her nose began to bleed as well. The lawsuit states, "Plaintiff then noted blood coming from her head, which was not only painful but particularly distressful due to the large amount of rust and bird droppings on the billboard." 

Although Lindsay initially dropped the key to the bike lock, a fire fighter retrieved it and unlocked her. 

"She admits that she chained herself to a billboard 50 feet in the air and now she wants us to feel `concerned for her safety' when the fire department comes to rescue her," said Nathan Ballard of the city attorney's office. "We'll have to see what a jury thinks about that." 

While activists frequently sue police officers for alleged battery during protests, authorities in San Francisco say no one in recent memory has sued a fire fighter. 

Litigation 

Cases of interest 

birthday. The city is a home rule unit under Illinois law and, as such, may enact ordinances pertaining to its municipal employees that conflict with state statutes. Courts have held that the state constitution permits home rule units to adopt ordinances regulating fire personnel that differ from or conflict with the state law. If a home rule's ordinance conflicts with a state statute, the local ordinance supercedes the conflicting state statute. Here, the city's rules are not ambiguous to the extent that they clearly prohibit any person 35 years of age or older from being appointed as a fire fighter. Since under Illinois law the ordinance takes precedence over the state statute, Demick is ineligible to be hired as a fire fighter. She further claims that she was deprived of a property interest without due process when she was removed from the eligibility list without a hearing or notice. To establish a claim of deprivation of property without due process the claimant must prove she holds a property right. To possess a property interest a person must have a legitimate claim of entitlement to it. While under state law persons are entitled to remain on the eligibility list after they turn 35, no such right exists under the local ordinance. Since the local ordinance preempts the state statute, Demick had no protected property interest. Demick also fails to establish a prima facie case of sex discrimination. Even if the evidence she presented were to raise a possibility of sex discrimination, the city has established a legitimate 

Selection procedures 

In 1974, the city council approved the fire and police board's regulation that applicants for a position as a fire fighter would not be considered for appointment after they had reached their 35th birthday. This rule was enforced until 1992 when the federal Age Discrimination in Employment Act (ADEA) essentially suspended its operation. The rule was reactivated in 1997 following an amendment to the ADEA. Meanwhile, a State of Illinois statute provided that fire fighter applicants must be under 35 years of age but that anyone who was on the eligibility list and became over age could remain on the appointment list. Demick became the first female to be placed on the fire fighters' eligibility list for the City of Joliet. She remained on the list for one year. After that one-year time she was dropped from the list because she had turned 35 years of age. Demick filed suit against the city claiming that her removal from the list was contrary to state law and also constituted discrimination under federal fair employment law. City moves for summary judgment. 

HELD: This case presents a conflict between a city ordinance, which purports to render ineligible fire fighter applicants who reach age 35, and an Illinois statute which allows eligible applicants to remain on the list even after their 35th 



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nondiscriminatory reason for removing her from the eligibility list - the civil service regulation. City is entitled to summary judgment on the claim. [Demick v. City of Joliet, Illinois, 135 F. Supp.2d 921 (N.D. Ill. 2001)]  any "employee" can appeal the decision of the hearing officer to the personnel board. Trial court correctly found that the personnel rule bestowed the right of appeal upon an "employee." It grants no such appeal right to the city manager. However, a closer look at the matter reveals that the powers of the city manager were created by ordinance but the personnel rules were created by resolution. If the city council wished to diminish the authority of the city manager regarding removal of subordinate employees, it should have done so by ordinance, not by council resolution. Here, the council improperly amended the duties of the manager through the adoption of rules rather than through an ordinance. Thus, the hearing officer's decisions cannot be binding on the city manager but are merely advisory. The court recognizes this creates an absurdity because the hearing officer hears the case only after the city manager's decision. Although the hearing officer serves as an appellate officer, his decision is necessarily advisory only because the city council failed to properly amend the specified duties of the city manager. Reversed for city manager. [Kimble v. City of Page, 20 P.3d 605 (Ariz. Ct. App. 2001)] 

Dismissal procedures 

Kimble was employed as the city's assistant fire chief for suppression. The fire chief subsequently transferred him to a newly created, non-supervisory position of assistant chief for fire prevention. The transfer was made pursuant to a city personnel rule that provided that employees may be voluntarily or involuntarily transferred from one position to another provided the transfer served the best interest of the city or the employee. Unhappy with his transfer, Kimble initiated a grievance under city personnel rules. At the first level of the procedure the chief reconfirmed the decision to transfer Kimble. A review by the city manager resulted in support of the transfer. In the third step, the matter went to a hearing officer. The hearing officer ordered Kimble's transfer voided ruling it was not in the best interest of either Kimble or the city. The city manager, however, refused to reinstate Kimble to his former position and appealed the hearing officer's decision to the city personnel board. Kimble immediately filed suit seeking a ruling that the city manager was not authorized to appeal the hearing officer's decision. Trial court found for Kimble, ruling that city personnel rules did not permit the city manager to appeal grievance determinations by a hearing officer. City appeals. 

HELD: The city is incorporated under an Arizona statute that provides that the duties of city manager shall be specified by ordinance. In the city ordinance creating the city manager's position he is granted authority to appoint, suspend, or remove subordinates in each city department. The city, however, also has adopted a merit system. The city council by resolution established the personnel rules. Under the personnel rules, the findings of the hearing officer are to be forwarded to the city manager for implementation. Additionally, the rules provide that 

City liability 

Burns collapsed suddenly at her parent's home. She stopped breathing. While her mother began administering CPR her father called 911. During the initial call the dispatcher sent three emergency vehicles including a fire department ambulance. In dispatching the ambulance the dispatcher gave directions "off the top of his head." Had the dispatcher consulted the enhanced 911 (e-911) map he would have seen that his directions were erroneous. As a result of the misdirections, the ambulance took ten minutes to arrive at Burns' home rather than the one-minute it would normally have taken for the six-block trip from the firehouse. Burns was ultimately transported to the hospital where she was revived. However, she suffered brain damage as a result of the delay in emergency medical care. Burns sued the city. Trial court granted 


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summary judgment on the basis of sovereign immunity. Burns appeals. 

HELD: The city participates in the countywide enhanced 911 system. The system provides the dispatcher with the telephone number of the person calling 911, the name of the person who has registered the phone number, and the address where the phone is located. The system also includes a computerized mapping program that displays the approximate location of the telephone source. The city protocol requires the dispatcher to check the e-911 map before giving directions to emergency personnel. In this case, however, the dispatcher admitted that he did not check the map. Burns contends the city is liable for negligence under the Indiana Tort Claims Act (ITCA). In 1972, the state supreme court abolished the doctrine of sovereign immunity. Two years later the legislature enacted the ITCA. Under the ITCA, governmental entities are subject to liability for torts committed by them unless the activity falls within a specific enumerated exception. One of the exceptions to liability under the ITCA is the immunity granted a governmental entity if the loss results from the use of an enhanced emergency communication system. Burns argues that since the dispatcher did not consult the e-911 map, he was not "using" the system and, therefore, the city could not take advantage of the immunity statute. However, Burns' argument fails to take into account that e-911 embraces more than computer maps that help guide emergency vehicles. The system involves central processing computers, modems, power supplies, software, telephone lines, and the people who furnish the human support at the dispatch center. Given the interrelationship of each of these components, including the human operators, within a fully operational e-911 system, the court cannot say that the dispatcher's failure to check the map constituted nonuse of the e-911 system. Burns' loss resulted from the use of an enhanced emergency communication system and the city is immune from suit under the ITCA. Affirmed for city. [Burns v. City of Terre Haute, 744 N.E.2d 1038 (Ind. Ct. App. 2001)] 

Compensation 

The fire department divided its fire fighters into two categories, line fire fighters, and staff fire fighters. Line fire fighters worked a 24-hour duty schedule followed by 48 hours off duty. The staff fire fighters who handled day to day administrative chores worked Monday through Friday 8:00 a.m. to 4:00 p.m. The line fire fighters received 45 vacation days each year while the staff fire fighters received 35 vacation days each year. Line fire fighters were allowed to work overtime while staff fire fighters were not placed on the overtime list. Furthermore, most staff fire fighters received no compensation for being on call while a few that were assigned to the inspection bureau received an extra $7,000 in compensation for being on call. A group of the staff fire fighters filed suit against the city claiming that the different pay schedules were unlawful. Trial court granted summary judgement for city and fire fighters appeal. 

HELD: State law delegates to the city legislative body the authority to fix the annual compensation of members of the fire department. The statute provides that the city pay ordinance may grade the members of the department and regulate their pay "by rank as well as by length of service." According to the city pay ordinance the differences in pay and vacation time are due to rank and grade. Prior case law holds that the words "grade," "rank," and "classification" are synonymous for the purposes of state statute. The statute allows local governments to grade members of the fire department and regulate their pay by rank and length of service. The statute on its face contemplates that employees of the fire department are going to be compensated differently due to differing levels of experience and responsibilities. The different treatment of staff and line fire fighters seems reasonable in light of their relative responsibilities and has no apparent illegal basis for the treatment. Further, there is nothing in the law that prohibits compensating the various grades, ranks, or classes of fire fighters differently when their responsibilities are different. As to the issue of overtime availability, 



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it is logical that the position requiring an employee to work overtime is the line fire fighter position. It would be illogical to allow staff fire fighters to work overtime in a totally different position. As to the question of staff fire fighters who receive standby pay, the inspection bureau has placed limitations on them when they are on call. The on-call staff fire fighters must refrain from using alcohol and must remain in the general area of the city. None of these restrictions are placed on the other off duty staff fire fighters. Again, the difference in compensation appears to be reasonable in the light of differences in responsibilities and restrictions. Finally, as to vacation days both groups of fire fighters are entitled to the same number of hours of vacation. The confusion stems from the manner in which the vacation ordinance is written. Since one group works 24-hour shifts and the other works 8-hour shifts, expressing the amount of vacation time in terms of days creates confusion. A close look at the ordinance reveals that all fire fighters receive 360 hours of vacation time. Because of the different daily shift lengths, converting the hours to actual days requires a different day calculation for the two groups. Affirmed for city upholding differences in compensation between two sets of fire fighters. [Pedraza v. City of East Chicago, 746 N.E.2d 94 (Ind. Ct. App. 2001)]  retroactive payment were included in the calculation his pension would increase by $300 per month. The city rejected the recalculation holding that the retroactive payment was not part of Brunken's "highest average monthly compensation." Brunken filed suit appealing that decision. Trial court reversed the pension board's determination and concluded that the word "compensation" in the pension ordinance was not otherwise modified and, therefore, Brunken's total 1995 compensation should be the base of his retirement calculation. Pension board appeals. 

HELD: Brunken contends that because the city included the lump sum payment in his 1995 calculation for income tax purposes, the pension board is required to include the lump sum payment in the calculation of his pension benefit. A close look at the pension ordinance, however, reveals that the calculation is based upon the "highest average monthly compensation." The term "monthly" is defined as "of or relating to a month, payable or reckoned by the month." The plain ordinary meaning of the expression "monthly compensation" is that amount of income received regularly by the retiring employee every month. The happenstance receipt of the 1994 back pay did not alter Brunken's regular "monthly compensation" during 1995. If this back pay amount were included in the pension calculation, it would artificially inflate his pension benefits. Because the plain ordinary meaning of "monthly compensation" is limited to regular compensation received each month the trial court erred in directing that the lump sum payment be included. Pension board was correct in excluding the retroactive payment of wages earned in 1994 but paid in 1995 from the calculation of the pension benefit. Reversed for pension board. [Brunken v. Board of Trustees of Omaha Police and Fire Retirement System, 624 N.W.2d 629 (Neb. 2001)] 

Pension rights 

Brunken served the city as a fire fighter for 30 years, the last five as its fire chief. When he retired he was awarded a monthly service retirement pension under the city's retirement plan. Under this plan, retiring fire fighters were entitled to a payment equal to a certain percentage of the fire fighter's highest average monthly compensation during his last five years of service. When Brunken retired, the city calculated his highest average monthly compensation to have been earned in 1995. Brunken sought a recalculation of his pension benefit because his total taxable compensation for 1995 included a lump sum retroactive wage payment for 1994 as a result of contract negotiations. Thus, if the 1994 

Arbitrator's authority 

Just prior to his retirement from the fire department, Staten filed a grievance through his union saying that the city had miscalculated his 


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accumulated sick pay. Under the collective bargaining agreement Staten should have received 100 percent of his accumulated sick time but the city was only crediting him with 50 percent. Upon exhausting the grievance procedures the union and the city submitted the matter to final and binding arbitration. The arbitrator was asked to decide whether Staten had timely filed his grievance and that the city had violated the labor contract when it paid his severance. The arbitrator determined that Staten indeed had timely filed a grievance. Additionally, the arbitrator ruled that the city had miscalculated the sick days because it should have multiplied the number of accumulated days by 24, not by 8 as the city argued. Further the arbitrator concluded that Staten should be compensated at an hourly rate of $19, his pay rate in the year immediately prior to his retirement. The city appealed the award but trial court confirmed it. City appeals. 

HELD: A court's power to vacate a final, binding arbitration award is limited. As a matter of policy, the courts favor and encourage arbitration and will make every reasonable indulgence to avoid disturbing an arbitration award. An appeals court may not disturb the trial court's affirmation of an arbitration award absent evidence of material mistake or extensive impropriety in the arbitration. By agreeing to submit the dispute to binding arbitration, the parties agreed to accept the result regardless of its legal or factual accuracy. When a provision in a collective bargaining agreement is subject to more than one reasonable interpretation, the arbitrator's interpretation of the contract governs the rights of the parties. As long as the arbitration award draws its essence from the collective bargaining agreement the arbitrator has not overstepped his bounds. Here, the city asserts that the accumulated sick days should be counted as 8-hour days and that the arbitrator erroneously determined that under the labor agreement a sick day referred to a typical fire fighter's workday, or 24 hours. Additionally, the city asserts that the pay rate for accumulated sick hours should be $15 not 

$19 as the arbitrator found. The arbitrator made a $19 interpretation by looking at the rate of pay immediately prior to Staten's retirement since the bargaining agreement does not provide an hourly rate to be used in computing the accumulated sick days. Even if the collective bargaining agreement is subject to more than one interpretation, the arbitrator's interpretation of the contract governs the rights of the parties thereto. The court will not disturb the arbitrator's interpretation of the definition of a day and the hourly rate of pay. The city also asserts that the trial court should have concluded that the arbitrator exceeded his authority. However, as long as the arbitration award draws its essence from the collective bargaining agreement and is not contrary to the agreement, the arbitrator did not overstep his bounds. The dispute in this case involves interpretation of ambiguous terms in the bargaining agreement. The interpretation adopted by the arbitrator does not conflict with express terms of the contract. The trial court did not err in determining that the arbitrator acted within his authority. Arbitration award affirmed for fire fighter. [City of Portsmouth v. International Association of Fire Fighters, Local 512, 744 N.E.2d 1263 (Ohio Ct. App. 2000)] 
Settlements 

Cranston, Rhode Island 

fire fighters 
A four-year-old contract dispute ended last month with the inking of two three-year labor pacts between the City of Cranston and its fire fighters. City Council and Local 1363 of the International Association of Fire Fighters, AFL-CIO, agreed to contracts that are retroactive to July 1, 1998, and run to June 30, 2004. Pay hikes will average 3.3 percent per year, bringing a nearly 20 percent salary jump to the fire fighters. Fire fighters did agree to a change in overtime calculation, for which the city agreed to raise minimum staffing from 38 to 39 fire fighters on each shift. Annual sick leave was 


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reduced from 30 to 20 days. However, fire fighters won increases in clothing allowance and tuition reimbursements. The city agreed to promote to the next highest rank any fire fighter killed in the line of duty.  Personnel will then receive five percent increases on January 1, 2002, 2003, and 2004. An additional five percent boost may come after January 1, 2004, depending on the level of city gaming revenues. Fire fighters' starting pay now goes to $39,316 while fire fighter/paramedics will began at $42,313. Fire captains' salaries now range from $55,753 to $61,468. By 2004, veteran fire fighters will make $60,000 annually while captains will earn $72,936. 

El Cajon, California 

fire fighters 
Pay raises over the next four years highlight the new labor pacts between the City of El Cajon and its fire fighters and fire captains. The 51 fire fighters will see pay boosts of six percent in each of the four years. The 15 captains will gain a five percent hike the first year and a four percent jump in pay in each of the remaining three years. With the first raise, a senior fire fighter will earn a base of $48,672 while a veteran captain will draw base pay of $67,932. City Council agreed to a four year contract instead of the traditional three year pact to avoid negotiations during an election year. 

Tacoma, Washington 

fire fighters 
Members of Local 31 of the International Association of Fire Fighters, AFL-CIO, have a new three-year contract with the City of Tacoma. The pact includes a three percent cost of living increase for the first year. Raises in the subsequent years will be equal to 90 percent of the region's Consumer Price Index. 

Teaneck, New Jersey 

fire fighters 

Pawtucket, Rhode Island 

fire fighters 
With their previous contract still in litigation, Teaneck fire fighters have ratified a new labor pact granting four percent salary increases over the next four years. The increase is retroactive to January 1. An arbitration ruling on the previous contract is on appeal by the town. Base wage for fire fighters will now range from $22,360 to $64,800, depending on years of service. About 70 rank-and-file fire fighters are covered by the agreement. 
Pawtucket Firefighters Independent Union this month approved a new three-year labor contract. Wage increases will be paid out in two percent increments every six months. The compounding effect will produce pay boosts of 12.6 percent. Costs of the wage boosts will be offset by a switch in health care providers and changes in the utilization policy for personal days. The latter limitations are expected to reduce overtime costs. Under the new agreement, starting fire fighters will earn a base pay of just under $41,000 annually. 
Next Month 
Salary Tracker 
will feature 
Fire Chief 
and 
Assistant Chief 
Salaries 

St. Charles, Missouri 

fire fighters 
Local 757 of the International Association of Fire Fighters, AFL-CIO, and the City of St. Charles reached accord earlier this month on a new labor agreement retroactive to January 2000. To take care of economic issues dating to 1997, each fire fighter will receive a lump sum of $2,500.