The finalized national plan for smallpox inoculation was announced by the White House December 13 and fire fighters, police officers, and other first responders are second in line for the vaccine. Fire Service Labor Monthly reported preliminary elements of the plan in the October 2002 issue. In making the announcement in his weekly radio address, President George Bush said that shots would be mandatory for about 500,000 members of the armed forces and would be recommended for another 500,000 hospital workers and special smallpox response teams. In the second phase of the plan, shots would be offered to other health workers and first responders. An estimated 10 million people fall into this category. These shots would not be mandated but only recommended.
The timeline for implementation of the plan has not been formalized but is expected to start in January 2003. Phase two, affecting fire fighters and police officers, will likely begin in the summer. Shots for the general public will not be available until early 2004.
The Centers for Disease Control also announced that it has completed preliminary review of the plans developed by state health departments for pre-event vaccination of healthcare personnel. Included in the plans are programs to establish smallpox response teams that will react immediately to any reported incidents. Some fire fighters, emergency medical personnel, and police officers may be included within these teams. These individuals will likely be among the first civilians to receive inoculations.
Vaccination of fire fighters and police officers will be voluntary. Under the federal plan each individual will make a personal decision on whether or not to receive the vaccine. Because a live virus is used in the vaccine, smallpox vaccination produces side effects ranging from a minor rash to death in rare instances.
Questions have already been raised concerning who will pay for the collateral costs of the vaccinations. The federal government will apparently fund the direct costs of the vaccines but Health and Human Services Secretary Tommy Thompson said workers’ compensation insurance would cover any lost work time and public employees’ medical insurance would be expected to pay for the treatment of any side effects.
“We can’t imagine that the government would have the expectation that the cost of a national homeland security program would be borne by employers and their employees,” said Karen Ignagni, president of the American Association of Health Plans.
In his speech, the President emphasized that the government had no information
that a smallpox attack was imminent but noted that regimes hostile to the
United States were believed to be in possession of the deadly virus.
Interest arbitration
Arbitration of a dispute over the provisions to be entered in a new contract. (Compare grievance arbitration, which is arbitration of a dispute over something in an existing collective bargaining agreement.)
Merriam-Webster's Dictionary of Law
A federal judge in Massachusetts has told Malden town officials that fire fighters have a constitutional right to protest daytime staffing level changes without being disciplined. U.S. District Judge Richard Stearns agreed with a union lawyer that the town fire commissioner’s memo prohibiting signs on department property without his approval violated fire fighters’ rights under the First Amendment. The judge enjoined enforcement of the order except for signs of an “advocacy nature.”
The fire fighters’ union began an informational picketing campaign about a year ago but slowed after four members were punished for their participation. The union is objecting to a city decision to allow daytime shifts of 18 fire fighters instead of 22 as in the past. Union officials claim the issue involves safety. City officials claim that the union is simply unhappy about loss of overtime opportunities. The department employs 122 fire fighters, down in recent years from a historic high of 165.
Among the signs fire fighters displayed was one reading, “It’s 2 a.m., your house is on fire, do you know where your fire truck is? Ask your mayor.” Mayor Richard Howard called such signs “scare tactics” designed to mislead the public about the debate.
Judge Stearns ruled that written reprimands for participating in the picketing previously issued to five fire fighters, including the union president, must be expunged from personnel files. He urged the sides to resolve the dispute and noted that if the case continues, he is likely to find unconstitutional certain sections of the fire department manual that attempt to regulate fire fighter speech.
For the first time in three years municipal workers in New Orleans will be receiving pay raises — except fire fighters. While the Crescent City’s rank and file workers will watch their pay jump by five percent and rookie police officer pay will increase by ten percent, members of Local 623 of the International Association of Fire Fighters, AFL-CIO, will receive nothing, at least for the moment.
New Orleans City Council has escrowed $650,000, enough for a 2.5 percent pay hike for fire fighters, until a 24-year-old lawsuit is settled. Mayor Ray Nagin reportedly wants to hold off giving fire fighters a pay boost until he learns the extent of the city’s liability under the suit.
The lawsuit, which has moved up and down the Louisiana court system for more than two decades, concerns the proper interpretation of the “Firemen’s Minimum Wages and Maximum Hours Law,” which establishes a $400 monthly minimum salary and mandates that every fire fighter with over three years of service receive a two percent salary increase for each year of service up to 20 years. City rules, however, provide for longevity pay increments of 2.5 percent every five years beginning with the second year of service. The city unsuccessfully claimed that the actual salary and longevity pay of New Orleans fire fighters exceeded the statutory minimum. But, the Louisiana Supreme Court in 2001 ruled that the city had disregarded the clear mandate of the statute.
City officials, who are hopeful the lawsuit will be resolved sometime in 2003, have given no indication as to the actual effect the back pay amount will have on a possible pay boost.
As part of a budget-cutting strategy to save more than $5 million, the District of Columbia Fire and Emergency Medical Services Department has proposed eliminating paramedics from six engine companies. The plan will scrap a three-year-old program designed to make up for slow response times by a shorthanded ambulance fleet.
According to department observers, the decision to drop the program threatens plans to unify the fire and EMS divisions and is likely to delay delivery of critical care to neighborhoods served by the paramedic engines. The displaced paramedics will be reassigned to ambulances in an effort to cut overtime costs.
“We are not operating this program on the needs of the community; we’re operating it on the needs of the budget. And I think that is the wrong approach,” said Ray Sneed, president of the D.C. Firefighters Association.
In reassigning the paramedics from engine companies, the city is abandoning an initiative of Mayor Anthony Williams. One of the mayor’s four “scorecard” goals for the fire department had been to increase the number of paramedic engine companies until all 33 companies were staffed with paramedics.
The paramedic companies did not transport patients but could begin to administer advanced life support five to seven minutes before the average ambulance reached the scene. None of the companies had enough paramedics to staff all four shifts. The paramedics were trained in fire fighting but did not enter burning buildings.
The paramedics, who are represented by a different union than fire fighters, had walked a fine line between being a uniformed fire fighter and being a civilian medic. One paramedic said he and his colleagues were devastated by the change and predicted that half of his co-workers will be gone within six months.
Atlanta fire fighters worked 24 hours on duty followed by eight hours off duty. Every 24 hour block was counted as one workday. On occasion, a fire fighter was required to work in a higher job classification than normal. Under a city ordinance, an employee would not receive the pay of the higher classification unless he performed those duties in excess of 30 workdays. The fire fighters’ union brought suit claiming that the city paid them less than was required by the city ordinance when they served in higher positions. Specifically, the fire fighters challenged the city’s treatment of requiring 15 consecutive shifts, or 45 eight-hour days of work, before they became eligible for the higher pay. The fire fighters argued that their 24-hour shift should be counted as three eight-hour workdays, not two, for purposes of the out-of-rank pay. Trial court found that the city’s treatment of each 12-hour period as one day for the purposes of the out-of-rank compensation had been adopted as a matter of payroll policy and did not appear in any law or procedure. The court ruled that there was no rational basis for the city to treat fire fighters differently than other city employees and held that the 24/48 shift should constitute three workdays for the purposes of qualifying for the out-of-rank pay. City appeals.
HELD: Construction of an ordinance is a question of law subject to the canons of statutory construction. It is the duty of the court to put into effect the intention of the lawmakers. In construing a legislative act, a court must first look to the literal meaning of the act. If the language is plain and does not lead to any absurd or impractical consequences, the court simply construes it according to its terms and conducts no further inquiry. Such rules of statutory construction apply to city ordinances as well as statutes. Here, the city treats the 24-hour tours of a fire fighter as two workdays and thereby requires that the fire fighters actually work 15 shifts, or 45 eight-hour workdays, before being eligible for the out-of-rank pay. A city operating procedure establishes this 12-hour workday for fire fighters while the city ordinance establishes eight-hour workdays for regular municipal employees. The administrative lengthening of the fire fighters’ shift to 12 hours operates to disadvantage fire fighters. The city has shown no rational basis for this differential treatment. Nothing in the pay ordinance addresses the number of hours an employee must work to constitute a workday and nothing suggests that lawmakers intended that the fire fighters should be required to work more hours than other city employees before being entitled to out-of-rank pay. Trial court correctly interpreted the compensation ordinance. Affirmed for fire fighters. [City of Atlanta v. Miller, 569 S.E.2d 907 (Ga. Ct. App. 2002)]
Norris became a fire fighter in 1979. Eventually, he was promoted to the rank of captain in the traffic signal division of the department. Two years later, he was promoted to assistant superintendent of alarms in the traffic signal division. The following year, as part of a budget cut in the fire department, the traffic signal division was moved from the fire department to the street department. As a result, Norris’ supervisory position was eliminated and he was reassigned to the position of fire fighter. Following his demotion, Norris requested a hearing to determine whether his demotion had been properly conducted. At the hearing, Norris contended that under Indiana law he could only be demoted to captain, his rank before his promotion to the supervisory position. The hearing board, however, determined that Norris’ reduction in the rank was the result of elimination of the position and his rights were not violated. Trial court affirmed the decision and fire fighter appeals.
HELD: Indiana statute provides that an individual fire fighter who is reduced in rank may not be moved to a rank below that which he held prior to appointment to the upper level policy making position. Norris thus claims that he should have been reduced from assistant superintendent to captain. However, the statute in question is part of the law concerning discipline and dismissal of fire fighters. The purpose of the statute is to protect fire fighters and their office and is intended to enhance the public’s interest in having well-disciplined personnel serve as fire fighters. The mechanism creates a requirement of a showing of cause and a procedure to ascertain the truth of any misconduct charges. Thus, when a fire fighter is charged with misconduct, the statute’s procedural safeguards are triggered. This is not the case here, however. Norris’ position was eliminated for economic reasons, not disciplinary reasons. A review of prior Indiana case law as well as the law in other jurisdictions finds that courts recognize a distinction between person directed and position directed personnel actions, noting that the reason for this distinction is that the abolition of a position results from the plenary authority of the legislative body that created the position and does not involve a personnel question as to the fitness of a particular employee to hold the position. Dismissal of employees based upon the economic exception has historically been upheld when the legislative body in good faith eliminates positions with no intention of replacing the discharged employee. Since Norris was not demoted for disciplinary reason, but rather because his position was eliminated for economic reasons, he was not entitled to the protections of Indiana law relative to demotion of personnel for discipline reasons. Demotion of fire fighter affirmed. [Norris v. City of Terre Haute, 776 N.E.2d 923 (Ind. Ct. App. 2002)]
The Maryland Military Department is responsible for the state’s National Guard contingent. The department operates under the Maryland adjutant general. Federal regulations establish employment standards for military airport fire fighters. Among these standards are age and educational requirements as well as physical fitness and training requirements. The regulations specifically provide that the adjutant general of each state will determine whether or not military airport fire fighters must hold membership in the military. In Maryland, the adjutant general required that military airport fire fighters also be members of the National Guard. Several of these fire fighters filed a grievance seeking to end the requirement of National Guard membership. Under state law, a grievance was defined as a “dispute between an employee and the employee’s employer about the interpretation of, and application to the employee of, a personnel policy or regulation, or any other policy or regulation over which management has control.” Specifically excluded from the grievance definition, however, was the “establishment of classification standards.” The fire fighters’ grievance was assigned to an administrative law judge who, following a hearing, determined that the guard membership requirement was a classification standard and not properly subject to the grievance procedure. Thus, the administrative judge ruled he had no authority over the issue. Trial court similarly held that the guard requirement was exempt from the grievance process. Fire fighters appeal.
HELD: Judicial review of an administrative agency decision is limited, as an agency’s decision is presumed correct. On appeal, a court must determine whether the agency committed any errors of law and whether there is substantial evidence in the record as a whole to support the findings and conclusions. In order to hold that substantial evidence exists to support the administrative judge’s decision, the court must conclude that a reasonable mind would have arrived at the same conclusion as the judge. This case requires an interpretation of a state statute. It is a well-settled rule of statutory construction that the court’s role is to ascertain the intent of the legislature. This is done by first looking at the language of the statute itself and giving the words their ordinary meaning. The guard requirement for fire fighters is not a policy or regulation controlled by the employer. Rather, state personnel department employees testified that the guard requirement was one aspect of a standard for determining who qualifies for the position in question, similar to having to hold a driver’s license. While the Maryland legislature may not have intended “classification standards” to be synonymous with “job requirements” the legislature certainly intended such requirements to be considered as a major component of establishing classification standards. “Classification standards” are the standards that the state personnel department establishes for a particular job classification. Accordingly, those standards are exempt from the grievance procedure. Fire fighters cannot challenge the guard membership through the grievance procedure, but must use some other judicial method. Affirmed for employer. [Kram v. Maryland Military Department, 807 A.2d 120 (Md. Ct. Spec. App. 2002)]
Mertzlufft was a St. Louis fire fighter for eighteen years until he was dismissed for violating the city residency requirement. Mertzlufft had lived with his wife and children in a home within the city limits until 1994 when he moved into his mother’s home. Meanwhile, the wife and children moved to a house outside the city limits. Mertzlufft submitted a change of address notice to the department showing his new address as his mother’s house. He was subsequently charged with violating the residency ordinance of the city. A review board found him innocent of the charge but upon reviewing their recommendation, the fire chief ruled that indeed Mertzlufft had violated the charter residency requirement and ordered him dismissed. Mertzlufft appealed the matter to the civil service commission who conducted a hearing. At the hearing, Mertzlufft asserted that he lived with his mother and not with his wife and children. He submitted property tax receipts which were mailed to him at the mother’s address as well as a letter and records from the phone company revealing that he paid for the telephone at the address. Additionally, his driver’s license showed the address as well as rental payments to him from individuals who rented the apartments at the address. The civil service commission upheld the dismissal however. The commission based its ruling on the fact that the majority of the fire fighter’s personal possessions had been trucked to the county residence and that he spent the majority of his off duty time at the wife’s residence. Further, the fire fighter had signed an insurance document, under penalty of perjury, that listed the county residence. Trial court affirmed the civil service determination and fire fighter appeals.
HELD: Judicial review of a civil service commission’s decision is limited to determining whether the decision violates a constitutional provision, exceeds the commission’s jurisdiction, is not supported by substantial evidence, is unauthorized by law, is based on unlawful procedure, is arbitrary, capricious, or unreasonable, or involves an abuse of discretion. An administrative decision based on substantial evidence is not arbitrary or capricious. In order for evidence to be substantial, the evidence must support the commission’s discretionary determination. Substantial evidence is defined as “competent evidence, which, if believed, would have probative force upon the issues.” Here, the civil service commission decided the fire fighter was not a resident of the city. City regulations define residence as “a person’s usual and customary place of abode where the individual lives and regularly stays; it shall not mean a legal, voting, or other address where the person does not actually live.” This creates a completely objective standard for determining residency. Subjective elements, such as the employee’s sentiments and subjective intentions, are specifically excluded from the definition. A review of the evidence in this case supports reversal of the commission’s decision. The only evidence on which the commission relied to establish that the fire fighter was a county resident was testimony that the majority of his personal possessions had been moved to the county residence and that he signed an insurance document that listed his residence as the county. The fact that a majority of his recreational possessions and his recreational time are located outside the city is not sufficient to establish a residency outside the city. While the insurance document does exist, there are other documents in the record showing the city address as his residence. In addition, city personnel property tax receipts as well as the fire fighter’s driver’s license list the city residence. Two witnesses also testified that on two dozen occasions Mertzlufft had been seen at his mother’s home. The record fails to reflect substantial evidence to support the civil service commission’s termination. Reversed for fire fighter finding him to be in compliance with the residency requirement. [Mertzlufft v. Civil Service Commission of St. Louis, 85 S.W.3d 63 (Mo. Ct. App. 2002)]
The city charter provided that the mayor would appoint the fire chief for a four-year term. In the event that the mayor failed to make such an appointment, the city council would elect a fire chief. The charter was silent, however, regarding appointment during the term to fill a vacancy. In October, 2001, the fire chief retired. The mayor, instead of appointing a new fire chief, developed a plan to create a new position, director of public safety, to oversee both the police and fire departments. Ultimately, the plan would require the abolition of the fire chief position.
The plan further provided for increasing pay to the deputy fire chief as well as the creation of four battalion chief positions in the fire department. A public announcement of the plan was made. Shortly thereafter, the council approved a number of resolutions as part of the plan, but no action was taken to formally abolish the position of fire chief. The fire fighters’ union filed suit against the city seeking an order prohibiting it from reorganizing the department by eliminating the position of fire chief.
HELD: Nothing in the city charter requires the city to fill a vacancy
in the fire chief position that arises during the four-year term. Likewise,
nothing in the city charter prohibits any of the actions the city has taken
regarding the reorganization of the fire department. Further, the city
has not totally eliminated the funding of the fire chief’s salary but has
merely reduced it. If a fire chief were hired before the end of the
year, the funding would be in place for an adequate salary. Consequently,
the city has not violated any law by failing to fill the fire chief’s position.
Likewise, the city has not violated the state open meetings law as alleged
by the fire fighters’ union. It is important to separate the requirements
of the open meetings law, which simply requires that meetings be open to
the public, from the idea that there should be public debate about a city’s
reorganization plan. The open meeting law does not require that the
public be given an opportunity to engage in a debate over municipal plans.
It only requires that proceedings of public bodies be open to observation
by the public. While the court certainly agrees that robust public
debate is essential to our system of government, the court’s role is to review
violations of law. Whether or not the city’s reorganization plan is
a good one is a decision to be made by the council, not by the court.
Motion to dismiss case granted. [DeSantis v. City of Jamestown, 747
N.Y.S.2d 906 (N.Y. Sup. Ct. 2002)]
fire fighters
The City of Anderson and Local 1262 of the International Association of Fire Fighters, AFL-CIO, have reached accord on a three-year labor contract. The contract provides for a three percent salary increase in each year of the agreement. Fire fighters will also receive a one-time $349 increase in 2003 to bring their wage schedule in line with police personnel. A first class fire fighter will now earn a salary of $37,361 while an assistant battalion chief will draw $45,388. The chief arson investigator will earn $45,643.
fire fighters
Because of a wage pass retroactive to the first of 2002, Euclid fire
fighters will not see an immediate pay raise under their new three-year
labor accord with the city. However, paychecks will improve for the 82
fire fighters in 2003 and 2004, when salaries increase by 4.5 percent.
Fire department personnel are represented by Local 337 of the International
Association of Fire Fighters, AFL-CIO.