Fire Departments vs. Protecting the City from Liability Holly Corkery

Fire Departments vs. Protecting the City from Liability Holly Corkery & Patrick O’Connell September 29, 2022

Agenda Fire departments, generally Fire Associations and 28E Agreements Volunteer firefighters as employees under FLSA and FMLA Workers’ Compensation coverage Risks of allowing alcohol within a fire department Coverage for Tort Liability Conflicts of interest

Fire Departments Iowa Code Section 364.16 requires cities to provide for the protection of life and property against fire. Most fire departments are established by a city ordinance and are clearly a part of the city. Some cities contract with a neighboring entity to provide for the coverage to their community. While other cities contract with a local fire association that can assist with protection

Fire Departments ordinance All city fire departments should begin with an ordinance. The ordinance should: Describe the duties of the fire department and its members Provide for appointment of a fire chief State how the city will handle matters such as workers’ compensation and liability insurance. State how wages will be paid. This can specify the amount on a per-call basis; however, it is recommended that specific amounts be done by resolution.

Fire Associations Fire associations are highly uncommon. Some cities create an agreement with a local firefighter association to either assist with fire protection or to do it completely. If a city chooses to enter into this type of an arrangement, it is important that the contract is detailed and includes clauses on: Financial contributions Insurance coverage Equipment maintenance Budget management

28E Agreements Iowa Code Section 359.42 gives townships the power to contract for fire protection through a 28E Agreement. These agreements allow local governments in Iowa to make efficient use of their powers and provide joint services and facilities with other government entities, non-profits, and private organizations. In sum, 28E Agreements allow communities and other organizations to come together to pool all their resources together to help provide a more cost-effective service to citizens.

Fair Labor Standards Act For the FLSA to apply, there must be an employment relationship between the employer and the employee. “Employer” means any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency. 29 U.S.C. § 203(d). “Employee” means any individual employed by an employer. 29 U.S.C. § 203(e)(1). “Employs” includes to suffer or permit to work. 29 U.S.C. § 203(g)

Family and Medical Leave Act FMLA allows employees to take up to 12 weeks of jobprotected leave in a 12-month period for specified family and medical reasons. All cities must comply with FMLA, but city employees are not eligible for FMLA leave if a city has fewer than 50 employees. Cities with fewer than 50 employees can still offer FMLA leave to employees if the city wishes to do so. For purposes of FMLA, the terms “employ” and “employee” have the same meaning as given in 29 U.S.C. § 203(e) and (g) under the definitions section of the FLSA.

Volunteers under FLSA “Volunteer” is defined as “[a]n individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered.” 29 C.F.R. § 553.101(a); see also 29 C.F.R. § 553.104(a). “Volunteers may be paid expenses, reasonable benefits, a nominal fee, or any combination thereof, for their service without losing their status as volunteers.” 29 C.F.R. § 553.106(a). “A nominal fee is not a substitute for compensation and must not be tied to productivity. However, this does not preclude the payment of a nominal amount on a ‘per call’ or similar basis to volunteer firefighters.” 29 C.F.R. § 553.106(e).

Volunteer firefighters are employees under FLSA Hourly wages paid by city to volunteer firefighters were determined to be compensation under the FLSA, and therefore, volunteer firefighters were employees for purposes of the FLSA and FMLA. Mendel v. City of Gilbraltar, 727 F.3d 565 (6th Cir. 2013). The court found 15/hour was a substantial hourly wage.

Mendel v. City of Gilbraltar reasoning Notably, the Supreme Court has held that those who “work in contemplation of compensation” are “employees” within the meaning of the FLSA, even though they may view themselves as “volunteers” Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 300–02, 306 (1985). The firefighters of Gilbraltar did not receive a “nominal amount” on a “per call” or similar basis. Rather, they rendered services with the promise, expectation, and receipt of substantial compensation. Each time a firefighter responds to a call, he knows he will receive compensation at a particular hourly rate, which in the City of Gilbraltar was similar to the hourly rates paid to full-time employed firefighters in neighboring areas.

Effect of Mendel on Iowa cities and their fire departments There have been no cases in Iowa or the 8th Circuit overall since the 6th Circuit Mendel decision. However, since many Iowa volunteer firefighters render services with the promise, expectation, and receipt of compensation, volunteer firefighters are likely employees under the FLSA and FMLA in the state of Iowa. Thus, all volunteer firefighters would count towards the total number of city employees. Thus, if an Iowa city has more than 50 employees, those employees, which would include volunteer firefighters, would be entitled

Workers’ Compensation Workers’ Compensation is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment. Volunteer firefighters are required to be covered under the city’s workers’ compensation insurance. Whether a paid professional or volunteer, all firefighters face the same risks. Fire departments should work with the city’s insurance providers to make certain that volunteers are properly identified and covered.

Workers’ Compensation under Iowa Code Chapter 85 “Volunteer fire fighter” means any active member of an organized volunteer fire department in this state and any other person performing services as a volunteer fire fighter for a municipality, township, or benefitted fire district who is not a full-time member of a paid fire department. A person performing such services shall not be classified as a casual employee. Iowa Code § 85.61(10). Personal injuries sustained by a volunteer fire fighter arise in the course of employment if the injuries are sustained at any time from the time the volunteer fire fighter is summoned to duty as a volunteer fire fighter until the time the volunteer fire fighter is discharged from duty by the chief of the volunteer fire department or the chief’s

Workers’ Compensation Iowa Code Section relevant parts: 85.36(9)(a) states, in In computing the compensation to be allowed to a volunteer fire fighter, the earnings as a fire fighter shall be disregarded and the volunteer fire fighter shall be paid an amount equal to the compensation the volunteer fire fighter would be paid if injured in the normal course of the volunteer fire fighter’s regular employment or an amount equal to one hundred and forty percent of the statewide average weekly wage, whichever is greater.

Alcohol Fighting Fires It is a common issue to have volunteer firefighters showing up at the scene of a fire while under the influence of alcohol. FFUI Firefight while under the influence FFWI Firefight while intoxicated International Association of Fire Chiefs drug and alcohol policy: Personnel should refrain from consuming alcohol within eight (8) hours of performing any fire- or EMS-related duties.

Legal Ramifications of FFUI and FFWI Ineligible to receive any federal line-ofduty death or disability benefits in the event of an injury or death. Many state line-of-duty death and disability laws mirror the federal law, so it is likely the person would also be disqualified from receiving state benefits. 34 U.S.C. § 10282.

Legal Ramifications of FFUI and FFWI Subject to all other usual consequences that accompany a DUI, OWI, or an equivalent conviction: Loss of license Possible jail time Fines Attorney’s fees Court costs

Legal Ramifications of FFUI and FFWI Liability The intoxicated individual would be liable for injuries and damages caused as a result of driving while intoxicated. All employers, both public and private, could also be liable for damages caused by the negligent or wrongful act of any volunteer or employee.

Tort Liability Every Iowa municipality is subject to liability for its torts and those of its officers and employees acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function. Iowa Code § 670.2(1).

Tort Liability Governing bodies of municipalities are required to defend, hold harmless, and indemnify municipal officers and employees from any claims “arising out of an alleged act or omission occurring within the scope of their employment or duties.” Iowa Code § 670.8(1). An officer or employee of a municipality is not liable for punitive damages as a result of acts in the performance of a duty, unless actual malice or willful, wanton and reckless misconduct is proven. Iowa Code § 670.12.

Protecting your Fire Department from alcohol related issues Fire Departments must have and abide by written alcohol and drug use or abuse policies that: Specify when, if ever, alcohol use is acceptable in association with departmental activities and functions. Discuss the relationship between alcohol use and departmental response policies. Describe the consequences for violating these policies. Regularly train people on these policies and the importance of complying with them.

Protecting your Fire Department from alcohol related issues Train all personnel on how to recognize signs of intoxication in their colleagues. Many may not recognize that they could be impaired, so it is important that their colleagues know how to spot intoxication and how to respond in such circumstances.

Conflicts of Interest In Iowa, officers and employees of governmental entities are required to avoid conflicts of interest. Any person who serves or is employed by the state or a political subdivision of the state shall not engage in any outside employment or activity which is in conflict with the person’s official duties and responsibilities. Iowa Code § 68B.2A Example: Using city time or resources to give themselves or an immediate family member an advantage or benefit not available to members of the public.

Conflicts of Interest The court in LeBuhn v. White, 133 N.W.2d 903 (Iowa 1965), concluded that if a person, while occupying one office, accepts another incompatible with the first, he ipso facto vacates the first office, “and his title thereto is thereby terminated without any other act or proceeding.” Iowa Code Section 372.13(10) allows a council member to serve as the chief of the volunteer fire department or to serve the volunteer fire department in another position or capacity.

Conflicts of Interest In a 1981 opinion, the Attorney General’s office determined the positions of city council member and chief of a volunteer fire department are not incompatible. However, it was observed that “public policy may require abstinence from voting because of a conflict.” When in doubt as to if there is a conflict present, the council member shall abstain from voting.

Conflicts of Interest Iowa Code § 362.5(2) states: “A city officer or employee shall not have an interest, direct or indirect, in any contract or job of work or material or the profits thereof or services to be furnished or performed for the officer’s or employee’s city. A contract entered into in violation of this section is void.” However, Iowa Code Section 362.5(3)(h) carves out an exception that that section 362.5 does not apply to “contracts with volunteer fire fighters or civil defense volunteers.”

QUESTIONS?