By Tony Hill
The New York State Legislature passed another bill on June 3, 2021 that would amend Article 11-A of the New York State General Municipal Law, provided the bill is signed into law by Governor Cuomo
This bill is S1210 / A6401 and was first introduced in 2020 during the COVID-19 pandemic. A second bill was also introduced at that time, which allowed LOSAP sponsors to award up to five (5) points per month during the pandemic. Most readers know this second bill became law in 2020.
Bill S1210 / A6401 was also meant to address the staffing challenge fire departments were facing during the pandemic. Many departments were limiting certain at-risk volunteers from responding to calls. Although this was for the safety of those volunteers, these limitations made it more difficult to earn points under the department responses category. As a reminder, the current statute provides that 25 points are earned by a volunteer that attends a minimum number of the fire department’s total calls for the year. For departments that also have a rescue/ambulance unit, an additional 25 points could be earned for attending a minimum percentage of those calls as well. If a volunteer is restricted from attending some calls, it limits the opportunity to respond to the minimum to earn the 25 points. Additionally, the department response category is unique from other categories since it is an all-or-nothing category – either a volunteer responds to the minimum number and earns 25 points or does not and earns 0 points.
What makes this bill different from the one that became law is that it is not specifically tied to the COVID-19 pandemic – it is a permanent change to the statute that gives a LOSAP sponsor another option for how to award points for department responses.
Before we give you the text of the new proposed statute, let’s first review the summary and justification for the bill:
SUMMARY OF PROVISIONS:
Amends General Municipal Law by adding a new subparagraph (q) to address developments in how volunteer fire departments respond to emergencies by allowing programs to calculate percentages based on the total number of calls an individual was dispatched.
JUSTIFICATION:
The length of service award programs (LOSAP) are pension-like programs intended to help recruit, retain, and reward volunteer firefighters and ambulance workers for serving their communities. New York requires volunteers to earn 50 points each year to receive these benefits. One of the ways firefighters can earn points is by responding to emergency calls. However, since COVID, emergency precautions have been adopted to protect vulnerable volunteer firefighters from being exposed to the virus. Specifically, fire departments have had to reduce how many firefighters respond to calls.
This bill recognizes that not every emergency call requires all volunteer firefighters to be dispatched. The current LOSAP point system does not reflect the complexity of emergency response protocols, which only results in more emergency vehicles on our streets and represents a less efficient system. Updating the law from using a percentage of the total number of calls the department was dispatched to in calculating LOSAP points, to the total number of calls an individual was dispatched to will create a more equitable and efficient system.
The Summary and Justification make it fairly clear that the intent is to allow a sponsor to credit the points for department responses on an individual basis, rather than for the entire department’s number of calls. In the view of the legislators that sponsored the bill, this creates “a more equitable and efficient system.”
Since our expertise is not in fire department operations, we won’t discuss how a specific department operates and if an emergency response protocol is efficient or not. We are certain there are many factors to be considered.
This legislation will be helpful for larger departments that have multiple fire companies that are dispatched individually. The actual point system category in the law is titled “participation in department responses”, but then the chart detailing the percentage requirement references “volunteer fire company.” Since department and company can sometimes be used interchangeably, it wasn’t 100% clear if points should (or could) be broken out by company or tracked for the entire department. This new legislation would make it clear that a LOSAP sponsor could calculate the minimum percentage based on each company’s number of responses.
Another scenario where this could be helpful is for departments that respond to a lot of automatic alarms that don’t require the entire department to be activated. Many departments call these “chief’s investigations” or something similar because they do not activate the entire membership, but rather dispatch a chief to investigate the automatic alarm. If the chief determines that the situation requires the activation of the full department, then that step is taken. Even under the current construct of the law, we believe an argument could be made to exclude chief’s investigations as a “department response” since the entire department wasn’t activated. However, this new legislation would appear to make it clear that this can be done. (A second discussion about how to award the individuals performing the chief’s investigations with points is a topic for another time.)
In general, we question whether this new system will actually be more equitable and if it really will create efficiencies in the recordkeeping process.
For a typical department where all active members (regardless of fire company membership) are dispatched for an alarm, the ability to create sub-groups or to assign certain calls to certain volunteers could create inequity and administrative complexities – the opposite of the stated intent of the new law. An obvious example is when chiefs are responsible for responding to all calls, whereas the fire police are only needed for a fraction of the calls. Whatever that fraction is, members of the fire police will be able to earn the same 25 points as the chiefs by responding to fewer calls.
Under the existing point system rules, every active volunteer firefighter of the fire department is expected to respond to the same number of calls in order to earn the same number of points (i.e., 25). The same for the other event-based categories: each firefighter receives the same number of points based on the specific event (points for officers being the one variant). This new statute would allow some firefighters to earn 25 points for responding to fewer calls than others. This seems contrary to the spirit of the rest of the point system.
There would be further complications about how to handle people changing groups mid-year, or even joining or resigning from the fire department mid-year. We can easily see this resulting in an individual-by-individual call requirement to earn the 25 points, as seems to be indicated in the Summary and Justification. This would likely be an administrative challenge for any department – large or small.
If adopted into law, this change to how points are awarded for department responses would be optional. Great care should be taken before implementing it, and the LOSAP sponsor should review it with its legal counsel and LOSAP administrator.
The full text of the new law is below. If you have thoughts or comments, please share for everyone to read!
Section 217 of the general municipal law is amended by adding a new subdivision (q) to read as follows:
(q) The program sponsor may make adjustments to the participation in department responses point system category provided for in paragraph(vi) of subdivision (c) of this section in the event that such program sponsor adopts written emergency response protocols setting different emergency response requirements for the fire department, fire companies, squads and units thereof such that certain participants are not permitted to respond and are restricted from responding to all non-emergency rescue and first aid squad calls and/or all emergency rescue and first aid squad calls. Such restrictions on response may relate to determinations made by the district physician or department’s physician as to the duties that may be assigned to certain personnel. In the event that the program sponsor adopts different response requirements for different groups, participants in those groups shall be required to respond to the minimum number of emergency calls assigned to their group by applying the percentage provided for in paragraph (vi) of subdivision (c) of this section. Notwithstanding the provisions of section two hundred sixteen of this article, a point system amendment to address written emergency response protocols may be adopted by the affirmative vote of at least sixty percent of such governing board, without referendum. Such amendment shall only take effect as of the first day of January next succeeding the completion of the proceedings required for adoption of the amendment and shall only apply prospectively unless the new written emergency response protocol is adopted in order to address a state disaster emergency, as such term is defined in section twenty of the executive law, and applicable to the county or counties in which the fire department operates, in which case such amendment may be applied in the year adopted.