Contributed by Tony Hill
A bill that allows a LOSAP sponsor to change the department responses category of its point system was signed by Governor Hochul as Chapter 462 of the Laws of 2021.
This new law allows a LOSAP sponsor to adjust the department responses category of its point system to recognize that some groups of volunteers may be restricted from responding to certain types of calls.
As a reminder, the department responses category provides that 25 points are earned by a volunteer who 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 can be earned for attending a minimum number of those calls as well. The minimum number is based on a percentage of the total calls for the year. For example, if a department has 400 calls during a year, a volunteer must respond to 40 (10%) in order to earn 25 points. The department responses category is unique from other categories since it is an all-or-nothing category – either a volunteer responds to at least the minimum number and earns 25 points or does not and earns zero (0) points
If a volunteer is restricted from attending some calls, it limits the opportunity to respond to the minimum to earn the 25 points. For example, if a certain volunteer is restricted from responding to 50 of those 400 total calls, that volunteer would have to respond to 40 of the other 350 calls – a little more than 11%. The new law allows a LOSAP sponsor to change the requirement for this volunteer from 10% of 400 calls to 10% of 350 calls, or 35, to earn 25 points. This new statute will help many fire departments better align awarding points for calls with the department’s operations.
If a LOSAP sponsor chooses to adjust its point system for this change, no referendum is required – only a resolution of the LOSAP sponsor governing board (at least 60% approval) is needed. However, it states that an adjustment to the point system must be in response to written emergency response protocols adopted by the sponsor. (The use of the term sponsor here is potentially problematic, as a village or town isn’t likely setting emergency response protocols for a department.) The statute elaborates that these protocols may be related to a determination made by the district/department physician regarding the duties that a volunteer may be assigned. Since the word may is used, that implies it is not the only determining factor that could be used when a sponsor adopts these written emergency response protocols.
The adjustment would become effective the January 1st following the date the sponsoring board adopts the resolution, unless the written emergency response protocols were enacted as a result of a state disaster emergency. The wording of the amendment is not completely clear regarding this case – if the amendment can be made effective in the year the resolution is adopted by the board, or when the written emergency response protocols were adopted, or even when the state disaster emergency was declared. The takeaway is there is some flexibility allowed in this case.
It is important to be clear about how this amendment is implemented – it must be adopted by the municipal sponsor. A fire department that is interested in changing the point system must work with the sponsoring village, town, city or fire district to actually make the change.
Initially, this bill was meant to address the staffing challenge fire departments were facing during the COVID-19 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. However, this new law is not necessarily tied to the COVID-19 pandemic or any state disaster emergency (although it can be); it is a permanent change to the statute that can be adopted at any time.
We could see this new statute being helpful, or at least provide clarity in the following situations:
- Implementation of duty-crews or stand-by crews. Some fire departments have moved to a system where a certain group of volunteers are on-call at the firehouse during a scheduled period of time. Calls during that period could be assigned only to that group and not the entire department. Unless an incident required the entire fire department to be activated, calls handled by the duty-crew would count towards their response percentage, and the other volunteers would not be hurt (from a percentage response standpoint) by being unable to respond to these calls.
- 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 isn’t 100% clear if total number of responses should be (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 of calls a volunteer is required to respond to based on their company’s total number of responses.
- 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. Again, we believe that under the old construct of the law an argument could be made to exclude chief’s investigations as a “department response” since the entire department was not 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, and is also potentially impacted by this new statute.)
- For departments that may still have impacted department responses in early 2021 because of the COVID-19 pandemic, or where COVID-19 may end up impacting responses again later in 2021.
- For a volunteer who joins or resigns mid-year. Although we aren’t certain this is a positive, it could allow a sponsor to require a volunteer to attend the percentage of the calls only during which he/she was an active member. Under the existing requirement, a volunteer must attend a number of calls that is based on a percentage of the total department calls for the entire year. This is difficult for those who join/resign mid-year or take a leave of absence. That doesn’t appear to be the intention of the statute, but it would seem like a possible interpretation.