Tuesday, May 12, 2009 • Firefighters meet with Supes to discuss compensation issues

Publisher’s note: This story originally appeared in the Tuesday, May 12, 2009 edition of the Lassen County Times.

Volunteer firefighters around the county have been scratching their heads about what type of compensation they are entitled to for responding to out-of-area fires.

The issue over whether volunteer firefighters should be volunteers or employees came to a head when Jim Curtis, attorney for the Spalding Community Services District, advised the district it was unknowingly changing the status of its volunteer firefighters to part-time employees whenever they compensated them for going to out-of-area fires. Curtis said this was a violation of the Fair Labor and Standards Act, a federal law that deals with specific requirements on multiple aspects of employment in the country, from over-time pay to accurate records of hours worked by an employee and much more.

Because of the far-reaching implications to all the volunteer fire departments in the county, fire representatives from all over Lassen County came to a special study session at the Lassen County Board of Supervisors on Tuesday, April 28, to discuss and learn if there was anything that could be done about the recent interpretation.

According to Lassen County Auditor Karen Fouch, the county provides some level of service to 18 special districts in the county that oversee volunteer fire departments. Fouch said the services provided to the fire district depends on its size, needs and necessity of services back to Lassen County.

Lassen County Counsel Craig Settlemire started the discussion by clearly stating that the issue from sending a firefighter out on to a call and then that firefighter receiving compensation for costs incurred during that time isn’t the problem, it’s when funds are paid to compensate them for their time. He also brought up the concept of nominal pay, in which a volunteer can retain his or her status as a volunteer and still receive a form of payment.

“It is possible to have somebody serve as a volunteer and they can then receive a stipend or a nominal compensation that’s not based an hourly amount of time served,” Settlemire said. “And if it’s under 20 percent of what would be paid for somebody to provide that service, then under those circumstances they would still be considered to be a volunteer.”

Settlemire addressed early how some of the districts were regarding their volunteers as independent contractors, required to file 1099 government listing them as such. The argument from the fire districts was that if their volunteers were actually independent contractors, they would be entitled to compensation.

Settlemire all but shot that argument down by explaining that for anyone to be legally considered an independent contractor, they must meet a number of requirements, such as providing a certain amount of their own equipment, having a measure of control over the hours they work, as well as a measure of a particular job is done. He said he didn’t believe any of the firefighters could qualify as independent contractors because their respective fire departments provided the equipment, told them where to go, and provided training on how to handle specific situations.

The board could take no action on any of the suggestions or discussion items, because, as Supervisor Brian Dahle explained, the board doesn’t have any jurisdiction over what the individual districts decide to do.

Supervisor Bob Pyle added that just because each district has control over how they are going to deal with the volunteer/employee issue, no district could claim ignorance of what they aren’t supposed to do.

“Of the 18 (fire) districts, possibly there are five or six that could be affected by this Fair and Standards Labor Act issue,” Fouch said, “concerning services provided at the district.”

Fouch said that while most of the fire districts do keep their money in the county’s treasury, it is still up to each district’s respective board to approve payments.

As a matter of getting more concrete clarification on the issue for all the districts, Susan River Fire Protection District Board Member Jim McCarthy said through conversations with the Susanville Fire Department, City of Susanville Attorney Peter Talia and Settlemire, he’s been able to contact the California State Firefighters Association to send a representative out to help.

“He will be working with us, to make sure we do this the right way, so that we preserve the volunteer relationship that we have, and preserve the strengths of the districts,” McCarthy said.

Supervisor Lloyd Keefer said the session brought out many good suggestions on how to try and deal with the volunteer/employee issue. He said it would be a good idea to setup another study session and possibly pass a resolution in the future that could alleviate some of the confusion.

Until then, he said the board would continue to stay in contact with the respective agencies over the CSFA representatives work with all the districts. A time was not set for a future study session.