A little background on me, from December 1998 to September 7, 2001, I worked at One Park Avenue in NY. My wife worked for a company that took care of plants in office buildings all over metro NYC, including the Twin Towers. My last day of work was the Friday before 9/11 - I was in Albany when the planes hit the towers.

But in January 2002, just a few months after 9/11, I began my journey with the volunteer fire service. Like the average citizen, I had no idea how fire protection or ambulance service worked. I knew if I called 911 trucks with lights and sirens showed up. I knew to fill the boot during the fund drive. I knew my local fire company put on the best pancake breakfast around! I knew my best friend's mom kept a green light in her car (she was a volunteer EMT) but I was't allowed to play around with it! I never learned how departments received their income, how they knew to respond, how they trained and prepared - was all foreign to me.

Then I started learning about the volunteer fire service and the dedicated community servants that staff the departments. I learned about the differences between a fire company and a fire district, and why a village fire department is different from an independent company. I've enjoyed every minute of it, and look forward to serving fire departments and local governments into the future.

During these 17+ years, the volunteer fire service has changed. The events on 9/11 were a catalyst to some of those changes, but so many other factors are at play as well. This post isn't about what those factors are - I can't pretend to know what they all are to write an informative article on it (although I'd love to hear how you think things have changed). That being said, I've heard a lot of feedback from firefighters and commissioners, and been asked a lot of questions about how certain new activities fit into the point system.

The types of emergencies have changed, the way departments respond has changed, training has changed, the time commitment has changed...you know what hasn't changed much at all? LOSAP. There has been some incremental changes over the years, but not enough to adapt to the way the volunteer fire service has evolved. In particular here in NY State, the point system needs an overhaul. The benefit available to defined contribution plans must be increased to be more competitive with the defined benefit plan. A statute that is vague and incomplete in many areas should be tightened up. 

​I'm a believer in not complaining unless you have a solution. In this case, I don't have a great solution. I think it will take the combined efforts of the state-wide associations to spearhead a change, and I know they have other challenges in front of them. Until we can see some significant changes in the statute, we'll continue to deal with a once-size-fits-all statue when fire departments and their operations become increasingly unique.

We've been asked several times over the last two-three weeks  about the eligibility to participate in LOSAP. In particular, if "administrative only" members are eligible to participate. So we thought we would address it now. As usual, we cannot give legal advice - this is meant to help guide you and your attorney in making the best determination for your department.

§ 215 of the NYS General Municipal Law defines an active volunteer firefighter as:

The section of the Internal Revenue Code that governs LOSAPs states that a plan can be established for bona fide volunteers who perform qualified services. Those qualified services are defined to be "fire fighting and prevention services, emergency medical services, and ambulance services." 

These definitions are slightly different, but seem to still get to the same general conclusion - the individual has to actually be a firefighter or ride the ambulance. That would seem to then clearly exclude social-only members (whatever your department calls them).

In New York, generally fire departments classify their active members by medical clearance - some examples are internal, external, driver, administrative, Class A, Class B, or Class C. When it comes to determining who is eligible for LOSAP, the duties of each particular medical classification should be taken into consideration.

There are two legal opinions from the Office of the State Comptroller about this issue. The first is Opinion 94-33. In this opinion, the State opined that "Retired" members of a fire department may not participate in a service award program unless they are subject to being called to duty under the department's rules and regulations.  You can view that opinion here:

https://www.osc.state.ny.us/legal/1994/legalop/op94-33.htm

Opinion 97-24 states: The members of the "auxiliary" of an incorporated volunteer fire company located in a fire district may not participate in a service award program established for the members of the fire company unless they have been approved as members of the fire company and are subject to call for whatever duties may be assigned under the rules and regulations of the department or company.

You can view this opinion here:
https://www.osc.state.ny.us/legal/1997/legalop/op97-24.htm

With these two opinions in view, as well as the related section of the Internal Revenue Code, it would appear that the main distinguishing feature of an active volunteer firefighter is if that individual is subject to being called to duty when the alarm rings.

For the specific example that we were asked, the administrative-only member was not allowed to ride the fire truck or respond to the scene. They are allowed to respond to the firehouse, but they must remain at the station. When the trucks return they can clean them, inspect equipment, replace batteries, replace other supplies that were used (especially for ambulance services). In some cases the administrative-only members may operate the radio for communication. 

If an argument can be made that the tasks performed by administrative-only members can be considered "fire fighting and prevention services" as defined in the Code, and that they are "faithfully and actually performing service in the protection of life and property" as defined in the State Law, and that these individuals are "subject to call for whatever duties may be assigned under the rules and regulations of the department or company" as provided in the Comptroller Opinions, it would seem reasonable that administrative-only members would be eligible to earn LOSAP points. 

That said, there is another question that should be answered, which is if it is within the "spirit" of the law that these types of members are earning LOSAP points. Each fire department and municipality should also consider this question, and we'll address it in a future post.

Again, we suggest reviewing this with your attorney.