This pandemic has required us to change our behavior and routine in ways most of us have never experienced. Although not very significant, we would have never guessed that we'd be studying Executive Orders issued by the Governor in order to track how that might impact LOSAP. But here we are!
If you have any questions about the Executive Orders, or anything in this article, we recommend you forward a copy to your attorney before any action is taken. This article is not meant to be legal advice and you should seek it out before making any decisions.
The legislation that allows LOSAP sponsors to award up to five (5) points per month during the COVID-19 pandemic is tied to Executive Order 202. Therefore, it would seem the ability for sponsors to continue to award points for cancelled events or modified response protocols is contingent on the continued state disaster emergency.
Executive Order 202.92 clearly extended the emergency until February 26, 2021. You can view the order by clicking HERE. The applicable language is:
Therefore, pursuant to the authority vested in me by the Constitution of the State of New York and Section 28 of Article 2-B of the Executive Law, I hereby continue for thirty days the declaration of the State Disaster Emergency effective March 7, 2020, as set forth in Executive Order 202. This Executive order shall remain in effect through February 26, 2021.
Executive Order 202.96 then clearly seems to extend the emergency until March 28, 2021. You can view that order by clicking HERE. Again, the applicable language is:
Therefore, pursuant to the authority vested in me by the Constitution of the State of New York and Section 28 of Article 2-B of the Executive Law, I hereby continue for thirty days the declaration of the State Disaster Emergency effective March 7, 2020, as set forth in Executive Order 202. This Executive order shall remain in effect through March 28, 2021;
There have been two subsequent Orders - 202.97 (to read click HERE) and 202.98 (to read click HERE).
The language of these Orders are slightly different, and they do not specifically state that the Emergency is extended. Instead, they state the following (from 202.98):
...do hereby continue the suspensions and modifications of law, unless superseded, modified or otherwise expired, made by Executive Order 202 and each successor Executive Order to 202, for thirty days until April 20, 2021.
So it would appear that the suspensions and modifications are extended, but the State Disaster Emergency was not specifically extended.
Since we still have a few more days until March 28, 2021, it is possible a new Order is forthcoming. For now, we can confidently say that a LOSAP sponsor should be able to award up to 5 points for January and February 2021, and at least 4 points for March, depending on the interpretation of a "month" and "less than one month" for March (since March 28th isn't exactly to the end of the month).
We will continue to update you as we know more and encourage you again to reach out to your attorney.
On December 30, 2020, Governor Cuomo signed Executive Order 202.87, which effectively extended the State Disaster Emergency until January 29, 2021.
Therefore, this means that if fire departments continue to be in a situation where events are cancelled or firefighter responses are being limited, that points could be awarded for January 2021. Since the statute allows for 5 points per month, and pro-rated for periods of less than one month, as of now it would seem 4 points is the most that could be awarded for January. However, we expect a new Executive Order will be signed extending the State Disaster Emergency further.
An interesting note is that the governing municipal board must adopt the resolution by April 30, 2021. If the State Disaster Emergency is extended beyond April 30, 2021, we will likely need legislative relief regarding this deadline.
Yesterday, December 3, 2020, Governor Cuomo issued Executive Order 202.79, which continued the State Disaster Emergency through January 1, 2021.
Although this was expected, we now know officially that the time period for which points could be awarded in 2020 due to the COVID-19 pandemic is from March 7, 2020 to December 31, 2020. This also means we know the maximum number of points that can be awarded - 49.
The statute provides that 5 points can be awarded for each complete month. There were 9 complete months (April through December) plus 25 days in March (March 7 to March 31). Regardless of how you pro-rate for the partial month of March, you are likely to arrive at 4 plus a fractional number of points. Since a firefighter cannot earn a fractional point under a volunteer firefighter point system, there is no value in the additional fractional point. Therefore, the maximum points that could be awarded is 49.
That said, we continue to stress that the statue was designed to allow sponsors to grant points to volunteers for events that were cancelled or restrictions that were put in place that limited volunteer responses to emergencies. Therefore, we believe the number of points awarded should tie in some way to the cancelled activities or other restrictions. If the Fire Department cancelled 20 activities in 2020, then 49 points could be viewed as excessive. The challenge is dealing with calls, since that is based on an all-or-nothing 25 points (or possibly 50) based on attending a minimum percentage of the calls. Each sponsor has to consider this carefully with the fire department.
The next potential development we will be monitoring is if Executive Order 202 is further continued into 2021. If this occurs, then points could possibly be awarded for the COVID-19 pandemic in 2021 as well (again, depending on if activities are cancelled in 2021). The statute requires the resolution to be adopted by April 30, 2021, with that deadline imposed presumably for the 2020 calendar year (though it isn't expressly stated as such). Therefore, if fire departments are forced to cancel activities past April 30, 2021, we may need additional legislative action to create a new deadline for the 2021 calendar year. Otherwise, a practical solution could be for the sponsoring board to adopt the resolution on/before April 30, 2021 authorizing points to be awarded in 2021, but stipulate the actual number (not to exceed 5 per month) would be determined at a later date when it is known what actual activities were cancelled.
For the complete list of posts on this topic, please HERE.
As a result of the Governor extending the State Disaster Emergency to October 4, 2020, it has highlighted some confusion about the new legislation that allows sponsors to credit up to five (5) points per month during this Emergency. We thought it could be helpful to analyze the statute a different way, with the hopes that it might create some clarity for those sponsors struggling to determine the best course of action.
Before proceeding, we must clearly state that we are not attorneys and cannot give legal advice. This blog post is simply our best educated guess on how the statute should be administered. All board members are strongly encouraged to share this post and any other guidance you have found with your attorney before taking any action.
The following is the literal, word-for-word text of the new Section 217(p) of the New York State General Municipal Law broken out into its relevant parts. Each part is indicated by a number in parenthesis so we can refer to it later. We think this is helpful when trying to digest what it is saying, rather than looking at a big, single paragraph:
Here are our comments on each component section:
(1) The takeaway here seems to be the use of the term “a calendar year”. This implies that if the State Disaster Emergency is extended into 2021, it could allow sponsors to credit points in 2021 as well.
(2) This places the context of this new section of statute within the State Disaster Emergency declared by Executive Order 202. Therefore, there is a limitation placed on the period in which points could potentially be awarded – from March 7, 2020 until the end of the Emergency, which is currently October 4, 2020.
(3) This seems pretty clear – up to 5 points per month can be awarded, with proration for periods of less than a month. Since the statute stipulates up to 5 points, we don’t see why a sponsor could not elect to award a fractional number of points per month, such as 1.5 points per month. It simply cannot exceed 5.
(4) This is a key component of the paragraph that has created a lot of debate.
The term “active volunteer firefighter” is a defined term in the statute, and means “a person who has been approved by the authorities in control of a duly organized volunteer fire company or volunteer fire department as an active volunteer firefighter of such fire company or department and who is faithfully and actually performing service in the protection of life and property from fire or other emergency, accident or calamity in connection with which the services of such fire company or fire department are required”.
Additionally, the statute says to each active volunteer firefighter.
Therefore, it would appear every individual that meets the “active volunteer firefighter” definition should be given the points. We think there is wiggle room to determine that locally, but everyone who fits into that category would be eligible for the points.
(4.1) This part of the statute was written such that a fire department would have adopted special rules that kept certain active volunteer firefighters from responding to alarms. This doesn’t stipulate that such special rules have been adopted in writing, but certainly from an audit-trail standpoint it would be preferred for those rules to have been in writing.
(4.2) This section seems clear – that activities were cancelled or not held, which prevented active volunteer firefighters from attending and, therefore, earning points for participating.
(5) We believe this is one of the overlooked components of this statute, and one that provides the clarity some may be seeking. This 5th section is a qualifier of the 4th – that the special response rules or cancelling of activities must have been done due to the guidelines related to the State Disaster Emergency. This could be important and nuanced, since the guidelines have changed frequently. It also means that just because the State Disaster Emergency was extended to October 4, 2020, it does not mean that an extra month (roughly) of points should automatically be given. The number of points awarded should tie in some way to restrictions in fire department activities, which were in turn tied to guidelines related to the Emergency.
(6) This section appears clear – it must be adopted by resolution of the political subdivision, with such resolution adopted by April 30, 2021.
(7) Again, this seems fairly clear – the resolution must state the number of additional points to be credited per month.
(8) This clarifies that the points awarded due to the Emergency are in addition to any other points earned. This means that the “COVID points” should be a sperate category and not shoe-horned into an existing category.
This pandemic not only changed the way fire departments had to operate during the height of the pandemic, during a period of time, but may permanently change policies and procedures. The environment in which the statute was written seems to be one in which the Emergency and, therefore, how the fire department operates, was temporary. Therefore, the legislature allowed sponsors to address this short-term problem with a temporary solution.
However, there may be a point in which the temporary measures become permanent – either out of habit or a purposeful determination that those measures are in the best long-term interest of the fire department and its membership. We immediately think of in-person meetings versus video-conference meetings, or virtual training versus in-person training. Where that crossover line is must be determined locally by the sponsor before the resolution is adopted.
It is important to keep the proper perspective on the duration of the State Disaster Emergency. The possible continuation of the Emergency past October 4, 2020 should not mean the automatic additional granting of points to the new expiration date. Instead, a sponsor should be focusing on the lost opportunities for active volunteer firefighters to earn points.
The last alternative approach that might be helpful is to not focus on the specific number of points per month, but instead to focus on the total number of points the sponsor would like to award in 2020. All the sponsor must ensure is that the per-month amount does not exceed five (5) for the specific period. For example, if the sponsor determines than an additional 15 points should be awarded in 2020, then the period for which those points are being granted should be at least three (3) months. Changing that mindset could be helpful for some.
Finally, although this isn't required by the statute, we think it is a good idea for the sponsoring municipality to require the fire department to submit in writing a summary of how operations at the fire department were changed, including the events and activities that were cancelled. The fire department should also make a request regarding the number of points to be awarded. With this in hand, the municipality then has some context and detail on which to base a decision and adopt the resolution. Without that context, it is difficult for the municipality to make an educated, informed decision.
As always, please contact us with any questions, and check with your attorney!
On Friday afternoon (September 4, 2020), Governor Cuomo issued Executive Order 202.60, which "continued" the declared State Disaster Emergency until October 4, 2020. The original order that declared the Emergency was 202, and there have now been 61 "continuations" of that original order. (There was an order 202.55.1 if you are wondering if we can count properly.)
This is important to fire departments that may still be operating under restrictions due to the State Disaster Emergency, such as cancelling events or limiting at-risk volunteers from responding to calls. If this is still occurring locally, then firefighters would continue to lose opportunities to earn points that would have been earned for attending these cancelled activities. This was addressed in the recent amendment to the general municipal law allowing municipal sponsors to award up to five (5) points per month for each month that restrictions were in place. Since the awarding of these additional points is tied to restrictions imposed as a result of the Emergency, the extension of the Emergency also extends the period in which points can be awarded for cancelled events.
Even if the fire department is back to a typical activity level, there may be activities that were scheduled to be held after September 7, 2020 (the original expiration date of the Emergency), or even after October 4, 2020, that were canceled due to the planning involved in the activity. These events should be considered when the sponsor is determining the appropriate number of points to award.
Ultimately, the total number of points that are awarded by the municipal sponsor should be reflective of the events that were actually cancelled, and the missed opportunities to earn points for attending those events (or the chance to earn 25 points by responding to calls). Therefore, the extension of the Emergency should not automatically mean more points for the volunteers. We continue to suggest that the resolution adopted by the municipality include specific dates that tie to a specific number of points, thereby keeping some control over the total number of points being awarded. If an amending resolution is needed in the future, that could be done. We also continue to suggest that a municipality wait as long as possible to adopt the resolution, as the future of the State Disaster Emergency is cloudy at best.
Finally, no action should be taken by a fire department or municipality without getting advice from your local attorney. The volume and relative complexity of the number of Executive Orders requires insight from someone skilled and versed in these matters. Involving your LOSAP administrator in the discussion would be beneficial, but as with all legal matters this should be reviewed with your attorney before any action is taken.