With greater frequency we are handling questions about a fire department wanting to implement duty crews to ensure they have adequate staffing to respond to emergencies. This is a common practice with ambulance squads, but I'm sure anyone reading this blog doesn't need us to explain how operationally different an ambulance call is vs a fire call. That said, the types of calls that fire department are responding too are changing - they aren't always structure fires were the whole department is needed. And moreover, it isn't ideal for 20 members to respond to an automatic alarm or something that could be easily handled by much fewer volunteers. 

It makes sense for a department to adopt a duty-crew program. The question we get, of course, is how does this fit into the point system.

There are two things to address: (1) Can someone get a point (or points) just for serving on the duty-crew? (2) How does a person serving just for a specific time period reach the minimum call requirement to earn 25 points?

Ultimately, we believe the law should be amended. That is the best answer. Since ambulance squads already operate in this way, Articles 11-AA and 11-AAA have options for awarding points for "tours of duty" (1 point for a 6-hour shift) and also include an alternative way to award points for calls (up to 1/2 point per call). Since these options are already available in State Law, it would make sense to essentially "cut and paste" that authority into Article 11-A. Firefly has written proposed amendment to Article 11-A and have provided them to the State-wide associations for consideration. If you would like more details, please contact us! But ultimately, a proposed amendment to the law does not help a fire department today grappling with this issue. So what can be done?

To award points for someone serving on a duty-crew, the current statute would seem to allow two options:

1. Call these duty-crew periods a “stand-by” and therefore give the volunteers serving on the duty crew a point for a stand-by. The challenge with this approach is the definition of a stand-by, which is a "line of duty activity of the volunteer fire company, lasting for four hours, not falling under one of the other categories" Since a duty-crew would be a subset of the entire fire company, a sponsor would have to be comfortable making an interpretation that this language does not imply that the entire fire company/department must be on stand-by to meet this definition. 
2. Call the period that the duty-crew is on call to be a miscellaneous activity.

Perhaps more complicated is the department responses. Currently, a volunteer must to attend a minimum percentage of calls for the year to earn 25 points for each type of call. In a department with less than 500 calls, that percentage is 10%. If a volunteer signed up for a duty-crew every Sunday night, and only 5% of the total fire department calls happen on a Sunday night, that person would fall short of the 10% requirement unless he/she responded at other times as well. Or, if 15% of the calls happen on a Sunday night, those on the duty-crew might make the minimum percentage but other volunteers not on the duty-crew would have fewer number of total calls to respond to in order to reach their minimum (85% in this scenario). 

The facts and circumstances of the local department will go a long way in deciding what to do about the calls. One approach could just be that the requirement is 10% (or lower as call volume exceeds 500) and a volunteer who takes enough duty-crews, or responds when there is no duty-crew assigned, will attend enough calls to meet the minimum percentage. Ultimately, we would expect some calls cannot be handled by the duty-crew and the entire department will have to be activated. We assume the purpose of the duty-crew would be to handle routine emergencies where a smaller crew of 4-8 people can adequately handle the situation. But structure fires or some other larger-scale operation will happen where the entire membership will be needed. That will provide additional opportunities.

The only other available option is the new amendment that was just made to the statute. You can read more about it in one of our past blog posts HERE. There are many reasons why we are not a fan of this new law, which are outlined in the article. But it could have a benefit here.

This new statute says that if response protocols are adopted that set different response requirements for different units or groups of the fire department, that those units/groups only have to attend the minimum percentage of the calls assigned to those units/groups. Typically a duty-crew would not be a static, defined, unit. The personnel on call during any one tour of duty would likely change week-to-week. If they were a static crew, then the idea of a crew being assigned the calls during that period makes this option something worth considering. However, it would seem anyone on a duty-crew should, in theory, respond to 100% of the calls they were assigned during the period. Or at least it would be certainty that they would attend 10% of them! Therefore, 25 points for calls would basically be an automatic.

It would seem that ultimately using this approach would be an administrative challenge and an inequitable way to earn 25 points for calls. Trying to determine what calls each individual were assigned and what units or groups they are a part of at any one time would likely prove difficult. A lot depends on the individual department and how calls are handled. But this is the only solution, under the current law, that would allow a sponsor to try and address how points could be earned for department responses when duty-crews are implemented.

Given that we have no expertise in operating a volunteer fire department, we likely missed some things! We'd love your feedback and insight - contact us with your questions or additional feedback.

And as always, we suggest running all of this by your attorney, as this information is meant to be a general, theoretic discussion and we do not provide legal advice.

Long before there was LOSAP, fire departments had by-laws that outline membership requirements. 50 years ago, those by-laws were usually strictly enforced, because there was often a waiting list of people waiting to become a member. So firefighters had incentives to meet those requirements, otherwise risk being dropped as an active member. That is also why there were leaves of absence for different reasons - so firefighters could maintain their membership during periods of time in which they were unable to meet those by-law requirements.

Over the subsequent years, membership rolls have shrunk, and departments are starving for volunteers. Few fire departments, if any, have full membership rosters. The enforcement of older, and sometimes more demanding, by-laws have become harder to enforce since departments don't want to turn away current volunteers.

When LOSAP came into existence in NY Sate in 1990, it came with the LOSAP Point System. The LOSAP Point System is a different set of requirements that must be met to earn the the benefit provided by the LOSAP. In some cases, earning the 50 points was "easier" than meeting the by-law requirements to be in good standing. For example, a by-law requirement could be to respond to 20% of alarms, yet the LOSAP Point System requires at maximum a 10% response requirement to earn 25 points. Therefore, a volunteer could fail to meet the by-law requirements yet earn 50 points.

Many fire departments and/or municipal sponsors felt that a volunteer that didn't meet the by-law requirements in a year should not be allowed to earn a LOSAP benefit for that year, even if the volunteer earned 50 points. While that may be understandable and even reasonable, the statute governing LOSAP does not permit a LOSAP sponsor to deny a firefighter that earned 50 points the benefit for the year.

This was directly addressed in an August 2010 audit of the Armor Volunteer Fire Company performed by the Office of the State Comptroller. In the audit report, the State auditors commented:

The Company’s by-laws and point system require members to be in good standing as a condition for receiving service award credit. This is intended to ensure that members are contributing to the essential functions of the Company and are properly trained to fulfill their duties. To be in good standing, a member must meet minimum requirements in four of the seven service award activities. Statute does not require active members to meet specific Company-imposed good standing requirements as a condition for receiving service award credit. Rather, once an active member earns a minimum of 50 points within a calendar year, service award credit should be awarded to that member for the year.

The last sentence states it plainly - once an active member earns 50 points within a calendar year, the member earns service credit and the service award benefit for the year.

An analogy to this would be to consider an employment scenario. The by-laws are like an employer's performance standards and the points are pay received by an employee. A company might hire a salesman, and sets certain sales targets. In other words, the employer sets performance standards. If that salesman works and makes sales, the company must pay him for the time and any commissions or incentives earned for those sales. However, if the salesman fails to meet those sales targets, the employer may decide to fire the salesman for failing to meet the designated performance standards. But again, that salesperson would still be paid for the time worked and sales actually made.

In the same way, an individual who has been approved as an active volunteer firefighter must be "paid with points" for the activities attended. If the volunteer ends up with 50 points, then service credit and the service award benefit is earned. If at the same time the volunteer does not meet the by-law requirements then the department can take the necessary disciplinary action, including dropping the volunteer from the active rolls.

As usual if you have questions about this with your own department, contact your attorney.

A common question and topic of conversation when discussing point systems is how to award points to committee members and for committee meetings. The two most common mistakes we see in point systems are:

1. Giving committee members (or the chairperson) points as an officer under the Elected or Appointed Position category.
2. Giving committee members a specific number of points for being on the committee under the Miscellaneous Activities category.

Both, in our opinion, are incorrect.

​A committee member, or the committee chairperson, is not an Elected or Appointed Position as defined in Article 11-A of the General Municipal Law. The law states an "elected or appointed position" means means line officers, department or company officers and president, vice president, treasurer and secretary of a fire company or department. It seems fairly clear that, a committee member does not fit this definition. The Office of the State Comptroller seems to agree, as in at least one audit they criticized a LOSAP sponsor for awarding points to committee members under the Elected or Appointed Position category, and stated that a committee member does not meet the statutory definition.

Regarding miscellaneous activities, the statute reads: Participation in inspections and other activities covered by the volunteer firefighters’ benefit law and not otherwise listed--one point per activity. The key part of this particular language is what we underlined - one point per activity. In order to earn a point under the Miscellaneous Activities category, a volunteer must attend a specific activity that is not covered under one of the other categories, and that is also covered by VFBL. Therefore, just being committee member is not attending an activity. As such it would not be appropriate to, for example, award five (5) points to the fundraising committee chairman.

So what can a sponsor do? We believe the only available option under the current statute is to give points for each committee meeting that a committee member attends. The meeting itself is an activity, but it does not qualify for a point under the Attendance at Meetings category since a committee meeting is not a meeting of the entire fire department/company. Therefore, for each committee meeting, the committee should complete a sign-in sheet to be awarded a miscellaneous point.

Interestingly, there are two additional sections of law that govern volunteer ambulance LOSAPs - Articles 11-AA and 11-AAA. In both of those statutes, a member of a standing committee of the ambulance corps can earn a point for attending official committee meetings under the Attendance at Meetings category. This option is not available for LOSAPs sponsored for volunteer fire departments.

As usual, we suggest reviewing this with your legal council before making any changes to your point system.