Eligibility to participate in LOSAP
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:
1.“Active volunteer firefighter” 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.
§ 217, General Requirements, then states:
(a)An active volunteer firefighter must be eligible to participate in any service award program provided under this article if the active volunteer firefighter has reached the age of eighteen and has completed at least one year of firefighting service. The sponsor of the service award program may impose younger age or shorter length of service requirements for participation in the service award program.
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:
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:
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.
2/20/2021 12:22:22 am
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