A question came in about the following:
A firefighter earned 50 points during the time he was an active member, but resigned before the end of the year. Should he be eligible to earn service credit and therefore a benefit?
Before we address our opinion on this question, we need to be clear that this blog does not provide legal advice, and the answer should not be considered legal advice. If you have a question about this situation for your LOSAP, share this response with your attorney to get his/her opinion.
But we believe that the answer is yes – that if a firefighter earns 50 points during the period of time that the individual was considered an active member (and was over the LOSAP eligibility age of at least age 18) that the firefighter should be credited with a year of service credit and the LOSAP benefit for the year.
Although there is nothing directly from the State of New York or a judge’s ruling addressing this issue, there is enough similar guidance that would lead us to believe that this is the most correct interpretation. That includes some legal opinions from the State Comptroller, as well as recent reports from State Comptroller audits of LOSAPs.
But ultimately we’d appeal to the intent of the LOSAP. In reality, the LOSAP is a form of deferred compensation. It isn’t a true pension, even though it is designed here in NY State to look like a pension. When an active firefighter attends calls, meetings, drills and other functions, that firefighter is expected to be “paid” with points. That is the intent of the LOSAP – to motivate a volunteer to attend these functions in order to earn points. Once a firefighter earns the 50 points necessary to earn the benefit for the year, there shouldn’t be a requirement to have to be active on December 31st, or even January 1st. All that should matter is the individual accumulated 50 points. If that firefighter did what was necessary to earn the benefit, the benefit should be awarded.
Let’s look at an illustration – two firefighters that both attended enough activities by November 1st to earn 50 points for the year. One firefighter decides to take a European vacation is gone from November 1st to January 30th. is The other firefighter resigns as an active member on November 1st. Neither are “active” for the final two months of the year. Neither attends any activities for the final two months of the year. Why should one receive the benefit and not the other?
As always, we appreciate your feedback.