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!
Sharing my thoughts and insights on LOSAP, and occasionally other topics.