NM fire department pay may violate labor laws

The Bloomfield Fire Department has repeatedly given volunteer firefighters the equivalent pay of hired staff

By Jenny Kane
The Farmington Daily Times

BLOOMFIELD, N.M. — Volunteer firefighters in Bloomfield have received large paychecks reimbursing their hours on scene and in training, some nearing the pay earned by hired staff, a practice that violates fair labor laws and calls into question city policies that prohibit elected officials from receiving city wages, a Daily Times investigation found.

According to city payroll records obtained through a public records request, the fire department has repeatedly given volunteer firefighters the equivalent pay of hired staff.

The department offers volunteers temporary, full-time positions when paid staff is out. It also pays volunteers stipends that are much higher than what is offered at other volunteer departments.

Fair labor laws
Volunteer firefighters can be employed by the fire department, but they must not receive compensation for the same activities executed while volunteering, the Fair Labor Standards Act states. Stipends and reimbursements are examples of acceptable payments, but volunteers cannot receive hourly pay or any other non-nominal fees without being considered city employees.

Flaws in Bloomfield's system violate the fair labor laws and also have the potential to violate city code. City employees cannot serve as elected officials in city government, according to city code. Two of Bloomfield's four city councilors, Curtis Lynch and Pat Lucero, also serve as volunteer firefighters.

The city has not officially addressed the possible violations, although current and former city employees have spoken out about a potential conflict of interest when councilors vote on funding measures for the fire department.

Fire Chief George Duncan said he was willing to assess the possible faults in the payroll system, but did not acknowledge he was involved in unfair or unethical practices.

"We'll review (the policies) with the city management, and if it's necessary, we'll revise it," he said.

Payment violations
Volunteer firefighters across the nation receive nominal fees in the form of stipends, but the nature of these stipends varies.

Accumulation of these stipends and other nominal fees cannot exceed 20 percent of what the department would otherwise pay a full-time employee, according to the Fair Labor Standards Act.

Some Bloomfield volunteers receive less than the 20 percent, but others make more than $22,000 each year in total pay, about 38 percent of the average annual pay of a full-time Bloomfield firefighter, according to the payroll records, which spanned between August 2009 and August 2010.

The pay accumulates from a variety of checks, not including pay for wildland fires outside of the department's jurisdiction. Bloomfield volunteers earn anywhere from $11 to $22 per call, depending on certification and how many years they have worked for the department, according to Duncan.

Each year served adds 10 cents to every call. Certifications also increase the pay per call in varying amounts.

Some payments, however, are universal across the volunteer staff. When volunteers respond to a call between 10 p.m. and 6 a.m., each is paid a $25 stipend.

Each also receives $25 for every class session, and one certification class can consist of as many as 36 sessions. Volunteers also receive $10 each month to cover the cost of a phone.

Volunteers also can earn wages by substituting for hired staff members, staying with specified fires or laboring for certain city functions.

Other fire departments also have nominal fees, but strive to avoid the above listed "compensational" fees.

"They go on a call and stay for four hours, they get $10. They go on a call and stay for four minutes, they get $10," said County Fire Chief Larry Marcum, who left his post Friday to pursue a job in Texas. "It's in no way an hourly wage. It's just a thank you and take your girlfriend to McDonald's."

The county fire department pays its more than 300 volunteer firefighters $10 per activity. That could include a call, a class or a variety of other tasks. The county does not pay any individual volunteer more than $10,000 annually.

"What you don't want is people paying out the nose," Marcum said. The county receives $100,000 per quarter and an estimated 20 calls per day.

Marcum noted that the Fair Labor Sandards Act definition of nominal fees was vague and Bloomfield's system may be saving the city money.

Aztec's fire department, comprising only volunteer firefighters, is the most conservative of the three volunteer departments in the county.

It pays no more than $9.50 per call, and as little as $5.50 per call, depending on how many certifications a volunteer has. Volunteers also receive a monthly allowance equivalent to what they make per call, Fire Chief Kevin Simpson said.

"If money is the reason people join, then I don't really want them," Simpson said.

Neither the county nor Aztec pays volunteers as hired staff unless there is a statewide emergency fire.

City response
Bloomfield Mayor Scott Eckstein, whose son is a volunteer firefighter, claimed he was unaware that firefighters could substitute for paid staff. He did know volunteers sometimes are asked to watch smoldering fires, wash sidewalks during city events or serve as patrol on the Fourth of July. Volunteers were paid as hires during all three of these incidents this year.

"It's not like it's a secret or anything," Eckstein said.

Other city officials echoed Eckstein's comments, saying they did not suspect anything unlawful about how the department paid its volunteers. Instead, some officials claim the matter is simply one of miscommunication, Former Interim City Manager Julie Baird said.

Baird, however, said she was unaware of the excessive payments to volunteers, despite Duncan's claim that he notified the city whenever the situations arose.

Because of the makeup of the council, half of its members testified to receiving a portion of these payments while the other half stated it was oblivious.

Councilor Lynch, during his current term on the council, volunteered on July 4 and received about $150 for 10 hours of patrol--the extent of his standby pay in the last year. Councilor Lucero worked several hours more, accumulating slightly less than $200. His total standby earnings in the last year were a little more than $430.

Because hourly pay deems a volunteer a city employee, the two councilors' positions could be compromised under a matter of law.

Councilors Lynne Raner and Matt Pennington both said they did not know of any payments above the nominal fees. The approximate $111,000 budget for stipends during last fiscal year included all those costs, Pennington said, but he was not involved in any discussion about detailed costs.

The $125,000 budget this year also includes such payments because no one openly opposed the practice, Duncan said.

Pennington said he did not see a conflict of interest with paid volunteers also serving in government.

"It's dangerous if you get involved for one issue," he said.

Conflict of Interest
Various pieces of e-mail correspondence obtained through a public records request suggest there may be conflicts of interest.

The department recently has pushed to acquire additional paid firefighters, and e-mail messages between Duncan and Lucero suggest Lucero's role on the council is biased.

"As mentioned in previous conversation, I don't care if the only thing I accomplish in the four years on the council is providing staffing for the FD, then I would be content," Lucero wrote. In the same e-mail, Lucero wrote, "Chief, you have always been my hero and I don't want to let you down. If there is something I'm missing in Our' strategy, please make me aware."

Lucero claimed the statements in his e-mail were exaggerations of his sentiment, and that there was no strategy. He said his hope was to simply support the fire department as he always had.

Lucero openly supports more hires in the fire department. Earlier this summer, he sent out letters with utility bills, urging the community to join him in an effort better to staff the fire department.

Other city officials consider the entire situation unsettling, especially since the council last week unanimoulsy approved application for a grant that would allow for four new paid firefighters.

"Ethics is a huge issue with all of this," said Councilor Lynne Raner, who felt information about excessive payments was deliberately withheld. Although she has many reservations about the grant, which she voted for, her greater concern is that it should be accepted by a council with inappropriate loyalties.

Each of the councilors, except Lucero, acknowledged the price tag of hiring additional firefighters likely is not within the future budget. However, the council approved the grant application, agreeing that it could be rejected if awarded and the city would further study the budget. If awarded, the city would assume $308,400 in the third year of the grant.

"It's almost more a moral (concern) than it is a political (concern)," Raner said. "I don't want any other department to be decreased on the back of this commitment."

Raner also expressed concern that volunteers, including those on the council, could be favored as candidates for the paid positions, which could drive councilors to push for more firefighters.

Duncan said he would not hire volunteers who served on the council, and he did not believe they had any interest.

"If I wanted to be a firefighter still, I would have tested for other fire service related jobs," said Lucero, who previously worked as a paid firefighter for the city. "I'd give up the stipend to be a city councilor."

Supply and Demand
More paid firefighters are needed, Duncan said.

"Skeletal staffing" at the department has led to an unnecessarily long response time to emergency calls, he said. The department between July 2009 and August 2010 was staffed with a total of six paid staff and 31 volunteer firefighters, but the response time was as long as 20 minutes.

The time it takes volunteers to prepare themselves and get to the station for a call could determine whether someone lives or dies, Duncan said.

"It's a highly technical thing. It's not just here's your costume and save lives,'" Duncan said. "You feel that pull especially on the weekends or in summer."

During July 2010, the department received anywhere from zero to six calls per day, although most calls were medical or public service.

Volunteers give hundreds of hours to training, inspections and testing, while they also are trying to support families, attend school or take care of other responsibilities, Duncan said.

"I would love to see more people step up to the plate ...and also see more paid firefighters," he said. "If anything, they deserve it."