Jim Lockwood
The Times-Tribune, Scranton, Pa.
DUNMORE, Pa. — Eleven firefighters hired by the borough of Dunmore without civil service certification want a judge to grant them that status.
The borough does not oppose the firefighters’ legal action, filed Nov. 26 in Lackawanna County Court, seeking a declaratory judgment giving them civil service certification.
They want this certification because it’s a main factor in determining a pecking order for promotions and layoffs, relative to three newer firefighters hired after the borough implemented a civil service system in 2018, and who thus have civil service certification that the other 11 do not have, the action says.
The situation apparently is unprecedented.
Applicable state civil service requirements and the borough code “do not address a situation such as this one, where regular full-time firefighters were hired by a municipality and have worked for years without civil service examination or certification,” according to the court action filed by firefighter union Local 860 of the International Association of Fire Fighters.
Both the union action and a legal reply from borough labor counsel, Ufberg & Associates, do not explain why the borough did not use a merit/examination-based civil service system to hire the 11 firefighters, or why the borough only in recent years changed course and implemented civil service for newer hires.
Efforts to contact union attorney Joel Wolff, attorneys with the Ufberg law firm, Mayor Timothy Burke and borough solicitor Tom Cummings were unsuccessful.
The court action merely says the borough “did not offer the opportunity for civil service certification” when it hired the 11 firefighters between May 1999 and mid-February 2016.
Governed by the Commonwealth of Pennsylvania’s Borough Code, Dunmore is required to establish a civil service commission because the borough has a paid fire department with more than three firefighters, the action says. The court action does not specify when the borough created its civil service commission or what prompted that move.
The fire department has 15 full-time employees and some part-time employees, the action says.
The crux of the matter is this: Three unnamed firefighters hired since 2018 under the newly implemented civil service procedures actually rank higher for promotions and job retention in layoffs than the 11 longer-serving, non-civil-service firefighters, the court action says.
That’s because civil service status — and not seniority rights — “is the single most critical factor” in eligibility for promotions and job retention, the action says.
“As a result, the non-civil-service-certified firefighters now face certain disadvantages, such as the potential for claims of priority employment status by the junior civil-service-certified firefighters” in the event of layoffs, the legal action says. “In addition, and as a matter of substantial harm to them, (the) non-civil-service-certified firefighters, notwithstanding their years of experience, are effectively barred from taking any promotional examinations, resulting in ‘stagnation’ and dead-ending of their careers.”
In a legal reply filed Dec. 17 by the Ufberg law firm, the borough agrees with the firefighters and does not contest or oppose having the court declare the 11 firemen as civil-service certified. Neither the borough nor the commission can legally confer upon the 11 the civil-service status they seek; only a judge can do that in a declaratory judgment, the reply says.
The borough’s reply also notes that while Dunmore did not use a civil service system to hire the 11 firefighters, they did not demand that civil service procedures be used in their hirings.
The union and borough have been working cooperatively for some time on the issue, the court papers say.
The borough’s civil service commission, which is not a direct party to the action, also does not object to a declaratory judgment in favor of the 11, according to a Dec. 4 letter to the court from commission attorney Michael O’Brien.
“As a result of the unique circumstances of this case, and in the interests of fairness, the civil service commission does not oppose the specific relief sought,” O’Brien said in his letter.
The union seeks a judgment conferring upon the 11 “deemed as” civil-service certifications that grants them “all rights commensurate with such civil service status” from the dates of their respective hires.
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©2020 The Times-Tribune (Scranton, Pa.)