It Can Be More Complex Than You Expect

*Firehouse Legal blog posts provide information only, and are not legal advice. For specific legal advice contact your attorney. No seriously, contact them, they’ll be happy to hear from you.*

Vacancies on a Board of Directors between elections happen frequently.  The terms are long (6 years), and a lot can happen in that span of time—Directors move out of District, kids grow up, priorities change, or people even pass away. To handle these circumstances the legislature provided a mechanism to appoint board members to vacant positions, which is contained in RSMo  321.200.2. 

Let’s begin with what 321.200.2 doesn’t say, so we can get into the actual process.  RSMo 321.200.2 does not allow a Board of Directors to appoint a Director to a vacancy for the remainder of the unexpired term. This is a pretty common misconception, based on the fact that certain appointments for other political subdivisions do, in fact, fill vacancies by appointment for the remainder of a term.  For Fire Districts, however, the process is different.

Vacancies on a fire district board are filled by an appointment made by the remaining members of the Board. The appointee then serves until the next regular biennial election cycle for the District (Districts should have a director’s election every other year). At that time, the remainder of the term goes up for election per normal process. No special election is held between regular election cycles either; the District should remain on its regular every-other-year election routine. Practically, this means the appointed member only serves until the next District election cycle, which could mean a month, a year, or more depending on when the vacancy occurs relative to the normal election cycle.  At the time of that next election cycle, the appointee will have to run for election in order to hold onto the seat.

This can be further complicated by a few words inserted in 321.200.2. Vacancies are filled by the remaining elected members of the Board “except when less than two elected members remain on the board.” This is another issue that gets Boards into trouble, and admittedly there are differing schools of thought about the affect of this clause on the appointment process. My view, and the view of most attorneys I have spoken with on this matter, is that if you have less than two members on your Board who have stood for election/reelection, then a vacancy cannot be filled by appointment. In this instance, the Board would need to petition the Circuit Court of the county where the District is located requesting appointment of a Board member.  The process is fairly straightforward, but as with most issues involving the courts, I encourage you to engage the assistance of an attorney.  In any situation where you are unsure of the process or appropriateness of an appointment, the assistance and guidance of an attorney could save you from a mistake and save money in the long run.

CS

How to salvage an election process and stay on track…

What happens when a fire district forgets to post its required filing notices for an election, or worse yet, forget about the election altogether and fails to notify the election authority until after the filing period is closed? The options in this situation aren’t great, but there is an option to keep your election on the proper April cycle so long as you act quickly within the necessary deadlines.

RSMo Chapter 115 provides most requirements for fire district elections, at least the requirements that aren’t contained in chapter 321. Under normal circumstances a fire district provides notice of an election to its election authority (the county clerk for most districts) in advance of the filing period, which opens in December. Ideally, this initial notice would be approved at the November meeting and then forwarded to the county clerk so proper legal advertisements may be handled PRIOR to the first day of filing. (*See Authors note below)

So what happens if the District manages to miss all these deadlines? All is not lost, but the District must move swiftly in order to meet a few strict deadlines. This is one of those occasions where a court order will be necessary, so reach out to your legal counsel as soon as you realize the mistake has occurred.

In order to create a new filing period for candidates and hold your election you will proceed under RSMo 115.125, filing a petition (essentially a declaratory judgment and order) must be filed in the relevant circuit court requesting the necessary actions. The order from the judge must be entered no later than the 8th Tuesday prior to the election–this is a statutory deadline from 115.125.3, and this deadline is backed up by case law as well. This is a hard deadline for the order, so you cant delay. The final date that the election authority may be notified of the candidates who have filed is actually the 6th Tuesday prior to the election. In theory, you could get a judge’s order prior to the 8th Tuesday, have a 2 week filing period, and provide final notice prior ot the 6th Tuesday, but I wouldn’t advise it.

If you will be able to meet the statutory deadlines the best course of action is to immediately, and simultaneously, notify your election authority of the need for an election using the required processes, set your new filing period and publish legal notice announcing the election, filing period, and how/where to file, and file your petition for the necessary judge’s order. This starts all the processes asap, and allows you just a minimum amount of wiggle room in case there are any hiccups along the way.

Should you find yourself in this situation I can’t stress enough–reach out to legal counsel as soon as you can for assistance. The assistance and guidance of an attorney in this situation will be well worth it.

*Authors update: After an inquiry from a reader it bears clarifying that under normal circumstances, the initial notification to the election authority I recommend in this article is a “belt and suspenders” recommendation as practical guidance. It is not a requirement under RSMo 115, just a best practice. Not every county clerk handles these matters exactly the same way, so until you have a system in place, the more contact with your election authority, the better.

CS

Laws, in general, do not remotely resemble “plain english” and are therefore very difficult to navigate. While individual laws may be intended to “stand alone” and address a specific concern, the courts have pretty uniformly stated that everything must be taken in context–so if the legislature passes laws that contradict each other then we must find a way to reconcile the intent, function, and impact in the broader context.  It can be pretty confusing for a fire chief, which is why I do what I do. 

Based on an anonymous inquiry recently, I looked into whether RSMO 561.021 would keep a person with a past felony from serving as a volunteer firefighter. The relevant parts of RSMO 561.021 state the following:

561.021. Forfeiture of public office — disqualification. — 1. A person holding any public office, elective or appointive, under the government of this state or any agency or political subdivision thereof, who is convicted of an offense shall, upon sentencing, forfeit such office if:

  (1) He or she is convicted under the laws of this state of a felony or under the laws of another jurisdiction of an offense which, if committed within this state, would be a felony, or he or she pleads guilty or nolo contendere of such an offense; or …

  2. Except as provided in subsection 3 of this section, a person who pleads guilty or nolo contendere or is convicted under the laws of this state of a felony or under the laws of another jurisdiction of an offense which, if committed within this state, would be a felony, shall be ineligible to hold any public office, elective or appointive, under the government of this state or any agency or political subdivision thereof, until the completion of his or her sentence or period of probation. (Emphasis added)

Clear as mud, right?

At first glance it would appear that this statute would prohibit any who has been 1) convicted, 2) pled guilty, 3) or pled no contest to a Missouri felony, or something that would be a felony in Missouri if committed elsewhere, then that person is prohibited from any elective or appointive public office. This is why context matters. The key term is: “Public Office.” The position of firefighter is not considered a “public office” in this context even though it is a public sector position. The courts have backed up this approach as well–I have found no instance where this statute has been applied by the courts outside of elected officials within the State. The rulings in the applicable cases do not even entertain the notion of applicability beyond an elected position.

To go one step further, even if we stretch the statute and make it apply to the appointment of a volunteer firefighter (which I believe to be an incorrect application), once the individual has served their sentence and/or completed any probation they would become eligible for appointment to public office under this statute. To be clear:  I still maintain that this statute is not intended to be applied in this way–but even if it is, once the individual has completed a sentence/probation, the law clearly states the period of ineligibility is lifted and does not apply. This would only be inapplicable in a few very specific circumstances.

If your department chooses to implement a policy regarding past felonies and volunteering that will fall outside this explanation. Policies that address past criminal records and employment are allowable, but you should consult your city attorney or district attorney before implementing any policy of this type to avoid putting a prohibited discriminatory policy in place.

After many years of work at the State legislative  level, and several unsuccessful attempts at a presumptive cancer coverage law, in 2021 the Missouri Fire Service Alliance was able to guide passage of Senate Bill 45, enabling creation of a fire fighter’s cancer benefits pool in the state.

Among other provisions, the law allowed for the formation of the Missouri Fire Fighters Critical Illness Trust (mffcip.org), which is now up and running, and further seeded the Trust with an initial grant of funds to jump start the process. For the long term, the Trust will be funded by contributions from individual departments that choose to participate. Currently, 17 different types of cancer are covered by the program.

Cancer in the fire service is a personal matter to me, and I am honored to have assisted with the formation and ongoing of the MFFCIP. I believe this Trust will be a game changer for Missouri fire fighters, and may even provide a template for other states to move forward with a presumptive coverage mechanism when they have previously remained hesitant to cover their fire fighters.

Check out the latest press release here: https://www.mffcip.org/missouri-finds-solution-to-firefighter-cancer-with-fire-fighters-critical-illness-pool/

*Firehouse Legal blog posts provide information only and are not legal advice. For specific legal advice contact your attorney. No seriously, contact them, they’ll be happy to hear from you.*

In prior blogs I’ve discussed the application of FLSA rules to the fire service, and how to determine whether or not the specific hours worked exemption for fire fighters will apply to your work force. As you recall, FLSA grants a workaround because the standard “overtime after 40 hours” rules don’t work with the firefighter 24-hour work schedule—it’s a square peg in a round hole.

Once you’ve determined that the FLSA 7k exemption applies to your fire fighters, (See: Fire Chief’s Legal Toolkit Part 2 ) the next few steps are relatively simple.  You will need to adopt a work period, generally between 7 and 28 days. If you are assuming leadership of an up and running department this most likely is done already; if you are making a conversion from volunteer to full time fire fighters, or otherwise starting a new entity then you will need to address this step. Don’t confuse fire fighter work period and pay period; they aren’t the same thing. One determines the period for overtime calculations, and the other sets the frequency and time period for paychecks.

Why is the work period generally set for something between 7 and 28 days? Part convenience and part rule. The convenience relates to the pay period issue—most pay periods are on some sort of a schedule that is less than 28 days in length. If you can sync up your work period and your pay period, your administrators and bookkeepers tend to find it easier to deal with the odd hours worked issues that firefighters present. (There always sems to be a struggle to understand the interplay between the issues, and it’s not limited to administrative personnel—fire fighters don’t always get it either.)

The “rule” side of work period determination for firefighters is based on the following: Any adopted work period is based on a 28 day, 212 max hours worked basis. If you adopt a work period that is less than 28 days, then you apply a ratio to calculate the maximum number of hours your firefighters can work before reaching overtime.  For example, if you adopt a 27-day work period, then the FLSA max hours worked will be 204 before reaching overtime. If your Finance Director or Accountant is freaking out over the math there’s no need to stress. There are abundant charts just a Google search away to help you. (Like this one for example.) Make sure you utilize a fire department FLSA chart and not one designed for law enforcement. While law enforcement also has an FLSA exemption, it is different than the fire service.

There are, of course, other considerations as well, because nothing is ever as simple as we would like it to be. You may have state laws that alter the max hours worked, and could impact firefighter overtime. If you are chief for a department with a collective bargaining agreement, that agreement may also create some alterations to the standard rules. It’s important to be aware of any rules that may impact the max hours worked, and make sure you understand the application.  You still may need to engage an expert if trouble arises, but you will at least understand the interplay of all the components during the process.

Stay safe-CS

Another great year at the MAFPD annual conference.  I enjoyed the discussions during my “Return of the Roaring 20’s” presentation and the turnout was great!

By the way, if you are a firefighter and have not had the opportunity to listen to Dr. Sarah Jahnke speak on firefighter health and well-being, you absolutely must make a point to catch one of her presentations. The research she and her colleagues are conducting right now on behalf of firefighters is mind blowing. I highly recommend seeking out and listening to what she has to say–you won’t regret it, trust me.

Next up: Missouri Valley Fire Chief’s Association on July 15, Independence, Missouri.  I’ll be presenting another session of “The Fire Chief’s Legal Toolkit”, covering everyone’s favorite topics from FLSA to due process. You can register here  Missouri Valley Fire Chiefs to join the fun next month. Hope to see everyone there!

*Firehouse Legal blog posts provide information only and are not legal advice. For specific legal advice contact your attorney. No seriously, contact them, they’ll be happy to hear from you.*

Last month we dealt with a threshold question: Does the FLSA apply to the fire service? The answer, of course, was yes. The next questions in the algorithm are: Is the employee “exempt” from overtime pay, or “non-exempt”; and if non-exempt, is the employee engaged in “fire protection activities?”

The exempt/non-exempt issue seems to trip people up. While the definition is straightforward, the determination may not be so simple.   “Exempt” means the employee is exempt from overtime pay; non-exempt means regardless of what other considerations and calculations are at stake, the employee is going to be eligible for an overtime rate after a certain number of hours worked.

The determination will be slightly different for each department, because we have no set rank/authority/policy making structure in place universally. One department’s captain is another department’s deputy chief, so titles clearly are not the determining factor.  The actual primary type of work (Executive/Administrative/frontline operational), along with level of decision and policy making authority matter much more than the title. There are multi-pronged questions to make the determination, based in part on cases  here, here, and here; and statutes here, here, and here.  The Stone-Cold best- practice-bottom-line: Being a supervisor is not enough to exempt you from overtime; likewise, running a few emergency calls every once and awhile is not enough to make you eligible for overtime. When your tones drop, if you are not compelled to immediately drop what you are doing to run a call, because your primary function is administrative or executive (paperwork, politics, and people), you are probably exempt from overtime.  The reverse may also be applied: When the call comes in if you are required to respond, whether to manage the incident or directly provide rescue, medical, or suppression services, you are probably non-exempt. Fair warning: These determinations can get very tricky as you work your way up the chain of command.  Do not hesitate to get your lawyer involved to help; an ounce of prevention in these matters is worth the cost.

If your employee is considered non-exempt, the next question is whether or not the FLSA hours worked exemption for fire fighters (the “7K Exemption”) applies.  If the employee is engaged in “fire protection activities” you can apply the FLSA “hours worked” calculation based on a traditional fire fighter schedule (we will discuss this in a later installment) to the overtime determination; if not, then a forty hour work week calculation should, in most instances, apply.

What is “engaged in fire protection activities”?  Over the course of my career, the “fire protection activities” I have undertaken ranged from fighting actual fires to mopping floors to National Fire Academy courses to rescuing a very unappreciative miniature pinscher from sewer drain. The statute and certain case law does offer the following bit of definition for us to work with:

  1. Is the employee trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or state; AND
  2. Is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.

For rank-and-file fire fighters this is generally a simple determination; when we start adding in all the other fire service job classifications (paramedic, investigator, inspector, dispatcher) it begins to get murky. And murkiness is where the lawsuits generally originate.  I’m not going got jump into the deep end of the case law pool but there are plenty of cases only a Google search away. I think the basic component parts should be fairly clear at this point.  Here are a “couple rules of thumb” to apply as a starting point when questions arise outside the norm:

  • Uniform fire inspectors, investigators, or prevention personnel are usually engaged in fire protection activities under the rule. This would exclude these personnel from the “overtime after forty” rule. This might change if those employees are non-uniform, civilian, or non-operational.
  • If your EMS personnel are a separate division of your department, don’t carry firefighting gear, aren’t trained in firefighting, or aren’t allowed to engage in firefighting, they are not engaged in fire protection activities and you will be required to pay them overtime wages for hours worked over forty hours.
  • Dispatchers are not listed in FLSA as being engaged in fire protection activities, and the courts have so far supported this as well, making dispatchers subject to overtime after 40 hours.

PLEASE NOTE: These cases, especially involving EMS, can be a VERY close call…if all the working conditions/job descriptions/requirements don’t obviously sync up or point in a specific direction, its time to call in the lawyers. (Trust me, we’re here to help.)

Next time:  The Fire Fighter Schedule and hours worked for overtime calculations.