LOSAP Points and Major Response Events

 

Beginning on November 18th, the Buffalo Southtowns were hit with a major lake-effect snowstorm that left as much as 8 feet of snow in some areas. This caused many emergency services responders to be trapped in their homes and unable to respond to the calls that poured in during this time period. This anomaly comes after similar events experienced in other parts of the state, specifically Hurricane Sandy in 2012 and Hurricane Irene in 2011.

Under Article 11-A of the NYS General Municipal Law, which governs volunteer fire department Length of Service Award Programs (LOSAPs), points for responding to alarms are earned based on attending a minimum percentage of the total calls during the calendar year. Under Articles 11-AA and 11-AAA, which govern the volunteer ambulance squad LOSAPs, the sponsor has the option to either award points based on this same percentage method or award up to ½ point per response.

Since the fire department LOSAPs must use the percentage method, having a major event like this recent snowstorm can really skew the totals for the year. Volunteers who would have otherwise been able to respond were prevented because they were trapped indoors, and they now face the possibility of not meeting the minimum percentage of calls requirement for the year. Moreover, with this event happening towards the end of the year, it is likely that there is not enough time for a volunteer to catch up. In one case we are aware of, a fire department that would normally have 150 calls in a calendar year had roughly 200 calls during the storm and the aftermath.

If the statute is followed literally, a volunteer must attend the minimum percentage of total calls during the year in order to earn 25 points. Therefore, in the case noted above, a volunteer would have to respond to 35 calls (10% of 350) during the year to earn 25 points. For a department that typically only has 150 calls in a year, those extra 20 required calls could prevent a snow-trapped volunteer from earning the 25 points. On the other hand, a volunteer who may not have otherwise attended the minimum percentage of responses during the year may have been able to respond to many of the calls during this snowstorm and so, would now have attended the minimum percentage to earn the 25 points.

As we all know, not all calls are created equal. A call for an automatic smoke or carbon monoxide detector may take 15 minutes, while an involved structure fire could take 15 hours. Or for those fire departments that also run ambulances, a trip back and forth to the hospital could take several hours. No matter, calls are to be valued equally, in spite of the demands of a particular call.

So what should a LOSAP sponsor do in this situation?

We have been asked this question many times over the last few years after these major weather events. These cases are truly anomalies and were not accounted for when the statute was written. Many sponsoring boards would like to treat this event as an extenuating circumstance, and adjust the method of calculating points for department responses accordingly. We certainly agree with that notion. While there may be several variations to consider, we believe there is one that is most practical. But first, we need to stress that any alternative solution will likely not be compliant with the actual text of the statute. For that reason the sponsoring Board should discuss its options with their attorney.

It is our opinion that a very reasonable solution is to calculate the required number of calls using two different methods. The first method would be to calculate it the standard way, by calculating the required number of responses based on the total number of calls for the calendar year. Again, in our example above, that would be 35 calls. The next method requires that first, the LOSAP sponsor must determine the period of time that reasonably covers this one-time event, during which the call volume was significantly higher than normal. The LOSAP sponsor should then count the number of calls during this period (200 in our example), then remove these calls from the year-end total and calculate the required number of responses based on that amount. In our example, the total calls for the year is 350, which means that removing 200 would result in 150 for the year and a requirement of 15 responses to earn 25 points. If a volunteer responded to 15 of the 150 non-extreme-event calls, then award the 25 points; if a volunteer responded to 35 of the total calls during the year (350), then award the 25 points.

Under this solution, a volunteer who was unable to respond will still have to attend the minimum percentage of calls during the rest of the year in order to earn 25 points. Furthermore, a volunteer who was able to respond to calls during the event should have no trouble meeting the minimum percentage at the end of the year.

If the additional calls cause the total calls for the year to cross over one of the percentage breakpoints provided in the statute (breakpoints are at 500, 1,000, 1,500 total calls), the minimum percentage should be calculated based on the current point system in place. There are different interpretations on how these breakpoints should be administered, and it is best to follow the point system as written. If you have any questions about this, please contact us or your attorney.

Ultimately, the LOSAP sponsor must determine the best option based on their specific facts and circumstances. We encourage LOSAP sponsors to review this with their attorney and to adopt a resolution, or otherwise formally document the decision, even if the sponsor decides to take an alternate approach to the responses category as a result of the extreme event.

We mentioned at the beginning of this article that the statute for the volunteer ambulance squad programs allow the point system to be designed so that up to ½ a point can be awarded per response. If a volunteer fire department program could be written this way, it would eliminate this problem of a volunteer possibly earning no points in the responses category as a result of a sudden, unexpected increase in the number of calls. Penflex has drafted an amendment to Article 11-A to allow this approach under a volunteer fire department LOSAP. We suggest contacting us for a copy and providing it to your local representatives and organizations in an effort to have the law amended.

Certainly, this unusual and unpredictable event will have other ramifications on volunteer emergency services workers, their departments and the municipalities. This includes other questions about how certain activities performed relate to LOSAP and the point system. As always, Penflex is here to help – if you have any questions, please contact us at (800) 742-1409 or by using our secure contact form.