Fail to Provide Proper Notice of Meetings, and You May End Up Paying the Price Out of Your Own Pockets!

The Problem

Fire Companies and Not-For-Profit Ambulance Companies beware! If you are not complying with the strict “notice of meeting” requirements stated in the Not-For-Profit Corporation Law, then all of the actions taken at a members meeting can be overturned. If the directors or officers had made any purchases, regardless of whether the members attending the meeting approved the purchases, then the directors and officers may be personally liable for the expenditure of funds.

Let us provide a very possible example: Assume that the fire department or ambulance company holds a meeting which was not properly noticed in accordance with the law. At that meeting, the company elects to purchase an automated external defibrillator (“AED”) in the amount of $15,000.00. A member who does not attend that meeting, or who attends and complains about the lack of notice, disagrees with the purchase and challenges the purchase once it is completed. Since the money is already spent, the directors and officers could be personally liable for the expenditures of funds. In plain language, the directors and officers could be forced to pay back the fire department or ambulance company for the funds used to purchase the AED.

Now, imagine that the purchase was a new engine in the amount of $450,000.00!

This is not a “what if” situation, as there are numerous recorded cases where actions taken at meetings have been overturned. In addition, many cases involve “voiding” the election of officers and directors and ordering a new election to be conducted.

The Fault in the Law

In order to comply with the law, the fire department or ambulance company must mail written notice of the members meeting to the proper address of each member no less than ten days and no more than fifty days prior to each meeting. The notice must contain the place, date and hour of the meeting, and indicate that it is being issued by or at the direction of the person calling the meeting. Notice can also be given personally, but it is extremely difficult to prove that legal notice was actually provided.

Most fire departments and ambulance companies state the date, time and place of the members meeting in the bylaws or post the meeting dates on a public board. These practices do not comply with the law and can only lead to trouble.

However, complying with the law can cost your organization hundreds of dollars each year in postage and photocopying. We believe that there is a solution to this problem.

The Solution: Amend the Law To Protect You!

We believe that Section 605 of the Not For Profit Corporation Law should be amended just for fire departments and ambulance companies. We propose an amendment to the law that provides sufficient notice being given by stating the time, date and place of regular meetings in the bylaws or by posting the same in a prominent location in each fire house. This may save these organizations hundreds of dollars each year in photocopying and postage.

The Association for Not For Profit Emergency Medical Service Organizations is working on this problem. You can link to their site from our main page at www.emsfirelaw.com to learn more about the Association and its vital mission.

We strongly encourage your department or company to participate. Each year, the Association will notify its members of additional problems that could lead to liability or unanticipated costs, and each year, the Association will seek to change the laws that create those problems.


The Laws Regarding Displaying Blue and Green Lights

Fire departments and ambulance companies must understand the law on displaying blue and green lights.

Blue Lights
One blue light may be affixed to any motor vehicle owned by a volunteer member of a fire department or on a motor vehicle owned by a member of such person’s family residing in the same household. A light may also be displayed on a vehicle owned by a business enterprise in which the member is employed or owns. The volunteer fireman must be authorized in writing to so affix a blue light by the chief of the fire department or company of which he is a member, which authorization shall be subject to revocation at any time by the chief who issued the same or his successor in office. The blue light may be displayed by a volunteer fireman on a vehicle only when engaged in an emergency operation. Such written authority must be carried upon the person of the operator of the vehicle whenever such lights are displayed. The word “display” means to have turned on and lit up.

Green Lights
One green light may be affixed to any motor vehicle owned by a member of a volunteer ambulance service, or on a motor vehicle owned by a member of such person’s family. It may be displayed by a business enterprise in which he is employed or owns. Authorization to affix a green light must be in writing and signed by the chief officer of the volunteer ambulance service. The authorization given to members of their respective organization may be revoked at any time by the chief officer who issued the same or his successor in office. Such written authority must be carried upon the person of the operator of the vehicle whenever such lights are displayed. The word “display” means to have turned on and lit up.

Additional requirements for blue and green lights
A blue or green light affixed to and displayed upon a vehicle shall comply with the following:

  • Only one such light may be displayed which must be visible from in front of such vehicle.
  • Such light may not be part of the headlamp system.
  • No inscription may appear across the face of the lens or dome.
  • Such light may be a fixed, unidirectional light, either steady or flashing, mounted in front of or behind the grille or anywhere on the vehicle, or a revolving, rotating, oscillating or constantly moving light which must be mounted above the headlamps preferably on the roof to avoid reflected glare or distraction to the operator.
  • If mounted upon the dashboard inside the vehicle, a suitable cover, which may consist of paint, must be used to prevent reflected glare or distraction to the operator.
  • Such light must consist of a lamp with a blue or green lens and not an uncolored lens with a blue or green bulb, except that a roof-mounted dome unit that does not include a lens, must consist of a blue or green dome and not an uncolored dome with a blue or green bulb.
  • The lens of such a light must be not less than three inches nor more than six inches in diameter, except that a roof-mounted dome unit which does not include a lens must be not more than nine inches in height.
  • The affixing of more than one light or lighting device or fixture whereby the lights or lamps are made to flash alternately is prohibited.

One bar light may be used, provided that:

  • it has a housing not more than nine inches high
  • it consists of a blue or green housing, and not an uncolored housing with blue bulbs
  • all bulbs inside the housing flash on and off simultaneously
  • the blue or green housing is continuous with no breaks, barriers or coverings which could give the appearance of two or more lights; and
  • it is mounted on the roof of the vehicle and not on the hood, trunk or other part of the vehicle.

Lights that give off blinding flashes, such as strobe lights, are prohibited.

Some examples of prohibited lights are:

  • a blue or green light on the front of the vehicle together with the same color light on the roof
  • a blue or green dome light and a bar light of the same color
  • a bar light divided into two or more parts by any section of another color, including white, or by any opaque material; or
  • two blue or green dome lights.

A blue or green light may not be affixed to a vehicle which is entitled to have red lights affixed and one or more red lights are so affixed.

It is a violation of the Vehicle & Traffic Law to abuse these provisions. More importantly, if these provisions are violated, it might be possible for an insurance company to refuse to pay for accidents or injuries that occur while a vehicle is displaying such light during an emergency operation. Moreover, a plaintiff might be able to prove that the driver violated the law and such violation could assist the plaintiff in a victory for against the fire department, ambulance company or member.


Town Loses Lawsuit Seeking Accounting from Ambulance Corps

A decision dated March, 2005 struck a victory for not for profit ambulance services that contract with towns. Town of New Windsor v. New Windsor Volunteer Ambulance Corps, Inc. 16 A.D.3d 403, 791 N.Y.S.2d 159 (2nd Dept. 2005).

The Town of New Windsor sued the New Windsor Volunteer Ambulance Corps, Inc. The town sought a court order requiring the Corps to provide an accounting of its finances. The Corps is a not for profit corporation.

The Appellate Division upheld the dismissal of the lawsuit against the Corps. The court held that the town did not have a fiduciary relationship with the Corps, but instead had only a contractual relationship.

Since the town had a contractual relationship, the court held that the town had no right to an accounting of the ambulance service’s books. Fiduciary relationships are rare between towns and not for profit ambulance services. In our experience, most not for profit ambulance services have contractual relationships with a contracting town. A fiduciary relationship would involve significant oversight and control by the town over the ambulance service.

In the future, ambulance services should be guided by this decision if they are not willing to provide towns with an accounting of their financial or other records. One reason an ambulance service might not want to release its financial records is because it would not want the town to lower a contract fee based upon the ambulance corps successful fundraising efforts. However, I note that any tax exempt corporation must file federal Form 990, which provides a categorized list of a corporation’s income and expenses. This form is open to public inspection upon request.


Review your Ladies Auxiliary!

Fire departments should review the Ladies Auxiliary or similar entity associated with the department. It is important that the auxiliary be incorporated, tax exempt, exempt from paying sales tax and has insurance.

Determine whether the auxiliary is incorporated, tax exempt and insured

This is both important and easy to do. Go to “Links” on this website, and then go to the Department of State site. Type in the name of the auxiliary, or even part of the name to be sure you find it. Remember to check the “contains” box to search for part of the name. Did the name appear?

If the auxiliary is incorporated, next check to make sure that the entity is tax exempt. Again, go to the “Links” page, and then go to the “IRS” link. Again, type in the name or partial name of the entity. To be sure your search is complete, just type in the city/town and state, and not the entity name, and you will see a list of all of the tax exempt entities in that city/town.

If the corporation is tax exempt, then the final consideration is whether the corporation is covered by insurance. Make sure the corporation is insured, or that the departments insurance names the auxiliary as an “additional assured”. If the auxiliary is sponsoring social events, then prudence dictates that the auxiliary have insurance to cover losses and provide for attorneys fees to defend lawsuits. An additional insured will be named in the first few pages of the department’s insurance in the list of those insured.

If the auxiliary is not incorporated

If the auxiliary is not incorporated, then either the auxiliary should be a committee of the department, or the auxiliary members must incorporate to protect themselves.

Persons who are members, directors and officers of the auxiliary may be sued personally for injuries unless they are protected by a corporation. That corporation may be either the fire department or a separate corporation. Corporations provide persons with protection from most liability.

If the auxiliary is part of the fire department, then it should be a committee of the department. However, the auxiliary must then report its finances as part of the fire department’s tax returns, must be included in the required year end financial report (see our article on this topic), and must yield to the wishes of the board of directors.

If the auxiillary is not tax exempt

If the auxiliary operates as part of the fire department, then it may use the tax exempt status of the corporation (you should check the “Links” page to make sure the fire department is actually tax exempt.) If the auxiliary is a separate corporation, then it must have its own tax exempt status. If it is not tax exempt, it must apply. Note that the auxiliary, as a separate corporate entity, must file tax forms (Form 990’s). It must also provide annual reports (see related article on this topic).

If the auxiliary operates without tax exempt status, and it is conducting fund raising activities, it must pay taxes on the income. Think of it this way: All money made by the corporation is profit. Corporations must pay taxes on the profit unless tax exempt. Additionally, persons who donate may be claiming their donations to the auxiliary as a charitable deduction. If the auxiliary is claiming to be a charity, and it is not, it is committing a crime.

The corporation should also obtain sales tax exemption. Sales tax exemption is not the same as federal tax exempt status. New York State permits corporations with a sales tax exemption to avoid paying sales tax on purchases. A sales tax exempt number begins with “EX-“. Make sure the number is not the same as the fire department’s number if the corporation is a separate entity.

Conclusion

The auxiliary should exist one of two ways. Either it is a committee of the fire department or it is a separate corporate entity. If it is a committee of the department, it must report to the department, but it can use the departments tax exempt status, sales tax exemption number, and insurance.

If the auxiliary is not incorporated, incorporate now or risk losing personal assets to a plaintiff in a lawsuit. If the auxiliary is incorporated, make sure it has tax exempt status. If it has tax exempt status, make sure it has its own sales tax exempt number and that it has insurance.

The Pinsky Law Group, PLLC can assist the auxiliary with incorporating, obtaining tax exempt status and obtaining sales tax exemption. We can also provide advice regarding filing tax returns and with structuring the auxiliary in a way that meets people’s needs. Do not take chances and do not ignore the auxiliary.


Resignations and the Withdrawal of Resignations

Anyone that has served any period of time in a fire department or not for profit ambulance service has no doubt witnessed an officer or member getting upset and announcing his resignation. Frequently, those same persons are back days later wanting to rescind their resignations.

What are the effects of resignations? When are they effective? May they be rescinded? If so, until when?

The answers to these questions depend on the type of entity in which the resigning person serves. This article will address only the question of an officer that resigns a position. This article does not deal with the question of a resignation as a member.

Generally speaking, resignations of executive or operational officers of ambulance companies are not governed by law. Nor are the resignations of fire chiefs of “independent” or “town controlled” fire departments, or the executive officers of any fire department or not for profit ambulance service. The not for profit corporation law does not address resignations. It does address vacancies however. Thus, not for profit ambulance companies must turn to their bylaws for the answer to resignation questions. We frequently notice that bylaws fail to address requirements for resignations of officers, although they do address resignations by members.

We propose a bylaw as follows for executive, operational or line officers:

“Any executive, operational or line officer wishing to resign must submit a written resignation to the board [or the membership]. No resignation shall become effective later than thirty days after its submission. Any resignation without an effective date shall be effective upon receipt by the board [or membership] at a regular or special meeting of the board [or membership]. No consent of the board [the membership] is required for acceptance. Any person resigning while the member is in bad standing or under investigation shall deem the person to have resigned in bad standing. Such person shall have only those rights in the future as any person terminated from membership for cause. The resignation of such person may not be rescinded at any time except if the vacancy has not yet been filled and then, only upon the consent of the board [or membership].”

This bylaw provision tracks the laws regarding resignations of chiefs and operational officers in villages and fire districts. In village or fire district fire departments, the Public Officers Law Section 31 likely governs these resignations, though the courts have not made this point clear.

The law requires that resignations must be in writing and addressed to the board that confirms such officer, such as the board of fire commissioners or the village board. Oral resignations are not permitted. Resignations may not be made effective any later than thirty days after they are delivered or filed. If a vacancy still exists, the courts have upheld the decision of boards to permit these persons to rescind their resignations, so long as the rescission was within a short time period of the delivery of the resignation. The board is under no obligation to permit rescission of the resignation.

All organizations should make sure that the bylaws address these issues before problems arise.

Bradley M. Pinsky frequently reviews and drafts bylaws tailored to ambulance services and fire companies. If he may be of any assistance, please contact him at (315) 428-8345 or by email at brad@pinskylaw.com.


Sample Code of Ethics Policy for Adoption by Fire Districts

New state laws signed by the Governor in July 2006 requires that fire districts, departments and fire companies adopt “codes of ethics” meeting certain standards. The following is a proposed code for fire districts. The law also requires the fire department of the fire district to abide by the same policy.

This policy may be reproduced for purposes of adoption by a fire district, department and company without further permission from the author.

CODE OF ETHICS

Declaration of policy and purpose

The proper operation of the District requires that District commissioners and officers be impartial and responsible to the fire department and the public. They must not have interests that would be incompatible with the proper discharge of their responsibilities or tend to impair their independence of judgment or action in the performance of their official duties and responsibilities. Decisions and policies must be made in the proper channels of District structure and free from undue influence. Positions with the District must not be improperly used for personal gain. Commissioners and officers must strive to avoid even the appearance of impropriety. Each of these ideals is to ensure that the public has confidence in the integrity of this District. The purpose of this Code of Ethics is to maintain and enhance a tradition of responsible and effective public service by setting forth standards of ethical conduct to guide commissioners and officers in the conduct of their responsibilities.

This Code of Ethics, adopted by the District, shall apply to all Fire Commissioners, Officers, employees of the District, and all volunteer members of the fire district fire department. This Code of Ethics shall also be adopted by any fire department within the District. In order to ensure that all persons to whom this Code of Ethics applies are aware of the Code, a copy of the District’s Code of Ethics shall be posted publicly and conspicuously in each building under the District’s control and in each fire department building within the District, whether or not owned by the District.

Definitions

“Confidential Information” means any information, however transmitted or maintained, that is obtained, possessed or controlled by such District commissioners or officer by reason of his position with the District, and by its nature is such that it is not known to the general public or is not a matter of public record.

A prohibited gift, as addressed by this policy, shall include a gift of more than $75.00 in value. Such a gift includes, but is not limited to, entertainment, food, beverage, travel and lodging to the extent that the gift value exceeds $75.00 for any one occasion and $150.00 total in any one year from the same person or business entity. A gift also includes a loan that is not commercially reasonable. Prohibited gifts do not include the following:

  • A loan made on terms that is commercially reasonable and not more favorable than loans made in the ordinary course of business.
  • Any gift regardless of value from a family member.
  • Certificates, plaques or other ceremonial awards costing less than $75.00, except for any award given by a municipality or fire district, not-for profit corporation, another fire District or ambulance service or this District for service as a District commissioners or officer.
  • Honorary degrees.
  • A meal, ticket, beverages, and lodging costing less than or equal to $75.00, but only if the total of all such gifts from a particular person or business does not exceed $150.00 in one year.

“Financial benefits” include promotions, commissions, rewards, raises and direct compensation.

An “interest” shall include a direct or indirect, pecuniary or material benefit accruing to such person as the result of a contract with the District.

Prohibited interests shall not include a contract or business advantage where no direct or indirect financial gain may be obtained, such as where a person is merely an employee that will not receive any financial benefit from the result of a decision of the District.

“Officers” for the purpose of this policy shall include the fire district secretary and treasurer and the chiefs of the fire department.

“Employees”, for the purpose of this policy, shall include all paid employees of the District including, but not limited to, any paid firefighters.

“Volunteer members of the fire district fire department”, for the purpose of this policy, shall include all volunteer members serving the District through participation in the fire district fire department, regardless of the position held in the fire department.”

Principles of the District

The principles which must guide the conduct of District commissioners and officers include, but are not limited to, the following:

a. District commissioners and officers shall endeavor to pursue a course which shall not raise suspicion among the public that they are likely to be engaged in acts that are in violation of their trust as District commissioners or officers;
b. No District commissioner or officer shall engage in, accept employment or render services when the employment or services: (1) are incompatible with the proper discharge of the official duties of such person; or (2) would tend to impair independence of judgment or action by such person in the performance of that person’s official duty.
c. District commissioners and officers shall not disclose confidential information acquired in the course of their duties as District commissioners or officers, nor use such information to further their own personal, family or present or known future business interests. This shall not prohibit revealing information known to the public at large;
d. District commissioners and officers shall not use or attempt to use their positions or influence to secure unwarranted privileges or exemptions for themselves or others, either before the District or otherwise;
e. District commissioners and officers shall not engage in any transaction as a representative of the District or municipality which contracts with the District or with any business entity in which they have a direct or indirect financial interest that might reasonably tend to conflict with the proper discharge of their duties as a District commissioners or officers;
f. District commissioners and officers shall not accept a gift, as defined above, from any person or business which has any pending business transactions or has an interest in a decision of the District, including but not limited to decisions involving purchases, provisions of supplies, construction, hiring and legislation. District commissioners and officers shall not accept privileges unavailable to the general public which are offered in order to gain favor from such individual regarding a decision of the District.
g. District members shall comply with the District’s “Prohibition of Financial Interests” policy.

PROHIBITION OF FINANCIAL INTERESTS

Application of Policy

This policy shall regulate the conduct of District commissioners and officers. It shall apply to such person’s financial and business interests.

Persons regulated by this policy shall be deemed to have an interest in a contract or business of:

  • his or her spouse, minor children and dependents;• a firm, partnership or association of which such individual is a partner, member or employee;
  • a corporation of which such individual is an officer, director or employee; and
  • a corporation, any stock of which is owned or controlled directly or indirectly by such individual, except that a prohibited interest shall not include an investment interest in a business in which such person owns or controls less than five (5%) percent of the business or outstanding shares.

This policy shall not apply to a contract in which a commissioner or officer has an interest if the total consideration payable under that contract, when added to the aggregate amount of all consideration payable under contracts in which such person had an interest during the fiscal year, does not exceed the sum of seven hundred fifty ($750.00) dollars.

Prohibitions

No interested commissioner or officer of the District may:

  • vote or speak on any matter in which he has any interest, financial or otherwise, direct or indirect;
  • vote to do business with any entity in which he has a prohibited interest;
  • attempt to implement, prevent or change any legislation before the fire district, which is in substantial conflict with the proper discharge of his duties as a District commissioner or officer or would obtain a financial advantage or himself, family, or business; or
  • represent a client before the District or appear before the District on behalf of a client;
  • Express an opinion on any matter in which such person has a prohibited or conflict of interest.

Required conduct upon conflict arising

Prior to any vote, any duality of interest or possible conflict of interest on the part of any commissioner or officer shall be disclosed to the other persons voting on the matter and shall be noted in the minutes.

Such interested person may be counted in determining the quorum for the meeting. The minutes of the meeting shall reflect that a disclosure was made, the abstention from voting and the quorum situation.

No member, director or executive or line officer having a duality of interest or conflict of interest on any matter shall vote or use his personal influence on the matter.

No conflict may be waived, even by vote of the commissioners. A person accused of having an interest but disagreeing with the accusation may vote by secret ballot. Such person’s vote shall be sealed. Should the vote of such person affect the outcome of the matter, the District may seek an opinion from the Comptroller, the Attorney General, the District’s attorney or a Code of Ethics Committee, or from any other trusted and non-interested source as to whether a conflict exists.

Every new commissioner and officer of the District, or a new chief must be advised of this policy upon entering on the duties of his office. Forms acknowledging this policy must be executed by every new commissioner, officer or chief. This policy shall be reviewed at least annually with every commissioner, officer and chief.

Commissioners and officers shall be required to disclose annually, in writing, all financial interests in which they or family members may have before the District and any other information as required by the District.

Commissioners and officers must exercise their duties and responsibilities in the public interest of the inhabitants of the municipality(s) served.

A sample (brief) form is as follows:

Name:_______________________________
Date of acknowledgement:_______________ for the calendar year of _______.
Position held: [ ] member [ ] director [ ] executive officer [ ] line officer
List all potential businesses with which the District presently does business in which any personal, family or business interest exists, as defined by the code of ethics policy.________________________________________________________
Do you now or in the next year expect to represent any person or business entity before the District? __Yes ___No
Do you now or in the next year expect to solicit any business from the District? ___yes ___ no. If yes, state in full such disclosure.

ACKNOWLEDGMENT
I acknowledge that I have read the District’s conflict of interest policy and code of ethics and I agree to abide by such policies at all times. I have made a full disclosure of all interests and shall make an additional written disclosure should such a conflict arise.
_________________________________
[name]


Termination of a Member of a Fire Department or Not for Profit Ambulance Company

This article addresses the requirements for terminating a volunteer from a fire department and not for profit ambulance company. It is not intended to address the ability of fire district commissioners or village board members to terminate a volunteer. Instead, it focuses only the requirements of any fire department and not for profit ambulance company to terminate its volunteers. It does not apply to employees.

There may come a time when a fire department or not for profit ambulance company desires to terminate a volunteer for some type of misconduct or for failing to meet the requirements of membership. Once persons become volunteer members of fire departments or ambulance companies, volunteer members have rights that must be afforded to them by the fire department or ambulance company. These rights are not provided by statute. The General Municipal Law, Section 209-l, does provide a process to suspend or terminate a volunteer, but this law applies to fire districts and villages, and not the fire companies themselves. Instead, the courts have stated that certain rights must be afforded volunteer members. Those rights include:

(1) The right to be notified, in writing, of:
a. the charges against them
b. the facts underlying the charges
c. the specific violation alleged
d. the punishment sought
e. the rights they have to defend the charges
(2) The right to a fair hearing or trial
(3) The right to have counsel present at the hearing/trial
(4) The right to be present for witness testimony and the right to cross-examine witnesses

There is no right to an appeal within the department, although there is a right to appeal to a court.

It is vital that the charges cite a specific rule or regulation that was violated by the member. Thus, fire departments and not for profit ambulance companies should consider creating rules, regulations and policies that could lead to termination or suspension. Some general statements should be added to the bylaws, such as:

“Disciplinary action, including suspension or termination, may be brought against a member for violating the rules or policies of the Department, for not adhering to the membership requirements and for acting in a manner unbecoming a member.”

Sometimes members are terminated for failing to comply with membership requirements, such as attendance at drills or emergencies. The Department should strongly consider providing such safeguards even when dismissing a member for this reason. A hearing probably would be short and would include a presentation of the member’s statistics in comparison with the requirements of membership.

The hearing

Hearings can be long or short, but the bylaws should outline the entire process. The bylaws should state who will sit on the hearing panel. Members chosen by lottery are probably the most impartial method of selecting a hearing panel. One suggestion is to permit a lottery of members who have over five years experience in the Department. However, the board of directors or the executive committee may certainly serve as the panel. The bylaws should provide the member with some method to object to the panel, such as on the basis of bias or because the panel member was a witness to some of the events. The bylaws should then provide for a method to replace the panel member with a new, non-biased member.

Departments should consider using an impartial person as a judge or hearing moderator. This person would simply conduct the hearing to ensure that the witnesses have a chance to speak and that the accused member has a right to present questions or materials for consideration. An attorney, local judge, physician, police officer or minister should be considered as hearing officers. Hearing officers can also serve to ensure that all of the facts are brought out. Persons such as lawyers are used to asking questions and obtaining information from witnesses, so they are useful as hearing officers.

Alternatively, a hearing officer can be asked to draft a statement of facts based upon the evidence presented. Once the hearing officer presents a written finding of the facts, the board, members or other committee could review those facts and impose a penalty based upon the facts. This prevents the members considering the punishment from rehashing the allegations and requires that they consider only the statement of facts put before them.

Court review

A decision to terminate membership from a fire department or not for profit ambulance company is reviewable by a trial court. The member has four months from the date of the termination or notice of the termination to file in court, pursuant to what is called an “Article 78 proceeding”. The court will review the entire process undertaken by the fire department or not for profit ambulance company in terminating the member, and will also look at whether the punishment “fits the crime”. The court can order the reinstatement of the member, can order that the member receive an inter-departmental hearing, or can uphold the decision of the department/company.

Suspensions

This author does not encourage providing a hearing for a suspension lasting under two months. This would be overkill. However, all persons being considered for suspension should have the right to notice of the charges and the chance to answer such charges.

In some cases, suspensions are necessary to prevent further problems. For instance, the chief or a line officer might be given the ability to suspend a member for up to twenty-four hours, without review by any other party, if a member poses a threat to life or property. For example, if a member appears to be intoxicated when responding to the station to board a vehicle, the chiefor line officer should have the ability to remove that person from the situation before any harm occurs.

The bylaws might also provide that the chief or line officer can present that person to the board or the line officers for consideration for a longer suspension or even termination.

Conclusion

Every fire department and not for profit ambulance company should have bylaws that provide the member with rights and a process for suspension or termination. The members should be afforded those rights. Fire departments and not for profit ambulance companies should consider obtaining assistance from their attorney with drafting these bylaw provisions.


Who Makes the Decisions in Your Not for Profit Corporation?

The question of who should make the decisions in an organization is often a source of conflict between the board of directors and the members. Although the members elect the directors in most corporations, members often feel as if they are relinquishing too much power to the directors. Directors, however, need to be able to make decisions in a timely manner, and large groups such as the membership are not conducive to making timely decisions. Both parties should consider the following points.

Approving new members and board members.

Oftentimes, members are in charge of admitting new members. This is practical since volunteer ambulance services and fire departments are essentially clubs where it is important for the members to get along with each other. Thus, members often decide who will fit in to the organization.

If probationary periods are required, one suggestion is to let the board admit the member prior to the probationary period, but then to have the members approve or deny permanent membership after the probationary period has been completed.

Members are also well suited to elect the corporate officers and the directors, since the members work with their peers every week. Members should have trust in the directors they elect, and should not simply elect them as part of a popularity contest. Members should also be permitted to remove the directors for misconduct or poor attendance at director meetings.

Directors are liable for the finances of the corporation.

New York law provides that the directors in a corporation bear the liability for the financial well being of the corporation. Thus, if the members make a decision, the directors still may bear the liability for the outcome of that decision. Additionally, since decisions must be made daily, and it is almost impossible to defer all decisions until a meeting of the members, a smaller group of directors are often able to make timely decisions. Thus, directors may be better able to make the decisions on the day to day management of the corporation.

It therefore makes sense to permit the directors of the corporation to make the decisions regarding purchases and expenditures. However, if the members desire to have control over the budget, the board could be required to submit a proposed budget to the membership for approval at the beginning of the year. The budget would provide line items such as “office supplies” or “medical equipment”, but would be no more specific than that. However, the directors should be free to spend within the confines of those line items. This method permits the members to understand generally where the corporation’s funds will be spent. Any deviations from the line items would have to be approved by the membership.

Members may also retain control over the corporate finances by requiring the directors to obtain membership approval for all expenditures over a certain amount of money. A reasonable amount is debatable, but it should be one which is not an amount ordinarily spent to run the corporation. Amounts such as $2,000.00 or more may be a reasonable figure requiring membership approval.

If members are not willing to give up their right to make most of the management decisions of the corporation, the board of directors could be expanded to permit as many persons to act as directors as the membership desires. You might find that people shy away from their need to approve all of the decisions if they will be legally responsible for those decisions. Be that as it may, since directors may be personally liable for their decisions or for wasting corporate assets, members who wish to make the decisions should bear the same liability.

Corporations should be careful to avoid having the members approve each of the decisions of the directors, or continually permitting the directors to act only after approval of the members.

Let the bylaws be clear.

Regardless of the decision as to who makes what decision, the bylaws should be very clear about this issue. Otherwise, directors, officers or members could be accused of taking action “without authority”.

Conclusion

The membership should carefully consider who should make the corporation’s decisions. Members should be sympathetic to the fact that the directors they elect could bear personal liability for their decisions. The decisions can be split between the membership as a whole and the directors. While members do not like giving up the power to make decisions, the membership should consider that there are some decisions that are better made by a smaller group in a timely manner. The members should also realize the power they could have to elect and remove directors from the board. The realization of this power may convince the members to permit directors to make most of the corporation’s decisions.


Minors may NOT refuse care

Anyone familiar with the new Basic Life Support refusal protocol recently implemented by the N.Y.S. Department of Health will note a protocol permitting an “emancipated minor” to refuse medical care. We suggest that persons contact their attorney regarding whether or not to follow this protocol.

Despite the D.O.H.’s statement, in New York State, there is no such thing as an emancipated minor for purposes of refusing medical care.

The D.O.H. refusal protocol permits a person less than eighteen years of age to refuse care if the minor is pregnant, married or has been married, or a parent of a child. This is incorrect and possibly illegal.

The Department of previously published policy 99-09. In that policy, the Department of Health correctly stated “An individual who is legally a minor cannot give effective legal/informed consent to treatment and therefore, conversely, cannot legally refuse treatment.” For some reason, the D.O.H. has now confused this issue. We suggest that policy 99-09 is the correct view of the law, and not the recently enacted BLS protocol on refusals regarding this issue.

This article sets forth the law in New York State.

The law regarding treatment of minors.

Any person less than eighteen years of age may never refuse medical care. A parent or guardian of that minor must refuse medical care for that minor.

Public Health Law Section 2504 provides that:

“Any person who is eighteen years of age or older, or is the parent of a child or has married, may give effective consent for medical, dental, health and hospital services for himself or herself, and the consent of no other person shall be necessary.”
“Any person who has been married or who has borne a child may give effective consent for medical, dental, health and hospital services for his or her child.”
“Any person who is pregnant may give effective consent for medical, dental, health and hospital services relating to prenatal care.” (Emphasis added by author).

Note that nowhere in this law is there any suggestion that any parent, pregnant or married minor may refuse medical care. Indeed, the New York State legislature has consistently refused to create emancipated minor status in New York State. Courts have also refused the opportunity to create a “mature minor” standard. In other states, a mature minor could have the status of an adult. New York has no such status for minors.

EMTs may provide medical care to minors as Public Health Law 2504 states that “Medical, dental, health and hospital services may be rendered to persons of any age without the consent of a parent or legal guardian when, in the physician’s judgment an emergency exists and the person is in immediate need of medical attention and an attempt to secure consent would result in delay of treatment which would increase the risk to the person’s life or health.” Presumably, EMTs are permitted to treat minors in emergencies under this statute.

Finally, persons should recognize that the law provides that “Anyone who acts in good faith based on the representation by a person that he is eligible to consent pursuant to the terms of this section shall be deemed to have received effective consent.” Thus, if a person claims to have been married, pregnant, or a parent, the EMT will have no liability for treating them if the patient is actually lying.

Remember the one simple rule. A MINOR MAY NEVER REFUSE MEDICAL CARE FOR HIMSELF OR ANY OTHER PERSON.

What to do with a minor

The law simply does not provide EMTs with an acceptable solution to this problem. There is no power for the minor to refuse. Other states have a “mature minor” standard where a minor that lives by him/herself or is otherwise considered “mature” can refuse care. New York has not adopted this rule.

If you encounter a minor that desires to refuse, attempt to contact the minor’s parents by phone, to obtain a phone refusal. Verify and document that you verified that the person you spoke with is actually the parent. For example, request the minor’s birthdate or social security number. Document extensively in the PCR that you spoke with the parent and that you explained the injuyr (or lack thereof), the need for treatment and/or transportation, and the risks involved in refusing treatment and/or transportation.

Certainly, appearing in person is a better option if possible. If a parent is not available, attempt to contact another adult family member for the same purposes.

Conclusion

There is no such thing as an emancipated minor in New York State for purposes of refusing medical care. This issue creates significant problems for EMTs and exposes EMTs to liability for abandonment of a minor. The law should be changed to address this issue.


Is Your Ambulance Corporation for Profit or Not for Profit?

Many ambulance providers are confused about whether their corporation is “for profit” or “not for profit”. The confusion arises either because the company pays employees or because the corporation bills for services and shows a positive balance (ie: makes money) at the end of the financial year.

Neither of these facts makes a company “for profit”. First, at the time a corporation is created, the corporation is designated as being “for profit” or “not for profit”. Think of the word “for” as being synonymous with “the goal of”. In other words, is the goal to make a profit or not to make a profit.

Neither paying employees nor compiling cash reserves from billing ambulance user fees or from receiving donations makes a company “for profit”. The confusion arises because of the misconception as to the definition of a “profit”. A profit is not simply a positive cash flow or paying out money made by the corporation.

The most common method used to determine whether a corporation is acting for profit is to determine if the cash at the end of the year is divided amongst the officers, directors or shareholders. Think of a for profit corporation such as General Motors which pays its profits out as a dividend to the shareholders at the end of the year.

A not for profit corporation in New York State does not have any shareholders. Instead, an ambulance or fire protection corporation has members. Members are not permitted to share in a split of the cash reserves. However, the corporation is permitted to have employees who work on a fixed salary, as paying such a salary is not viewed as paying out profits.

Therefore, the concern of many people that the corporation will become “for profit” simply because employees are paid or the corporation has a positive cash balance at the end of the year is unfounded.