Is Your Department Risking Your Members’ Entitlement To Death And Disability Benefits?

Fire departments pay attention! The failure to follow the steps outlined in this article could cost your firefighters and their families death and disability benefits and could bankrupt some municipalities and fire departments.

The Volunteer Firefighter Benefit Law (VFBL) restricts the award of death and disability benefits to “active members” of a fire department. A 2003 memorandum from a former governor held that some insurance companies refused to provide VFBL benefits for injured and deceased firefighters because the fire departments failed to comply with certain laws. This article is intended to prevent denials of claims and protect your firefighters, their families, your fire department and the controlling municipality or fire district.

STEP 1

All applicants for membership must be approved by the municipality or fire district in control of the department before they participate in any activity. Although village and fire district controlled fire departments usually comply with this law, we find that most fire departments who contract directly with a town do not comply. This could be a serious mistake!

Every fire department located in a town’s fire protection district is under the control of the town. True, the town does not have much control over the fire department, but there are certain laws with which the fire department must comply. Every time we advise “independent” fire departments of this law, they dispute the fact and argue that they are not under the control of the town. Trust us, the department must report to the town in limited instances or suffer dangerous consequences.

Every fire department must receive the approval to admit each new member by the municipality in control of the fire department. That means as follows:

  • Fire departments located in villages – the village approves new members
  • Fire departments located in fire districts – the fire district approves new members
  • Fire departments located in cities – the city approves new members
  • Fire departments located in a fire protection district outside of a village, fire district or city – the town approves new members

The law requires the secretary of the fire department to forward the name of the new member to the municipality. If the municipality fails to act on the applicant, then the applicant is automatically approved after a certain amount of time. How much time? This is a bit more confusing.

  • If the applicant resides in the home territory of the fire department (village, district, city or protection district) in which the main fire house is located, then the member is automatically approved if the municipality fails to act within forty (40) days.
  • If the applicant resides in a territory in which the fire department is paid to provide primary fire protection, then the member is automatically approved if the municipality fails to act within forty (40) days.
  • If the applicant resides outside of these first two territories, but either works in the area and is available to respond to calls, or resides in the “vicinity” of the home territory, then the member is automatically approved if the municipality fails to act within seventy (70) days. What is the “vicinity”? That will be discussed in a future upcoming article.

What if the fire department has never received approval from the municipality in control? We strongly suggest that the department provides the municipality (or fire district) with a list of every member who was admitted after June 2003 and ask the municipality to “ratify” the membership by passing a formal resolution. Why June 2003? There was a special state law passed back then ratifying the membership of every member, whether or not they were approved by the municipality in control. The legislature recognized the problem addressed by the governor that some insurance companies were denying benefits. However, that same law has not come forward since that time.

Remember: no applicant should perform any activity in the fire department until s/he is approved by the municipality in charge or until the time for action by the municipality to act passes.

STEP 2

Residency issues are confusing. As discussed briefly above, and as will be discussed more fully in an upcoming article, the law imposes strict requirements on residency. Of importance to this article, the department must ensure that any person that moves from inside the home territory to outside the home territory receives company and controlling municipality/district approval.

Failure to comply with the following procedure will automatically remove the moving member from membership!

The law requires certain steps for any person that moves out of the home territory or a territory for which the department is paid to cover on a primary basis. First, the member must receive the approval of the fire company or department to continue to remain a member. This request to remain a member must be submitted at least thirty days prior to moving.

Once the fire company approves the continuation of membership, the member must receive the approval of the controlling municipality or fire district.

Once again, the failure to receive approval will automatically result in loss of membership. If the company has members who have moved out of the home territory, then the company should ratify the individual’s membership, and then the controlling municipality or fire district should do the same. Ratification simply means that a resolution is adopted approving the membership despite prior non-compliance with the law.

This law does not apply to anyone moving from outside the home territory inside the home territory.

STEP 3

Who is an “active member” of the fire department such that they are entitled to VFBL? Review your bylaws to ensure that every person who responds to an emergency is defined as an “active member”. We find that all too often, bylaws create a category of active member, but then have separate categories for probationary members, junior members and even life members. This is incorrect and dangerous. An insurance company could look at the bylaws and say that those other members are not clearly defined as “active members”.

The bylaws should create several categories of membership, with sub-classes as necessary. For example, classes of membership could include Active, Inactive, Honorary, and Social.

Sub-classes of “Active” would include your “full members”, probationary, junior and even auxiliary.

Auxiliary you ask? Perhaps, yes. Does your auxiliary membership have a pager and/or get summoned in during an extreme emergency to provide food or drink (ie: rehab)? If so, why not make them “active members”. One big advantage of doing so is that they would then be entitled to VFBL benefits. Another advantage to the controlling municipality is that anyone entitled to VFBL is prohibited from suing the department. VFBL benefits may be significantly cheaper than paying an auxiliary volunteer for pain and suffering incurred as a result of becoming injured while responding to assist the fire department.

The auxiliary membership has to be addressed in the bylaws. Auxiliary members, as with any member, can have restricted voting rights on issues and can be prohibited from holding office. The bylaws simply list them as active.

The possible “negative” is that all active members are entitled to benefit from the foreign insurance funds/2% funds. If the department does not wish to share these funds, then listing them as active might be viewed negatively.

What about life membership? Life membership should be a status, not a class of membership. There should be two classes of life members: Active life and retired life. Active members still respond to emergencies as any other active member. Retired life members do not respond toemergencies any longer and do not participate in drills or trainings. They are not entitled to VFBL. Do not include life as a sub-class, but instead keep it as a “status”.

STEP 4

Obtain municipal/district approval for all fundraising activities! Failure to obtain approval can result in the denial of VFBL benefits in case a firefighter is injured.

General Municipal Law Section 204-a requires that prior to engaging in any fund raising activity, the fire company must provide written notice to the municipality or fire district in control of the company. The notice must state that the fire company plans to conduct a fundraising activity.

This is a serious law! If a firefighter is injured, disabled or killed while participating in a fundraising activity that is not approved in accordance with this statute, the Volunteer Firefighters’ Benefit Law will not bestow benefits upon the firefighter, spouse or children.

Approval of the written submission should be noted in the company’s minutes and even the municipality’s/district’s minutes. If proper notice is not given and approval received, the fire company could find itself without insurance coverage for injuries sustained by volunteer firefighters or possibly non-firefighters.

A notice must be given to the clerk of the municipality or secretary of the fire district in control of the fire company. The notice must generally:

  1. describe the activity;
  2. specify the time or times when, the place where, and the period during which the activity will be conducted;
  3. set forth the names of the firefighters who will serve on each of the committees in connection with the activity.

If the municipality or district fails to act on the request for approval within thirty (30) days after notice is provided, then approval is deemed to have been granted by default.

If a municipality is unaware of the activity, it might not be liable for any injuries occurring at the event. Thus, if the municipality purchases insurance covering fire company events, the insurance might not be available to the fire company or its members in this instance.

The fire company can certainly provide one list of all events to the municipality or district at the beginning of the year, including events that repeat on multiple dates. And again, this also applies to fire companies located in fire protection districts which contract with towns.

CONCLUSION

Fire departments should pay careful attention when drafting their bylaws to the issues discussed in this article. The department also has to recognize that the law imposes pre-requisites to being entitled to VFBL coverage. Working with an attorney knowledgeable in fire department issues can significantly help protect the department and its members. Departments should consider reviewing their bylaws and policies with an attorney skilled in fire department issues.