John T. Brady Fire Laws

SEXUAL HARASSMENT POLICY – Every district must have

On November 16, 2017, by passage of PA 100-554, the Illinois legislature amended the Illinois governmental ethics act. The act now requires that all fire protection district have a “Sexual Harassment Policy” in place that conforms to the requirements of the new law. The deadline imposed by the legislature for compliance with the new law was sixty days after the effective date of the Act, or January 14, 2018.

Working to prevent sexual harassment in the workplace is nothing new to the fire service, and many fire protection districts already have such a policy in place. It is possible that no additional action will be required on the part of your fire district.

However, the new act is very specific in what the policy must contain. To be included in the policy, at a minimum, shall be the following: (1) a prohibition on sexual harassment; (2) details of how an individual can report an allegation of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, the [Illinois] Inspector General, or the [Illinois] Department of Human Rights; (3) a prohibition on retaliation for reporting sexual harassment allegations, including availability of whistleblower protections under PA 100-554, the “Whistleblower Act”, and the Illinois Human Rights Act; and (4) the consequences of a violation of the prohibition on sexual harassment and the consequences for knowingly making a false report.

As a result of this legislation, each fire protection district should review its policies and procedures to insure that it has, by ordinance or resolution, a policy in place that complies with this law. In addition, while it is not stated in the legislation, it will be important for districts to make certain that the provisions of this policy are disseminated to current and future personnel, and that the district can establish that all personnel have been informed about the provisions of the policy.

John T. Brady Fire Laws

Got Tires?

Financial rewards for serving as a volunteer firefighter are few and far between. That’s to be expected. since no one becomes a volunteer firefighter in order to get rich. In 2017, however, the Illinois legislature did add a small financial benefit to the volunteer service that has pretty much gone unrecognized. Public Act 100-0471 amended Section 10 of the Fire Protection District Act by adding Section 10d (70 ILCS 705/10d).

This new law allows a “volunteer firefighter” to purchase four vehicle tires every three years through the firefighter’s fire protection district’s contract to purchase vehicle tires under Section 2 of the Governmental Joint Purchasing Act. Before a firefighter seeks to take advantage of this new law, however, it’s important to note that there are some very specific qualifications that must be met to qualify for the purchases.

The firefighter must meet the definition of a “volunteer firefighter” as set out in the statute. Under that law, a “volunteer firefighter” is a person “ … who does not receive monetary compensation for his or her services to a fire protection district…”. Thus, if compensation is received by a firefighter in any form (perhaps excepting reimbursement for established out of pocket expenses), the firefighter does not qualify to purchase tires under this law.

In addition, the firefighter must be shown as a firefighter on the rolls of the fire department, and must be authorized, in writing, by the fire chief on the fire district’s letterhead, to make the purchase.

The writing must include the firefighter’s name, the license plate number of the vehicle that will receive the new tires, and must reference the fire protection district’s joint purchasing agreement.

There is no requirement under the statute that there be any reporting of the purchases beyond the fire district itself: the fire protection district itself is responsible for documenting how many tires each volunteer firefighter can purchase under the statute every three years.

As might be expected, the firefighter who receives the tires must pay for the tires, including any taxes related to the purchase. The purchases are not considered tax exempt.

One technical requirement for the purchases is that it only applies to contracts first solicited under Section 4 of the Governmental Joint Purchasing Act on or after September 8, 2017.

John T. Brady Fire Laws

Records Destruction by Fire Protection Districts

Hardly a day goes by that a fire protection district doesn’t create some form of document, typically in paper from, but increasingly in electronic format. Because districts generate so many documents, an inevitable question is “how long do we have to keep these darn papers?”

The answer to this question is not a response the fire chiefs and trustees like to hear. For that answer is, unless someone in state government gives you permission, if it’s an official record of the fire district, you have to keep it forever. There is an Illinois state law, called the “Local Records Act” (50 ILCS 205/1 and following) that describes the steps to be taken in order to lawfully dispose of fire district records. In general terms, no public record can be destroyed without permission from the appropriate “Local Records Commission”.

And, to be a “record”, the document doesn’t need to be on fire district letterhead and signed by the fire chief and all the trustees. The Act describes “records” very broadly, as including “any … official documentary material, regardless of physical form (so it includes electronic materials) … made, produced, executed or received … in connection with the transaction of public business … (50 ILCS 205/3). There are some exceptions to the requirement to keep district records “forever”, primarily those documents that are described as “transitory” messages, such as announcements of office events like a holiday party.

So, if the filing cabinets are filled to the brim, and the only other solution is to build an addition to the fire house just to house all these books and records you’ve accumulated, what’s a fire district to do? When things get this bad (or, it’s recommended, even sooner), contact should be made with the “Records Management Section” of the Illinois State Archives, which is under the jurisdiction of the Illinois Secretary of State.

The “Records Management Section” of the Illinois State Archives can be contacted by phone at 217-782-7075, or by mail at the Illinois State Archives, Springfield, Illinois 62756. Personnel from this office will then help fire district personnel develop an “Application for Authority to Dispose of Local Records” that can be submitted to the appropriate “Local Records Commission” for approval. Once approval is received, a “Local Records Disposal Certificate” will be created, allowing the identified records to be destroyed. Once the “Local Records Disposal Certificate” is in place, the identified records can be destroyed, and the need for more filing cabinets or an addition to the fire house to store records avoided.

The Illinois Secretary of State also has a helpful outline of “FAQ” regarding local records at the office’s web site, cyberdriveillinois.com.

John T. Brady Miscellaneous

Real Estate and Taxes

It wouldn’t make sense for a fire protection district to pay taxes to itself on the real estate that it owns, like the fire house. And, if the fire district paid taxes to other taxing districts, then we would have tax monies collected from real estate taxes being paid for real estate taxes. Kind of a strange use of tax dollars.

As a result, units of local government in Illinois – like a fire protection district – aren’t required to pay real estate taxes on real estate that it owns, as long as the real estate is used for governmental purposes.

There’s a catch, however: the county officials that assess the taxes need to know that the real estate is owned by the fire district, and that it is used for qualifying fire service purposes. If the fire district’s property is not shown as exempt on the tax rolls, real estate taxes may become due. In many cases, a township assessor or county taxing authority will automatically renew a district’s exemption from year to year. This isn’t always the case, however.

As a result, it is the fire district’s responsibility to see that the county taxing records are correct. At the start of the new year, it would be good for one of the trustees to check, to make certain that county real estate tax records for all real estate owned by the district are correct.

John T. Brady Miscellaneous

Opioid Response May Endanger Firefighters

We have a new public health crisis that impacts firefighters and EMS personnel throughout the United States. The Center for Disease Control (CDC) reported that over 33,000 persons died nationally in 2015 from opioid overdoses, including overdoses from the synthetic opioid fentanyl, and fentanyl-related substances. For comparison purposes, in the United States during the same year, 38,300 people died in motor vehicle accidents.

Among these drug overdose deaths nationally, Illinois had the third fastest-rising death rate from synthetic opioids, with overdoses rising by 120 per cent from 2014 to 2015.

These overdose deaths are not limited to any one part of the state. In 2015, the Chicago suburban area of Will County recorded 53 overdose deaths linked to heroin and fentanyl more than the 51 deaths caused by traffic accidents. In Cook County, 526 heroin and fentanyl deaths were more than double the county’s 240 traffic fatalities.

At the other end of the state, in Madison County’s Granite City, earlier this summer, a twenty-five year old mother allowed her seventeen-month old son to ingest fentanyl and methamphetamine. The mother was found unresponsive from her own drug overdose in her home, with the child in her arms. Firefighters and EMS personnel are often the first on the scene to respond to these tragic emergencies.

This dramatic rise in opioid deaths merits attention from firefighters and EMS personnel for a number of reasons. As citizens, we need to be concerned about what is becoming a national public health crisis. As the first responders, we need to know how to treat the victims of these drug overdoses. Because EMS personnel and firefighters can be susceptible to opioid addiction just as other members of society, we need to protect ourselves and brother and sister firefighters/EMTs from the tragedy of addiction.

But there is an additional reason that this crisis demands our attention: we need to protect ourselves from incidental exposure to these opioids when we respond to an emergency involving a drug overdose. According to the DEA’s June, 2017, Briefing Guide for First Responders: “Due to their hazardous nature, fentanyl and fentanyl-related substances pose a significant threat to … first responders, including fire and emergency medical personnel… accidental exposure by first responders is a real danger’.

Just what are the drugs causing this concern? Heroin, like opium and morphine, is an addictive drug made from the resin of poppy plants. Fentanyl is a synthetic opioid that is approximately fifty times more potent than heroin. Fentanyl can be found in powder, pill and liquid form. The numbers needed to describe the toxicity of this drug are perhaps beyond our ability to comprehend. Two to three milligrams of fentanyl (a measurement equivalent to five to seven grains of table salt) is enough to cause respiratory depression, arrest, and in some cases death. Another member of the same synthetic opioid family, carfentanil, is 5,000 times more potent than morphine, and one hundred times more potent than fentanyl!

The powder form of the drug fentanyl is the most troubling for first responders. Because fentanyl in its powder form can be inadvertently inhaled through the nose or mouth, and absorbed through the skin, or if airborne, absorbed into the eyes, first responders must treat any substance suspected to contain fentanyl with caution, since exposure to a small amount can lead to significant health-related complications, respiratory depression, or death.

But there is an additional reason that this crisis demands our attention: we need to protect ourselves from incidental exposure to these opioids when we respond to an emergency involving a drug overdose.

Despite these DEA warning described above, some experts have suggested that the dangers to first responders from skin contact alone with fentanyl may be exaggerated. Typically fentanyl isn’t absorbed from incidental skin contact into the blood stream quickly or efficiently enough to constitute a significant hazard. There is more agreement that inhalation of the powder form of fentanyl, and contact with mucous membranes, are more likely dangers.

The risk may also be less since fentanyl and other illicit drugs are often diluted or “cut” with inert materials. Because of this, exposure of first responders to pure forms of synthetic opioids is less likely. However, such mixing is seldom done with pharmaceutical precision. Inconsistent mixing of these drugs means that high concentrations of synthetic opioids may still be encountered, and small amounts can still be dangerous.

So what should fire departments and EMS providers do to address these issues? It is suggested that personnel who may respond to overdose emergencies need to be educated about the dangers, and provided with proper personal protection equipment. Appropriate protocols and “standard operating guidelines” need to be developed.

Training will need to include recognition of the symptoms of fentanyl exposure. These symptoms may include respiratory depression or arrest, drowsiness, disorientation, sedation, pinpoint pupils, and clammy skin. These symptoms usually occur within minutes of exposure. Because fentanyl and related substances can work very quickly, it is important to react quickly if exposure is suspected.

Response may include the administration of naloxone. Naloxone is an antidote for opioid overdose. Immediately administering naloxone can reverse an opioid overdose. Depending on the drug’s purity and potency, multiple doses of naloxone may be required to stabilize the victim.

Collection of any suspected drug samples should be coordinated with law enforcement personnel. It is recommended that law enforcement, rather than firefighters or EMS personnel, take the lead in collection and preservation of any suspected drugs located at the scene of a suspected overdose, regardless of the drug involved.

John T. Brady Case Law Updates

Doing Exactly What the Law Requires Matters

On March 17, 2016, an Illinois appellate court handed down its decision in a case addressing how a retiring firefighters pension should be calculated. The case is The Village of Chicago Ridge vs. the Chicago Ridge Firefighters Pension Board of Trustees and David Bricker, 2016 IL App (1st) 152089.

In addition to addressing the question of whether this specific firefighter should receive an increase in pension benefit pursuant to a collective bargaining agreement, the case also contained language that shows the importance of following literally the language of a statute, and the differences between an ordinance and a resolution.

The firefighter, David Bricker, had asked the Chicago Ridge Firefighters Pension Board to include in his retirement benefits a 20% “buyout” increase in his pension benefits pursuant to the terms of a collective bargaining agreement.

The pension board agreed with Bricker’s request, and included the 20% buyout in its calculation of Bricke’rs pensionable salary. The Village of Chicago Ridge disagreed with the calculations, and appealed the Pension Board’s decision to the Cook County Circuit Court.

The Circuit Court ruled that the Pension Board had been incorrect when it concluded that the 20% buyout should have been included in firefighter Bricker’s pension. The appellate court found that the inclusion of the 20% buyout was “clearly erroneous” and held that the 20% buyout should not have been included. The appellate court stated that “the sole issue presented in this appeal is whether the 20% buyout as defined in the collective bargaining agreement should be included in Bricker’s pensionable salary”.

Reading this summary, you may question why Bricker should not receive the pension increase, if it was given to him in the union’s collective bargaining agreement. While the appellate court considered this question, and analyzed various definitions of the term “salary”, the court stated, in part, that: “… we find that answer to whether the 20% buyout… hinges on whether the 20% buyout… was approved through the appropriation ordinance of the municipality”.

The court found that various provisions of Illinois law “… specifically state that any calculation of salary, which is then used to determine pensionable salary, must be approved or established through an appropriation ordinance of the municipality…”. The court found that Bricker’s 20% buyout had not been approved through an appropriation ordinance. The court acknowledged that the salary inclusion had been approved by resolution of the Village Board of Trustees, but held that approval by resolution “… is not the same as being approved through an appropriation ordinance”.

“Where an act is required to be done by ordinance, anything less, such as a resolution or referendum, is not sufficient. A resolution is an act with lesser dignity than an ordinance. Where an act is required to be done by ordinance, a mere resolution is not sufficient”.

One conclusion that can be draws from the case is that statutes sometimes mean exactly what they say, and failure to follow the law exactly can have important consequences.

John T. Brady Miscellaneous

Facebook And The Fire Service

Facebook’s founder was Time magazine’s “Man of the Year” in 2010.  Is there a message in this for fire departments?  I think there is.  Facebook, Linked In, and the social media in general are generating a buzz because they’re important to how we communicate today.

There are opportunities for fire departments here, but there are also challenges and dangers.  The City of Redondo Beach, California, has abandoned its Facebook page because of potential legal problems.  The Austin, Texas, fire department got itself in hot water because of its Facebook policy.

Social media aren’t going to go away.  They can be useful tools for fire departments to use.  However, there are important questions about their use.  For example:

  • Can fire department officials remove vulger posts and factually inaccurate information from a site, or are the posts protected by the First Amendment?
  • If a quorum of fire district trustees comment on a Facebook post, is this an “Open Meetings Act” violation?
  • When it creates a Facebook page, does a fire district create a record subject to the requirements of the Illinois “Public Records Act”?
  • Can comments by a firefighter create liability for a fire district because of what the firefighter says?
  • Can a firefighter take pictures of a fire scene, and then post them on his Facebook page, with comments?
  • Can an EMT use the camera on her cell phone to photograph an accident victim, and use the photo as part of a training exercise at the fire house next week?

I don’t pretend that answers to these questions are easy.  But is your fire department at least asking these questions?