Thursday, December 17, 2009

A Firestorm at the Volunteer Fire Department

While commenting on the newly enacted Pennsylvania Open Records Law, I wrote, privately incorporated organizations which provide traditional governmental services may likely find themselves subject to the Open Records Act.

I cited volunteer EMS and fire companies, non-profit libraries, private foundations, economic development corps and the then proposed private PA turnpike operator. Naysayers scoffed.

The Pennsylvania Office of Open Records has since confirmed . . .

Volunteer fire companies are subject to the requirements of the Open Records Law.

The Office wrote "the issue of whether a fire department is subject to the RTKL has been . . . [decided]. In Wood v. Delta-Cardiff Fire Company, AP 2009-0812, the OOR determined that fire departments are subject to the RTKL." See Also, Brown v. Frystown Community Fire Co. AP 2009-0199. Wood v. Delta-Cardiff Volunteer Fire Co. AP 2009-812.

The OOR observed, an "Agency" is not limited to named governmental units or branches, nor providers of essential governmental services, but includes "any similar governmental entity." 65 P.S. §67.102. The seminal case is Pierce v. Morris Township, Morris Township Fire Co., AP 2009-0116, (Oct. 2009) wherein the OOR opined:



Non-profit entities like the Fire Co. may qualify as local agencies if they are sufficiently governmental in nature. Volunteer fire companies have consistently been held to be governmental entities, and been deemed local agencies under other statutes that do not specifically include them in their definition, e.g., Political Subdivision Tort Claims Act, 42 Pa.C.S. §§8501-8564 (“PSTCA”). See Zern v. Muldoon, 516 A.2d 799 (Pa. Commw. 1986); Wilson v. Dravosburg Volunteer Fire Dept., 516 A.2d 100 (Pa. Commw. 1986). Case law also holds that a volunteer fire company is an entity created to perform a governmental function. See id.; Guinn v. Albertis Fire Co., 614 A.2d 218 (Pa. 1992); Weaver v. Union City Vol. Fire Dept., 518 A.2d 7 (Pa. Commw. 1986); Flood v. Silkies, Meckes & Klecknersville Fire Co., 933 A.2d 1072 (Pa. Commw. 2007)(non-profit volunteer fire company founded by volunteers and separate from municipality constitutes a local agency). Notably, fire-fighting may only be performed as a non-profit enterprise, and thus is not proprietary.

In both Zern and Wilson, the Commonwealth Court reasoned that volunteer fire companies were sufficiently governmental in nature to qualify as “local agencies” entitled to immunity under the PSTCA. Specifically, in Zern Judge Crumlish found that the unique “history, structure, organization and public duty of volunteer fire companies distinguish them from any other organization in existence in this Commonwealth today.” 516 A.2d at 804. Volunteer fire companies, including the Fire Co., exist to perform a governmental function on behalf of local governmental units. Wilson, supra; Harmony Volunteer Fire Co. & Relief Ass’n v. PHRC, 459 A.2d 439 (Pa. Commw. 1983)(holding fire-fighting is governmental in nature).

Fire companies and other private entities might take notice. Although the OOR now considers the matter as well settled, the issue will be decided on this appeal to the Commonwealth Court.

Unlike political subdivisions and wholly governmental agencies, quasi-governmental agencies, such as fire companies, regularly do not have appointed or retained legal counsel. Yet as a general rule, corporations may not represent themselves but through a licened attorney, which begs the question: Can a fire company represent itself before the OOR?

Taking the logic of Pierce still further, might the officers of a volunteer fire company find themselves subject to the Pennsylvania Ethics Act?

Well, not if they behave anyway, but?

Full disclosure: I am a member of a volunteer fire company.

18 comments:

eckville press said...

For Sale:

One used paper shredder, five years old, works good.

$25.00 firm!

P.S.

Chico, call me, I can meet you at the park after 2:00 P.M.

Eck Capone

NLVlogic said...

Now thats not fair! The person will need the phone no. for der plappernde Bullshit, der hinter einer gespenstischen Abbildung Blog sich versteckt.

eckville press said...

Good Point

Perhaps the Authority owns a shredder :)

How cozy would that be?

NLVlogic said...

I'm not going to be dissing volunteer services. These organizations are made up with persons having limited time and limited resources. And they're largely private. I'm not sure the rule as it applies to them is good. It may be overturned . . .

but the rule does serve as a warning, especially to organizations that are entwined politically with their municipality. It leads to some interesting outcomes. Might donations to the private organizations coincidently headed by Township officials be intended to influence the Township official? I'm not saying it was, but by this rule, any money trail can be followed.

kestrel said...

Any idea what happened to these??

SENATE BILL 851

Right-to-Know Law exemption:
Would amend the Volunteer Fire Company and Volunteer Ambulance Service Grant Act, providing for an exemption from the Right-to-Know Law. Sponsor: Sen. Dominic Pileggi, (R-9).
• Referred to Senate Veteran Affairs and Emergency Preparedness Committee 6/9/2009
• First consideration 6/23/09
• Amended on second consideration 6/30/2009
• Second consideration 7/1/2009
• Passed in Senate 7/7/2009
• Referred to House Veteran Affairs and Emergency Preparedness Committee 7/9/2009

HOUSE BILL 1591

Right-to-Know Law amendment:
Would exempt volunteer fire companies, ambulance services and rescue companies from the Right-to-Know Law. Sponsor: Rep. Matthew Baker, (R-68)
• Referred to State Government Committee 6/2/2009

NLVlogic said...

I think one of the OOR opinions referred to the same set of amendments as to show the original bill included volunteer fire cos.

Still, I'm not entirely sold as to whether the terms "similar governmental entity" includes a non-governmental entity, such as a fire co, that is unless one defines a governmental entity by the services it supplies over its actual incorporation. They key word is governmental.

eckville press said...

A pay off for the employee/firefighter time sheet cover up?

For clarity on the above comments, submit a R2K request to NTFC for the Aug, Sept, Oct, and Nov fire company meeting minutes and see if "Mr Christ, Station 17" was acting on his own behalf (wearing volunteerism on his sleeve) or on behalf of the organization.


(Sept township meeting)

Your request will either be granted or the Aerial will show up at the next township meeting.

Besides, controversy sells the press !!!

eckville press said...

The courts ruled fire companies are "governmental" as such they are unique and historically have provided a required function of government, thus subject to the RTKL.

The courts ruling was recently upheld by the Lynn Townships Board of Supervisors in Christ vs. Fisher.

Here Christ argues the Second Class Township Code Sec 607 is clear such as the fire companies play an integral part in performing a governmental function protecting the health, welfare and safety of its citizens.

Christ also points out that historically, for the past fourteen years, township employees, by unwritten policy, were allowed to account for time lost as working for the township.

Tom Creighton seemed to be in agreement with Christ for Creighton himself states he and Christ discussed possibly offering a bonus to employees to interact with the fire companies during working hours.

Further testimony from Auditor Snyder also supports the courts ruling as such Snyder states the public has the right to know.

Therefore it is the opinion of Eckville Press, no affiliation with NWP, babbling bullshit while hiding behind a ghostly figure, that the fire companies are not only similar governmental entities, but integral in performing those duties, receive public funds thus they are subject to the RTKL.

eckville press said...

Pa State Ethics Act ?

Probably not, but because they are incorporated and most are 501(c)3
they must maintain a Code of Ethics similar to the Ethics Act or their officers can be prosecuted under the Pa Criminal Code. See here. Submitting fake invoices,endorsing checks, unauthorized expenditures and falsifying records may prompt a visit from the District Attorneys Office.

NLVlogic said...

I do not paint the organization that way. I do not share your viewpoint as to its officers.

Taking my experience with another fire co. as an example, volunteer organizations are largely strung together with good intended people who are sometime simply unable, due to resources of time, finances, knowledge or capacity, to organize and operate themselves transparently. It is not criminal. They simply need more volunteers.


In a private organization, there is no prohibition on self-dealing, even nepotism, nor should there be.
A quasi-governmental unit is something different than governmental, yet perhaps not private, but we have no laws which recognizes that. There perhaps should be a middle standard.

eckville press said...

We disagree

Double Agent in the Dutch Mafia said...

Simply put......Its easy for someone to rant and rave on a blog as Eckville Press so elegantly does.

However here is the difference between people like you who talk "smack" and those who are involved in volunteer organizations......

Even with all the trouble you try to cause on these blogs and the stance you take on volunteer fire companies, every one of these people you bash and talk down upon would quit whatever they are doing to come help you in your time of need, no question asked. You on the other hand would stand their question what they are doing on their free time and most likely try to find a way to prosecute them in court for something. Your a flat out piece of trash that gives this world a bad name! Get over yourself.

NLVlogic said...

Actually, I volunteer much time at my local fire co, where I am a life member and officer, (As I also do with 4H and other fine community organization.) Moreover, I take nothing from the Township, of late, not so much as meeting pay. So as you say, my free time is indeed used in volunteer service.

I have not bashed fire companies. Check your facts. Read this post or even this this post.

As to Eckville, you're more than welcome to take him on at his blog.

Even so, one's right to speak should not be based on a test as to the worthiness of their service. That begets elitism. One class over another. I'll not have that.

eckville press said...
This comment has been removed by a blog administrator.
eckville press said...

Double Agent in the Dutch Mafia said...

"However here is the difference between people like you who talk "smack" and those who are involved in volunteer organizations......"

Your statement is debunked here.

Perhaps you could "person up" and offer Mr. Najarian an apology for your ignorant enhanced "smack" talk or are there double standards, whereas Mr Snyder and Ecks good friend Mr Delong receive a free pass?

NLVlogic said...

I removed a post which contained a public phone number of a governmental official with the suggestion we call the person at work. Although the person maintains a government job, the person no longer has an elected or appointed position with government. He is simply an employee. Accordingly, I have deleted the post.

eckville press said...

NLVlogic,

Eck thinks the comment as published should stand.

First,
Donald has stated privately that the Authority has no problem with him performing his volunteer work during normal working hours.
Don states the Authorities position as such; that because he is a salaried employee, as long as he completes his required daily duties, they were OK with it.

Second, the e-mails sent to Donald that started all this ruckus are germane to his duties and responsibilities as plant manager.
Sound fiscal management.

That said, the above deleted questions were, although legit in solving the unwritten policy scandal, somewhat trick:

Whereas Mr Christ, fulfilling his duties under section 607, his compensation was set by statute, not unethical unwritten policies adopted with his involvement.

Whereas Mr Christ, in the authority of his office as township supervisor, granting himself compensation as an township employee, derived from an unwritten policy for which he participated in adopting as township supervisor.

More important moving forward, the question, was "Donald Christ, with station 17" wearing his volunteerism on his sleeve?
Was Mr Christ's oral argument during the Sept 2009 BOS meeting on behalf of the fire co. or on his behalf defending his previous unwritten policy.

Would a volunteer fire co really support Mr. Christs past unethical behavior if they understood the facts?

Eckville Press is not anti fire co., but has reservations about corrupt politicians finding refuge in their local fire co.

Is that a bad thing?

With respect and elegance,
Eck Capone

eckville press said...

Double Agent in the Dutch Mafia said...

Simply put......Its easy for someone to rant and rave on a blog as Eckville Press so elegantly does.

However here is the difference between people like you who talk "smack" and those who are involved in volunteer organizations......

Even with all the trouble you try to cause on these blogs and the stance you take on volunteer fire companies, every one of these people you bash and talk down upon would quit whatever they are doing to come help you in your time of need, no question asked. You on the other hand would stand their question what they are doing on their free time and most likely try to find a way to prosecute them in court for something. Your a flat out piece of trash that gives this world a bad name! Get over yourself.