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8.1 SR 04-01-2013City of , �'*t REQUEST FOR ACTION ® 7 ACTION REQUESTED Review proposed ordinance change to Chapter 22, Article II, of the Ella River Code of Ordinances. ACKGROUND/ ISCUSSION Included as an objective in the 2013 -2017 Fire Department Strategic Plan is an update of Chapter 22 of the Elk River Code of Ordinances, specifically Article II, which pertains to the establishment, structure, and oversight of the fire department. According to Municode, the last update to this section was completed in 1982. The origins of the current code can be attributed to the long - standing history of the fire department in which the organization generally operated fairly independent Of city oversight. Originally, volunteer departments were directed by the consensus Of its membership, governed by department by -laws, and operated in a pure (unpaid) volunteer capacity. The current code reflects many of the past department practices. Today, however, most fire departments are a branch of city government and as such, need to function and operate in the same capacity as other departments, especially in regard to management and human resources. While we honor and respect the history and traditions of the past, it is important that we govern according to the best practices, standards, and laws of today. Proposed is a complete re -write of Chapter 22, Article II, which addresses the following: • Recognizes the fire department as a city department governed in accordance with existing rules and regulations, administrative policies, and operational procedures. • Establishes a formal command structure in which the fire chief has the supervision and control over the department, aided by a command and management staff. • Prescribes job descriptions for all positions within the organization. • Enables the City Council to establish a fee schedule to collect for responses to areas within the city limits. • Separates the roles, duties, responsibilities, and expectations of full-time staff, whose essential functions contain that of fire suppression /emergency response, and their involvement as a paid on -call firefighter. E Ii E Nt[I BY NAPublic Bodics \City Council\Council RCA \Agenda Packet \04 -01- 2013 \8.1 Ordinance Amendment fire P iI Department.docx INATURE The revised ordinance is consistent with and modeled after other Minnesota cities and departments. It directs the organization to operate and function through policy and procedures, and provides for accountability. FINANCIAL IMPACT There is no financial impact associated with this item. New draft ordinance language Current ordinance language Article from the League of Minnesota Cities, "Fire Department Bylaws, Who's in Charge ?" NAPublic Bodies \City CouncilWouncil RCA \Agenda Packet \04 -01- 2013 \8.1 Ordinance Amendment Fire Department.docx Proposed Ordinance Change Chapter 22, Article II Sec. 22 -31— Department continued; purpose; organization. a. There is hereby continued in the city and for its benefit a fire department, whose mission is to prevent and suppress fires, to protect lives and property, to enforce applicable fire, building and life safety codes, and to promote the health, safety and welfare of its citizens. b. The fire department shall be administered by a fire chief, who shall be appointed by the City Council, Sec. 22.32 — Fire chief and officers. a. The fire chief shall have supervision and control of the fire department and its personnel. The fire chief shall be responsible for general policy- making and administrative control and for directing, planning, and coordinating of all activities of the fire department, including, but not limited to, fire protection and emergency response, fire prevention and safety educational services, training and safety of personnel, and fire station facilities, vehicles, and equipment assigned to the department. Specific duties of the fire chief shall be prescribed in a job description prepared by the city administrator and approved by the City Council. b. For periods of absence from the city up to 60 days, the fire chief has the authority to appoint an acting fire chief. For periods of absence longer than 60 days, the City Council shall approve the appointment of an acting fire chief. The fire department shall have officers and other management staff subordinate to the fire chief who shall assist in the management of fire department duties and functions. The fire department chain of command shall be defined in the fire department rules and regulations, administrative policies and /or operational procedures. Specific duties of officers and management staff shall be prescribed in job descriptions prepared by the fire chief and approved by the City Council. Sec. 22.33 — Personnel. a. Fire Department personnel shall perform such duties and functions as are prescribed in job descriptions which shall be prepared for each position by the fire chief and approved by the City Council. b. The City Council shall, by resolution, set the authorized on -call firefighter staffing level for the department. c. Beginning April 1, 2013, no person hired or employed by the city to fill a full -time position whose essential functions /duties include that of fire suppression and /or emergency response may also be employed as an on -call firefighter. Persons who already are both a full -time city employee with fire suppression and /or emergency response functions /duties and an on -call firefighters on April 1, 2013, shall not be affected by this section with regard to their status at that time unless they change positions. Sec. 22.34 — Rules and regulations a. The fire chief shall prepare rules and regulations, administrative policies, and operational procedures as deemed necessary for the efficient operation of the department. b. The city's personnel policies shall apply to fire department employees, including on -call firefighters and officers in their capacity as such. Any conflict between the city personnel policies and fire department rules and regulations, administrative policies and /or operational guidelines shall be decided in favor the applicable city personnel policy. Sec. 22.35. — Mutual Aid. The fire department is authorized to respond to calls for assistance outside of the city limits in accordance with its rules and regulations, administrative policies and /or operating guidelines. The council shall, by ordinance, prescribe charges to be made by the fire department for such calls and shall approve any agreements made with other governmental bodies for fire protection. Sec. 22.36 — Service fees. a. Establishment. The City Council may, by ordinance, establish fees for fire protection and /or emergency response, which are not otherwise specified by contract. Such fees may be established at a fixed rate for certain specific types of incidents or for actual costs incurred by the fire department in responding to the incident. The fire chief shall make a recommendation at least annually to the city administrator for approval by the City Council regarding the fee to be charged for each service. b. Responsibility for payment; lien for unpaid charges. Each owner of the premises receiving fire department services to which a fee is charged for fire protection and /or emergency response shall be deemed to have agreed and any delinquencies in the payment for the fire department service to the premises shall be a lien and charge against the premises so served. In case of a delinquency, the lien may be certified to the county auditor with taxes against such property, and shall be collected in the same manner as taxes against real estate. Sec. 22.38 — Firefighters relief association. 1) There is hereby continued in the city a firefighters relief association, whose function is to manage service pension benefits for on -call firefighters, which are authorized under statutes, and to provide other services to on -call firefighters of the city fire department as deemed appropriate by members of the association. - CODE OF ORDINANCES Chapter 22.- FIRE PREVENTION AND PROTECTION ARTICLE II. - VOLUNTEER FIRE DEPARTMENT .f T f€ LE, ff. - OLL) "Hft FITIE Sec. 22 -31. - Department continued% membership Sec. 22 -32. - Appointment or election of members and officers Sec. 22 -33. - Duties of fire chief. Sec. 22 -34. - Records of fires. Sec. 22-35..- Meetings. Sec. 22 -36. - Practice drills. Sec. 22 -37. - Assistant chiefs. Sec. 22 -38. - Qualifications of firefighters. Sec. 22 -39. - Compensation of members and officers Sec. 22 -40. - Response to fire calls outside city limits Sec. 22 -41. - Firefighter's relief association Secs. 22- 42- 22 -70. - Reserved. There is hereby continued as heretofore established in the city a volunteer fire department consisting of a chief, three assistant chiefs, a secretary /treasurer, and so many firefighters as deemed appropriate by the fire chief and the council; provided, however, that the total membership of the department shall not exceed 35 persons. (Cone 1982, § 206.80' State law reference— Fire department authorized, Minn. Stats. § 412.221, subd. 17. The fire chief shall be appointed by the council taking into consideration the recommendation of the members of the fire department, All other officers shall be elected by the department. Firefighters shall be appointed by the members of the department in accordance with qualifications and other requirements set forth in the fire department bylaws and this article. (Code 1982, § 206,02 (a) Generally. The fire chief shall have control of all the firefighting apparatus and shall be solely responsible for its care and condition. The fire chief shall make an annual report to the council by June on the condition of the equipment and needs of the fire department. The fire chief shall be responsible for the proper training and discipline of the members of the fire department, and may Elk River, Minnesota, Code of Ordinances Page 1 - CODE OF ORDINANCES Chapter 22 - FIRE PREVENTION AND PROTECTION ARTICLE II. - VOLUNTEER FIRE DEPARTMENT suspend any member for refusal or neglect to obey orders pending final action by the fire department members on his discharge or retention. (b) Fire lane citations. The fire chief or a designee of the fire chief shall have the power and authority to enforce the provisions of section 74 -100 (Co6e 1982, § 206.06'; i • The fire chief shall keep in convenient form a complete record of all fires. Such a record shall include the time of the alarm, the location of the fire, the cause of the fire, if known, the type of building, the name of the owner and tenant, the purpose for which the building was occupied, and the value of the building and contents, the name of the members of the department responding to the alarm, and such other information as may be deemed advisable or as may be required from time to time by the council or the state insurance department. (Cocie 1982, § 2106,08 The fire department shall meet at least once each month. Pursuant to the provisions of its bylaws, the department shall meet annually to elect officers. ;Code 1082, § 20(3.10) The fire chief shall hold as many practice drills as necessary to instruct firefighters in approved methods of firefighting and fire prevention. (Code 1982, § 206.12 In the absence or disability of the fire chief, the functions and authority of the fire chief shall be performed by the assistant chiefs, in the order of rank. (Code 1982, § 206,14) i Any ablebodied person 18 years of age or older may be eligible to become a firefighter. Each candidate, before becoming a firefighter, must satisfy certain physical agility requirements and satisfactorily pass a physical examination. (Code 1982, § 20666) �- The compensation of members and officers of the fire department shall be determined by resolution of the council. Elk River, Minnesota, Code of Ordinances Page 2 - CODE OF ORDINANCES Chapter 22 - FIRE PREVENTION AND PROTECTION ARTICLE II. - VOLUNTEER FIRE DEPARTMENT ,Code 1982, § 206.18; .: Response . fire calls outside The fire department is hereby authorized to respond to fire calls outside city limits in accordance with policies and rules established by council resolution. The council shall, by resolution, prescribe charges to be made by the department for such calls and shall approve any agreements made with other governmental body for fire protection. (Code 1982, § 2(6.20z State law reference— Authority to authorize fighting fires outside of city, Minn. Stats. § 438.08. The members and officers of the fire department may organize themselves into a firefighter's relief association in accordance with law. (Code 1982, § 20 &22 Elk River, Minnesota, Code of Ordinances Page 3 FAC U E o r CONNECTING � INNOVATING; MINNGSO"TAA SI; (A', 1913 01-1'1 LS RISK MANAGEMENT INFORMATION FIRE DEPARTMENT BYLAWS WHO'S IN CHARGE? The purpose of this memo is to discuss alternatives for handling items typically found in fire department bylaws and the appropriateness of fire department bylaws, generally. For purposes of this discussion, we'll focus on city fire departments —not independent joint powers or not -for- profit fire departments. It's important to note that the existence of bylaws does not establish a separate fire department agency. Only a joint powers agreement or articles of incorporation can accomplish this goal. Fire department bylaws have been around for as long as organized fire suppression in communities. For many fire departments, the bylaws represent not only a set of operating guidelines and rules about fire department activities, but also the spirit and camaraderie of firefighters. Typical provisions of fire department bylaws include things like how many members a fire department has, how far away from the fire hall a firefighter should live, when and how department meetings will be conducted, how new fire department members and officers will be selected, and how firefighter discipline will be handled. Fire department bylaws often address personnel matters and establish employment policies for firefighters. Regardless of a firefighter's status — whether full -time paid, paid -on -call, or volunteer — firefighters are considered city employees for most purposes, including things such as workers' compensation insurance and various employment laws. For the most part, firefighter personnel policies are better housed with the city's human resources (HR) practices and policies. While there may be certain policies that apply only to firefighters, this does not mean the fire department personnel policies should be kept separate from all other city personnel policies. Maintaining all HR practices and policies in one place will assure adequate policy updates, necessary training, and consistency among employees. Learn More Read more about important HR considerations in: HR Issues for Cities and Fire Departments This material is provided as general information and is not a substitute for legal advice. Consult your attorney for advice concerning specific situations. LEAGUE OF MINNESOTA CITIES 14.5iNIVI *i11SIIeAVI. %V[S'J PIIONI.:t6511281 -1200 rtix 4.61)2RI -1298 1 N S U 1� A N E T�(J S'l sr. rsu... NAB; 55 103 2040 r;:n i rJu r.: (800) x)2..5.1 122 WE ;: There are a few types of personnel policies in typical fire department bylaws that bear additional discussion: Age Requirements Bylaws often establish a minimum and maximum age for firefighters. A minimum age standard can be established. In fact, state law generally prohibits hiring someone under age 18 to be a firefighter, due to the hazardous nature of firefighting duties. Some minors may participate in firefighting activities as part of certain training programs authorized by state law. Establishing a maximum age for firefighters is more questionable. Federal law allows mandatory retirement for public safety officials, including firefighters, at age 55 or after. Minnesota laws are ambiguous regarding a mandatory retirement age for firefighters. A city interested in establishing a mandatory retirement age for firefighters should seek legal advice prior to implementing such a policy. Note that a city may lawfully establish a maximum age for entry into employment as a firefighter. And it's important to distinguish between minimum and maximum age limits allowed in conjunction with employment practices vs. those that may be allowed by Minnesota statutes governing relief association benefits and eligibility. Response Distance Bylaws sometimes establish a radius within which firefighters are expected to live. Cities are prohibited from requiring residency as a condition of employment. This includes and applies to volunteer firefighters. Cities can impose a reasonable response time, but it should be based on minutes rather than miles. Remember that Minnesota law requires firefighters responding to an emergency to follow all traffic laws, including posted speeds. Policies related to response time should be based on normal driving behavior. Minimum Run Standards Fire department bylaws might include a minimum number of runs firefighters need to attend in order to remain "eligible." The key question here is: Eligible for what? If this provision means eligibility for continued employment, this provision belongs with the city's other HR policies. If this means eligibility for relief association benefits, the policy should be part of relief association documentation rather than fire department bylaws. Selection Criteria and Election Practices Some departments still elect new firefighters and /or officers. The election process may require that certain minimum criteria be met before an election takes place among qualified candidates. 2 The election process in fire departments needs to be eliminated altogether. While this process may be deeply established in fire department practices, in most cities only the city council is authorized to hire employees, including volunteer firefighters. In some cities, the city manager or administrator might be authorized to hire employees. But in no case may employees be hired by a vote of other employees. In addition, an election process cannot be defended in the face of a lawsuit alleging discrimination. If a 30- year -old is elected rather than a 60 -year old, and the 60- year -old claims age discrimination, there's simply no way to prove that it wasn't a discriminatory decision if all you have is the election result. Learn More Read more about selection criteria for firefighters and election practices in: Selection Vs. Election: The Choice Is Clear It's perfectly fine —and even desirable —to have firefighters give input as to who might make a good fire department employee or officer, but ultimately the hiring decision rests outside of the firefighters, themselves. Selection criteria for firefighters —such as written exams, minimum certifications, physical fitness or agility requirements, and oral interviews —are entirely appropriate and strongly encouraged. These criteria belong with the city's other HR requirements and hiring policies. Note that elections for relief association officers are also entirely appropriate. The process being discussed here is specific to fire department elections. Job Duties Any definition of firefighter job duties belong with the city's otherjob descriptions, in HR policies. There's no reason to have job duties defined or described in fire department bylaws. Code of Conduct and Behavior Standards Bylaw provisions sometimes include appropriate behavior for firefighters, whether on- or off -duty. These standards are typically ill - defined and hard to measure, such as language requiring firefighters to "perform in a manner likely to support efficient fire operations" while on -duty; or act "appropriately" when off -duty and in public. AO Performance standards established in a code of conduct need to be measurable and applied consistently among all members of the department; and any resulting discipline needs to be handled in accordance with city policy. In short, these bylaw provisions are really employee performance criteria and belong with the city's HR policies. 3 Learn More Read more about off -duty conduct expectations in: Off -Duty Conduct: Legal Issues and Practical Solutions Discipline Many bylaws contain provisions allowing some group - maybe the executive committee of a fire department, officers, or even the whole of fire department members - to administer discipline against a firefighter for failure to follow bylaw rules or for other inappropriate behavior. It's very important that employee discipline policies be clear and applied fairly and justly across the board. Similar to hiring, only a city council or its delegee is Learn More authorized to discipline employees. Discipline by other Read more about discipline in: measures needs to be eliminated unless it's part of an Discipline and Termination in the authorized city HR policy. Under no circumstances Public Sector should the discipline of a firefighter be determined by a vote of other firefighters. Officer Roles Fire department bylaws may provide for election of officers and may define the roles of such officers. The first issue here relates back to department elections. Fire department elections need to be eliminated altogether, whether it is the election of new firefighters or officers. The issue of establishing and defining officer roles is perhaps more difficult to consider. Bylaws often set forth the typical roles of chief, assistant chief, captain, etc., but then also provide for a president, vice - president, secretary and treasurer. If there is a fire department president or vice - president, how does that role differ from the chief and assistant chief? If there is need for both roles, then job descriptions should clearly define these roles and prevent overlapping duties. And the proper place for all job descriptions is with the city HR department, not in fire department bylaws. If the purpose of these bylaw provisions is to address officers of the relief association, the appropriate place to document the roles is in relief association materials. The relief association, unlike the fire department, is a separate legal entity. Descriptions of officer positions related to the relief association should not be intermingled with matters related to the fire department. Establishing the role of a fire department treasurer is particularly concerning. Some fire departments have operated somewhat autonomously from the city. For example, some fire departments receive funds into their own checking accounts and independently authorize the expenditures of public funds. Such practices, however, are not legal. Fire departments are not allowed to have separate checkbooks under state laws governing Read more about managing relief association and city fire department expenditures of public funds. Accordingly, a fire department treasurer is truly unnecessary. 11 Bylaw Provisions Representing Management Policies and Practices Fire department bylaws are often used to codify policies and practices related to how the department is managed, such as how many firefighters are on the roster and how department meetings are conducted. While it may be entirely appropriate to seek input and support from firefighters on these kinds of decisions, there isn't a need to have these practices formalized in department bylaws. Membership Numbers Bylaws might contain a minimum and maximum number of firefighters to be on the fire department. This provision was probably implemented with a number of considerations in mind, such as the area to be served, the kinds of equipment used, whether or not the department runs EMS, etc. The problem with having a minimum and maximum number of firefighters delineated in the bylaws is that it forces a bylaw change every time there's an emerging need, and may not allow the department adequate flexibility to manage in the community's best interest. For instance, a new person may move to town with existing training and availability for day and night fires. If the fire department is at its maximum roster size, how will the new firefighter be added? There may also be concerns about dropping below the stated minimum roster size. Someone in the community could make a negligence claim based on the city's fire response if it operates below the minimum stated in bylaws. The decision about adequate roster size is certainly one to pay attention to, and to adjust accordingly with any community changes or response needs. These decisions are most appropriately made by the fire chief and city council as part of overall department management. Roster size may have different implications for the relief association membership and assets. It's important to keep the considerations of relief association business separate from fire department management and operations. Department Meetings Fire department bylaws frequently establish a regularly scheduled meeting of firefighters and the agenda format to be followed at each meeting. Some bylaws are detailed enough to specify start and end times of department meetings, and even provide for posting of fire department meetings to the public. The fire department is a part of the city, not a stand -alone governing body or corporate entity. The open meeting law does not apply to fire department meetings. In addition, there are no requirements that a fire department make decisions by majority vote, use a formal agenda for meetings, or operate according to Robert's Rules of Order. By way of contrast, the relief association is a separate entity that is subject to the open meeting law (as well as other laws and regulations, such as the data practices act) and makes decisions by vote of the board of directors. Certainly a fire department needs adequate communication among members and from the fire chief. If the chief wants to establish a regular meeting time and agenda, that's probably a good idea. If the chief wants to poll firefighters on their opinions about a particular issue, that's fine too. But these are management tools and techniques, not required bylaw provisions. Response and Scene Management Some bylaws include pretty specific scene management details, such as how many firefighters need to respond on which kind of truck, what the incident command structure should be at different types of fires, and what certain roles should be on- scene. These are, of course, very important considerations for adequate response to fires and good scene management, and critical decisions for firefighter safety. The appropriate place for these details is in the fire department standard operating procedures or guidelines (SOPS or SOGs) —not in fire department bylaws. What does this mean for fire department bylaws? Generally speaking, bylaws are the fundamental rules that define an organization, such as a non -profit entity. A city fire department is not a separate organization. Rather, it is a part or department of the city. The fire department therefore does not need its own bylaws. Bylaws may create confusion and establish unclear expectations about how the fire department is run or whether the fire department is a stand -alone agency. This does not mean that fire department policies currently contained in the bylaws are necessarily inappropriate. It may simply mean that some provisions are better placed somewhere else. The most important considerations are removing those bylaw provisions that are better placed within the city's HR policies, SOPS or SOGs. It's worth noting that if the city has a collective bargaining agreement in place for firefighters, some of these items may also be subject to contract language. It's probably true that when bylaw items have been removed and placed somewhere else, there won't be much left. Rachel Carlson, 1/11 0 Learn More Read more about city HR matters, including detailed information on minimum / maximum age requirements, response distance requirements, selection and election, job duties, codes of conduct, discipline, and more in: HR Reference Manual Your League Resource If you require additional help or have any questions about bylaws in city fire departments, you can contact a member of our research department or Rachel Carlson at 651 -281- 1200 or 800 - 925 -1122.