Minor car maintenance may be allowed
In the continuing discussion about what activities city of Scandia employees can and cannot do, the next step is up to Mike McCain, lead employment attorney at Eckberg Lammers. McCain attended the June 4 council meeting after a new policy proposal discussed in April and May met with resistance.
The proposed policy would have banned workers from using city equipment for personal reasons. Washing personal vehicles, tuning engines and rotating tires would also be forbidden.
At the June 4 meeting, McCain said prohibiting personal or private use of city equipment was important from a liability standpoint. The city must ask, he said, if there is a public purpose for providing these perks, whether will it benefit the community and whether it is directly related to a function of government. An activity must not have as its primary purpose the benefit of a private individual, so washing vehicles “is not really allowed under state law,” he concluded.
Maintenance Superintendent Tim Kieffer encouraged some use of city tools by workers. He learned welding by using city equipment on site after hours, he said, which benefits the department.
Members of the fire department had argued that firefighters working on their vehicles at the fire hall were also required to perform fire department tasks, and that their presence at the fire hall reduced emergency response times.
McCain said the city must look at public purpose, expenditure and exposure.
“What if they get hurt?” he asked. “The city’s expense is significantly increased. Insurance policy costs will increase. Were they on work time or off work time? The exposure completely outweighs the camaraderie.”
Asking firefighters to sign a liability waiver would not help, he said, because “you can’t waive your rights to workers compensation through Minnesota law.”
If firefighters are required to do other job duties, he asked, should they be paid for the time they’re at the fire station?
And if light car maintenance is a fringe benefit, he said, it’s a taxable event if valued at more than $100.
The cities of Minneapolis, Plymouth and Woodbury do not allow activity such as car maintenance, he added.
“I recommend a straight-line policy,” he concluded. “When you get into exceptions, you muddy the water.”
Several firefighters addressed the council. Fire Chief Mike Hinz argued that crew members are expected to clean and repair their own gear.
“If we have to pay their wages any time we walk into that building, that would exorbitantly outpace any insurance increase,” he said.
“If we go with straight-line, across the board, everything will be hired out,” he said. “I don’t see how this will serve the city or improve the Fire Department at all.”
Scandia firefighters are referred to as volunteers, even though they are paid to respond to fires, traffic accidents and medical calls. “Volunteer” refers to the fact that they have other occupations and join the department as a service to the community.
The employment attorney keyed in on the requirement that firefighters do chores in the fire hall.
“If they’re required to perform work, are they volunteers or part-time employees?” he asked. “When you bring people to the fire hall and ask them to do work, what is the city’s liability?”
Other questions concerned use of the exercise equipment provided for firefighters.
“It makes sense for a firefighter to be fit,” Council Member Sally Swanson pointed out. She asked if firefighters are on the clock when they exercise.
“These are very gray issues,” McCain replied. “I would say no in that situation.”
When Council Member Jim Schneider reiterated his preference that the city leave it up to the supervisors to decide what employees can do, McCain said it’s harder to administer different policies and procedures and leads to more liability exposure for the city.
“If you have a policy, make sure it applies across the board,” he advised.
Hinz, the fire chief, urged the use of the “in-kind donations” idea, saying the city donates to the Lions the use of a city building because the Lions donated the kitchen at the community center.
“The Lions are not employees,” City Administrator Kristina Handt responded.
Assistant Chief Bill Havener asked, “Does this mean we’re not volunteers?”
“You’re paid an hourly wage,” Handt said. “You are part-time, paid-on-call employees.” If firefighters are doing work required by the department, they should put it on their payroll, she suggested.
“The budget for the fire hall will double” if that happens, Hinz warned.
McCain said state public expenditure laws apply, and any resident could bring a test case, causing the city to justify its policy before the courts.
Havener countered that in 56 years there have been no liability issues. He also objected to the comparison to departments like Minneapolis, which have full-time employees.
“Compare us to Marine, Lindstrom and Forest Lake,” he urged.
Training Captain Bill Boyd wondered if the city has to have a written policy.
“Are we trying to fix something that’s not broken?” he asked.
One firefighter said he has put gas in his car and done the maintenance on his own to respond to many calls over his 15 years on the department.
“Am I covered in my vehicle?” he asked. “Or does it come out of my pocket?
Concerning the exercise equipment, he said, fire departments encourage working out. A firefighter is more likely to die after the fire is over, at home, because of the stress, he said.
“If I work out to prevent that, should I be on the clock when I’m working out?”
When asked if people other than firefighters can use the exercise equipment in the fire hall, Hinz said spouses can use it with their husbands, “because it gets their husbands to work out.”
Instead of adopting a policy that limits firefighter activities, Council Member Swanson told the firemen, she would like to accommodate their wishes. But she will not put the city in jeopardy.
“We know you go above and beyond,” the councilwoman said. “We’re put in a position we don’t want to be in. I wish it had never gone this far. But I have to listen to the city attorney.”
The meeting would have continued in this vein but for the presence of Jim Finnegan. The former Scandia fire chief explained to the attorney that Scandia firefighters drive their own cars and pickup trucks to fires and medical emergencies.
“We use our vehicles for direct response to benefit emergency life and death situations,” he said. “So that does change the parameters, because they use their personal vehicles for the job.”
That would be the best reason to make an exception in the policy to allow firefighters to do car maintenance, McCain said. From a liability standpoint, the attorney said, the city is on the hook if a firefighter gets hurt changing a tire in the fire hall. Yet having a vehicle in working order to respond to disasters is the most compelling reason to allow car maintenance.
“That could be your loophole,” he said, “but you still have to limit your exposure.”
Finnegan also asked if a firefighter would be covered under the city’s insurance if he gets his car wrecked when responding to an emergency.
“And should we be paying them the state rate for mileage?” he asked.
Hinz said the alternative to having firefighters drive their personal vehicles to emergencies would mean “driving past the guy that’s dying to go to the fire hall.”
Finnegan urged the council to consider the bigger picture.
“We’ve always been a family culture, a brotherhood,” he said. “We do stuff together with families and kids. We still need these people to respond to emergency situations. We don’t create emergencies. We come to mitigate them, to give people a hand.”
Firefighters use not just their own vehicles to benefit the community, he said, but also their own equipment, such as tools they carry in the car, to help people in trouble.
“You’re going down the wrong road here,” he said. “The City Council should be directing supervisors to benefit the community.”
If the fire chief takes his car to the scene of an accident, Finnegan said, he is entitled to rinse the mud off his vehicle later.
“I agree there is liability,” he said. “The city should get a liability policy to cover all firefighters.”
“I didn’t know they were using personal vehicles to go to a fire,” McCain said. “I could potentially craft a policy to meet that. There are still questions about liability exposure. My job is to do what’s in the best interests of the city.”
Finnegan pointed out that washing a car is a lot less dangerous than fighting a fire.
“They have the right to file a workers comp claim. So why is that an issue if they do, if maintenance on the vehicle is work-related?” he asked.
The council directed McCain to draft a policy that allows minor vehicle maintenance (including washing), makes the department supervisor responsible for enforcing the policy and includes a statement explaining the public policy purpose of the rules.
After the new policy is drafted, the fire chief and maintenance superintendent will discuss it with the city administrator before it goes to the council.
The new proposal is expected to be on the agenda for the Aug. 6 council work session.