Attorneys for the Town of South Hill and the South Hill Volunteer Fire Department have determined that no employment laws are being broken at the department.
Concerns were raised by Town Manager Kim Callis in a May meeting between himself, Fire Chief Vaughn, Human Resources Manager Carol Hutchens, fire department officers, and the South Hill Fire Committee, consisting of Chairman Lillie Feggins-Boone, Delores Luster, and Shep Moss.
At that May meeting Feggins-Boone and Callis both spoke up and said that laws were being violated at the department.
“So the Department of Labor said that we are violating laws?” asked Vaughn. He continued, “So you have to tell me which laws we are violating because you have talked to the Department of Labor.”
Callis later said that he had not contacted the Department of Labor and did not want to. He said that the Town had received information that there were possible violations being committed involving the Fire Chief holding a paid position as the Fire Administrator and paid employees running fire calls while clocked in.
The fire department currently employees two full-time staff members, Administrator Michael Vaughn and Maintenance Tech, Brandon Vaughn.The part time employees work three eight hour shifts a month. They are contracted through the department and receive 1099 tax forms at the end of the year.
As the Fire Administrator, Vaughn oversees “all administrative functions of the fire department; prepares and maintains Town reports and records; maintains incident reports; prepares workers’ compensation, personnel, vehicle maintenance, and other records; manages claims processing activities; provides input for annual budget process; prepares purchase orders and invitations for bid and requests for proposals; and approves invoices for payment”.
Callis said that he and Hutchens believed that “when you have paid staff during the day and they respond to fires and do whatever they do and then after their paid shift is over when they volunteer and go to fire calls after hours that is a violation of fire department regulations and they should be paid for that”.
In 1986, the Town Council approved hiring a town employee to work at the fire department for 8 hour a week to handle necessary paperwork at the department. In 1994, Council approved the hiring of a maintenance worker/ mechanic to handle vehicle and equipment preventative maintenance along with other custodial responsibilities.
Chief Vaughn asked when did Callis decide that it was a problem since it has been done since 1986 and again in 1994 with the hiring of a second full-time employee. “We were concerned about the Chief and the Administrator being the same person and so we were looking into that,” said Callis.
Vaughn pointed out that a response from Missy York, at that time, stated that she was not in a position to advise the best course of action to identify the potential liabilities. “The Town of South Hill and The South Hill Volunteer Fire Department need to assert certain levels of risks in which they are comfortable because the analysis is not based on a fact specific situation and we do not know for sure what the Department of Labor would determine.”
In a joint memorandum from both the Town attorney, Missy York with Harman, Clayton, Corrigan, Wellman and Fire Department attorney Randy Sparks with Kaufman & Canoles, it stated that the “Fair Labor Standards Act (FSLA) requires that employees be paid minimum wage for all hours worked and paid overtime at a rate of 1.5 times the regular pay rate for all hours worked in excess of 40 hours in a week. However, the FSLA allows employees of public agencies of a state or local government to volunteer to perform services for the public agency if: (1) the employee provides such services without promise, expectation, or receipt of compensation (except expenses, reasonable benefits, or nominal fee); (2) the employee offers his/her services freely”.
Based on the definition provided by the FSLA, both attorney’s determined that the South Hill Volunteer Fire Department is not a public agency.
On February 18, 1984, the South Hill Volunteer Fire Department became incorporated as a nonstock corporation with the Virginia State Corporation Commission and is considered a non-profit organization responsible for running itself.
The department and it’s elected officers establish its own requirements for maintaining membership. Currently all members are required to attend a minimum percentage of calls each year and obtain 36 hours of training.
Each year the department receives $80,000 from Mecklenburg County and $45,000 from the Town of South Hill to use towards debt services for Town owned apparatus’, and $90,000 as a call stipend for members. All other funds for the department are obtained through fundraising, grants, billing for services.
The Town of South Hill has a budget of over $630,000 for the fire department operations, including fire department employee salaries, fuel cards for each piece of equipment, and insurance and maintenance for town-owned equipment.
Currently, 54% of SHVFD’s calls for service are within the Town of South Hill. The remaining 46% are in other parts of Mecklenburg County, along with Brunswick, Lunenburg, and other surrounding localities due to a mutual aid agreement created by the Fire Chiefs Association.
Because the fire department is not a “public agency”, the attorneys stated that there was no need to consider the additional questions or whether the Town and SHVFD constitute the “same public agency” and whether the Town employees provide the “same type of services” when volunteering for the SHVFD.”
The memorandum stated, “Because SHVFD is not public agency- and certainly is not the same public agency as the Town- the Fire Administrator, Fire Maintenance Technician, and any part-time employees of the Town may volunteer, even if providing the same types of services performed for the Town, with the SHVFD. There would be no FLSA violation that could potentially expose the Town to liability of back wages, overtime compensation, and penalties.”
Both attorney’s recommend:
- The Town “convert the individuals hired by Mr. Callis to provide daytime coverage from independent contractors to part-time employees, allowing the Town to continue to provide the coverage needed during the day, when volunteers are less available.
- The Town smodify the current job descriptions for the Fire Administrator and Fire Maintenance Technician. As of now, the job description for the Fire Administrator, Michael Vaughn, reports directly to the Fire Chief, also Michael Vaughn. “A Town employee cannot report to someone elected by a separate non-profit entity. The Fire Administrator, like other Town employees, should have a supervisor within the Town.” The report went on to say that both attorney’s agree that currently the Fire Administrator position is classified properly as exempt under the FLSA and that the Town should make sure that it stays that way. The Town should also adopt time keeping procedures for the Maintenance Technician and any part-time employees.
- The Town repeal the local ordinance requiring the Fire Chief and other officials in the SHVFD to reside within the Town’s limits. “By repealing the statute, the Town would eliminate a provision that could be seen as exercising control over the SHFVD, which they cannot, and would further enhance the legal analysis that the SHVFD is a separate legal entity, and not a public agency.”
Fire Chief and Administrator Michael Vaughn says that he would prefer not to respond to any request for comment, but wishes to focus his attention on his responsibilities serving the people of South Hill.
When asked to provide the attorney’s response to the labor law concerns, the Town said “the attorney does not have a comment”.