NEWBURY – The Board of Fire Engineers has rejected wording in a proposed job description drafted by the town’s lawyer as a way to legally allow firefighters over 65 years old to continue serving on the force.
The specific language that Fire Engineers found objectionable prohibits the department’s most veteran staff from operating equipment and fighting fires. But when they removed the language from the draft document, Town Counsel Ginny Kremer balked, saying their changes were unacceptable from a legal standpoint.
Selectmen reviewed the issue with Town Administrator Tracy Blais last week, but ultimately tabled taking any action until Kremer and members of the Fire Board are all together in one room to discuss it.
Kremer and the Fire Engineers have been at odds over this issue since last June when she told selectmen that the town faced a possible liability if it continues its practice of employing firefighters after they turn 65 years old.
The Fire Board previously voted unanimously to allow firefighters to stay on the force until they reach 70 years of age.
But according to state statute if a municipal employee’s job title is “fireman” then he or she “must retire at age 65,” Kremer said. Even if in practice the person does not actually fight fires, if it is in his or her job description, “that’s where the problem is,” she said.
After much discussion, the Fire Engineers and selectmen agreed to create a new “senior support staff” position that would give veteran firefighters a way to continue offering their expertise to the department.
But, at the same time, Selectman Michael Bulgaris, a long-time firefighter, also called for a home rule petition of the state Legislature to allow members to remain in active duty until the age of 70. He cited similar petition efforts in Merrimac Georgetown and Chelmsford. The action will require approval at Town Meeting next spring.
Selectman Geoff Walker agreed with Bulgaris that the issue should be brought to Town Meeting floor, but felt that, in the meantime, it was important to limit the town’s liability.
Colleague David Mountain stressed that while the Board of Selectmen has always been supportive of the fire department, he also has a lot of respect for town counsel’s opinion. His job is to keep the town’s exposure to liability as low as possible, Mountain said.
Bulgaris argued that the town faced more liability having an inexperienced operator running fire equipment without the benefit of a more veteran firefighter at the scene.
“I think there is more exposure to the town by not having them on the department than by having them,” he said.
But Mountain noted that Bulgaris, as a firefighter, has a vested interest in seeing it the way he does.
“That’s your opinion…none of us our lawyers,” he told his colleague, to which Bulgaris responded that a lawyer’s opinion is not conclusive until it is adjudicated in court.
Walker pointed out that selectmen have followed town counsel’s recommendations on other topics and shouldn’t just “pick and choose” the legal opinions they wished to follow.
At a selectmen’s meeting in August, attorney Lisa Mead, who was acting as town counsel that night, argued that any new job description must demonstrate a clear difference to the public between the responsibilities and uniforms of the new senior support staff and those of the regular firefighters.
Fire Chief Bill Pearson said at the time that Fire Engineers would agree to alter the job description for these older firefighters – including prohibiting them from participating in any active fire suppression. They would be called “support personnel” and wear a uniform that visibly distinguishes them from a regular firefighter.
But at a meeting last Tuesday, Pearson had a slightly different recollection. According to him, Mead had said that the firefighters would wear vests and be called something else, but their responsibilities wouldn’t change.
Blais questioned Pearson’s recollection, saying, “That’s not what was said. I think (town counsel) has been consistent all along.”
She then reiterated for selectmen that when she contacted the town’s insurance company about the possibility of liability associated with the town’s current practice, its response was clear.
“They told me ‘we recommend that you follow the law,’” Blais said.