Elizabeth Regan
The Day, New London, Conn.
SALEM, Conn. — The Gardner Lake Volunteer Fire Company made all households here aware of its legal dispute with the town by sending them a seven-page mailer this past weekend.
“Encourage them to sit down with us and prioritize reaching an agreement to continue services to protect the health and safety of the citizens of the town of Salem, and its visitors,” the fire company said about the Board of Selectmen.
The mailing, signed by President Cheryl Philopena and Fire Chief Pete Silva, alleged that the imminent termination of an emergency services agreement between the town and the Gardner Lake fire company — which was canceled by selectmen in a 4-0 vote last September, effective June 30 — creates a “massive liability and public safety risk” with far reaching effects.
“The members of the Board of Selectmen have knowingly put the town, and subsequently, the taxpayers, in this position, by canceling the agreement without cause, and failing to negotiate a new agreement,” the company said in the mailing.
Philopena and Silva said the termination of the agreement could “potentially” affect the fire company’s ability to respond to fires. They also said it could affect the town’s costs for liability, worker’s compensation and vehicle insurance as well as residents’ costs for insurance if the town is not able to meet its statutory requirements to provide ambulance and fire protection services.
Salem has two fire companies made up of volunteers and employs two firefighters on weekdays.
First Selectman Kevin Lyden was adamant Monday that there will be “no interruption in service” due to the lack of an agreement. The $4.19 million 2021-22 government operations budget approved by voters in May includes $46,685 for ambulance services and $71,300 for the two fire companies.
Included in those funds is roughly $50,000 for a “nominal fee” to compensate three ambulance volunteers per shift on the weekends at $30 per person. Lyden also specified in a June 16 letter to Philopena and Silva that the town will not ask for the return of any motor vehicles, trucks, trailers or watercraft because officials hope to negotiate a new agreement with the fire company.
“The equipment’s there, the nominal fees are being paid. The insurance is being paid. We’re providing the full-time firefighters that are working out of their station and [ Salem Volunteer Fire Company]. We’re providing all those things,” Lyden said.
The Gardner Lake Volunteer Fire Company is a nonprofit incorporated in 1956, owns its own building and ambulance and has its own bylaws and board of directors. While it relies on some town funding, the organization says it provides emergency services as an independent corporation and not a public agency or town department. Conversely, the Salem Volunteer Fire Company does not have an ambulance and its firehouse and the land it sits on is owned by the town.
The Gardner Lake Volunteer Fire Company last April filed suit against the town seeking to recover funds, currently calculated at $40,940, that the organization says it needs to run the ambulance service when paid personnel are not on duty. The funding issue is connected to the dispute over Lyden’s decision last year to bar its two paid firefighters from also serving as volunteers.
The disagreement hinges on conflicting interpretations of the federal Fair Labor Standards Act, which states employees of a public agency cannot volunteer to provide their employer the same services they are being paid to perform.
Lyden points to a legal opinion from town attorney Brian K. Estep, advising officials that a paid firefighter who works at one of the town firehouses by day and volunteers at night — or on weekends — would be working for the “same public agency” and would thus run afoul of the federal law.
Lyden said the law exists to protect paid employees who could potentially feel pressured to perform unpaid work as a condition of employment if the federal protections were not in place.
The Gardner Lake volunteers, represented by attorney Jacques Parenteau, argue they are independent agencies and are not subject to the law.
The suit could have implications for other towns seeking to adhere to federal labor laws and volunteer departments like Gardner Lake who claim they are independent agencies and not subject to the law. Most towns in eastern Connecticut cannot afford fully paid departments and rely on volunteers.
Philopena on Monday told The Day the funds they are seeking through the lawsuit cover the difference between the $40 “nominal fee” the ambulance company pays out to its volunteers and the $30 reimbursed by the town. She said the volunteers and the fire marshals last year agreed the higher amount would bring the Gardner Lake volunteers to the same level paid out by the town to the Salem fire company’s stipended weekend volunteers, though the agreement was never finalized.
She said the agreement has been awaiting Lyden’s review and approval for 15 months, but the fire company has gotten no response.
The company began paying the stipends directly from its ambulance funds in September 2019 as part of an effort to further insulate the independent organization from the town in accordance with the federal law, according to Philopena. The organization would then invoice the town for reimbursement. She said Gardner Lake paid out $40 instead of $30 — even though the town had not approved the new rate — because “it was fair” to the volunteers.
Lyden said selectmen decided while meeting with the fire marshals in executive session last summer that they were not necessarily in disagreement with the draft stipend agreement reached by the Gardner Lake representatives and the fire marshals — but that the selectmen wanted to “keep it as it is right now” while the lawsuit is pending.
The first selectman also cited the lawsuit as part of the selectmen’s motivation in cancelling the town’s emergency services agreement with the Gardner Lake fire company when they did.
Lyden said the town has asked the company to negotiate changes to the agreement “numerous times” in the past.
“But the lawsuit did, probably, get in the way of negotiations,” he said.
Philopena said the ambulance company’s proceeds, which would normally go toward the purchase of a new ambulance, is now being used to pay the stipends they say are owed to them by the town and to cover legal fees.
“I just wish somebody could tell me why it was so difficult to sit down and talk about this when none of this money had to be wasted,” she said.
Parenteau, the Gardner Lake fire company attorney, said the public needs to know what’s going on.
According to the state Judicial Branch website, a trial will not occur until June 2022 — if it comes to that.
“There are many forums to resolve disputes and one of the forums is the public, the market square,” he said. “Let’s get the debate out there; let’s let the people settle it between themselves, because the court system is expensive and it’s long.”
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