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| Montana Administrative Register Notice 2-Declaratory Ruling DO 2021-1 | No. 3 02/12/2021 | |
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BEFORE THE PUBLIC EMPLOYEES' RETIREMENT BOARD OF THE STATE OF MONTANA
INTRODUCTION
1. On June 11, 2020, representatives of the Montana State Firemen's Association (MSFA) appeared before the Montana Public Employees' Retirement Board (Board) pursuant to Section 19-13-115, MCA in order to discuss and advocate that the Public Employees' Retirement System (PERS) covered positions of Aircraft Rescue Firefighters/Airfield Maintenance (ARFF/AFM) workers at the Billings Logan Airport (Airport) should be reported to and included in the Firefighters' Unified Retirement System (FURS) rather than PERS. Present at this meeting were representatives of the City of Billings who took a contrary position to the MSFA regarding the inclusion of ARFF/AFM workers in FURS.
2. On June 11, 2020, at the conclusion of this disputed discussion before the Board, the Board moved unanimously to request that the parties utilize the provisions of Section 2-4-502, MCA to petition the Board for a declaratory ruling concerning whether or not ARFF/AFM meet the definition of "firefighter" under Section 19-13-104, MCA and should be reported as FURS covered positions.
3. On June 24, 2020, the Board provided the MSFA and the City of Billings with a letter detailing the formal process to be followed under Section 2-4-501, MCA, ARM 1.3.226 and ARM 1.3.227 in order to request a declaratory ruling from the Board as to whether ARFF/AFM workers qualify to participate in the FURS system under Section 19-13-101, MCA et. seq.
4. On September 21, 2020, the MSFA filed a Petition for Declaratory Ruling (Petition) with the Board requesting a ruling confirming that ARFF/AFM workers at the Airport are "firefighters" as defined under Section 19-13-104, MCA and should be classified as FURS covered positions rather than PERS covered positions.
5. On October 8th, 2020, the Board issued an order setting a briefing schedule allowing for the City of Billings to file a response brief to the MSFA's petition with the PERB by October 29th, 2020 and allowing for the MSFA to file a reply brief by November 13th, 2020. A response brief was filed by the City of Billings on October 29th, 2020 (Response). The MSFA did not file a reply brief. The Petition and the City of Billings' Response constitute the record in this declaratory ruling proceeding.
BACKGROUND
6. On October 30, 2020, the Board notified representatives of the MSFA and counsel for the City of Billings that a formal hearing would take place on the Petition at the Board's December 10, 2020 meeting.
7. On December 4, 2020 the Board issued a public meeting notice with an agenda for its December 10, 2020 meeting, including copies of MSFA's Petition and the City of Billings' Response, as well as all corresponding exhibits filed therewith.
8. On December 10, 2020, the Board conducted a hearing on the Petition and permitted both the MSFA and the City of Billings periods of time to present any additional comments or testimony in order to support the purported facts and arguments in each of their briefs. During this hearing, the Board reviewed the Petition and Response and asked questions related to each party's legal arguments concerning the inclusion or exclusion of the ARFF/AFM workers in the FURS system and the alleged facts supporting each argument.
FACTS
9. On July 1, 1946, the City of Billings entered into binding contract with the Board for PERS coverage for all employees of the City.
10. ARFF/AFM workers at the Airport perform a variety of job duties to include the repair and maintenance of airport grounds, buildings, facilities, and related equipment, and to train in and respond to aircraft and other airport emergencies which include responding to and suppressing fires.
11. Pursuant to the City's 1946 PERS contract and the provisions of Section 19-3-101, MCA et. seq., ARFF/AFM workers have been consistently reported by the City as members of PERS.
12. ARFF/AFM workers are not appointed or nominated into their position by the City of Billings Mayor or the City Administrator nor does the Billings City Council consent to the appointment of any ARFF/ARM worker. Response at Exhibit B. Rather, a hiring panel interviews ARFF/AFM worker candidates and the Airport Operations Supervisors recommend their choice to the Director of Aviation and Transit who approves or denies each ARFF/AFM hiring. Id.
13. ARFF/AFM workers must successfully pass a pre-employment drug test and complete a background check, which includes a Federal fingerprint-based criminal history and driving records check. This background check is conducted after each ARFF/AFM worker is hired in order to meet Transportation Security Administration (TSA) requirements for obtaining a security identification badge to access the secure areas of the Airport.
14. ARFF/AFM candidates are not required to complete any physical/medical examination prior to being considered for employment by the Airport. Id. In addition, ARFF/AFM candidates are not required to pass a psychological evaluation to determine if the applicant is free from any mental condition that might adversely affect the applicant's performance of the duties of a firefighter.
15. Two Airport Operations Supervisors oversee all ARFF/AFM workers at the Airport. The Airport does not have a "Fire Chief or Assistant Chief" that provides supervision over the ARFF/AFM workers.
ANALYSIS
16. The Board "shall provide by rule for the filing and prompt disposition of petitions for declaratory rulings as to the applicability of any statutory provision…" Section 2-4-501, MCA. The ruling shall be published pursuant to Section 2-4-501, MCA, and is subject to judicial review in the same manner as decisions or orders in contested cases. Id.
17. The Board has adopted the Attorney General's Model Procedural Rules governing declaratory rulings as provided in ARM 1.3.226 through 1.3.229. ARM 2.43.1401. "A party may seek a declaratory ruling from the agency when doubt exists as to how a statute or rule administered by an agency affects the party's legal rights." ARM 1.3.226.
18. A retirement plan and pension trust fund is established and maintained for FURS. Section 19-13-103, MCA.
19. The FURS retirement plan is an Internal Revenue Service, tax-qualified plan under Section 401(a) of the Internal Revenue Code.
20. As provided for in Article VIII, Section 15 of the Montana Constitution the Board must administer the FURS trust fund as "fiduciaries of system participants and their beneficiaries." Mont. Const. Article VIII, Section 15.
21. This fiduciary duty of the Board requires it to administer the FURS trust subject to the provisions of Title 19, chapters 2 and 13 of the Montana Code Annotated. Section 19-2-502, MCA. FURS members, and specifically FURS membership eligibility requirements, are subject to the provisions of these chapters and the rules that the Board is authorized to establish for the administration, operation, and enforcement of FURS. Sections 19-2-402 and 19-2-403, MCA.
22. Participation in FURS is mandatory for cities of the first and second class that employ full-paid firefighters. Section 19-13-210, MCA.
23. Billings is classified as a first class city pursuant to Section 7-1-4111, MCA and all firefighters employed by the City of Billings Fire Department are members of FURS.
24. The term "firefighter" in FURS is defined as "a person employed as a full- paid or part-paid firefighter by an employer." Section 19-13-104(5), MCA.
25. Both "full-paid" and "part-paid" firefighters must be appointed pursuant to Section 7-33-4106, MCA as a firefighter meeting the standards provided in Section 7-33-4107, MCA. Sections 19-13-104(6) and (10), MCA.
26. Section 7-33-4106, MCA provides that "The mayor or manager shall nominate and, with the consent of the council or commission, appoint the chief of the fire department, the assistant chief or chiefs of the fire department, and all firefighters." Section 7-33-4106, MCA.
27. Section 7-33-4107, MCA provides the qualifications for firefighters and holds that to qualify as a firefighter, an applicant: "(1) must be a citizen or lawful permanent resident of the United States; (2) must be at least 18 years of age; (3) must be a high school graduate or have been issued a high school equivalency diploma by the superintendent of public instruction or by an appropriate issuing agency of another state or of the federal government; (4) must possess or be eligible for a valid Montana driver's license; (5) shall pass a physical examination by a qualified physician, physician assistant, or advanced practice registered nurse, who is not the applicant's personal physician, physician assistant, or advanced practice registered nurse, appointed by the employing authority to determine if the applicant is free from any mental or physical condition that might adversely affect the applicant's performance of the duties of a firefighter, including requirements described in 7-33-1902; (6) must be fingerprinted and a search must be made of the local, state, and national fingerprint files to disclose any criminal record; and (7) may not have been convicted of a crime for which the applicant could have been imprisoned in a federal or state penitentiary."
28. The physical examination required under Section 7-33-4107(5), MCA "must be in writing, and a written determination of the examination must be filed with the city or town clerk. The determination of the examination must disclose the ability of the applicant to perform the physical work usually required of firefighters in the performance of their duty." Section 7-33-4108, MCA.
RULING
29. The Board declines to issue the declaratory ruling sought by the MSFA that Aircraft Rescue Firefighters/Airfield Maintenance (ARFF/AFM) workers at the City of Billings Logan Airport are "firefighters" as defined under 19-13-104, MCA and are legally entitled to participate in the Firefighters' Unified Retirement System (FURS).
30. ARFF/ARM workers do not meet the minimum qualifications under Sections 7-33-4106 and 7-33-4107, MCA in order to meet the definition of "firefighter" as defined under 19-13-104(5), MCA. Specifically, they do not meet the minimum statutory prerequisites and qualifications under Sections 7-33-4106 and 7-33-4107, MCA.
31. ARFF/AFM workers are not appointed or nominated into their position by the City of Billings Mayor or the City Administrator nor does the Billings City Council consent to the appointment of any ARFF/ARM worker as required by Sections 19- 13-104(5), (6), (10), and 7-33-4106, MCA.
32. ARFF/AFM candidates are not required to complete a physical/medical examination prior to being considered for employment by the Airport as required by Sections 19-13-104(5), (6) and (10), and 7-33-4107(5), MCA. In addition, ARFF/AFM candidates are not required to pass a psychological evaluation to determine if the applicant is free from any mental condition that might adversely affect the applicant's performance of the duties of a firefighter. Id.
33. For the reasons stated above, ARFF/AFM workers are being properly classified and reported by the City of Billings as PERS covered employees as they do not meet the statutory definition of "firefighter" under 19-13-104(5), MCA of FURS.
DATED this 1st day of February 2021.
MONTANA PUBLIC EMPLOYEES' RETIREMENT BOARD
/s/ Sheena Wilson SHEENA WILSON, PRESIDENT
/s/ Maggie Peterson MAGGIE PETERSON, VICE PRESIDENT
/s/ Robyn Driscoll ROBYN DRISCOLL
/s/ Dave Severson DAVE SEVERSON
/s/ Aaron Pratt AARON PRATT
/s/ Terri Hogan TERRI HOGAN
NOTICE: Petitioner has the right to appeal this ruling by filing a petition for judicial review in district court within 30 days after service of this decision. Judicial review is conducted pursuant to § 2-4-702, MCA.
CERTIFICATE OF MAILING
The undersigned hereby certifies that on the 1st day of February 2021, a true and correct copy of the foregoing was served by placing same in the U.S. mail, postage prepaid, addressed as follows:
Gina Dahl Assistant City Attorney City of Billings P.O. Box 1178 Billings, Montana 59103
George A. Richards, President Montana State Firemen's Association 200 N. Montana Avenue Helena, Montana 59601
Ricky J. Walsh IAFF 7th District VP P.O. Box 5604 West Richland, WA 99353
/s/ Kris Vladic KRIS VLADIC Program Specialist
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