BEFORE THE PUBLIC EMPLOYEES' RETIREMENT BOARD

OF THE STATE OF MONTANA

 

In the matter of the Montana State Firemen's Association's Petition for Declaratory Ruling that the Billings Logan International Airport firefighting staff qualify to participate in the Montana Firefighters' Unified Retirement System

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Docket No. DO 2021-2     DECLARATORY RULING

 

INTRODUCTION

 

            1.  This matter comes before the Montana Public Employees' Retirement Board (Board) upon the Montana State Firemen's Association (MSFA) Petition for Declaratory Ruling, requesting that the Board revisit its February 2021 Declaratory Ruling that the Aircraft Rescue Firefighters/Airfield Maintenance (ARFF/AFM) workers at the Billings Logan Airport (Airport) do not meet the statutory definition of "firefighter" at 19-13-104, MCA.  The petition requests a reconsideration of the Board's original ruling of February 1, 2021 (Docket No. DO 2021-1), on the grounds that correction of a prior, incorrect decision based upon the assessment of new or overlooked evidence or authorities would give cause to issue a new ruling.

            2.  Having agreed to consider the MSFA petition, the resulting briefs and attached exhibits, as well as the Board's deliberations at the October 2021 meeting, constitute the record in this declaratory ruling proceeding. 

 

BACKGROUND

 

            3.  On June 11, 2020, representatives of the MSFA appeared before the Board pursuant to 19-13-115, MCA, in order to discuss and advocate that the Public Employees' Retirement System (PERS) covered positions of ARFF/AFM workers at the Airport should instead be reported to and included in the Firefighters' Unified Retirement System (FURS).  Present at this meeting were representatives of the City of Billings who opposed the MSFA's petition.

            4.  At the conclusion of this discussion, the Board moved unanimously to request that the parties utilize the provisions of 2-4-501, MCA, to petition for a declaratory ruling concerning whether the ARFF/AFM meet the definition of "firefighter" under 19-13-104, MCA, and are thus required to be reported as FURS covered positions.  In accordance with this request, the MSFA filed a Petition for Declaratory Ruling with the Board on September 21, 2020.  The Board responded by issuing an order on October 8th, 2020, setting the remainder of a briefing schedule.

            5.  Following briefing, the Board concluded in a February 1, 2021, Declaratory Ruling that the ARFF/AFM in Billings do not meet the statutory definition of "firefighter" under 19-13-104, MCA, because (1) they do not take a physical and mental exam under 7-33-4107(5), MCA, and (2) they are not "appointed" into their positions pursuant to 7-33-4106, MCA.

            6.  The MSFA filed a Petition for Judicial Review in the First Judicial District, Lewis and Clark County, on March 3, 2021.  Prior to any action being taken on the petition by the District Court, the MSFA filed an unopposed Motion to Stay and Brief in Support, which argued that under 19-13-115, MCA, the MSFA has a statutory role in advising the Board on FURS-related matters and that a petition for a second declaratory ruling based in part upon this role could obviate the need for judicial review.  The District Court granted a stay pending resolution of any future proceedings before the board on March 17, 2021.

            7.  On March 29, 2021, the MSFA filed the immediate Petition for Declaratory Ruling with the Board requesting a reconsideration of the Board's February ruling.

            8.  In July of 2021, the Board issued an order requesting three rounds of briefing.  The parties' briefing was concluded on August 27, 2021, and the Board considered the arguments at its October 7, 2021 meeting.

 

FACTS

 

            9.  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.

            10.  ARFF/AFM minimum qualifications state that successful applicants must be able to obtain a Class B, Type II Commercial Driver's License (CDL) within 90 days of hire.  CDL applicants, in turn, must undergo a physical examination by an independent medical provider to certify that the applicant is physically qualified to operate a commercial motor vehicle and has no condition that would interfere with the ability to perform normal tasks associated with operating such a vehicle.  The City of Billings contracts with St. Vincent's Healthcare to conduct these CDL examinations, which consist of the following: height and weight measurement; blood pressure check; an audiogram (hearing); a vision and color vision test, urinalysis; and a physical examination by the provider.

            11. City of Billings firefighter candidates are also required to undergo a medical examination at St. Vincent's Healthcare prior to hiring, which includes: height and weight measurement; blood pressure check; an audiogram (hearing); a vision test; an electrocardiogram (rhythm and electrical activity of the heart); a pulmonary function test; two-way chest x-ray and cervical spine x-ray; a wellness blood panel that includes a complete blood count, metabolic panel, lipid panel, thyroid panel, and prostate-specific antigen panel for men over 50; and a physical examination by the provider.

 

ANALYSIS

 

            12. 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…"   2-4-501, MCA.  The ruling shall be published pursuant to 2-4-501, MCA and is subject to judicial review in the same manner as decisions or orders in contested cases. Id.

            13. 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.

            14.  A retirement plan and pension trust fund is established and maintained for FURS. 19-13-103, MCA.

            15.  The FURS retirement plan is an Internal Revenue Service, tax-qualified plan under Section 401(a) of the Internal Revenue Code.

            16.  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.  

            17.  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.  19-2-502, MCA.  FURS members and membership eligibility is determined by the provisions of these chapters and the rules that the Board is authorized to establish for the administration, operation, and enforcement of FURS.  19-2-402 and 19-2-403, MCA.

            18.  Participation in FURS is mandatory for cities of the first and second class that employ full-paid firefighters.  19-13-210, MCA.

            19. Billings is classified as a first class city pursuant to 7-1-4111, MCA, and all firefighters employed by the City of Billings Fire Department are members of FURS.

            20. The term "firefighter" in FURS is defined as "a person employed as a full-paid or part-paid firefighter by an employer."  19-13-104(5), MCA.

            21. Both "full-paid" and "part-paid" firefighters must meet the standards provided in 7-33-4107, MCA.  19-13-104(6) and (10), MCA.

            22.  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."

            23.  The physical examination required under 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."  7-33-4108, MCA.

            24.  The regulation that gives rise to the physical examination requirement to obtain a CDL, however, includes prefatory language introducing those physical requirements to indicate that the purpose is to determine whether "a person is physically qualified to drive a commercial motor vehicle[.]" See 49 CFR § 391.41(b).

            25.  The differing purposes of these respective examinations are illustrated by the fact that the CDL-specific exam does not include an electrocardiogram; a pulmonary function test; two-way chest x-ray and cervical spine x-ray; or a wellness blood panel that includes a complete blood count, metabolic panel, lipid panel, thyroid panel, and prostate-specific antigen panel for men over 50.

 

RULING

 

            26. In making declaratory determinations pursuant to 2-4-501, MCA, it is not the role of the Board to insert what has been omitted or to omit what has been inserted. See 1-2-101, MCA. When interpreting a statute, the Board must presume the Legislature would not pass useless or meaningless legislation. Rogers v. Lewis & Clark Cty., 2020 MT 230, ¶ 32, 401 Mont. 228, ¶ 32, 472 P.3d 171, ¶ 32. The Board cannot ignore that the Legislature chose to include the requirement that—prior to hire—a firefighter candidate must undergo an examination to determine whether the applicant is free from any mental or physical condition that might adversely affect the applicant's performance of the duties of a firefighter. This examination is distinctly different from that performed on a CDL applicant to determine whether that person is physically qualified to drive a commercial motor vehicle.

            27. Accordingly, ARFF/ARM workers do not meet the minimum qualifications under 7-33-4107, MCA, in order to fall within the FURS-specific definition of "firefighter" set forth in 19-13-104(5), MCA.  Specifically, they do not meet the minimum statutory qualification within 7-33-4107(5), MCA, that they are determined to be "free from any mental or physical condition that might adversely affect the applicant's performance of the duties of a firefighter[.]" 

            28. Accordingly, the Board affirms its prior declaratory ruling that that Aircraft Rescue Firefighters/Airfield Maintenance (ARFF/AFM) workers at the City of Billings Logan Airport are not "firefighters" within the meaning of 19-13-104, MCA; and therefore, are not legally entitled to participate in the Firefighters' Unified Retirement System (FURS).

            29.  For the reasons stated above, ARFF/AFM workers are being properly reported by the City of Billings as PERS-covered employees.  

 

DATED this 9th day of December 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/ Richard Hickel                                        

RICHARD HICKEL

 

/s/ Sonja Woods                                          

SONJA WOODS

 

/s/ Terry Halpin                                           

TERRY HALPIN

 

 

 

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 9th day of December 2021, in addition to an electronic copy sent by email, a true and correct copy of the foregoing was served by placing same in the U.S. mail, postage prepaid, addressed as follows:

 

Raph Graybill

Graybill Law Firm, PC

P.O. BOX 3586

Great Falls, MT 59403

 

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

 

 

 

                                                            /s/ Kris Vladic

                                                            KRIS VLADIC

                                                            Program Specialist