SAN JUAN COUNTY FIRE PROTECTION DISTRICT #2
MINUTES OF COMMISSIONERS MEETING
July 13, 2004
The July 13, 2004 meeting of the Board of Commissioners of the San Juan County FPD #2 was called to order by Chairman Harvey Olsan at 7:30 P.M. at the Eastsound Headquarters. The meeting was attended by Commissioners Clyde Duke, Bob Phalan, Interim Chief Eimers, and other department personnel.
MINUTES:
A motion was made by Commissioner Olsan and seconded by Commissioner Duke that the 6/9/04 of the regular meeting of the Board of Commissioners be approved as revised. The Commission Secretary will review the tape of the minutes to compare it with the direct quote which Commissioner Phalan asserts reflected Mr. Taubman's comments in "Public Comment" and make the appropriate revisions, if any. The motion was voted upon and approved unanimously.
A motion was made by Commissioner Olsan and seconded by Commissioner Phalan that the 6/18/04 minutes of the special meeting of the Board of Commissioners be approved as read. The motion was voted upon and approved unanimously.
A motion was made by Commissioner Olsan and seconded by Commissioner Phalan that the 6/29/04 minutes of the special meeting of the Board of Commissioners be approved as read. The motion was voted upon and approved unanimously.
A motion was made by Commissioner Olsan and seconded by Commissioner Phalan that the 6/30/04 minutes of the special meeting of the Board of Commissioners be approved as read. The motion was voted upon and approved unanimously.
Commissioner Phalan stated that Chief Eimers was doing things he said he would not do during his tenure as Interim Chief. (Ed. Note: regarding grievance procedure and volunteer medical insurance program)
Commissioner Olsan congratulated Captain Matt Bowden of Station 24 for his completion of the Washington State Fire Training Academy. The graduation will take place on Friday, July 16, 2004.
FINANCIAL REPORTS:
A motion was made by Commissioner Olsan and seconded by Commissioner Duke to approve the June General Fund vouchers 21958-22050 for the corrected amount of $86,422.993. After discussion of the Sea Western expenditures for nozzles for the new pumpers, the motion was voted upon and approved unanimously.
A motion was made by Commissioner Olsan and seconded by Commissioner Phalan to approve the Revenue Fund vouchers 22051-22056 in the amount of $2,103.75. The motion was voted upon and approved unanimously.
CORRESPONDENCE:
1. A letter of July 12, 2004 from Matt Bowden thanked the Fire District and Commissioners for their support and sponsorship in attending the WA State Fire Training Academy in North Bend.
2. A letter of June 17, 2004 from the Orcas Island Pathways Committee thanked the Fire Department EMS volunteers who provided free blood pressure checks at the Deer Harbor event.
3. A letter of July 2, 2004 from Janet Brownell encouraged the Commissioners to select Kevin O'Brien as the next Chief.
4. A letter of July 12, 2004 from Patricia Lopker-W. Arkentin supported Mr. Phalan's quiet affirmation and respect for the laws that govern us. She supported courteous behavior to prevent making the other guy feel like his "…life has been hell".
5. June 20, 2004 letter form Stephen A. Garrison criticized Commissioner Phalan's remarks during the open meeting with the final Chief candidates.
6. Undated letter from Bob Phalan expressing concern for the welfare of the volunteer system. He asserted that, due to poor management, volunteers are being denied the opportunity to respond to the ambulance, forced to resign, intimidated, discouraged or terminated. He quoted from unnamed volunteers to support his contentions. He noted that these actions by Chief Eimers was seriously damaging to volunteers. (Commissioner Phalan, when asked, subsequently identified the letters referenced as being form Julie Remington, Dacia Youngren, Amy Forbes and Hilary Canty).
7. A letter dated July 8, 2004 from Garth Eimers requesting San Juan Fire District a legal defense and indemnity of the litigation by Plaintiff Robert Phalan, San Juan County Superior Court Case No. 04 2 05107 1.
8. A letter dated July 8, 2004 from Gary Bennett requesting San Juan Fire District a legal defense and indemnity of the litigation by Plaintiff Robert Phalan, San Juan County Superior Court Case No. 04 2 05107 1.
NOTE: All letters read at the open public meeting are attached and incorporated in the minutes by reference.
CHIEF AND EMS SUPERVISOR REPORTS
The monthly reports by Interim Chief and EMS Division Chief Eimers were read. Julie Remington read the report of Firefighter/EMT Association President, Kari Schuh. Copies of the reports are attached and incorporated by reference. The Public Education report was submitted to the Commissioners for their review of projects, a copy of which is attached.
PUBLIC COMMENT:
Captain 23, George Dimich, noted that there are smoke checks that are not toned out by dispatch and therefore the investigator would not be paid a stipend.
Joanne Simmons expressed concern over the reasons for the low morale asserted by Commissioner Phalan. She would like to see the problems worked out.
Chairman Harvey Olsan reminded the public that the Public Comment section is an opportunity to state comments or opinions, but not for answering questions or engaging in dialogue. He encouraged people to approach Commissioners or the Chief individually to have their questions answered.
Joanne Simmons inquired who pays for attorney fees incurred in the pending litigation. Chairman Olsan urged her to approach the Commissioners for answers to specific questions. He commented, however, that ultimately attorney fees would be paid by the taxpayers. Commissioner Phalan stated payment of attorney's fees has yet to be agreed to.
Battalion Chief, Bruce Bracket, observed that this department had run smoothly until the election of Commissioner Phalan.
John Barnes from Olga expressed his support for the selection of Kevin O'Brien as Fire Chief.
Julie Remington remarked that the volunteer morale is improving since her letter written several months earlier and quoted by Commissioner Phalan. (Phalan Ed. Note: Remington letter was dated 5/5/04)
Jim Dingman expressed his concern about the potentially catastrophic fire danger, the lack of borate bombers and no National Guardsmen which compounded the problem.
He would like information on how the district is addressing this issue. BC Brackett or Chief Eimers would sources to answer his questions, according to Chairman Olsan.
Fred Enge recommended Kevin O'Brien, be selected as Chief. He inquired whether a decision had been made, whether the Search Committee had a recommendation and if EMT's and volunteers were involved in the process.
The Recommendation will be presented by the Chief Search Committee to the Commissioners at a Special Meeting of the Board in executive session on July 14, 2004 at 5:00 P.M.
Kevin McCoy expressed his support for the selection of Kevin O'Brien as the new Fire Chief.
Perry Pruett expressed his support for the candidate form Nevada who has had experience with volunteers.
OLD BUSINESS:
1. Strategic Planning Proposals:
There was discussion of potential members to both the Service Level and Communications Committees. Both Clyde Duke and Harvey Olsan have made suggestions for the committees. Commissioner Olsan has discussed with Jim Coffin, Jim Foote and an attorney from California, who is now active with the Christian School about their potential participation in the Service Level Committee along with volunteer, Captain Paul Spencer.
Commissioner Olsan's suggests for the Communications Committee include Joe Symons, Chris Thomarson and Max Jones.
Commissioner Duke suggested that the committees be kept to five members with subcommittees being formed when necessary.
It was agreed to discuss the membership of the committees in Executive Session.
2. Chief Search Status Report: Commissioner and Chief Search Chairman, Clyde Duke reported that the Chief Search Committee will meet with the Commissioners in a Special Meeting/Executive Session of the Board on July 14, 2004 at 5:00 P.M. to present their findings and recommendations. At that point the work of the Search Committee will be done. The Commissioners will contact candidate(s) when decisions are evaluated to discuss potential contracts. The Search Committee is comprised of volunteers, Mark Van Maren, Dacia Youngren, who were selected by the Volunteer Association. Additional members include community participant, Tom Ritter, Garth Eimers and Commissioner Clyde Duke, who acted as the Chairman of the Chief Search Committee.
3. Volunteer Physicals:
Chief Eimers reported that this issue has been tabled pending the outcome of the Strategic Planning. A proposal has been provided by Miklos Preysz of "Life Tec", however, approval would have to be part of the 2005 budget process. The proposed initial cost, for firefighters only, is $12,500. The National Fire Protection Association standard ("NFPA") would be used.
4. Open Public Meetings Act:
Commissioner Phalan sought guidance from Attorney Frank Chmelik regarding his interpretation of the Act, specifically regarding use of emails. Mr. Chmelik responded that no discourse is permitted between Commissioners by email, with the possible exception of notification of a change in meeting time, to ask a question regarding protocol or to relay information not requiring a response. Generally he suggested that information be sent to the Chief or Commission Secretary for disbursement to the Commissioners.
5. Parking Lot Expansion: Chief Eimers has received no further word or offer from the two contractors interested in the grading and soil removal from Station 21 property. He will send a letter to the contractors offering the contract to the first company that meets the criteria.
6. DNR mapping: It was agreed by the Commissioners to discuss this matter further at the next work/study special meeting of the Board of Commissioners. Joe Symons had made a presentation to the Commissioners earlier. There has been no further contact from DNR (Department of Natural Resources) with information on alternatives.
7. Drug Policy 21 revision: The Commissioners discussed alternatives and concluded that the policy revisions should be previewed by the Volunteer Association and tabled until the hiring of a new Chief. The notations in the revision addressed potential concerns if the policy is to address volunteers, staff and union personnel. Those suggestions and questions were made by Administrative Assistant, Pam Harney, at the request of former Chief Gary Bennett.
NEW BUSINESS:
1. Pending Litigation: Attorney Frank Chmelik and his associate Michelle Losie representing the Orcas Fire District were introduced. Mr. Chmelik discussed the recent receipt of a lawsuit filed in San Juan County Superior Court, Case No. 04 2 05107 1 by Robert Phalan against named defendants Garth Eimers and spouse and Gary D. Bennett and spouse for violation of a criminal statute and alleging illegal release of criminal records involving Mr. Phalan.
Mr. Chmelik instructed the Commissioners that they may defend their employees working in the course and scope of their employment. RCW 36.16.138 provides that governments may defend and indemnify employees. Common law (ie., case law) provides indemnification for actions taken in good faith in the interest of the department and in the course and scope of their employment. According to Mr. Chmelik, defense is at the discretion of the Commissioners, however, named insured under district insurance would be covered.
Mr. Chmelik discussed the issue of the litigation and conflict of interest of the plaintiff, who is also a Fire District Commissioner. There is a Code of Ethics which discusses what might be construed as a Commissioner acting in a matter in which he might have a beneficial interest. Mr. Chmelik recommended that Commissioner Phalan not participate in actions involving the pending litigation, however, technically he could vote on the defense and indemnification of the defendant/employees Eimers and Bennett.
He urged the Department to notify the insurance carrier VFIS (Volunteer Fire Insurance Services). Typically, he suggested that the insurance carrier would hire a firm to defend the district employees.
Mr. Chmelik requested that the district segregate the document(s) in question.
2. Commissioner Phalan/Dual Role Decision: Attorney Frank Chmelik discussed the RCW code under which fire districts must unanimously approve, by resolution, an elected official from acting in a dual capacity as a volunteer. Mr. Chmelik's position is that it takes two votes from a three person commission to repeal such a resolution. He noted, however, that Attorney Snure believes one vote of a three man commissioner would be sufficient to rescind the resolution.
On June 9, 2004 Resolution 1998-1 was rescinded by a two to one vote. Therefore, Mr. Phalan cannot serve as a volunteer. He recommended that the Commissioners resolve the issue, expend no funds for training, insurance or pension on the volunteer. According to Mr. Chmelik any expenditure for Mr. Phalan as a volunteer would not be favored by the Washington state Auditor. Mr. Phalan would also have the option of resigning as a volunteer.
Mr. Phalan discussed the costs of his service as a volunteer since the resolution was rescinded in June and offered to pay those costs, which he said total $49.75 (Ed. over 4 months), if Mr. Eimers would pay for the cost of the services of Mr. Chmelik, in preparing his memorandum regarding this issue, which were estimated to be $290.
A motion was made by Commissioner Olsan and seconded by Commissioner Duke to remove Mr. Phalan as an EMT retroactively to June 9, 2004, the date when the resolution was rescinded by a majority vote. The motion was voted upon and approved with Commissioners Olsan and Duke voting aye and Commissioner Phalan voting nay.
VOLUNTEER BENEFITS:
A memorandum was prepared at the request of Commissioner Phalan on July 12, 2004 regarding the annual cost of volunteer benefits. The memorandum, prepared by Administrative Assistant Pam Harney, was provided to each Commissioner and Chief Eimers. A copy of the memorandum is attached and incorporated by reference.
EXECUTIVE SESSION:
The meeting was adjourned to executive session at 9:18 P.M. The executive session was called pursuant to RCW 42.30.140 (g), discussion of a personnel issue, the defense and indemnification of the defendants in the Phalan litigation. It was anticipated to last 10 minutes.
The regular meeting resumed at 9:35 P.M. There were no decisions made or actions taken.
Motion regarding defense of employees in Phalan suit:
A motion was made by Commissioner Olsan and seconded by Commissioner Duke to defend Garth Eimers and Gary D. Bennett in the Robert Phalan lawsuit referenced above, Case #04 2 05107 1, and indemnify the defendants as long as they are found to have acted in good faith. The motion was voted upon and approved by Commissioners Olsan and Duke with Commissioner Phalan abstaining.
It was noted that during the Executive Session, Commissioner Phalan, excused himself from discussion of the appropriate course of action.
The Commissioners discussed generally the need for preparation of an agenda for each special meeting. Mr. Chmelik stated that while agenda's for regular meetings of the Board of Commissioners are not required, they are helpful.
PUBLIC COMMENT:
Didier Gincig stated that it was interesting to attend the meeting; that he was sad to see Bob Phalan terminated as an EMT after years of response to EMS calls and his acknowledged service; that Bob was his hero.
Larry Taubman acknowledged receipt of the announcement of the meeting and copy of the agenda. Keeping up communication allows the community to give better feedback. He urged the Commissioners to announce who is on the lists for strategic planning committees.
Joanne Simmons stated that Mr. Phalan has been a good responder for many years and it was "ridiculous" to take him out of service and she would like an explanation. She was referred to individual Commissioners for response since the Public Comment section is not for that purpose.
ANNOUNCEMENTS:
- July 27, 2004 7:00 PM Special Meeting of the Board of Commissioners- working/study -Headquarters Station
- August 10, 2004 7:30 PM Regular Meeting of the Board of Commissioners-Headquarters Station
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August 31, 2004 7:30 PM Special Meeting of the Board of Commissioners-Headquarters Station-Work/Study session
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September 13, 2004 7:30 PM RESCHEDULED Regular Meeting of the Board of Commissioners-Headquarters Station - (changed due to Primary Election on September 14th)
There may be an additional Special Meeting scheduled to announce the selection of a new Fire Chief.
LOCAL BOARD OF VOLUNTEER FIREFIGHTERS :
The Local meeting of the Board of Volunteer Firefighters was called at 10:20 P.M.
Note: The local Board minutes are prepared and kept under separate cover.
ADJOURNMENT:
The regular meeting resumed. There being no further business a motion was made by Commissioner Olsan and seconded by Commissioner Phalan to adjourn. The regular portion of the meeting was adjourned at 10:30 PM.
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