CHINA — Three China fire chiefs have obtained legal counsel after a continued clash with the town manager and select board over the distribution of firefighters’ stipends.

China’s town manager and treasurer Dennis Heath said he will not release stipend funds for the upcoming fiscal year until the departments provide itemized stipend requests that show how the money will be distributed among members. The chiefs view this as an infringement on their status as independently incorporated volunteer organizations.

Palermo attorney and former Selectman Matt Evans is providing pro bono legal assistance to the chiefs of China Village Volunteer Fire Department, South China Volunteer Fire Department and Weeks Mills Volunteer Fire Department, according to Tim Theriault, the China Village chief.

Theriault said the chiefs plan to take the issue to court and will bill the town for any expenses incurred. The conflict began in mid-March.

“I’m sick to death of this,” Theriault said.

BUTTING HEADS

Based on a volunteer payment formula from the U.S. Department of Labor, Maine-specific wage rates from the Bureau of Labor Statistics as well as mileage, hour and call data that the fire departments have reported to the town over the past 18 months, Heath claimed that China’s three fire departments and one rescue department should have paid less than $14,000 in stipends. They were provided with more than $63,000 during that time.

Because of this disparity — and a state law stating that a municipal treasurer “shall not pay out any funds for an account or claim against the municipality unless the account or claim is itemized and declared to be a public record” — Heath told the departments that he will not put the disbursement request on a warrant before the Select Board unless they provide “substantiating calculations for the stipend request.” The departments currently provide the total figure they spend on stipends on a balance sheet at the end of each year.

“As hard as they may try to (say otherwise), they’re falling well short of the money they’re asking for,” Heath said. “I think they’re realizing that they won’t be able to validate needing $40,000 of stipend money (this year). They haven’t told me that, that’s just my interpretation. … If after they’ve calculated all the miles being put in and the total hours spent on calls, it turns out to be $40,000 — fine. But provide the calculation to prove it.”

China Town Manager Dennis Heath, at his desk at the China town office in August 2018, says he will not release stipend funds to the town’s three volunteer fire departments until he knows what the firefighters are being compensated for. Morning Sentinel file photo by Michael G. Seamans

Heath explained that his reasoning was two-fold. On one hand, if departments overcompensate volunteers, they could be in violation of the Fair Labor Standards Act and risk losing their status as independent nonprofit organizations. On the other hand, violating his legal obligations as the town treasurer is punishable by a $300 fine and 30 day imprisonment, according to Maine law.

The fire chiefs feel that Heath’s opinions are off-base. Evans suggested to the Select Board May 13 that “withholding funds from the volunteer fire departments” is “unlawful.”

“(Heath) doesn’t have a say in how we spend our money,” Theriault said. “He doesn’t get that (authority), although he wants it. We’re not town employees; we’re a contracted service … He can’t move laws around to fit his needs as he keeps doing — it has nothing to do with the truth.”

Theriault said that the clash has created “a very hostile environment” between the departments and the town.

“It’s too bad that we had to take this turn of nonsense to court, but I don’t see any other resolution to it because (Heath) stands on his high horse and won’t come down.”

Heath said he is not surprised that the disagreement has reached this point.

“They have a different view,” he said. “They’re going to argue, ‘We don’t need your help.’ Well, this is not about helping you. This is about doing what’s legal.”

‘WHAT THE TOWN MEETING DOES’

At the China Town Meeting April 6, residents amended the fire and rescue warrant article to increase the stipend allocation in a show of support for the volunteers. Voters upped the departments’ $33,000 stipend request — backed by the Budget Committee but not the Select Board — to $40,000. The Select Board had recommended $22,700 based on flat rates for all members and no per-call allocations to avoid what Selectman Ron Breton called “double dipping.”

“The townspeople spoke at the Town Meeting and told them that we’re entitled to all the money,” Theriault noted.

Heath said that this gesture was mostly symbolic, though.

“The view of ‘if it’s approved at Town Meeting, they get (the money) immediately’ shows a lack of understanding of what the Town Meeting does,” Heath said. “Although the Town Meeting can approve the amount of money and authorize spending, (it) can’t force it to be spent. Because we have to follow the law in how we disburse the money. If we don’t, we could find ourselves in trouble.

“The Select Board isn’t opposed to providing stipends to the volunteers,” Heath added. “It’s all about making sure it’s done legally and correctly.”

The South China volunteer fire department in March 2019. The chiefs of the town’s three fire departments have engaged legal counsel in their dispute with Town Manager Dennis Heath over stipends. Morning Sentinel photo by David Leaming

STIPEND CALCULATIONS

John Duross, chief of the Saco Fire Department and president of the Maine Fire Chiefs Association, said that there is no standardized way to calculate stipends for volunteer fire departments across the state.

“Each community does what it can do based on available funding,” Duross said. “Some do minimum wage. Some are completely volunteer, for no pay at all. It’s really up to the community.”

He added that, at the state level, he “wouldn’t call (stipend calculations) an issue” but was familiar with the situation in China.

According to Theriault, the three China departments use a point system to calculate stipend allocations. Each volunteer — including chiefs and ranking officers — gets a score, and the money is distributed accordingly.

“They get a point for going to a call, a point for going to a meeting, a point for going to a training, and then the amount of time they’re at each call could add more points to it,” Theriault said. “If we’re at a call for six hours, that’s gonna be worth way more than a meeting for an hour. We calculate time into it.”

He declined to provide more specific information about the formula and said that each individual’s pay is “confidential information” since the departments are not municipally run.

Heath said that after examining regulations from the Department of Labor and a “Managing Volunteer Firefighters for FLSA Compliance” manual provided by Weeks Mills Chief Bill Van Wickler, the firefighters’ volunteer status requires them to adhere to specific rules about compensation.

“Although public employers can pay a nominal fee to volunteers, the fee must not be a substitute for wages and must not be tied to productivity,” the manual states.

Heath said that this means time spent volunteering as a firefighter should not figure into a stipend calculation.

“You cannot pay a stipend based on productivity, but you can do it on a per-call basis,” Heath said. “That’s the whole reason for stipends — the entire thing is an acknowledgement of volunteerism. It is not intended to compensate people for their time.”

The manual also states: “Public employers who compensate volunteers with more than a nominal fee likely will create an employment relationship, thereby destroying the volunteer status of the individuals.”

In 2006, the Department of Labor defined a nominal fee as “generally, an amount not exceeding 20% of the total compensation that the employer would pay to a full-time firefighter for performing comparable services.”

Heath gave the three fire chiefs a sample spreadsheet that could be used to determine a per-call stipend figure, based on 20% of Maine firefighter wages, as reported by the Bureau of Labor Statistics, mileage and total number of calls and training. He distinguished three per-call stipend levels based on the wage data: supervisor (chief, captain, lieutenant), firefighter and other, such as secretary or treasurer.

Theriault said he did not think it was appropriate for the town to enforce the use of this spreadsheet or outline any more specific information than the total amount that is spent on stipends each year, for each department.

“If a contractor came in and worked for the town, the (town doesn’t) have a right to say, ‘We want to see your books and how you spend your money,'” Theriault said.

Heath maintained his stance.

“Without them being more forthright about their reasons (for providing their stipend calculations), we’re left to guess about what their motivation is behind why they don’t want to do it,” he said.

“If we’re breaking the law, how come the law hasn’t come to bother us?” Theriault posed. “So maybe we’re not. Think about that. If everyone’s breaking the law yet no law enforcement is coming, how can that be so bad? I bet we’re probably not.”

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