STATED PURPOSE OF LOSAP IN NYS LAW (IT IS NOT GUARANTEED)

Volunteer firefighter LOSAPs in New York are governed by the General Municipal Law (GML). Article 11-A of the ​GML contain the relevant sections (214 through 219-a) that authorize volunteer firefighter LOSAPs. Most attention is paid to the sections that provide the detail on establishing a plan, the point system, and the benefits that can be provided – those are clearly important parts of the law. What is often overlooked is the very first section – section 214. This section is entitled “Purpose” and the text is as follows: 

1. It is hereby declared that this article is intended to effectuate the objects and purposes of section eighteen of article one of the constitution and that the relationship between the political subdivision liable for payments of service awards under this article and a volunteer firefighter entitled to such payments is that of employer and employee within the meaning of such provision of the constitution. In no event shall the receipt of a service award under the provisions of this article be deemed to constitute membership in any pension or retirement system of the state or of a civil division thereon within the purview of section seven of article five of the constitution.
2. It is hereby further declared that this article is also intended to provide service awards for volunteer firefighters of incorporated fire companies or departments which are not otherwise part of a political subdivision of this state and who do not fall within the purview of subdivision one of this section.

There are three takeaways from this section of statue:

• Section eighteen (18) of Article one (1) of the constitution basically states that the legislature can enact laws to provide for the protection of safety of the lives, health and safety of employees and to also provide compensation for injuries or upon the death of an employee. It appears to only deal with compensation for injuries or death of employees, which is curious as the LOSAP provides direct payments to volunteers, not just in the event of death or injury (disability). Regardless, referencing this section of the constitution seems to establish the authority under which the legislature created Article 11-A.
  
• The relationship between the sponsoring municipality and the volunteer firefighter is that of an employer and employee. This ended up being an important arguing point for the Equal Employment Opportunity Commission (EEOC) lawsuits for age discrimination.
    
• The final sentence in 214(1) references section seven (7) of article five (5) of the constitution. Here is the relevant text of that section of the constitution:
  
  (a) After July first, nineteen hundred forty, membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired.
  
  In other words, the statute is clearly stating that the benefits provided by a LOSAP are not constitutionally guaranteed like the retirement system is. The implication is that LOSAP benefits could be diminished or impaired, or perhaps even eliminated or abolished completely. The term “abolish” is used in section 216 of the GML. 

This last bullet point is an important one in understanding the nature of LOSAP, and helps to inform and clarify some of the remaining parts of the statute. These will be explored in future posts.