MORGANTOWN – A Monongalia Circuit Judge wants the City of Morgantown and its firefighters to settle a lawsuit regarding holiday compensation rather than going to trial.
“You’re going to go back to mediation and settle this case,” Judge Phillip Gaujot said during a June 16 hearing, according to a Dominion Post story. He told both parties the case is complicated and that both sides have merit.
An attorney representing the firefighters, who are members of International Association of Firefighters Local 313, agreed.
Toriseva
“The IAFF and its members agree that this case should be resolved,” attorney Teresa Toriseva told The West Virginia Record. “Just after the lawsuit was filed, Morgantown City Council fixed the pay issue going forward to come into compliance with the statute – which requires either a day off equal to the shift or time and a half pay, whether a firefighter works or not.
“Now that the city pays holiday pay correctly, all that remains is paying firefighters their back pay, interest and attorney fees, which are clearly due.”
In 2019, the firefighters filed a lawsuit to correct the pay issue. That was settled earlier this year. The question now is the pay issues from before that settlement. Law requires firefighters to be paid time and a half or equal time off for time worked on a holiday or if a regularly scheduled day off is on a holiday.
At issue now is eight hours of the 24-hour shifts the firefighters work. The city wants to pay for what the firefighters actually work on a holiday, whether it’s eight or 16 hours. The firefighters say they should get an entire day of compensation, which would be 36 hours of pay.
A similar case regarding Martinsburg firefighters, also being represented by Toriseva’s law firm, will be heard next month by the state Supreme Court. Gaujot said he might wait for that ruling to proceed. For now, another hearing in the Morgantown case is scheduled for July as well.
Last month, the city and the firefighters agreed to a proportional increase in base pay that resulted in no change of pay. The firefighters have received shift differential pay for many years.
"The City of Morgantown recently has undertaken efforts to clarify and enforce existing personnel policies for all employees, to follow-through on completing a citywide employee compensation study, and to reorganize city operations to achieve greater effectiveness in delivering services to its constituents and taxpayers," a joint statement issued May 13 states. "In the course of completing the employee compensation study, issues and inconsistencies with firefighter shift differential pay under the Personnel Rules were brought to city administration’s attention. …
"To the mutual satisfaction of the firefighters and the city, the parties have amicably agreed that, while the firefighters will not be entitled to shift differential pay under the Personnel Rules, as written, going forward, they will receive a proportional increase in their base rate pay, such that there should be no change in the firefighters’ pay received and with minimal or no change in cost to the city," the statement reads. "In addition, going forward, the firefighters will only receive shift differential pay when they are called out for any unscheduled duty starting during the afternoon or evening shift as provided by the shift differential rules in place and applicable to all city employees under the city’s then-existing Personnel Rules."
Before the settlement was reached, the city had filed a lawsuit seeking to stop a hearing regarding its decision to stop paying the shift differential. The city filed the complaint against its Fire Civil Service Commission, claiming the commission doesn’t have the authority to conduct a hearing on the issue, saying it would take control of personnel issues away from city officials.
In April, the commission had an emergency meeting to discuss the issue. It asked the city and the firefighters to mediate the matter before that.
The emergency meeting followed a unanimous vote of no confidence by the members of the IAFF Local 313 in Morgantown City Manager Kim Haws after the city ended a longstanding pay supplement for working evening and overnight shifts. That resulted in a salary reduction of about $2,000 per firefighter.
The city said the shift differential was taken away from firefighters because they work a 24-hour shift that starts at 8 a.m. The city’s decision to remove the shift differential was made shortly after the firefighters union nixed the latest settlement offer from the city in the 2019 lawsuit regarding holiday pay issues.
“Firefighting is one of the key pillars of safety for any community,” the firefighters’ filing with the commission stated. “The recruitment of new firefighters and retention of existing firefighters is the most important part of firefighting.
“It is so important there are state laws in place establishing safeguards for the hiring process, the firing process, the reduction in rank and the reduction in pay for all professional firefighters who work for a municipality.
“Not only do those laws, called civil service, protect the firefighters, but more importantly those rules prevent any city from endangering the public by taking adverse employment action against the firefighters without written reasons followed by a showing of showing of good cause at a public hearing.”
State code state no paid firefighter can be removed, discharged, suspended or reduced in rank or pay without just cause and without a written statement of the reasons for the action. It also says the civil service commission must grant a public hearing within 10 days if a member demands it. There, the removing officer – Haws, in this case – must show cause for the actions.
“If this reduction in pay is permitted, the recruitment of and retention of professional firefighters in the City of Morgantown will be negatively affected, thereby endangering public safety,” the filing states. “The failure of A. Kim Haws, the ‘removing officer,’ to provide a written statement of reasons for the reduction in pay is an attempt by the removing officer to prevent the firefighters from answering the reduction in pay in front of the Civil Service Commission.”
The city has said it isn't an issue of pay reduction.
"As city administration has stated previously, the personnel rules state how shift differential should be applied," Communications Director Andrew Stacy previously told The Record. "This is not an issue of pay reduction. It is applying the personnel rules fairly to all city employees."
Toriseva said firefighters can’t have pay reduced without the written statement of reasons from the Fire Civil Service Commission, a three-member panel with both the power and the duty to hold hearings and issue subpoenas for witness testimony.
“Cutting the wages of an entire department threatens public safety by making it hard to recruit and retain professional firefighters,” Toriseva previously told The Record. “Civil Service state law protects firefighters from the misguided whims of ever-changing appointed and elected officials. It protects fire fighters from city government making their jobs intolerable."
The firefighters are being represented by Teresa Toriseva and Joshua Miller of Toriseva Law in Wheeling. The city is being represented by Ryan P. Simonton of Kay Casto & Chaney's Morgantown office.
Monongalia Circuit Court case number 19-C-67