MORGANTOWN – A circuit judge is “back at the summary judgment stage” after admitting he didn’t properly consider objections made by attorneys for Morgantown’s firefighters in a holiday pay case.
On December 15, Monongalia Circuit Judge Phillip Gaujot asked the firefighters to submit findings of fact and conclusions of law after hearing oral arguments for nearly two hours. He said he will rule again on the matter.
Most of the discussion Wednesday focused on whether the holiday pay is a wage under the West Virginia Wage Payment and Collection Act. He said he will consider wages as well as the back pay timeline.
Toriseva
"The main focus today was cementing that statutorily mandated holiday pay or leave is a fringe benefit and fringe benefits are wages, which employees can sue to recover under the WV Wage Payment and Collection Act," Teresa Toriseva, who is representing the firefighters, told The West Virginia Record after the hearing. "The judge has agreed to reconsider his prior ruling, taking the previously decided summary judgement motions under advisement and has asked firefighters to submit a proposed order based on our arguments."
Toriseva said the rule of law is the holiday pay statute, which was passed by the Legislature, and the wage and hour laws, which also were passed by the Legislature.
“so, it’s really not even case law," Toriseva said. "It’s primary legislative enactments.”
At Wednesday’s hearing, Gaujot asked both sides to discuss a settlement. He asked Toriseva to provide a proposed order next week.
Members of International Association of Firefighters Local 313 originally filed the complaint in June 2019. They claimed Morgantown only paid firefighters for 12 hours of work on holiday shifts when they actually worked 24 hours.
Last month, Gaujot issued an order granting a request by the firefighters to conduct the hearing in court rather than remotely. They had argued there were technological concerns with virtual hearings.
In an amended complaint filed September 14, the firefighters added more claims of past lost wages that total more than $1 million. It would add additional claims from when the original complaint was filed until Morgantown’s City Council passed a resolution addressing the incorrect payment method for holiday pay. That time frame is June 7, 2019, to February 18, 2020. It also adds seven firefighters hired after the original filing but before the resolution was passed.
The total of the claim is a little more than $6 million.
“These claims, while arising after the original complaint filing, arise from the same employment relationship between the plaintiffs and the defendant, are based in the identical law as the original complaint, and have similar, yet enhanced, damages,” the motion states.
According to calculations by plaintiff’s expert witness Roger A. Griffith, the total damages due the 57 firefighters when the original complaint was filed was just over $5.25 million dollars. Adding in that eight-month window, the total comes to almost $6.46 million. Griffith is a certified public accountant with Gray Griffith & Mays in Charleston.
In August, Toriseva issued a press release saying the city was choosing to continue litigation rather than resolve the matter.
“After 2.5 years of litigation, 4 failed mediations dates using 3 separate professional mediators, all at great expense to Morgantown taxpayers, the city chooses to continue to litigate with its firefighters rather than pay them when it’s clear the city was paying firefighters wrong,” Toriseva said in an August 10 press release. “The city has been underpaying their professional firefighters for decades. The law allows only five years of that back pay to be recovered.
“But instead of paying what is owed, the city continues to pursue legal theories which have been rejected by other courts and major West Virginia cities. …
“Even the City of Morgantown, after being sued, corrected the firefighter holiday payment method in February 2020,” she said. “In Morgantown, because of the litigation which the local IAFF 313 tried to avoid, their paid holiday leave was doubled to be 24 hours for every firefighter. This complies with the law.
“This pay correction was made soon after the firefighters filed their lawsuit against Morgantown, after Brooke County Circuit Court (Weirton IAFF Local 948) fixed the underpayment in the same way, and after Charleston, our Capital City, (IAFF Local 317) which employs 1/4 of all professional firefighters in the state fixed the problems without litigation.
“Berkeley County (Martinsburg IAFF Local 805) was not far behind with Judge (Laura) Faircloth ruling for the firefighters in the same way. Other cities, including Fairmont and Clarksburg, do this correctly without a litigation war.”
Toriseva said one of the first steps toward a safe city is having a well-staffed fire department.
“Citizen safety depends on it,” she said in the press release. “Treating firefighters with dignity and respect is key to keeping experienced firefighters and recruiting new ones.
In 2019, the Morgantown firefighters filed the original 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, recently was dismissed the state Supreme Court. Gaujot earlier had said he might wait for that ruling to proceed.
In May, 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 West Virginia 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 Toriseva and Joshua Miller of Toriseva Law in Wheeling. The city is being represented by Ryan P. Simonton, Matt Elshiaty and Erin Webb of Kay Casto & Chaney's Morgantown office.
Monongalia Circuit Court case number 19-C-167