Grant County Commission holds work session 031224 and regular meeting 031424, part 9

[Editor's Note: This is the ninth of a series of articles on the Grant County Commission work session on March 12, 2024. It continues the review of the March 14, 2024 regular meeting agenda and begins with new business items at the regular meeting.]

By Mary Alice Murphy

Grant County Manager Charlene Webb continued the March 12, 2024 work session review of the March 14, 2024 regular meeting agenda by noting new business items would come next.

The first item of new business reviewed was consideration of the 2023 Volunteer Firefighters annual reporting for PERA (public employees retirement association). The VFDs include Fort Bayard-Santa Rita, Lower Mimbres, Pinos Altos, Sapillo Creek, Tyrone, Upper Mimbres and Whiskey Creek. Webb noted that The Cliff'-Gila VFD was working on its report.

Commissioners approved the report at the regular meeting.

The following item addressed consideration of appointment to the Grant County Lodger's Tax Advisory Board, which had five vacancies, two at-large members and the tourism members. Three people applied for the at-large member, but one pulled out because of not being eligible, as she lived in Silver City, not in the county. Of the two remaining, Mick Smith and Helene Perrault Holguin were approved. For the tourism members, all three were seeking reappointment - Becky O'Connor, who has served as the chair, John Rohovec and Michael D. Barragree. All three were approved.

Webb said the board is a "very hard-working group. We've been very pleased with the group. The present board has worked together really well. They do the marketing piece for the county, and they have saved us a lot of work that we would have had to do."

The next item of business addressed the consideration and approval to publish a notice of intent to adopt ordinance No. O-24-01 providing for the administration of the County Fire Department.

Webb said at the work session that she had received feedback from the VFDs and had accepted some into the ordinance. "Some feedback would be better for the job description."

At the regular meeting, District 3 Commissioner Alicia Edwards moved to approve the notice of intent to move the process forward toward approval and still have a chance to revise it.

District 4 Commissioner Harry Browne said he was left with the impression by the public input that any ordinance might scare away volunteers.

District 1 Commissioner and Chair Chris Ponce said when he hears that structure and accountability might lead to problems recruiting volunteers, "I don't like that. There has to be structure and accountability. To me having structure helps limit the liability, not increase it. When new policies come in, it may be time to bring in personnel and train them to understand the new policies."

Edwards said she would like to hear from the county manager and Chief Ed Downward on this issue.

Webb said: "We have eight VFDs that were going in eight different directions. It is time for structure and clarity to outline what my responsibility is, what your responsibility is, what is the responsibility of the new fire chief, as well as the department chiefs and their members. The intention is to provide some structure and guidance to the volunteer fire departments, which, as, we've learned over the past few months, that guidance has not existed. I think if anything this reduces the county's liability rather than increases it. At the end it is you five who will be the ones liable. I've sought comments and some I heard this morning, it was the first time I had heard them. If you take what he said and add that in, it will increase liability and you're in worse shape than you were before. We're not asking them to change their policies. If they do change their policies, they have to be received here for structure review. The last thing we want to do is deter people from volunteering, but that isn't a problem just here, but nationwide. No one wants to volunteer. "

County-contracted Attorney Ben Young said the way he understood what the fire chief said is that the concern of individual liability is based on a misunderstanding of how the tort claims act and the civil rights act work in New Mexico. "All public employees work under the umbrella of whatever entity they work under. The governmental entity they work for is required by statute to indemnify and protect those employees. It's covered in the tort claims act and is expressly laid out in the civil rights act. There was a lot of misinformation that came out when the civili rights act was signed that we were individually on the hook. It's not individual liability that was imposed, it was governmental entity liability as it always has been. It is a statutory mandate that the entity protect its employees. Now, there may be situations where a public employee, for instance, does something criminal during his scope of work. In that instance the governmental entity is still responsible for the defense of that individual and the judgement entered into for that individual, then that governmental entity can go after that employee. That's the way the structure is. If we're talking about firefighters, it's the county that is responsible and this ordinance does not change any of that. Because it is the county that is holding the bag of water, it is incumbent to have structure to ensure when bad things happen, we have recourse to address them. Volunteer firefighters fall under the definition of public employee, even though they are not employees under the traditional sense. If we need to, we can add the tort claims act to this ordinance, but I don't think it is needed. This ordinance is for the county to protect itself."

District 4 Commissioner Billy Billings said his concern was whether the individual is liable, "and I think you answered that very clearly that the county has your back."

Edwards said she believes it would be useful to have the tort claims and civil rights acts noted in the ordinance.

Billings said he didn't know if the new first chief had been announced, but wondered when he would begin.

Webb said: "We hired Roger Groves and he begins later this month. He and I have had conversations. He has read the ordinance, had no changes and understands why we are moving forward with this ordinance."

Edwards said it is training that is needed and that they know statutorily, "we have their back. It is incumbent on us to make sure the firefighters know why we are doing this ordinance to protect the county and the county protects them."

Webb said: "I don't know what more we can do. Ben and I have met with the chiefs and the firefighters to make it clear."

Ponce said one citizen had called him about the drug and alcohol part of the ordinance. "Do we have training for the chiefs to know what to look for before a fire? Do these firefighters fall under county policy if they are in appearance of being under the influence."

District 2 Commissioner Eloy Medina said the training for firefighters is very specific on the issue, especially for the chiefs and supervisors.

Webb said: "We are also working on improved policies on drug and alcohol. It will be specific for safety-sensitive positions, such as CDL drivers, deputies, and firefighters. Right now, they will fall under the county policy. We are working with the Association of Counties to put it in place. We hope to have it for the April meeting."

Browne asked if the testing was by default. He asked if the person is screened ahead of time. "It strikes me that it is more important that he be fit for service to fight a fire. At the school, we test randomly and if there is an incident."

Webb said yes, they have to screen them ahead of being accepted. The policy coming in April specifically talks about random testing for safety-sensitive positions, and yes, they are tested after an incident.

Ponce said if the commissioners pass the notice of intent ordinance, "we can still may make changes. Can we pass this now and at the special meeting at the end of the month discuss it again to make changes? Then by April we can pass the ordinance."

Browne wanted the drug portion before the end of the month. Webb said that was not possible.

Medina asked what exactly Browne wanted. Browne said he didn't think screening was necessary, but random testing was important.

"You can get a call any time, and it's your responsibility to say 'I've been to a party, I don't think I should participate,'" Browne said.

Ponce said a screening is important for pre-employment and testing is necessary during service. If there is an incident, then they are tested.

Edwards asked what the difference was between screening and testing and was told they are the same process. And then she sought more clarification

Medina said it is important to develop a culture among the employees or volunteers that they have the responsibility to know it is a safety-sensitive issue and that they must not agree to participate if they know they are impaired. "At every meeting, we must have a safety point to present."

Browne said the problem he sees is that now marijuana is legal in the state, but it still illegal in the country.

Medina said: "If the person does drugs, he shouldn't apply for the position, for everyone's safety."

Downward came forward and said he was not opposed to the ordinance. but the he spoke he had not received a response from the department's legal counsel. "I'm telling you now that we train and tell them if they have been drinking, do not come to the call. We don't know when a call will come in. My concern was if the volunteers perceived the potential of liability. I believe that has been answered."

Webb said the new policy would come before the commissioners. "Reasonable suspicion has to be very obvious. All this will be in the policy and will specify policy around safety-sensitive positions."

[Editor's Note: The commissioners discussed, argued, clarified, to the point of ad nauseam, so many repetitive comments were left out.]

The conclusion came with the approval of the notice of intent to pass the ordinance.

The next article will begin with resolutions.