Lawyer: Fire inspector should be hired

By Gail Geraghty

Staff Writer

Did the Bridgton Board of Selectmen act outside its authority Nov. 23 by voting not to fill the new position of Fire Inspector? The Maine Municipal Association thinks it did.

“The position should have been filled last year and really should be filled as soon as possible,” MMA Staff Attorney Amanda Meader wrote in a Nov. 20 memo, responding to a request for advice on the “level of authority of a select board” made by Town Manager Mitch Berkowitz after the Nov. 23 vote. Citing a Michigan court decision in which a mayor refused to spend $750,000 that his council had earmarked to fund an additional fire squad, Meader said, “The mayor may not use discretion as a guise for frustrating this intention.” Therefore, in Bridgton’s case, neither the town manager nor the selectmen has the discretion not to fill the Fire Inspector position if voters agreed to fund it.

“If the Select Board does not have the authority to thwart the will of the voters (as indicated through town meeting) then neither do you,” Meader wrote to Berkowitz, who had also asked whether he could choose not to fill the position.

Meader’s opinion, while definitive, did not settle the debate at Tuesday’s board meeting, however. Members Bernie King, Bob McHatton and Doug Taft, who had voted not to fill the position on Nov. 23, said they weren’t happy with the way Berkowitz had worded his inquiry to Meader. They pointed out that Berkowitz did not mention that the Fire Inspector position was not listed as a separate line item, but was included as part of the overall fire department budget.

“So, townspeople didn’t know there was a (fire inspector) position” when they voted to fund the fire department budget, said McHatton. But Berkowitz, along with Selectmen Woody Woodward and Paul Hoyt, who wanted to fill the position, said Town Meeting voters had access to the budget booklet that listed the position and all other expenses comprising the fire department budget.

“This is not an issue of we’re going to win and you’re going to lose,” said Berkowitz. He said that Meader’s opinion “in a sense, disappoints me,” because it leaves no room for discretion if an expense is later seen not to be necessary after it is approved at Town Meeting. He said he didn’t raise the issue at the Nov. 23 meeting because “It just went right over my head.”

Woodward acknowledged that the way Berkowitz worded his inquiry “could imply” that the Fire Inspector position was listed separately, as a new position, when it was not. He doubted, however, whether that would make any difference in Meader’s opinion, but agreed it made sense to clarify the information with Meader and see what she has to say. The board voted 5–0 to direct Berkowitz to send a revised inquiry, and told him to include supporting information from the budget booklet. McHatton also wanted to know whether the funds, if not used for a Fire Inspector, could be used for fire equipment.

McHatton and Taft both said they didn’t see why the position couldn’t be filled from within the ranks of the 50-plus member Bridgton Fire Department. Fire Chief Glen Garland acknowledged that there were potentially qualified candidates within the department, but that he wanted to offer the job to non-members as well.

Garland said some professional firefighters have schedules that allow them time off during the work week, during which they are available for per-diem work such as the eight-hour-a-week Fire Inspector position. Bridgton’s firefighters are paid for training and during calls, and most have full-time jobs as well. The Fire Inspector’s position is an administrative position, in which the duties involve conducting annual inspections of both commercial businesses and rental housing.

In addition, the job requires advising the Bridgton Planning Board of any fire safety concerns related to projects coming before them.

If violations are found, the Fire Inspector would need to follow up to make sure those violations are corrected. “There are liability concerns,” said Garland. “And businesses aren’t going to be around on weekends and nights,” which often are the only free time available for members of his department, he said. “It’s getting harder and harder to make the administrative stuff work,” for the Bridgton Fire Department, said Garland, who works full-time himself in Portland. “As the town continues to grow, we’re going to have (more fire safety inspection issues) moving forward,” he said.

Berkowitz said the town might also run into problems under the Fair Labor Standards Act, if it asked a firefighter to take on an additional job with a different level of authority and responsibility.

Selectman King still had questions about how the position came to be included in the budget. He said he was on the Budget Committee in April 2011, and took detailed notes of the meetings. “Nowhere in my notes do I even find a mention of this position” when Garland appeared before the committee to present his budget, King said.

McHatton said that the town has always listed any new positions as a separate line item in the budget. The practice has always been, “It was not buried in the budget — but I’m not going to use that word,” he said. The debate points out the need to make sure new positions are listed as separate line items from now on, he added.

“With a position like this, when you buy it, you own it,” McHatton said.

Berkowitz agreed that the position itself, once established, would need to be included in future budgets, but that it could be “defunded,” by recommending a zero appropriation.

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