Fire Subscription Services – A Legal and Moral Conundrum

The recent lack of an effective response to a house fire in Obion, Tennessee has created a national fire storm (no pun intended) in the rural area surrounding the city of South Fulton. As cited in numerous news papers, editorial columns, web pages, blog’s, tweets and other sources we have come to discover that homeowners in the region outside the town limits of South Fulton, Tenn., have to pay $75 a year to have fire protection from the town's fire department. Recently, the house of Mr. Gene Cranick, who had not paid his $75 fee, caught fire and when the fire department arrived, they announced that since he had not paid his fees, his house would be allowed to burn to the ground. The homeowner offered to pay the $75 on the spot, but the firefighters refused. As the neighbor’s house was an endangered exposure and covered under this subscription program, was protected by the firefighters as the Cranick fire was spreading to the neighboring home.

To compound this smack down of the Cranick’s and their fire, the Mayor of South Fulton ineloquently stated, "if homeowners don't pay, they're out of luck." Well, that does not resonate well for me and my fire service brothers and sisters.

A little background about this County. There are currently eight municipal departments in Obion County which provide fire protection for most of Obion County’s rural areas. These departments are: Hornbeak Fire Department, Kenton Fire Department, Obion Fire Department, Rives Fire Department, Samburg Fire Department, South Fulton Fire Department, Troy Fire Department and Union City Fire Department. Funding for these fire protection services outside of their response areas is by subscription for the basic response and a fee if they actually respond of about $500.00. Now that is not a lot of money for the homeowner to pay as the fire chiefs and budget wonks know that providing fire protection, per response, costs thousands of dollars.

This article is also not meant to bash the firefighters or city politics but to offer a viewpoint of the struggle the fire service has been facing in providing fire protection service to our citizens. According to the National Volunteer Fire Council, over 70% of fire services are provided by volunteer firefighters mostly in the rural areas of this country. Two major issues facing these organizations are the lack of people and money.
In many areas of the rural United States, fire protection is paid for by a property tax paid each year or through some sort of alternative funding mechanism such as subscription services.

We all understand the concept of subscription services as we indulge in that luxury every day in our lives. We subscribe to: life and health insurance, cell phone and internet services, newspapers, magazines, vehicle collision and home fire insurance, fire and burglar alarm protection and hundreds of other subscription services. What happens when we don’t pay for these services? The coverage stops – it’s a simple concept.
Did you ever let your motor vehicle insurance lapse, get into an accident and call your insurance agency for “retroactive” insurance coverage? After they stop laughing, you will soon realize that “retroactive coverage” does not occur as it did in Obian County. Even the Mr. Cranick admitted that he “forgot” to pay for this service. So here we are bashing the response of the firefighters and the government where the homeowner admitted his lapse of judgment.

Let’s get a basic grip in this controversy. For you history buffs, back in the day of Benjamin Franklin, insurance companies in larger cities formed fire brigades to protect their insured structures. Since there were several fire insurance companies it was common for more than one fire brigade to exist in the city. Upon arrival at a fire, the first action taken was to check for a fire insurance marker. If one did not exist, or if it belonged to a competitor’s company, the fire brigade simply went home leaving the structure to burn. Fire insurance has over 200 years of history in America. The early fire marks can still be seen on many older buildings in many American cities. Subscribers paid fire fighting companies in advance for fire protection and in exchange would receive a fire mark to attach to their building and those payments for the fire marks supported the fire fighting companies. We have come a long way since the insurance companies will pay the fire department for fire protection and suppression services.

Volunteer fire departments were also common in the United States at that time and some fire insurers contributed money to these departments and awarded bonuses to the first fire engine arriving at the scene of a fire.

Today, most rural areas continue to struggle with this funding problem and are attempting to find creative ways in solving this problem. It does not look like we have progressed much since the days of the fire mark and even the insurance companies have stopped paying for these services.

In Obion, the creator of a comprehensive 1987 countywide fire protection plan said that the resolution, if enacted at that time, could have prevented the controversy surrounding the Obion County fire today. Richard Chestean designed a detailed plan giving everyone in the county fire protection. County commissioners liked it and voted yes. Then nothing happened for 23 years.

About two years ago, county leaders voted to scrap the whole thing and start over. Mr. Chestean indicated county leaders ignored the first one because no one could agree on how to fund it. As such, the debate on whether to tax or offer subscription service has gone on for decades, while houses in the county burned to the ground. In the 1987 comprehensive plan, there was a separation of the county into districts and even appointed a fire chief but funding was the one thing that divided the leaders. County Commissioners wouldn't raise taxes to pay for a service that many areas were getting for free from nearby cities. “They never had to have a subscription as the firefighters came out anyway," said Chestean of the area fire departments. But now times have changed. After the fire that destroyed Gene Cranick's home, the heat is on as the resolution has been re-introduced to the county and Cities after this event has become national news.

In the recent podcast by the Fire Engineering Fire Lawyer’s group on this topic, we opined that there are certain limitations of municipal government to provide “free” services as it can be construed as a gift of public funds and that a property tax base is the most recognized method of funding essential public emergency services to include Fire, EMS and police.

Some municipalities are using a “cafeteria style” system of paying for essential police, public works and some other services either on a outsourcing contracted service basis or under an internal “enterprise services” model. This “cafeteria model” work best for police services and not so well for the fire services. Under the police “cafeteria style” of delivery (which is usually purchased from another neighboring municipality), the city can “buy” certain police services and not others. For example: street patrol and not helicopter services, investigation and not bomb squad, fraud investigation and not cybercrime investigations and the list goes on and on. For the fire service, the municipalities are paying for readiness, response and reaction. It is hard to break these down into a menu system as if we are eating in a restaurant: one from “Column A” and two from “Column B”. It just doesn’t work that way and believe me, municipalities have tried to leverage those discussions into the fire service budgets.

The Fire Lawyers also discussed the moral dilemma of firefighters standing by watching something burn down when the firefighters can actually do some good. We all understand that this could be a career ending move to “actually do something” if directed by your boss “to actually do nothing.” That decision is only yours to make.

It is unfortunate that highly publicized disaster or death causes significant change in our emergency services delivery systems. This was all to evident in 1978, when a Florida city PROHIBITED their paramedics from responding outside the City limits to assist a 16 year old child who was struck by a car. As he was dying, Pinellas Park paramedics refused to respond because the boy’s body lay just outside the city limits. As seconds ticked away, two private ambulance companies were contacted and neither had units available. The child’s death sparked public outrage and it took actions by the State Legislature and a public referendum in 1988 culminating with the establishment of the current response system enabling EMS to go outside city limits. This was not a “paramedic” decision but one of City leadership. Did the paramedics want to respond? Sure they did. Did it raise a storm of protest? Sure it did, but it took ten (10) years to make it a seamless response system

We also discussed the issue: “if the firefighters were injured while fighting this fire, are they covered under a worker’s compensation program or the department’s insurance?” In this situation, we opined that if you were working in violation of your standing orders, you would most probably NOT be covered. How’s that for the gray zone of a legal opinion? Someone would have to test the system but I can tell you there is case law across the country that generally finds in favor of the employer and not the employee if you were working on a fire or other activity in violation of your departments or municipalities direct orders or the lack of mutual aid agreements.

As the Fire Lawyer’s are all current or former firefighters, we are not in favor the “does nothing” option but understand the need to follow orders. In this situation the firefighters were under a lot of pressure “to do nothing” as they probably would have loved to extinguish this fire but were prohibited by the municipality.
If we look across rural America, we will find hundreds of small volunteer departments in the same situation and the controversy that continues to rage across rural area as how to pay for these essential fire protection services has no simple answer.

The issue of a county wide system has come full circle in Obian County where the leadership of those municipalities and County Government are under immense pressure to change the current subscription practices. Does the government become the paternalistic part of society protecting the interests of all of its citizens or do they make the citizens responsible for their own fire protection and emergency services? It begs the question, if faced with the lack of a comprehensive police force; does everyone purchase a sidearm for personal protection? This harkens back to the days of the Wild West and fortunately “government” found a better way to ensure the safety of its citizens. Personally, I would advocate that in certain circumstances, government needs to provide the basic services to our communities and citizens to include Fire, Police and some health care services.

What are some solutions? For the highly controversial ones (and I only speak for myself), I would: 1) look to the insurance companies for full cost recovery for fire departments services for their insured clients. This may reduce the tax burden on our citizens and affect only those utilizing our services through increased insurance premiums. 2) Seek the formation of an independent fire taxing district (similar to a port district) that is fair and balanced for essential public fire and police services nationwide. 3) In addition to a property tax, I would look to a consumption (food, beverage or alcohol) tax or surcharge licensing tax for automobiles. 4) I would (in extreme terms and conditions) look at Nationalizing certain sectors of the fire protection services to eliminate incongruities and gaps in our services and finally look to a firefighter recruiting system that seeks “volunteers” much like the military did during the golden years of the 60’s and 70’s. In the alternative, I would look to compulsory service after high school or college to fill the gaps in our essential public services for a minimum two year period of time.

The less controversial side is to continue to educate our elected leadership that the fire services are underfunded, in crisis and may not respond when needed and that there are some hard choices they need to make in providing an action plan in the provision of these services that includes finding a stable funding system. Firefighters standing by while your house burns down is not a reasonable alternative so what are some of your solutions?

Public emergency service such as police and fire is one of those essential governmental services much like the military. The difficult part is how we pay for those services and who will accept responsibility if we do not pay?

Mr. Cranick certainly found out what happens if you don’t pay and he’ll not be the last.

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ABOUT THE AUTHOR: John K. Murphy, JD, MS, PA-C, EFO
Retired as a Deputy Fire Chief after 32 years of career service; is a practicing attorney, whose focus is on employment practices liability, training safety, employment policy and practices, forensic evaluation on fire operations, internal investigations and consulting on risk management for private and public entities. He is a frequent speaker on legal and medical issues at local, state and national fire service conferences and a frequent contributing author and podcast host with Fire Engineering.

Copyright M2 Resource Group, Inc

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.