Questions about the legality of Bellevue's fire contract have interrupted plans to hire much-needed full-time firefighters.
The city and union for Bellevue's part-time firefighters say the contract is legal and they want to abide by it. But an independent commission that oversees testing for firefighter applicants says the contract is illegal and refuses to operate under its provisions.
No matter what the city does, it could end up in court.
The union has threatened to sue if Bellevue doesn't enforce the contract, and the county attorney said he would take action if the city breaks the law.
The city, the Bellevue Professional Firefighters Association and the Bellevue Civil Service Commission are trying to work out the problem before it comes to that.
Meanwhile, Bellevue's fire chief is warning that the department's staffing is dangerously low.
“There are people's lives that could hang in the balance in the future,” Chief Perry Guido said.
In 2008 the Legislature required Bellevue to shift from volunteer firefighters to a paid staff. The Bellevue Fire Department is now staffed with part-time firefighters. The part-time positions earn less than full-time wages and also don't earn benefits.
Those firefighters want the first chance at any full-time job that might come open.
The city agreed, and that became part of the first contract between the city and the union.
But the Civil Service Commission says that provision breaks a state law that requires that all firefighter applicants have to be judged only on their “merit, efficiency and fitness.”
The hiring plan “violates the whole purpose of a Civil Service Commission,” said Mike McClellan, the commission's lawyer.
The city and the union say the part-time firefighters deserve the first chance to be hired.
“The bottom line is that we don't feel that the union contract that the city entered into violates” the law, City Administrator Dan Berlowitz said. “We're just trying to find a way where all parties can come to an agreement.”
Until the city receives a list of eligible firefighter candidates, it can't hire any full-time firefighters. That snag comes at a bad time for the city, whose need for full-timers has been growing steadily for months.
To be fully staffed, the department needs about 130 part-time firefighters. It has about 115, and there's a dearth of firefighters who can perform specific tasks or have specific credentials.
Bellevue has run into a problem because about 40 part-time firefighters have left for full-time jobs in Omaha and elsewhere. There aren't enough people willing to take part-time jobs to replace them.
That has led to uncertainty about whether they will be fully staffed each day, Guido said. For now, full-time command staff is filling in, and overtime in the past month has been double the average.
Guido wants to see a list of qualified candidates ready so he can start hiring as soon as the city finds the money. That's why Berlowitz asked the commission to get the process started earlier this year.
The hang-up arose when he asked the commission to create two lists of qualified applicants — one containing any part-time firefighters who applied and one containing all others who tested. The idea was that the city would hire from the first list until it went through all the internal candidates, then it would move on to the list of outside applicants.
Bellevue is trying to retain its best part-time firefighters as the department moves to a full-time staff, Berlowitz said.
"One of the difficulties of us transitioning to a full-time department gradually is that we have a lot of part-time people that we trained so that they're skilled,” Berlowitz said. “And we're losing those people to Lincoln and Omaha for full-time positions.”
But the commission says all applicants must be considered equally. A law meant to prevent nepotism lays out how the commission oversees testing for fire and police applicants.
Each firefighter applicant must take a test and is ranked by the commission. When there is an opening, the commission gives the city the names of the top three applicants. The city then chooses among those three.
McClellan said the commission is open to giving current firefighters some kind of edge over other candidates, but not at the expense of all others.
The City of Bellevue's move also angered Papillion, which was supposed to conduct firefighter testing with Bellevue two weeks ago.
Papillion City Administrator Dan Hoins wrote to Berlowitz asking him to reconsider because the city believes Bellevue's actions could violate state law.
Hoins said that because the fire chief picks part-time firefighters, those people should not be the only pool of applicants for full-time firefighters. He also questioned the potential for nepotism.
"Bellevue's proposed action circumvents the protections of the (law) in order to give preference to its hand-picked part-time firefighters,” Hoins wrote. “Moreover, it is my understanding that there is a direct family relationship between several of your part-time firefighters and current command staff members who will gain an unfair advantage over other applicants.”
Berlowitz ordered Bellevue to pull out of the process until the matter could be resolved.
The city's lawyer, Mark McQueen, said the part-time firefighters are doing the same duties as full-time firefighters, and that makes this case unique.
He pointed out that any part-time firefighter applicants would have to pass the commission's test before even being eligible for hire.
“There's a pretty strong argument that says they've earned the right to be first considered under these circumstances,” McQueen said.
County Attorney Lee Polikov said a commission member asked him to look into the matter.
Polikov said it does not appear that anyone has broken the law. But from a preliminary study, he doesn't think the idea of two separate lists is legal.
“If the law is in conflict with the contract, the law wins.”
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