Today: Jul 21 , 2019

Hearing for Juliann Ashcraft Before the PSPRS Local Board

21 May 2014  

This is a hearing in the matter of benefits for the survivors of Andrew Ashcraft.

"We are seeking more determination... This not a claim... This is not an attempt to shoehorn benefits for Andrew Ashcraft..." explains attorney Pat McGroder for Juliann Ashcraft.

"The city would have you believe that Andrew and the others were not municipal firefighters because they did things differently," McGroder states. 

McGroder now recites Ashcraft's history of employment with the City. 

Andrew signed a temporary employment agreement as a seasonal employee in 2011. "He knew it, he acknowledged it, that's what his job was," McGroder said.

In 2011, Ashcraft worked 2630 hours, averaging 51.8 hours per week, according to McGroder. 

2900 hours, averaged over 55 hours per week. "Clearly met all requirements of the fulltime statute," McGroder said.

In February 2013, Ashcraft assumed the position of "Lead Crew Saw". 

McGroder suggests that the City Manager removed some of the benefits from certain positions on the Wildland Fire Crew as part of the City's budget cuts. 

In 2013, Ashcraft was given position and responsibilities of "Lead Crew Saw," which had previously had fulltime benefits. 

ashcraft app2

 

McGroder's argument appears to be that three men, Turbyfill, Ashcraft and Chris MacKenzie had the same position, but only Turbyfill had benefits.

"Andrew Ashcraft and Chris MacKenzie, by the sheer fate of budget cuts, did not have benefits," McGroder said.

"I conclude with what I agree with Jon [Paladini]," McGroder said. He suggests that if you look at the duties and the hazards of the three, they were the same. "With all due respect to the City of Prescott, they put him in the wrong system," McGroder says. 

McGroder finishes up, and the panel takes a 5 minute break.

This eligibility item was created by the Ashcraft team.

requirements

 

ashcraft1

Juliann Ashcraft

 

Jon Paladini reviews the statute for the PSPRS requirements. 

To be eligible for the PSPRS system, an employee had to be engaged for 6 months in a calendar year. 
"Certainly the eligibility requirement can't be retroactive," Paladini. 

Engaged means you are fighting a fire, Paladini says. "Do we guarantee for at least 6 months that the person will be 'engaged'?" He says that when a person is put into the system, it is a "look forward" anticipatory decision, not looking back at what happened in the past.

Have all the eligibility requirements been met? 

"If the answer is yes, you have a duty to place Andrew Ashcraft into the PSPRS, assuming you can do so retroactively," Paladini says. "But if he doesn't meet even one of those requirements, he cannot be placed in the PSPRS.

Witnesses are now being called.

Todd Rhimes came to the City of Prescott in 2003, after years of firefighter experience. 

He was the fuels managment supervisor. He helped to secure grants, worked with the Wildland Interface Division. He first took the job as a full time temporary employee, and kept that title for the 10 years he worked with the City. He assisted the 2 chiefs in evolving the Granite Mountain Hotshots. 

"With Darryl's vision, I was brought in to not just manage the fuels division, but to develop the hotshot crew," Rymes said. 

McGroder points out that the fuels management division always relied on grants to pay for these expenses. 

Is there a difference between the fuels management on the fireline, and the fuels management during the non-fire season, McGroder asks. 

No, is the response. Hours are about the same, equipment used is essentially the same, according to Rymes.

"Is fuels management a hazardous job?" 

"Yes it is," Rymes said. "The only difference between the two is if you were on the fire, you had to be looking over your shoulder to see if the fire was chasing you down."

McGroder points out that they were required to wear the same sort of safety gear and protective equipment whether they were doing fuels management or fighting a wildland fire. 

calendarnumbers

Rhimes maintains that the duties of fuel management are identical to that of being a hotshot firefighter. He also pointed out that before the Yarnell Hill tragedy, more wildland firefighters died in travel than in fighting the fire. 

Is there any question in your mind that Andrew Ashcraft worked full time hours, and worked regularly as a lead crew after February 2013? 

"There is no quesiton in your mind that Andrew Ashcraft met the requirements of the mission of the Public Retirement System working full time as the statute defines whether he was working on the fireline or doing fuels management?" Rhimes said there is no question.

Cross-examination:

Paladini asks if Rhimes did the inputting for the Crew Time Report into the TeleStaff system. 

Yes. 

toddrhimes testimony 

 Todd Rhimes

Paladini discusses the difference between wildland firefighters and structure firefighters. Wildland firefighters don't go out on medical calls, for example. 

In discussing the 'fire season' Rhimes said that he believes the period is year round. 

What percentage of the time did the Granite Mountain Hotshots fight fires "off district,"? Probably 70%

Grant money covered taxes, salaries, insurance, and more. Rhimes helped to apply for the grants. 

"If there were not grants available, they would be laid off," Rhimes said. "We wre working off sometimes two to three grants at a time." 

As the fuels management supervisor, Rhimes tried to go out in the field with the team. 

"At no time can I remember that we did not have grant funds available to keep our full time personnel working," Rhimes said. 

In 2008, when the crew was a type II crew, which retirement system were they in? ASRS is the answer. 

Taking a short break at 10:43. Returned at 10:55 PM.

 

New witness: Pat McCarty

Went to work on the Granite Mountain Hotshots in 2005, as a Wildland Seasonal Firefighter. Pat is now with the City of Prescott. 

His brother, Dan, was also on the Granite Mountain Hotshots. Dan is now with CYFD.

Pat McCarty discusses his training and physical condition. "I just came out of wrestling in high school, and was in the best shape of my life. I was completely unprepared for the rigor of being on the wildland hotshot crew," McCarty said. 

"Was there ever really an off season as a hotshot fire member?" No, McCarty explained, he recalls a fire in October.

He also trained at the Wildland Fire Academy, and then eventually became an instructor at the Wildland Fire Academy.

He said that at the beginning of the season, they would spend a 40 hour week training before being dispatched. 

Training and job responsibilities were held to the highest of standards. 

In season, I guess I would relate it to special operations in the military branch," McCarty said. "You're sleeping in the dirt, you're eating in the dirt. Everything you do is in the dirt... It's the most intense experience, and then there's fire and what the fire's going to do. Are you going to be bit by a rattlesnake, which I was, on the fire..."

The equipment was the same. 

In season, they would have their wildland fire pack, 45 lbs, sawyers, 25 lbs, somewhere between 65-70 lbs. 

"A hotshot crew is no good without their chainsaws," McCarty said. 

When he became a lead crew sawyer, McCarty became a member of the Public Safety Personal Retirement System. (PSPRS).

The duties appeared to get more difficult in time, McCarty relates.

patmccarty

Pat McCarty

 

They would do firefighting, to fuels management, work on prescribed burning. "We were still preparing for fire," McCarty said. 

 "Just because there's a little snow on the ground, or frost on the ground, doesn't mean we're not going to work," McCarty said. 

McCarty also states that this is dangerous work, partly due to the chipper. 

"In your opinion, was it full time work?" It was full time work," McCarty responded.

"Were you regularly involved in hazardous work?"

"Every day," McCarty said.

Cross examination by Paladini:

Paladini asked why he moved to the structure fighting side?

"I wanted to start a family," McCarty said.

"Were you exposed to any less arduous work or danger while you were a wildland firefighter than you are as a structure fire."

I probably experienced more danger and ardor as a wildland firefighter, than I will in a 20 year career as a structure firefighter, McCarty explained.

"It's one of the most gratifying things I've ever done in my life," McCarty said.  

"When I was on the crew, I may have had more of a responsibility, we were required to be no more than two hours away," McCarty explained.

Chief Willis is the next witness called by McGroder.

Chief Willis is the Assistant Chief for the Wildland Division.

He has about 38 years of firefighting service.

Willis agrees with the statements from Rhimes and McCarty. 

chiefwillis

Chief Darryl Willis

According to Willis, the hotshot crews were always considered the same as a City of Prescott firefighter. 

We are breaking for lunch now at this time. 

Finished with lunch, questioning of Chief Willis resumes.

schematic

 

McGroder suggests that the grants and financial renumeration kept the Wildland Division in the black. Willis agrees. 

"Yes, there are some discrepancies, but it's my understanding that we were in the black," Willis said. 

Willis did point out that there are some situations in which the grants required a certain percentage of a matching amount from the City's matching fund. 

McGroder says, "The wildland division was paying for itself... in the year 2012 there was an excess of funds that went back into the General Fund."

Willis replied, "I don't know if there was a lump sum put into the General Fund or not."

Willis did not make the decision to reduce the Fuels Tech/Wildland FF from 3-1. 

Chief Martinez told Willis that when two left, he was told by Chief Martinez that the positions were frozen. "The only way you're going to get those positions back in is if it's with no benefits."

Since the positions were frozen, did the duties and responsibilities remain exactly the same as the one benefited crew?

Yes, Willis responded.

staffingsummary

 

"We make things work. Did I like it? No. But that was in the best interest of the community," Chief Willis.

"It pained you, didn't it, Chief?"

"Yes, it did," Willis replied.

Paladini is now picking up cross examination.

From 2001-2004 all members were put into the ASRS, not the PSPRS. 

The Type II team, and ultimately the Type I team was modelled after the Forest Service Team. 

The Forest Service model did not benefit the 13 members which were not full time. 

What would have been the result if all the team members had been placed into the PSPRS? We would not have been able to go on fires, we could not have afforded it. 

"We would have to prove we were marketable," Willis said. "If we had gone over $40 per hour, they would not have called us - the off district fires," Willis said.

"That $39.50 rate is an all-inclusive contract. That has to cover the tires, the gas... everything," Willis explained.

"We brought them on, and trained them to the proper standard, but we pretty much knew they were going to go on fires. We knew how much money we had to work with for the year," Willis.

"If they weren't on a fire, they were coming out of the grant," Willis said.

Willis acknowledges that most employees understood they were seasonal. 

"the agreement with both of those guys, was that we had enough money [for 2013] we cover them for a year," Willis said.

"In my opinion, they were the best in Region 3. They were polite, not cocky, but adventurous, not cocky, fun-seeking... They were closer than brothers in most cases, they know everything about everyone, they know what's going on at home, they know everything. They support each other," Willis said.

"I think that wildland firefighters are misunderstood by structural firefighters... you either love it or you hate it," Willis said. "Not everyone wants to go 14 days without a shower..."

"I think the seasonal's, there's no doubt that they knew that [they might be laid off]," Willis said. 

"Andrew walked by, I asked him, 'Are you good with this?'" He understood, Willis said. My feeling at the time was I believe that you should get paid for what you work. 

"I believe he knew that," Willis said, when asked if Ashcraft understood he was getting a raise, but not benefits. 

"If all the members of the team had been in the PSPRS, what would have been the status of being in the black?" Paladini asked.

"We wouldn't have been," Willis said.

"In my mind, this person was going to be full-time, going to work 40+ hours a week, but without benefits," Willis said. 

"No firefighters in the United States, or anywhere, get the quality of experience a Type I Hotshot Crew gets," Willis.

Andrew didn't have the EMT or the Firefighter I or Firefighter II certifications needed to be for the structure firefighters.

The threshold decision as to whether an employee goes into the PSPRS system is a City of Prescott decision.

"I understand, Chief, I want the job, I understand there aren't going ot be any benefits at all, but I know you are going to fight for me," Andrew is quoted as saying. 

"Andrew knew we were fighting for the positions," Willis said.

Gary Boivin, who has been listening to part of the hearing, said that in his opinion as a citizen - without finance or particular expertise - the government should find a way to help those in need, such as Juliann with four children. The response should be based on need, he said, adding that if necessary, laws should be changed to allow that to happen.

He thinks that the agency with the greater wherewithal should bear the primary responsibility. 

"Were we within 7 1/2 hours of this changing?" Eric Kriwer asked. 

Willis said he didn't know.

This wasn't due to their qualifications or their training, it was purely a budgetary issue.

"It's a beautiful place to live, but the work that is required to make this community safe, is very arduous," Willis said. "It was mitigation, education and response... We're going to continue mitigation, education and upbeat response." 

"I can tell you that if there's a fire in Prescott, you won't have a hotshot crew," Willis said. "The forest service has a presence, but you won't see a hotshot crew here."

ashcraft2

Juliann Ashcraft was visibly moved by Willis' testimony. 

 

Next witness: Robert Carter Olson, a retired judge from Pinal County. He was the Presiding Judge for Pinal County. 

Other positions included Pinal County Attorney. He's a native of the Chicago area, went to Loyola University in Chicago. Also a certified public accountant, although not licensed. 

He was nominated by Governor Napolitano in 2003 on the Board of the PSPRS, and once Chairman of the Board of Trustees.

PSPRS the System, and PSPRS the Plan. 

robertolsen

Robert Carter Olson

Olson is a paid consultant, and charges $200 per hour. He was called by the Ashcraft team.

He explains that each employer is responsible for their own liability. 

He is asked whether the local Board could place Andrew Ashcraft into the PSPRS system. It's not the City's decision to make, it's the local Board's decision. 

The issue is the implication of the 'gift clause' from the Arizona statutes. To retroactively "gift" that pension, it's simply a very narrow question. 

The City's attorney makes an objection that the witness is making a legal argument, not testifying. Mayor Kuykendall, the Chairman of this Board, asks that a note of the objection be entered into the record, but then allows the testimony to continue.

It is not that the City or HR or the budget process that ties your hands here. It's simply eligible group and meets the hazardous requirements and the other PSPRS requirements. 

The question is simply whether Andrew should have been in the PSPRS to begin with. 

According to Olson, neither the employee or the employer has any option to opt out of the PSPRS. "It's a 'shall'," he states firmly.

Olson claims that Ashcraft overpaid his share, and the City underpaid it's rates. 

contributionrates

 

The City's attorney is protesting the line of questioning in which the plaintiff's attorney and witness are leading.

Because of this, the Board has voted to go into Executive Session so it can consult with it's attorney.   

 Returning from Executive Session,  they reconvened at 4:12 Mayor Kuykendall, as the Chairman of the Board, states, "Mr. Paladini's objections have all been noted and will all be part of the record."

The Ashcraft team is claiming that the City is adding requirements that aren't part of the PSPRS plan. 

The pension must meet IRS plan qualification rules. 

The Board of Trustees can reject your decision if they feel it doesn't meet plan qualification rules. 

For the plan to remain qualified, it must operate in a certain way, and it cannot discriminate, and it needs to apply to everyone in exactly the same way. 

Because of this, it is important to be mindful that whatever decision they make will apply to everyone. 

This Board must strictly follow the rules and the letter of the law. Basically, the Board cannot add, modify, delete or waive anything other than what is in the legislation. 

Is there a requirement for the fireman to be a fulltime firefighter? No, a fulltime employee, and a firefighter, but not necessarily a fulltime firefighter, Olson testifies.

Does it require 40 hours per week as a firefighter? Olson said he cannot find that in Title 38. 

It needs to be a paid firefighter, it needs to be a fulltime employee, but not a fulltime firefighter. 

Must be employed for at least 6 months. 

"A city doesn't get to make those decisions for you... the statute teaches you what the requirements are," Olson said.

"The city is right, all of the qualifications have to be met," Olson agrees.

The local board must treat all members the same way.

The standards must be applied to everyone. 

Cross examination by Jon Paladini.

He asks the name again - he is known as Carter Olson. 

"You think... actually, I'm not going to ask what you think, because that's all we've heard from you so far," Paladini states, obviously still irked.

"So at the end of the day, these are your opinions, paid for at $200 per hour, given to the Board?" Paladini asks. 

Wade Ward asks about the idea that they don't have the option to go into PSPRS? He said he was given the opportunity to choose ASRS vs. PSPRS.

"It's not uncommon that somebody is in the wrong system," Olson said. 38-843 is the Statute he is quoting. 

"These are not voluntary programs, and when you enter into a certain employment where this is offered, they are not allowed to opt out of the program."

"If they are in an eligible group, and they are regularly involved in hazardous, and they meet the requirements of a member, they are required to be in PSPRS," Olson states without equivocation. 

"If the Trustees feel that your decision is at odds with the planned qualification, they have the right to demand a new hearing, and to not regard your decision," Olson says. "There could be a re-hearing here, there could be a re-hearing demanded by the Board of Trustees, or there can be an Administrative Review by a Court," Olson says. 

Municipal Firefighter, hazardous duty, and meet the requirements of a member, they have to be in the PSPRS plan.