Today: Feb 19 , 2020

Council To Decide Whether or Not To Appeal PSPRS Decisions
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10 March 2015  
City Attorney Jon Paladini speaks to PSPRS Board in January during Warneke and Misner hearing.

The City Council, without Mayor Kuykendall due to a conflict of interest, will decide whether or not to appeal the PSPRS benefits decisions for three of the firefighters' widows. 

At issue is the question of whether or not the Council should allow the PSPRS decisions to stand, or whether or not they should be appealed. In regards to the Juliann Ashcraft hearings from last fall, the Council already appealed them to the Yavapai County Superior Court. Judge Mackey found in favor of Juliann Ashcraft. 

So, will the City appeal again? Are the circumstances that different? Should they appeal Mackey's decision, too? That is the question to be decided. 

Here is the posted announcement: 

Item Summary

Misner/Warneke. The City of Prescott PSPRS Local Board decided that Sean Misner and William Warneke were eligible for participation in PSPRS. An appeal of the PSPRS Local Board eligibility decisions must be filed in the Yavapai County Superior Court no later than March 31, 2015.

  1. Ashcraft. The City of Prescott appealed the PSPRS Local Board’s decision regarding Andrew Ashcraft’s eligibility in PSPRS to the Yavapai County Superior Court of Yavapai County. The Superior Court upheld the City of Prescott PSPRS Local Board’s decision in favor of the PSPRS eligibility for Andrew Ashcraft. An appeal of the Superior Court decision to the Arizona Court of Appeals must be filed no later than March 26, 2015. 

The council met briefly, and then, after Councilman Arnold said he had new information they had not hear yet, dismissed into Executive Session. 

Attorney Pat McGroder is speaking now, and points out, "I came before, and urged you not to appeal to the Superior Court... We played by the rules... Judge Mackey ruled. I don't know what you all will consider in taking it to the Court of Appeals."

"The issues of hazardous duty were practically factually uncontested... In Misner and Warneke, we met them (the standards)... My clients, my widows, and their 6 kids, want finality."

"The problem we're having, is, what if the insurance runs out in June?" McGroder states. 

"The idea that they were not regularly assigned to hazardous duty is a misnomer," McGroder said. "We would again extend the olive of compromise."

"I would ask you to please give the Ashcraft family, and the Misner and Warneke families some peace," McGroder states.

Vallardo, who is a former PSPRS Board member states, "Either they were firemen, or they weren't... Now the City doesn't want to take responsibility for them." 

"Under the umbrella of fairness, if two people do something, they should get the same benefits. If nineteen die, they should get the same benefits," Vallardo states. 

Sandra Smith - "Fairness. You know, I've read the Constitution, and I've never found that word in there..." I've done dangerous, I've served this nation. "Fairness is not a word that should be taken into this. What was the contract that they agreed to? And what was the City's responsibility in this."

Debra, Andrew Ashcraft's mother stands up to discuss the issue. She points to Councilman Blair and states that his children played baseball with Andrew. "You Councilman Charlie, you graduated with Andrew," she said. 

"Mr. Paladini has made his case three times. Yet you went into Executive Session and asked for his counsel. I ask that you ignore it."

 

Lamerson says he never promised anyone anything. But he wanted to hear the truth. He heard the truth. "I heard staff testify under oath that they did things they should never have done. And I will cast my vote in good conscious."

Wilcox states, "I did read everything, including Judge Mackey's decision. And it left two questions open." She said that the question of whether the PSPRS can retroactively place them into the plan, and what the definition of hazardous duty is. 

Arnold says that he too wants to find finality. "Unfortunately it happened, and we can't change it."

"Unfortunately, both Judge Mackey and the Board left some doors wide open," Arnold said.

Lazzell points out that his vote was not to appeal Ashcraft's decision, and this time it will be not to appeal. "In the end, they weren't lumberjacks, they weren't gardeners, they were called hotshots... They were called firefighters."

Blair points out that they are voting on three separate votes. Everyone of these people were hotshots, but they were treated differently. 

Blair states that he will consider each case separately. 

Kuknyo states, "If they qualify for it, we owe it to them," he said. "If they don't, they don't."

"We have no desire to put the families to further grief," Kuknyo says. 

"We are redefining wildland firefighter as we go... My fear is that we have a whole crew working right now, some without benefits," Kuknyo. 

He expresses his disappointment in staff, Chief Willis. "My big fear is that we don't make the same mistake over and over again." What happens if Chief Willis gets killed, he's not in PSPRS? The guys working in the brush clearing, what if something happens to them.

"Employees want and need to know their families will be taken care of if anything happens to them," Kuknyo said. 

"I have no desire to put any one to further grief," Kuknyo says. 

Lamerson notes that,  "They were hired as firefighters, they died as firefighters, and to call them anything less is offensive," he said. "I'm not a happy camper. I haven't been a happy camper since the day of the fire. This is tortuous to keep going over this over and over."

"I got what I needed to hear from voting for the challenge to Juliann's hearing last time," Lamerson said. "At some point, you can't keep doing things over and over the same way."

"I'm just not a happy camper at this point," Lamerson finished.

Arnold suggests that they direct staff to have a conversation with McGroder for a settlement. He is suggesting a motion to continue. 

Here are the potential motions:

http://prescottaz.suiteonemedia.com/Web/GenFile.aspx?ad=1852

http://prescottaz.suiteonemedia.com/Web/GenFile.aspx?ad=1853

http://prescottaz.suiteonemedia.com/Web/GenFile.aspx?ad=1863

Arnold moves to continue the items until next Tuesday, at 2 PM. The motion dies for lack of a second. 

Lazzell moves not to appeal the Warneke decision and the Misner decision. His motions passes 4-2, with Kuknyo and Wilcox in dissent.

Lazzell moves not to authorize an appeal to the Court of Appeals of the Ashcraft decision. His motion passes, 5-1, Wilcox in dissent. 

Afterwards, Juliann said that she was grateful, and appreciated the fact that the decision was made based on their hearts, rather than whatever they were conflicted by.