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Abuses and Usurpations

Wednesday, May 1, 1996

Last summer, a brush fire in West Hampton, New York, burned for more than two weeks, consuming 5,000 acres and 12 homes. Several thousand volunteer firemen from 192 fire departments risked their lives to battle the blaze. According to the Clinton administration, many of them also broke the law.

        Volunteer fire departments are pillars of suburban and rural life. About 1.2 million of America's 1.5 million firemen and rescue workers are volunteers, and they staff more than 21,000 firehouses across the land. Until recently, many of them were professional firemen who donated their expertise and time to volunteer companies based in their local communities.

        The Clinton administration, however, has erected a fire wall between volunteer and professional firefighting. The Labor Department ruled in 1993 that firefighters employed by government are barred from offering their services gratis in their own communities. They risk fines and even the loss of their jobs for what the government has deemed a crime: volunteering to protect their own homes and neighbors.

        The 1993 ruling came in response to complaints by paid firemen in Montgomery County, Maryland, that they lost overtime wages when other firemen volunteered in their spare time. Prodded by the International Association of Firefighters (an AFL-CIO affiliate), the Labor Department decreed that municipalities and counties must pay overtime to volunteers who are also full-time paid firemen and rescue workers.

        The logic of the department's decision threatens to undermine all voluntary activity by public employees. Reinterpreting the Fair Labor Standards Act, which prohibits paid employees from volunteering similar services to the same employer, the agency ruled that Montgomery County firemen could not volunteer in independent, privately run firehouses because their "employer," the county and its citizens, were the ultimate beneficiaries of such services. So the county was forced to pay for the services it received. Under the same reasoning, public-school teachers could not be volunteer tutors in their spare time.

        Underfinanced and wary of lawsuits claiming years of back pay for overtime, volunteer firehouses acted predictably: They stopped allowing professional firefighters to volunteer. As a result, in Montgomery County alone, nearly 200 men and women could no longer offer their services without pay at the county's 38 private, independent firehouses.

        The ruling, which allows professional firemen to volunteer only outside the county or city that employs them, has had ramifications far beyond Montgomery County. When the City of St. Cloud, Minnesota, merged with the surrounding Township of St. Cloud, the city's professional firehouse also merged with the township's all-volunteer operation, creating one jurisdiction where there previously had been two. The City of St. Cloud, fearful of liability for overtime pay and pressured by the union, forced its firefighters to choose between working for the city and volunteering. Not surprisingly, they chose their jobs.

        Besides limiting the individual freedom of firefighters, this ruling threatens public safety. Volunteer fire companies generally serve communities too small to afford paid, full-time fire and rescue squads. Many professional firemen get their start in volunteer companies, and in turn they provide these squads with valuable skills and training. But thanks to the Clinton administration, seasoned, motivated volunteers are now lost once they "go pro."

        The new regulation also drives up local government costs, thereby forcing higher tax rates. Like so many private institutions that duplicate services provided by government, volunteer fire departments do more with less. While New York City spends over $1 million a year to run a firehouse, its volunteer departments provide the same service for about $45,000 -- the average salary of a single city firefighter.

        But perhaps most disturbing, the Clinton administration is undermining civic responsibility. Volunteer firehouses are multipurpose town halls, centers of community life for volunteers and ordinary citizens alike. Volunteering at the firehouse is a tradition passed down through families, anchoring them in the community and providing role models of civic leadership for generations.

        With the support of the National Volunteer Fire Council, Virginia congressman Herbert H. Bateman has introduced legislation to correct the Labor Department's abuse of federal power. The Volunteer Firefighter and Rescue Squad Worker Protection Act would exempt paid firefighters and rescue workers from the FLSA overtime requirements if they volunteer their off-duty services at locations in their communities where they are not employed. The legislation would allow these volunteers to sign a waiver legally relinquishing their rights to overtime compensation under the act.

        Congress will soon host its annual Fire and Emergency Services dinner, a huge gala honoring the emergency-services community and the members of Congress who support it. The brave men and women who battled the brush fire at West Hampton last summer will be singled out for their service. Standing among them will be many who broke the law by volunteering. Will they receive plaudits or pink-slips? Stay tuned.

        John P. Walters is the president of the New Citizenship Project, based in Washington, D.C.

Quotas in the Drug War

by Greg Forster

        A 1992 drug bust by Los Angeles police and federal agents began as a routine undercover operation. Police made eight visits to a dealer's motel room, buying a total of 133 grams of crack cocaine. In the raid they seized firearms and arrested five men, charging them with drug trafficking. Because of the amounts of cocaine and the weapons involved, prosecutors indicted the men in federal court, where sentences are generally stiffer than in state courts.

        So far, nothing unusual. Last year, 9,877 drug-trafficking cases were filed in federal courts. The L.A. bust was virtually a text-book case for the prosecution of cocaine dealers polluting neighborhoods with drugs and violence.

        But then the NAACP and the ACLU added a new twist to the story: a claim of racial discrimination. The final chapter is now being written in the Supreme Court, which will soon decide how and when defense lawyers can play the race card in drug cases.

        All the defendants in the 1992 case are black, as are most crack defendants in federal courts. Barbara O'Connor, a federal public defender, claims the government is targeting black defendants for prosecution in federal courts, instead of more lenient state courts, because of their race. O'Connor's client, Shelton Martin (a.k.a. "Psycho"), faces 35 years to life in federal prison; in the California state system, he would face only three to 10 years.

        With legal support from the NAACP and ACLU, O'Connor convinced federal judge Consuelo Marshall to order prosecutors to explain why they decided to charge the men in federal court. The prosecutors appealed the order to the U.S. Ninth Circuit Court of Appeals, which ruled against them. The Justice Department then appealed the case to the Supreme Court, which heard oral arguments last February.

        In United States v. Armstrong, the Court will decide not whether prosecutors discriminated against blacks, but under what circumstances prosecutors must account for the high proportion of blacks being charged with crack-cocaine trafficking in federal court. To be sure, there is a large statistical disparity between blacks and whites facing drug charges in federal court. According to prosecutors, 74.6 percent of the crack cases filed in the central California federal district from January 1992 through March 1995 were filed against blacks. Only one was filed against a white.

        Does it suggest discrimination?

        "It is undisputed that the manufacture and wholesale distribution of crack is concentrated in the inner city and is dominated by inner-city street gangs," says U.S. Attorney Nora Manella of California's Central District, which prosecuted the defendants in Armstrong. And it's no secret that the gangs who dominate the crack market, like the neighborhoods they prey on, are disproportionately minority.

        "Our job isn't to set racial quotas," Manella says. "Our job is to pursue criminal activity and then let the chips fall where they may."

        If the Supreme Court rules for the defense, it would force prosecutors to spend thousands of hours responding to frivolous claims, Manella says. Since the Ninth Circuit ruling, more than a hundred defendants have sued for discrimination.

        An adverse ruling by the Court could also make prosecutors more concerned with eliminating statistical disparities than punishing drug dealers. That's law enforcement by quota, and it's the last thing our inner cities need, especially those residents hit hardest by crime: blacks and other minorities. Over half of all 1994 murder victims were black, for example, while blacks make up only 12 percent of the population.

        "If we want to address disparities," says Reuben Greenberg, the black police chief of Charleston, South Carolina, "let's address disparities that really matter -- like whether people live or die."

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