A town board’s decision to disband its volunteer fire department has led to litigation.
Members of the Dupont Volunteer Fire Department (DVFD) are seeking a restraining order against the Dupont Town Board in an effort to save a 62-year-old organization.
DVFD’s attorney, Erica Healey, has also filed a complaint with the district attorney’s office against Dupont Town Chairman Kelly Zillmer and Supervisor David Barnick, alleging they violated Wisconsin’s open meetings law. Her civil lawsuit also accuses them of having conflicts of interest when they voted to end the DVFD.
A rural township located east of Marion in northern Waupaca County, Dupont has a population of less than 750.
In March 1950, the town established the Dupont Volunteer Fire Department. Until last month, about 20 town residents served on the force. When a fire occurs in Dupont, the volunteers don their firefighting gear, leave their homes or farms and bring extinguishers to the scene. The DVFD has no fire trucks.
The town relies primarily on the Marion Area Fire Department (MAFD) for heavy equipment. Dupont pays for about one-third of the cost of Marion’s fire trucks as part of a cooperative effort that also includes the town of Wyoming, part of the town of Larrabee and the village of Big Falls.
At its Feb. 14, 2012, meeting, Zillmer and Barnick voted to terminate the DVFD, effective March 25. A third town board member, Allen Johnson, was absent from the meeting. However, he sent a letter to the other board members in support of the decision.
The vote was to merge the DVFD with the Marion Area Fire Department and to have an exclusive contract with Marion for fire protection services.
The board also ordered members of the DVFD to turn in the fire department’s property and hand over its financial accounts.
A letter from the board to DVFD members said they were “invited to continue serving as firemen in the Marion Area Fire Department. The Marion Area Fire Department has agreed to accept into membership any rostered Dupont firemen with Fireman 1 and 2 certificates.”
The DVFD’s lawsuit seeks an injunction against the town board, enjoining it from taking possession of the disputed property.
On March 21, Healey and DVFD President Timothy Bowers sent a letter to Jeffrey Siewert, Waupaca County’s corporation counsel, seeking his opinion regarding possible conflict of interest by Barnick and Zillmer.
After noting that MAFD personnel are paid significantly more than DVFD personnel, the letter said, “By voting for the termination of the DVFD, Mr. Barnick has significantly increased his financial gain, because the MAFD, which whom he is a member, will now be the exclusive provider of fire protection services in the town of Dupont.”
The letter also argued that Zillmer’s son is both an officer in the MAFD and a member of Marion’s city council.
In his March 23 written response, Siewert said Wisconsin state law is quite clear in prohibiting public officials from using their positions to obtain substantial financial gain for themselves, their families or any organization with which they are associated.
“Assuming the facts as stated in your written summary are accurate, I would determine that there is reason to believe that a violation of ethics has occurred,” Siewert said in his letter. “Although I cannot determine from the information I have been provided whether or not the actions of the Town of Dupont will actually result in a ‘substantial’ financial interest as described (in state law), enough of a question has been raised to warrant further investigation into the matter.”
Healey has also filed a complaint with District Attorney John Snider regarding a possible violation of the open meetings law.
In her complaint, Healey said the posted notice for the Feb. 14 meeting was insufficient when it described the topic of discussion as “Future of Dupont Volunteer Fire Department.”
She said the notice “is unreasonably vague as it is not reasonably likely to apprise members of the public and does not meet the reasonableness standard. In this instance, the reasonableness standard would suggest that detailed notice would not interfere with the government’s ability to operate, the subject of fire protection services is of particular public interest, the closing of the fire department responsible for providing fire protection is a non-routine action that the public would be unlikely to anticipate.”
Zillmer told the County Post that prior to his vote, he had contacted legal counsel with the Wisconsin Towns Association (WTA) for an opinion regarding whether he could vote on the fire services issue.
In a 2009 letter to the WTA, Zillmer contended that the MAFD was a non-profit organization and that his son and Barnick would not realize any financial gain.
Lee Turonie, a lawyer with the WTA, concurred with Zillmer’s assessment that neither his son nor Barnick would benefit financially by Dupont having an exclusive agreement with the MAFD to respond to the town’s fires.
“My son is on the Marion Fire Department,” Zillmer said. “But he’s also an independent person. He doesn’t live with me and he owns his own business. There’s no financial change in anything.”
Zillmer said Dupont has relied on Marion as its primary fire protection service for decades.
“It makes sense to me to streamline this dual fire service we have,” Zillmer said. “I look at it as a merging of our two departments.”
David Bowers has been a volunteer firefighter in Dupont since 1978. His niece is the attorney working for the DVFD.
“We respond to two or three structural fires a year,” Bowers said, regarding DVFD efforts. “We each carry our own fire extinguishers and our turn-out gear.”
Bowers said Dupont firefighters often arrive before the Marion fire trucks
“Sometimes we are able to put a fire out with just a few extinguishers, but if you have a structure fully in flames, even the fire trucks may not be able to put it out,” Bowers said.
Bowers believes the real issue is whether the citizens of Dupont want to maintain their own volunteer force.
“People attending the town board meetings have asked for a referendum and the board acted as if they never heard them,” Bowers said.
Bowers said he believes town electors will air their grievances regarding the issue at the annual town meeting at 7 p.m. Tuesday, April 10, at the town hall.