What could Louisiana fire district firefighters receive for appearing as witnesses?

Plain-English summary

The Bayou Black Volunteer Fire Department asked how firefighters could be compensated for time spent as witnesses on district business. In 2006, the Attorney General applied the statute for fire-service personnel required to appear in a civil case or administrative hearing. It said a salaried firefighter could receive salary or the $40 appearance fee, but not both as separate full payments. An unpaid volunteer had no fire-department salary to choose and received the witness fee.

The opinion also discussed how the fee was allocated when an employer paid the witness during the appearance. The quoted statute directed the fee to the employer, allowed it to reimburse salary, benefits, and expenses, and required any excess to go to the witness. If the witness was paid by the employer for only part of the appearance, the statute allocated the fee between employer and witness for their respective periods. For a volunteer who also served on the fire district board and missed a meeting because of testimony, the AG said the person could choose the witness fee or the board per diem, not both.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a salaried firefighter keep both full salary and the $40 witness fee?

No. The opinion said the employee could not take both as separate full payments. When the employer paid for the appearance, the statute sent the fee to the employer first and gave any excess over its costs to the witness.

What did an unpaid volunteer firefighter receive for a covered appearance?

The AG said the volunteer received the $40 appearance fee because there was no regular volunteer-department salary to replace it.

Did the fee require the firefighter to testify?

The statute quoted by the AG required presence in the covered civil case or administrative hearing because of a subpoena or other circumstance, but paid the fee regardless of whether the witness actually testified.

Could a volunteer board member collect both a meeting per diem and a witness fee?

The AG said that if testimony caused the board member to miss a meeting, the person could choose the fee or the board per diem, but not both.

Background and statutory framework

La. R.S. 13:3662 set the fire-service witness fee and addressed allocation when a governmental employer paid the witness during an appearance. The AG contrasted salaried firefighters with unpaid volunteers, then applied La. R.S. 40:1498’s board per diem rule to volunteers who also served on the governing board. The opinion addressed the described witness appearances, not every form of legal work for a fire district.

Citations

• La. R.S. 13:3662(A) (appearance fee for covered fire-service witnesses).
• La. R.S. 13:3662(F)(3) (fee allocation when the employer pays).
• La. R.S. 13:3662(F)(4) (split compensated and uncompensated periods).
• La. R.S. 40:1498 (fire district board per diem).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/05-0370

Original opinion text

September 1, 2006
OPINION NO. 05-0370
47-A-1 FIRE PROTECTION DISTRICTS

La. R.S. 13:3662(A)
La. R.S. 22:1580
La. R.S. 13:3662(I)
La. R.S. 33:1992
La. R.S. 13:3662(F)(3)
La. R.S. 33:1998
La. R.S. 13:3662(F)(4)
La. R.S. 40:1498
Mr. Paul J. Breaux
Chairman of the Board
It is the opinion of this office that a salaried firefighter who serves
Bayou Black Volunteer Fire Department as a witness is entitled to receive either (1) his salary or (2) a forty dollar witness fee. A volunteer firefighter, however, can only be
2820 Savanne Road
compensated by the witness fee. Similarly, the law also places
Houma, Louisiana 70360
limits on a volunteer firefighter who is a board member, unless
testifying causes him to miss a board meeting. In that case, the board member may choose to be compensated by either the
Dear Mr. Breaux: witness fee or his per diem for board service.

Your request for an Attorney General’s opinion has been referred to me for research and reply. Specifically, you ask “how the district can compensate these firefighters not only for their lost wages, but their time spent handling such legal responsibilities on behalf of the Fire Protection District.”

La. R.S. 13:3662(A) provides that each fire service personnel “who, because of his official capacity, is required to be present as a witness in any civil case or in any administrative hearing . . . shall be paid an appearance fee of forty dollars per day per case or per hearing, when the witness’s presence in court . . . is required by subpoena or other circumstance, and for which he is present, regardless of whether he actually testifies.” In this context, ‘fire service personnel’ includes “all persons employed or engaged full-time, part-time, or on a volunteer basis by municipalities or municipal fire departments, parishes or parish fire departments, or fire protection districts for fire fighting or fire prevention duties and services.” La. R.S. 13:3662(I).

A firefighter who is paid a salary pursuant to La. R.S. 33:1992 may be compensated for his time spent as a witness in one of two ways. First, he can receive his salary from his governmental employer, just as he would if he were at the fire station. His second option is to receive the forty dollar witness fee provided for in La. R.S. 33:3662(A). Under no circumstances may he receive both his salary and the witness fee. La. R.S.13:3662(F)(3) provides:

If the officer is being compensated by his governmental employer during the period of his appearance, then the custodian shall pay the appearance fee to the officer's governmental employer or fiscal officer who is designated or authorized to receive revenues on behalf

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Mr. Paul J. Breaux
Opinion No. 05-0370
Page 2
of the governmental body. The governmental employer may retain such portion of the appearance fee as is necessary to reimburse it for salary, benefits, and other expenses it expends in making its employee available as a witness; if the appearance fee exceeds the amount the employer is required to pay in salary, benefits, and expenses for such appearance, the employer shall transmit the difference to the witness. In no case, however, shall the witness receive less than he would have been compensated as set forth herein.

If a firefighter is subpoenaed as a witness for a period of time during which he is being compensated partially by his governmental employer and a portion of time during which he is not being compensated by his employer, then the custodian must pay the witness only for his uncompensated time and pay the witness’ governmental employer for the time the witness was compensated by that employer. La. R.S.13:3662(F)(4).

A volunteer fire department, on the other hand, is a voluntarily organized fire company which possesses, in serviceable condition for fire duty, apparatus and equipment having a total value of five thousand dollars or more. La. R.S. 22:1580. It does not pay the volunteers for their services. Atty. Gen. Op. No. 04-0142; see also La. R.S. 33:1998 (stating that “the provisions of this sub-part [minimum wages and maximum hours] do not apply to voluntary unpaid members of fire departments.”). Thus, the choice between receiving one’s regular salary or the witness fee is unavailable to a volunteer firefighter, since he receives no regular salary from the volunteer fire department. The volunteer firefighter must be compensated by the forty dollar witness fee.

Finally, your letter indicated that some volunteer firefighters also serve as members of the governing boards of the fire protection district (the “board”). Pursuant to La. R.S. 40:1498, members of the board “may be paid a per diem of thirty dollars for attending board meetings, not to exceed two meetings in any one calendar month, and may be reimbursed any expenses incurred in performing the duties imposed upon them by virtue of their serving as members.” These amounts are to be paid from the fire protection district’s funds. Id. Because these are government funds, the board member may choose to receive either the forty dollar witness fee or his per diem for board service, but not both.

In conclusion, it is the opinion of this office that a salaried firefighter who serves as a witness is entitled to receive either (1) his salary or (2) a forty dollar witness fee. A volunteer firefighter, however, can only be compensated by the witness fee. Similarly, the law also places limits on a volunteer firefighter who is a board member, unless testifying causes him to miss a board meeting. In that case, the board member may choose to be compensated by either the witness fee or his per diem for board service.

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Mr. Paul J. Breaux
Opinion No. 05-0370
Page 3

I hope this opinion adequately responds to your request. If I can be of further assistance to you, please do not hesitate to contact me.

Very truly yours,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

By: _____
Christopher D. Matchett
Assistant Attorney General

CCF.Jr.:CDM:lrs

Page 4

OPINION No. 05-0370

47-A-1 FIRE PROTECTION DISTRICTS

La. R.S. 13:3662(A)
La. R.S. 22:1580
La. R.S. 13:3662(I)
La. R.S. 33:1992
La. R.S. 13:3662(F)(3)
La. R.S. 33:1998
La. R.S. 13:3662(F)(4)
La. R.S. 40:1498

It is the opinion of this office that a salaried firefighter who serves as a witness is entitled to receive either (1) his salary or (2) a forty dollar witness fee. A volunteer firefighter, however, can only be compensated by the witness fee. Similarly, the law also places limits on a volunteer firefighter who is a board member, unless testifying causes him to miss a board meeting. In that case, the board member may choose to be compensated by either the witness fee or his per diem for board service.

Mr. Paul J. Breaux
Chairman of the Board
Bayou Black Volunteer Fire Department
2820 Savanne Road
Houma, Louisiana 70360

DATE RECEIVED:

DATE RELEASED: September 1, 2006

Christopher D. Matchett
Assistant Attorney General