Counsel Corner / FAQ's


Disclaimer: The legal opinions published here by the Association of Fire Districts are meant to provide guidance for fire district commissioners. The materials available are for informational purposes only and not for the purpose of providing legal advice. The opinions expressed are the opinions of the individual author at the time the facts were presented and based on the law then applicable. The information contained in these opinions is not guaranteed to be up to date. The information provided is not legal advice. Since legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing on this site should be used as a substitute for the advice of competent legal counsel. The authors assume no responsibility to any person who relies on information contained on this site and disclaim all liability in respect to such information. You should not act upon information in this website without seeking professional counsel from an attorney admitted to practice in your jurisdiction.?




Listed in this section are questions and answers that are asked repeatedly about certain legal aspects of managing fire districts and their associated fire departments.  Click on any Edition or individual highlighted topic to view the asked question or answer.  Topic that are not highlighted yet will be linked soon. soon. 

FAQ TABLE OF CONTENTS

Edition One
  1. Election of chiefs by the fire company
  2. Election ballots
  3. Foil Requests
  4. Surplus vehicle
  5. Concurrent positions of a commissioner
  6. Insurance coverage
  7. Selling fixed assets
  8. Fund balance reserves
  9. New fire station referendum
  10. Unexpired term of commissioners

Edition Two
  1.  Fire district treasurers
  2.  Consolidation of fire district and protection district
  3.  Changing the treasurer to an appointed position
  4.  Leasing of fire district property
  5.  Concurrent chief and commissioner positions
  6.  LOSAP

Edition Three
  1. Legal access to files
  2. Reserve funds
  3. Two signatures on checks
  4. Pre approval of applicants
  5. EMT mutual aid
  6. Chief’s position vacancy
  7. CDL license vs EVOC Training
  8. Recorded minutes and FoIL requests?
  9. Commissioner vs Treasurer position
  10. Meeting minutes

Edition Four
  1.  Spending limit increase
  2.  Lease purchase
  3.  Board vacancy appointment
  4.  Bidding contracts
  5.  Board member conflicts
  6.  Discipline of chief
  7.  LOSAP age issue
  8.  Members outside of district
  9.  Legal defense of fire company members
  10.  LOSAP points appeal
  11.  Board member candidates

Edition Five
  1.  Board members from career firefighters
  2.  Qualifications of elected treasurers
  3.  Selling surplus real estate
  4.  Moving funds from capital reserves
  5.  Conflicts of board member and fire company director
  6.  Fire district elections
  7.  Election petitions
  8.  VFBL coverage
  9.  Death of sitting commissioner
  10.  Commissioners in Florida during winter

Edition Six
  1.  Residency requirements for secretaries
  2.  Proceeds from sale of capital assets
  3.  Violence in the workplace
  4.  Electioneering from the polling place
  5.  Fire district elections, postponement
  6.  Benevolent association conflicts with board membership
  7.  Refusal of mandatory commissioner training
  8.  Chief resignation prior to completion of term
  9.  Board appointment of chiefs
  10.  Board qualifications for chief
  11.  Board control over company by-laws
  12.  Number of members needed to constitute a fire company
  13.  Purchase of used fire apparatus

Edition Seven
  1.  Law suits against the Board in a wrongful death
  2.  Members who speak a second language
  3.  Appointing members to the Board of fire commissioners
  4.  Term of office for treasurers
  5.  Purchase of property
  6.  Budget filing requirements for districts covering more than one town
  7.  Failing to execute the oath of office
  8.  Allowing fire fighters from other departments
  9.  Allowing insulin dependent members
  10.  Providing board minutes by the secretary

Edition Eight
  1.  Board vacancy due to death
  2.  Filing date of AUD with OSC
  3.  Board member conflicts
  4.  VFBL costs
  5.  Officially becoming a member
  6.  Background checks
  7.  How many fire districts can a town have
  8.  Consolidation of fire districts
  9.  Using fire company funds to improve fire district property
  10.  Deposit of fire district funds in a credit union or savings bank

Edition Nine
  1.  Selling abandon property
  2.  Referendum for surplus equipment
  3.  Civil service
  4.  Being excused from board meetings
  5.  Capital reserve funds
  6.  Registration of fire district vehicles
  7.  Bidding of apparatus
  8.  Voting if absent
  9.  Exempt fireman’s association members
  10.  Moving funds from one line item to another
  11.  Comments of chiefs during Board meetings
  12.  Workplace violence policy

Edition Ten
  1.  LOSAP
  2.  Drivers
  3.  Disability and membership
  4.  LOSAP and IRAs
  5.  Receiving donations
  6.  Line of succession for chiefs
  7.  Write-in's for elections
  8.  Self insurance by district for members
  9.  District based EMS
  10.  Purchasing used apparatus
  11.  Members with disabilities

Edition Eleven
  1.  Donations to fire companies
  2.  Conflicts with town offices and chiefs
  3.  Lease purchase agreements for apparatus
  4.  Fire station lease
  5.  How to resign as commissioner
  6.  Voting outside of board meetings
  7.  Fire district election petition deadlines
  8.  Website vs Facebook
  9.  Paying mileage by fire district
  10.  Treasurer vs chief conflicts

Edition Twelve
  1.  LOSAP points for disabled member
  2.  Resolution for exceeding tax cap
  3.  Using fire police for non fire related activities
  4.  Gifts of property
  5.  CDL license requirements
  6.  Member service to other departments
  7.  Receiving reimbursements for expended items
  8.  Changing the treasurer from elected to appointed
  9.  Conflicts of fire district manager vs secretary
  10.  Board members being fire district employees

Edition Thirteen
  1.  Prevailing wage rate question
  2.  Election petitions
  3.  Rights of voters for fire district elections
  4.  Approval of new fire company members
  5.  Submission of letters for intent to run for board seats
  6.  Voting rights of members
  7.  Residency requirements of members
  8.  Protection of volunteers from employer discipline
  9.  Scope of NYS election law
  10.  Provisions for piggyback purchasing
  11.  Write in ballots
  12.  Election ballot marks
  13.  Election ballot write in votes

Edition Fourteen
  1.  New commissioners taking the oath of office
  2.  Tax levy reserve funding process
  3.  Commissioner’s term of office in reference to date
  4.  Donations of funds from the Town to the fire district
  5.  Terms of the treasurer and secretary
  6.  Credit card point use
  7.  Custody of training and personnel files
  8.  Multiple commissioners taking on-line commissioner training
  9.  VFBL coverage for members from other departments
  10.  Questions on voting

Edition Fifteen
  1. Compensation for a deputy treasurer
  2. Sprinkler and exhaust systems requirement for purchased building
  3. Fire District rental of excess space
  4. Sale of Fire District building and vacant property
  5. Fire Department member residence change without notification
  6. Secretary appointment by NSY as a Notary Public
  7. Funding options for purchasing for new apparatus
  8. Time Limit for public bond referendum
  9. Election Dates for Chief Officers
  10. Supervisor of Fire District cleaning employees 
  11. Acceptance of gift card from independent EMS provider for standby services
  12. Service Award Programming (LOSAP) payments

Edition Sixteen
  1. Commissioner's rejection of fire department Chief nomination
  2. Lawn maintaince service prevailing wage
  3. Open Meeting Law: Email between district officials
  4. Resignation of the entire Board of Fire Commissioners
  5. Fire District acceptance of donation of goods
  6. PE review of construction project modification
  7. Ownership of Fire Company purchases
  8. Waiting period for permissive referendum
  9. Fire personnel concealed weapon carry
  10. District official conflict of interest bid award equipment purchase
  11. Commissioner who moves residence out of district
  12. Non-paged fire chief investigation and member LOSAP credit

Edition Seventeen
  1. Fire protection contract tax cap
  2. Fire District Commissioner resignation
  3. Fire District entity type
  4. Purchase request email approval
  5. Date change for budget hearing and commissioner election
  6. Transfer of fire company property to fire district
  7. Establish of new reserve fund usung fund balance monies
  8. Commissioner removal from office for confidentiality breach
  9. LOSAP points for volunteer firefighter district employee
  10. Installment purchase contract public referendum
  11. Commissioner who moves just outside district
  12. District residence requirements for fire department Chief officers

Edition Eighteen
  1. Chief officer maintainence bids
  2. Fire district / fire department shared mail box
  3. Election petitions for fire commissioner candidates
  4. Opening bank statement mail
  5. Proposed budget preparation / signiture and delivery to town clerk
  6. Fire company line officer holding fire marshall position
  7. District concern for the ability for the fire company to provide service
  8. Commissioner election ballot without candidates 
  9. Registered voter signiture on multiple candidate petitions
  10. New fire station construction - prevailing wage
  11. Election Inspector number increase
  12. District ambulance financed by fire company

Edition Nineteen
  1. District funds use for funeral of former commissioner
  2. Withdrawal of district candidate after filing election petition
  3. Electioneering during fire district election
  4. AFDSNY Counsel legal advice
  5. Christmas gifts for fire district paid staff
  6. Inspection dinner awards expense
  7. Removal of district candidate from December ballot
  8. Fire Department line officer qualifications 
  9. District Treasurer candidate conflict of interest
  10. Fire district commissioner and town justice compatibilty
  11. Fire district commissioner running for assistance chief position
  12. Fire district commissioner and fire department officer compatibility

Edition Twenty
  1. Joint fire district formation - buildings and assets
  2. District election open positions
  3. Establishment of requirements to hold line office
  4. Insurance coverage for members of county specialized teams
  5. Fire district secretary appointment of non-district resident
  6. Organizational meeting - Chairman selection
  7. Fire district resident seeking agricultural exemption
  8. Fire Department / Company applicant background checks 
  9. Professional firm as fire district treasurer
  10. Fire District LODD Expenses
  11. LOSAP change of mimimum requirements
  12. None




 
Edition One

1. ELECTION OF CHIEFS BY THE FIRE COMPANY

A chief resigns his position in February, department elections are held in April, the same chief is re-elected by the fire department members.
At the next Board of Fire Commissioners meeting three of the five Commissioners vote against approving the elected chief.


Question? 
a) Does the Board owe the chief or the department a reason why they did not appoint him?
Answer:    
The Board does not owe the nominee an explanation as to why they have not appointed him to the position to which he was nominated by the                               department’s members.

Question?
b) Can the membership elect the same person as chief again?
Answer:
If the Board does not approve the nominee for the position, they notify the department that they did not approve the nominee and call for another election to nominate a “new” nominee not the same person.
The non-approved individual could run again for the same office in the following April’s election. This year’s election process however is not over until the department comes forward with a “new” nominee to fill out the full slate of officer positions of the fire department.

Question? 
c) Is there a waiting period to re-elect the same chief?
Answer:
There is no waiting period for the new election by the members.

Question? 
d) Can the same person be elected to an assistant chief’s position?
Answer:
He could be nominated as the assistant chief as it is a different position than the one he was first nominated for.

Question? 
e) What authority does the Board have when approving line officers?
Answer:
The Board has authority of appointment over the chief’s position and such assistant chiefs as the district has. The Board does however have authority to establish the qualifications for all of the line officer positions within the district.

2. ELECTION BALLOTS

Question? 
If the Fire District uses paper ballots for a commissioner’s election, how long must the ballots be retained?
Answer:
A copy of the sample ballot should be kept permanently and the voted ballots should be retained for one year after the date of the election.

3. FOIL REQUESTS 

Question? 
Can an employee’s address be FOILED, can it be crossed out (redacted) on their paystub?
Answer:
Section 89(7) of the Public Officer’s Law (FOIL) provides in part that nothing in this article shall require the disclosure of the home address of an officer or employee. Therefore you can cross out the employee’s address on the pay stub that was requested under the Freedom of Information Law (FoIL).

4. SURPLUS VEHICLES

Question? 
Does a vehicle which has been declared surplus by a fire district have to be purchased by bid by another fire district?
Answer:
Section 103(6) of the General Municipal Law provides that surplus and second-hand supplies, material or equipment may be purchased without competitive bidding from the federal government, the state of New York or from any other political subdivision such as another fire district, special district or public benefit corporation.

5. CONCURRENT POSITIONS OF A COMMISSIONER

Question? 
Is it accurate that an individual may not be a Commissioner or a line officer concurrently? What about fire police officer?
Answer:
Section 174(4) of the Town Law provides in part that a Fire District Commissioner may not hold the position of Chief or Assistant Chief of the fire department of the fire district for which he or she is a commissioner. That prohibition does not extend to any other line officer position of the fire department including line officer positions of the fire police squad.

6. INSURANCE COVERAGE

Question? 
The scenario is that a fire company in the District will be hosting volunteer firefighter convention the questions that come up are;
a. What insurance coverage needs to be provided?
b. Can the fire district legally pay for the additional required coverage or must it be at fire company expense?

c. If the district were to pay for the additional coverage could the fire company reimburse the fire district for the cost?
Answer:
a)  In the opinion of legal counsel, if the fire company is hosting the event they should pay for the insurance coverage that may be required. The coverage requirements may vary depending on the stakeholders affected.
b) and c) The hosting company may be able to obtain a special event rider on the fire district’s policy but the cost of the rider should be paid for by the host fire company.

7. SELLING FIXED ASSETS

Question? 
The question from the Fire District is; we have a fixed asset worth approximately $65,000 what actions have to be taken in order to sell it?
Answer:
A common and often overlooked requirement is that first the Board of Fire Commissioners has to pass a resolution of the board declaring the property surplus. If the value of the asset is in excess of $50,000 the resolution is subject to a ballot referendum of the district’s residents prior to the sale of the asset according to Section 176(23) of the Town Law of the State of New York. Any asset $50,000 and under requires a permissive referendum necessitating a Legal Notice to be published in the official board newspaper and a waiting period of 30 days subsequent to publishing of the Legal Notice. Assets worth less than $10,000 require simply a resolution of the board at a regular meeting. After the passage of the referendum the actual sale should be done in a manner so as to maximize the financial return to the fire district. Some fire districts do it by a bidding process after advertising that the district is selling surplus equipment. Some districts do it through a company that advertises used fire apparatus, paying them a commission. Some Districts even sell through Craigslist or other networking sources. Some county fire organizations have bulletins and will advertise the availability of the equipment for you. After realizing the funds from the sale they can be placed in a previously created reserve fund or placed in your general operating accounts. Those are not restricted in their use by the fire district as they are realized from the sale of an asset, but I believe the spending of those funds from your operating account if that is where you put would be subject to your spending limit as determined by Section 176 (18) of the Town Law.

8. FUND BALANCE RESERVES

Question? 
May unexpended balances from an established fire district capital reserve fund be transferred into the general fund?
Answer:
Per General Municipal Law section 6-g, a fire district board of fire commissioners may not authorize the transfer of the unexpended balance of a capital reserve fund into the fire district’s general fund. It may however authorize a transfer of these monies into another capital reserve fund in accordance with GML section 6-g(8).

9. NEW FIRE STATION REFERENDUM

Question? 
Is a referendum vote of the fire district residents required for the construction of a new or the addition to an existing fire station?
Answer:
There is no requirement for a fire district to conduct a public referendum (vote) to construct a new or an addition to an existing fire station as long as the fire district has sufficient funds in their operating account and reserve funds to pay for the construction. If it was necessary for the fire District to bond any portion of the construction project, a mandatory referendum would be required of the District’s voters. The conduct of a referendum for permission to bond is subject to the same legal requirements as the conduct of any public referendum.

10. UNEXPIRED TERM OF COMMISSIONERS

Question? 

If someone has been appointed to fill an unexpired term created by a vacancy on the Board of Fire Commissioners, is that person required to obtain the mandated commissioner training?
Answer:
Yes. Town Law Section 176-a requires that commissioners elected or appointed must obtain the approved training within 270 days of appointment. Consider that 270 days prior to December 31st, 2014 is April 5, 2014, the point being if someone is appointed after April 5 and the unexpired term ends on December 31st of the same year the 270 limit expires after the end of the year.
The Association of Fire Districts of New York State provides on-line commissioner training for the convenience of those seeking the mandatory 6 hour
 
Edition Two

1. FIRE DISTRICT TREASURERS

Question? 
We are having trouble finding interested and qualified candidates, within our fire district, to run for the office of Treasurer. We are considering advertising the position in our local newspaper. In the event that we do not find any qualified candidates prior to election time, is there a provision for allowing someone from outside the fire district to run for election?
Answer:
Section 174 (4) of the Town Law (T.L.) provides a process for appointing someone as treasurer from outside the fire district if there is no one within the fire district who is qualified and capable of performing the duties of the position of treasurer. Unfortunately that authority does not extend to elected treasurers who by statute must be residents of the fire district. Following the process set forth in Section 176 (2-a.) of the T.L. the Board of Fire Commissioners may wish to give consideration to the changing of the position of treasurer from an elected position to an appointed position in the future which would then allow you to follow the process in Section 174(4) of the T.L.

2. CONSOLIDATION OF FIRE DISTRICT AND PROTECTION DISTRICT

Question? 
Our current fire district is a 1 mile radius from the fire station. We also have a fire protection district that we contract with the Town to provide Fire & EMS coverage. The idea of consolidating the two districts into one fire district was suggested to the Board. It would certainly help to alleviate the issue we are having finding a treasurer and it would provide the residents of both districts a uniform tax rate. The Board members wondered if there are other positives and/or negatives from such a merger
Answer:
Section 170 of the T.L. sets forth the process for extending the boundaries of a fire district. It can be done by the Town Board with the consent of the Board of Fire Commissioners of the fire districts whose boundaries will be extended. Besides the level tax rate you increase the pool of potential candidates for fire district offices of commissioner, Secretary and treasurer. You also alleviate the issue of 45% nonresidents of the fire district’s fire department. The fire district will also be able to increase its spending limit and tax base for the purpose of the tax cap. You will also enfranchise those individuals who reside in the protection district who cannot presently vote in fire district elections or referendums. You will also avoid, what can be, contentious negotiations between the Town Board and the Fire District Board when the contracts need to be renewed. You also eliminate one more local government entity, the fire protection district.

3. CHANGING THE TREASURER TO AN APPOINTED POSITION

Question? 
The position of Treasurer in the Fire District is currently an elected position, due to difficulties filling the position, the fire district would like to change the position to an appointed position, what do we need to do?
Answer:
There is a process set forth in Section 176 of Town Law, paragraphs 2-a and 3 which lay out the requirements. This essentially requires that a referendum (public vote) be held at the annual fire district election for the purpose of changing the Treasurer’s position from an elected position to an appointed position. After which no fire district treasurer shall be elected after the expiration of the term of office of the elected treasurer. At the Board of Fire Commissioner’s organizational meeting they shall appoint a treasurer to serve until December 31st of the appointing year. To switch back to an elected position, another referendum will be required to be held.

Paragraph 3 states that whenever a vacancy shall occur in any fire district office, the board of fire commissioners of such district or a majority of the members thereof in office may appoint a qualified person to fill the vacancy. If the appointment be made to fill a vacancy in an appointive office, the person so appointed shall hold office for the remainder of the unexpired term. If the appointment be made to fill a vacancy in an elective office, the person so appointed shall hold office until the thirty-first day of December next succeeding he first annual fire district election held thereafter and at such election a successor shall be elected for the unexpired portion of the term beginning on the first day of January next succeeding. If a vacancy shall occur in any elective fire district office after the first day of October in any year, the person so appointed to fill the vacancy shall hold office until the thirty-first day of December of the following calendar year and a successor shall be elected at the annual fire district election held immediately prior thereto to serve for the unexpired portion of the term; provided, however, that if a vacancy so occurs in any elective fire district office, the term of which would expire on the thirty-first day of December next succeeding, the person so appointed shall hold office only until such thirty-first day of December.

4. LEASING OF FIRE DISTRICT PROPERTY

Question? 
Is it legal for a fire district to allow a contractor to store equipment on property belonging to the fire district for a fee or exchange of services?
Answer:
A number of years ago the New York Comptroller's office rendered an opinion (94-12) that a fire district may, without referendum, negotiate a lease of a portion of its vacant land with a not-for - profit association, if it determined the land is temporarily not needed for fire district purposes. The lease may be for a reasonable term and must be in exchange for fair and adequate consideration. Prior to negotiating with any particular lessee, the fire district board of commissioners should take steps to ensure that the negotiated lease is upon the best or most beneficial terms. The opinion referenced section 176(14) of the Town Law as the authority. It is suggested that a "fee” rather than trade in services, so as to avoid any issues with the prevailing wage requirements of Section 220 of the Labor Law.

5. CONCURRENT CHIEF AND COMMISSIONER POSITIONS

Question? 
We have a vacancy on the Board of Fire Commissioners. I am currently serving as an assistant chief, can I also be a fire commissioner?
Answer:
Section 174 (4) of the Town Law provides in part that a person shall not hold the office of fire district commissioner and the office of chief or assistant chief of the fire department of the fire district at the same time. Unfortunately by statute you cannot do both.

6. LOSAP

Question? 
Are the rules regarding LOSAP programs determined by each fire district or dictated by the state. For example, our current program does not allow for a fully vested and former member under the age of 62 to roll their balance over to an IRA and we would like to offer that as an option. We currently have 15 former members who are vested in the program and we have to continue to report on these accounts. Can we change the rule locally to allow distributions for vested former members?
Answer:
LOSAP programs are governed by State and Federal Statutes. There is no statutory authority to roll vested LOSAP benefits into an individual’s IRA. LOSAP plans are not considered to be a qualified pension plan.
 
Edition Three

1. LEGAL ACCESS TO FILES

Question? 
We currently expanded our building and it incorporates a secure file storage area. Who legally has access to that area? Our Fire Chief insists that he store his files in the secure area and that he have unrestricted access to the room. Is this legal, or should the access be monitored or limited to just the District board and its secretary?
Answer:
There is no statutory guidance as to who should have access to the records of the fire district. Certain information should not be shared with everyone such as documents with Social Security numbers and medical records. Ultimately it is a policy of the Board of Fire Commissioners to determine who has access.

2. RESERVE FUNDS

Question? 
What is the difference between a reserve fund, where the funds must be replaced and a reserve account where the funds do not have to be replaced?
Answer:
The answer depends upon whether the reserve account was established to section 6-d of the General Municipal Law (GML) or Section 6-g “Capital Reserve Funds for Fire Districts” of the GML. If it was created pursuant to section 6-d “Repair Reserve Funds for Municipal Corporations, School Districts, District Corporations and Improvement Districts” then you need to follow the replacement schedule set out therein. If it was created pursuant to section 6-g there is no replacement of funds required.
In part Section 6-d states:


§ 6-d. Repair reserve funds for municipal corporations, school districts, district corporations and improvement districts.
1. The governing board of any municipal corporation, school district, district corporation, or town or county improvement district, may establish a special fund which shall be known as the repair reserve fund of such municipal corporation, school district, district corporation or improvement district. There may be paid into such fund an amount as may be provided therefore by budgetary appropriation or such revenues as are not required by law to be paid into any other fund or account.
 
2. In cases of emergency, moneys in such fund may be expended pursuant to a resolution approved by not less than two-thirds of the members of the governing body of such municipal corporation, school district, district corporation or improvement district providing that not less than one-half of the moneys so expended shall be repaid in the fiscal year immediately following the fiscal year in which such moneys were expended and the total amount shall be repaid not later than the last day of the second fiscal year succeeding the fiscal year in which the moneys were expended. Prior to the adoption of any other resolution, act, ordinance or local law by the governing board of such municipal corporation, school district, district corporation or improvement district, appropriating money from such fund, the governing board shall cause to be published in the official newspaper or newspapers, if any, or otherwise in a newspaper or newspapers designated for such purpose, a notice stating in substance that it is proposed to appropriate a specified amount from the repair reserve fund for a particular purpose, and that a public hearing on such proposed appropriation will be held at a time and place stated therein. At least five days shall elapse between the publication of such notice and the date specified for the hearing. The hearing shall be held at the time and place so specified. ….see the remainder of the law under Article 2 General Municipal Finances

3. TWO SIGNATURES ON CHECKS

Question? 
If the fire district requires two signatures on a district issued check, can the two signatures be the treasurer and deputy treasurer on the same check?
Answer:
The deputy treasurer can only act in the absence or inability of the treasurer pursuant to section 177-b of the Town Law . It would therefore be impossible for both to sign the checks although the checks must contain the signature of one of the two.

4. PRE-APPROVED APPLICANTS

Question? 
May the Board of Fire Commissioners pre-approve an applicant pending the results of a “background check”?
Answer:
With the exception of the arson background check and the sex registry (effective 12/02/14 ) there is no statutory requirement for background checks of applicants to the volunteer fire service. Therefore if you want to pre-approve an applicant conditionally pending the results of the background checks that would be permitted.

5. EMT MUTUAL AID

Question? 
Just as fire departments have mutual responders for fire. Can a fire department have a mutual responder for an EMT from a another ambulance agency?
Answer:
Section 209 of the General Municipal Law authorizes the response of fire departments for mutual aid to another department or area. Since the EMS squad is organized within the fire district’s fire department, pursuant to section 209-b of the General Municipal Law, outside service pursuant to a mutual aid agreement would be permitted.

6. CHIEFS POSITION VACANCY

Question? 
Our current Assistant Chief is going to change his status from active to an inactive status at the next company meeting, since this will happen at the October meeting he will effectively vacate his position brining up two questions; will we need a separate letter of resignation to the Board of Fire Commissioners since he is a district officer and the Chief has asked if the Captain can be moved up to the assistant chief’s position to fill the vacancy? The change will first be presented to the fire company and assuming that they affirm it he will seek approval of the fire district.
Answer:
While the letter of resignation by the Assistant Chief should be also tendered to the Board of Fire Commissioners since he is a District office, who is nominated for the position by the membership of the fire department and appointed by the Board of Fire Commissioners pursuant to Section 176 (11a or 11b) of the Town Law. To answer your second question, if the By Laws and Constitution of the Fire Department provide for the filling of the vacancy by a captain moving to the vacated assistant chief’s position, there is nothing in Town Law that would prohibit that action and would be subject to approval by the Board of Fire Commissioners as with any other chief officer’s position.

7. CDL LICENSE VS EVOC TRAINING

Question? 
If someone has their Commercial Driver License (CDL) license, is there some other training that could be added that would be equivalent to the Emergency Vehicle Operators Course (EVOC)?
Answer:
While not a legal issue, it is the opinion of most EVOC trainers that while there is a lot of crossover in the training for a CDL license and the EVOC training, there are issues dealt with in the EVOC training that are not covered in CDL training. The biggest difference is that the EVOC training deals with driving an “emergency” vehicle and the legal responsibilities associated with it. In addition EVOC training is reoccurring on a regular basis while CDL training may be only once. If it is a Fire District policy or is pursuant to your insurance carrier’s requirements, the possession of a CDL license will not satisfy the training requirement.

8. RECORDED MINUTES AND FoIL REQUESTS

Question? 
Can the recorded minutes of a Board of Fire Commissioner’s meeting be FoIL'ed?
Answer:
The Committee on Open Governments rendered an opinion in 1994 which noted that a court had held that tape recordings of meetings of public bodies constitute “records” that fall within the definition of the Open Meetings Law, and assuming that the recordings involve open meetings they are FOILable and must be disclosed. [FOIL=Freedom of Information Law]
 
9. COMMISSIONERS VS TREASURER POSITION

Question? 
May a sitting Commissioner be elected as the fire district treasurer?
Answer:
There is no prohibition in Town Law which would preclude a sitting commissioner from running for the position of treasurer of the fire district. If the commissioner is successfully elected to the position, the commissioner would have to resign the position of commissioner before taking the oath of office as treasurer.

10. MEETING MINUTES

Question? 
As the secretary I have been recording the Board of Commissioners meetings as a matter of convenience, so that I catch everything when I transcribe the minutes for draft and approval. Must those recordings be saved or can they be voiced over at the next meeting?
Answer:
The New York State Department of State, Committee on Open Government in an opinion dated 2/17/12, that the Arts and Cultural Affairs Law Section 57.25 provides in part that a recording of a meeting of a public or governing body or board, committee or commission thereof has a retention period of 4 months after transcription and /or approval of minutes or proceedings. You can continue to record the meetings but must maintain the recordings for a minimum of 4 months after transcribing the minutes and/or approval.
 
Edition Four

1. SPENDING LIMIT INCREASE

Question? 
Can our Fire District’s spending limitation be increased?
Answer:
Pursuant to Section 179.1(d) of Town Law, a fire district may exceed its spending limitation only after the Board of Fire Commissioners passes a resolution to do so and the residents of the fire district vote for the increase either at a special election or at the annual election which would include the election of a fire district commissioner. See Section 179 of Town Law for guidance on running the election. Note that if the proposition passes it shall be for all budget years going forward without having to re-pass the resolution each year.

2. LEASE PURCHASE?

Question? 
The Board of Fire Commissioners is considering paying for a new piece of fire apparatus by applying half in cash from an existing equipment reserve fund and half the cost in a lease purchase agreement through a commercial bank. Is the lease purchase considered a loan thereby requiring a mandatory referendum for approval?
Answer:
Section 109-b of the General Municipal law provides the general authority for a fire district to enter into an installment purchase contract or lease purchase contract. The New York Comptroller in 1998 rendered an opinion, numbered 98-19, which in the minds of many attorney’s representing fire districts, clarified the fact that a mandatory referendum is required in order for a fire district to enter into a lease purchase agreement pursuant to section 109-b of the General Municipal Law.

3. BOARD VACANCY APPOINTMENT

Question? 
We have a Commissioner with one year remaining on his 5 year term who may resign after October 1st, 2014. Since he has one year left on his term we would want to make an appointment once the vacancy occurs. The question is can we make the appointment this year to run through the end of next year or would we have to hold a special election to fill the position beginning January 1st thru the end of 2015?
Answer:
Section 176 (3.) of the Town Law provides in part that if a vacancy occurs in a commissioners position after October 1st, the board of commissioners may appoint someone to serve until December 31st of the following year (December 2015 in this case) and a successor shall be elected at the annual fire district election held prior thereto to serve for the unexpired portion of the term of the commissioner who resigned. In your situation, since the term of the commissioner who resigned was to expire on December 31, 2015, the person elected at the annual commissioners election in December of 2015 will be elected to a five year term commencing January 1st, 2016

4. BIDDING CONTRACT

Question? 
The fire district intends on changing heating fuel suppliers this year, we annually spend about $16,000 on fuel, does this need to go out to bid, and what are the determining expenditures?
Answer:
Section 103 (1) of the General Municipal Law (G.M.L.) of the State of New York provides in part that all public purchases which require an expenditure of $20,000.00 or more in a year require that the purchases be subject to competitive bidding. For public purchases less than $20,000.00 you need to follow your procurement policy that you adopted pursuant to Section 104-b of the GML and annually review at your organizational meeting in January. Most procurement policies that I have reviewed typically require three written quotes for purchases over $10,000.00 but less than $20,000.00.

5. BOARD MEMBER CONFLICTS

Question? 
Can a fire district commissioner also hold a seat on the Town Board?
Answer:
In 1992 the New York Attorney General's office rendered an opinion (I 92-16) that one person may not hold simultaneously the positions of member of a town board and fire district commissioner.

6. DISCIPLINE OF CHIEF

Question? 
If the Board of Fire Commissioners were to take action against a chief officer at a regularly scheduled meeting of the Board, does this need to be in an “Executive Session”?
Answer:
Subparagraph one of Section 105 of the Public Officer’s Law provides in part that upon a majority vote of a public body, they MAY conduct an executive session for discussion of specifically enumerated matters. The statute clearly implies that the conducting of the “executive session “for the purpose you have indicated would be PERMITTED under subparagraph (f.) of section 105 but not mandated. There is an opinion rendered by the Committee on Open Government dated December 2, 2005 indicating executive sessions are permitted in certain circumstances but never required. Ultimately the decision to go into executive session is one made by a majority of the board, but then only permitted if it falls within one of the authorized areas found in Section 105 which states:

§ 105. Conduct of executive sessions.
1. Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only, provided, however, that no action by formal vote shall be taken to appropriate public moneys:
a. matters which will imperil the public safety if disclosed;
b. any matter which may disclose the identity of a law enforcement agent or informer;
c. information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;
d. discussions regarding proposed, pending or current litigation;
e. collective negotiations pursuant to article fourteen of the civil service law;
f. the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment,     promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation;
g. the preparation, grading or administration of examinations; and
h. the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.
2. Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body

7. LOSAP AGE ISSUE

Question? 
Our Fire District has members who are over 65 and are still considered active members, are they entitled to keep increasing their benefit payments automatically or does the District have to pass a referendum?
Answer:
In 2003 Section 217 of the General Municipal Law was amended to specifically authorize post entitlement participation in LOSAP programs. Pursuant to Section 216 (2.e) any amendments to a service awards program after its establishment, with some limited exceptions, require a mandatory referendum. It is suggested that you check with the administrator or the attorney who represents your fire district as to whether your program allowed for post entitlement participation when it was initially approved by the Board and subsequently at the mandatory referendum.

8. MEMBERS OUTSIDE OF DISTRICT?

Question? 
What is the percentage of firefighters who can live outside of the fire district?
Answer:
The limitation on non-resident firefighters is found in Section 176-b (7.[a ]) of the Town Law of the State of New York. The percentage of non-residents cannot exceed 45% of the membership. If you find yourself in the position of needing to exceed that percentage you need to follow the process set forth in subparagraph (b) Which says: Upon application by a fire district or fire company to the state fire administrator, the requirements of paragraph (a) of this subdivision shall be waived, provided that no adjacent fire district objects within sixty days of notice, published in the state register. Any such objection shall be made in writing to the state fire administrator setting forth the reasons such waiver should not be granted. In cases where an objection is properly filed, the state fire administrator shall have the authority to grant a waiver upon consideration of (1) the difficulty of the fire company or district in retaining and recruiting adequate personnel; (2) any alternative means available to the fire company or district to address such difficulties; and (3) the impact of such waiver on adjacent fire districts.

9. LEGAL DEFENSE OF FIRE COMPANY MEMBERS

Question? 
If a firefighter within the District request’s legal assistance from the fire district to defend themselves what guidance needs to be followed, what guidance does the District need to follow?
Answer:
The District’s legal counsel needs to follow Section 205g of the General Municipal Law
[Section 205g of the General Municipal Law states in part; The public entity shall provide for the defense of the volunteer firefighter in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the volunteer firefighter was acting in the line of duty if the volunteer firefighter is in compliance with the provisions of subdivision seven of this section. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or at the behest of the public entity. Subject to the conditions set forth in subdivision two of this section, the volunteer firefighter shall be entitled to be represented by private counsel of his or her choice in any civil action or proceeding whenever the chief legal officer of the public entity or other counsel designated by the public entity determines that a conflict of interest exists, or whenever a court, upon appropriate motion or otherwise by a special proceeding, determines that a conflict of interest exists and that the volunteer firefighter is entitled to be represented by counsel of his or her choice, provided, however, that the chief legal officer or other counsel designated by the public entity may require, as a condition to payment of the fees and expenses of such representation, that appropriate groups of such volunteer firefighters be represented by the same counsel. Reasonable attorneys’ fees and litigation expenses shall be paid by the public entity to such private counsel from time to time during the pendency of the civil action or proceeding with the approval of the governing body of the public entity. Any dispute with respect to representation of multiple volunteer firefighters by a single counsel or the amount of litigation expenses or the reasonableness of attorneys' fees shall be resolved by the court upon motion or by way of a special proceeding.
Where the volunteer firefighter delivers process and a written request for a defense to the public entity under subdivision seven of this section, the public entity shall take the necessary steps on behalf of the volunteer firefighter to avoid entry of a default judgment pending resolution of any question pertaining to the obligation to provide for a defense.

The public entity shall indemnify and save harmless its volunteer firefighters in the amount of any judgment obtained against such volunteer firefighters in a state or federal court, or in the amount of any settlement of a claim, provided that the act or omission from which such judgment or claim arose occurred while the volunteer firefighter was acting in the line of duty; provided further that in the case of a settlement the duty to indemnify and save harmless shall be conditioned upon the approval of the amount of settlement by the governing body of the public entity.

The duty to indemnify and save harmless shall be construed in the same manner as provided in section two hundred five-b of this article.
Nothing in this subdivision shall authorize a public entity to indemnify or save harmless a volunteer firefighter with respect to punitive or exemplary damages, fines or penalties, or money recovered from a volunteer firefighter pursuant to section fifty-one of this chapter; provided, however, that the public entity shall indemnify and save harmless its volunteer firefighters in the amount of any costs, attorneys' fees, damages, fines or penalties which may be imposed by reason of an adjudication that a volunteer firefighter, acting in the line of duty, has, without willfulness or intent on his or her part, violated a prior order, judgment, consent decree or stipulation of settlement entered in any court of this state or of the United States.

Upon entry of a final judgment against the volunteer firefighter, or upon the settlement of the claim, the volunteer firefighter shall serve a copy of such judgment or settlement, personally or by certified or registered mail within thirty days of the date of entry or settlement, upon the chief administrative officer of the public entity; and if not inconsistent with the provisions of this section, the amount of such judgment or settlement shall be paid by the public entity.

The duty to defend or indemnify and save harmless prescribed by this section shall be conditioned upon:
a. delivery by the volunteer firefighter to the chief legal officer of the public entity or to its chief administrative officer of a written request to provide for his or her defense together with the original or a copy of any summons, complaint, process, notice, demand or pleading within ten days after he or she is served with such document;
b. the full cooperation of the volunteer firefighter in the defense of such action or proceeding and in defense of any action or proceeding against the public entity based upon the same act or omission, and in the prosecution of any appeal; and
c. the volunteer firefighter maintaining at least the minimum level of training required by the public entity.

The benefits of this section shall inure only to volunteer firefighters as defined in this section and shall not enlarge or diminish the rights of any other party nor shall any provision of this section be construed to affect, alter or repeal any provision of the workers' compensation law or volunteer firefighters' benefit law.
This section shall not in any way affect the obligation of any claimant to give notice to the public entity under section ten of the court of claims act, section fifty-e of this chapter, or any other provision of law.

Any public entity is hereby authorized and empowered to purchase insurance from any insurance company created by or under the laws of this state, or authorized by law to transact business in this state, against any liability imposed by the provisions of this section, or to act as a self-insurer with respect thereto.
All payments made under the terms of this section, whether for insurance or otherwise, shall be deemed to be for a public purpose and shall be audited and paid in the same manner as other public charges.

The provisions of this section shall not be construed to impair, alter, limit or modify the rights and obligations of any insurer under any policy of insurance.
Except as otherwise specifically provided in this section, the provisions of this section shall not be construed in any way to impair, alter, limit, modify, abrogate or restrict any immunity to liability available to or conferred upon any unit, entity, officer or volunteer firefighter of any public entity by, in accordance with, or by reason of, any other provision of state or federal statutory or common law.]

10. LOSAP POINTS APPEAL

Question? 
Is there a right to appeal the LOSAP points in a dispute, and how?
Answer:
Section 219-a (2.c) if the General Municipal Law (GML) provides in part that each volunteer fire company shall furnish to the governing board a list of all volunteer members, certified under oath, identifying those volunteer members who have qualified for credit under the LOSAP program for the previous year. Such list shall be submitted annually by March 31st. Pursuant to subparagraph d of the same section; the governing board shall review the list of each company and approve the final annual certification. The approved list of certified members shall then be returned to each company and posted for at least 30 days for review by the members. Pursuant to Section 217 (g) of the GML an active volunteer firefighter whose name does not appear on the approved certified list shall have the right to appeal within 30 days of posting. The appeal shall be in writing and mailed to the clerk or secretary of the governing board, which shall investigate the appeal. The decision of the governing shall be subject to appropriate judicial review. Whenever “governing board” is referenced, in a fire district that means the Board of Fire Commissioners.

11. BOARD MEMBER CANDIDATES

Question? 
A district resident who is interested in running for a position on the Board of Fire Commissioners is a resident of the town, but is not a registered voter, must a candidate be a registered voter?
Answer:
Section 175 (3) of the Town Law was amended sometime between 1976 and 1987 to remove the requirement for an individual who wants to be a candidate for the office of Fire District Commissioner to be both a resident and elector within the fire district. Now all the statute requires is that the individual be a resident of the fire district. It is no longer required that he also be an elector within the fire district.
 
Edition 5

1. BOARD MEMBERS FROM CAREER FIREFIGHTERS

Question? 
We are a combination department with both paid and volunteer firefighters. May a paid firefighter who lives in the fire district run for fire commissioner?
Answer:
The New York Attorney General’s office rendered an opinion in 1998 ( I 98-12 ) that a paid firefighter of a fire department providing service by contract to a fire district may not also serve as a commissioner of that fire district. A member of the Board of Fire Commissioners will be called upon periodically to vote on the salaries of the paid firefighters and their benefits. This would provide a clear conflict. Article 18 of the General Municipal Law, Section 801 provides in part that no municipal officer (Fire District Commissioner) shall have an interest in any contract with the municipality (fire district) of which he is an officer or employee, individually or as a member of a board, has the power to (a) negotiate, prepare, authorize or approve the contract. This appears to be a clear prohibited conflict of interest. Lastly the authority granted in section 175 (3) of the Town Law for a commissioner to be a member of the fire department specifically applies only as to a volunteer fire company, not as a paid firefighter of the fire district which he seeks to be a fire district commissioner.

2. QUALIFICATIONS OF ELECTED TREASURERS

Question? 
I am considering being a fire district treasurer, how long do you have to be a registered voter in the town covered by the fire district to qualify?
Answer:
Section 175(3) of the Town Law only requires that a fire district treasurer be a resident of the fire district at the time of the election. There is nothing in the statute that requires the candidate to be a registered voter.

3. SELLING SURPLUS REAL ESTATE

Question? 
Does a fire district need a proposition and public vote to sell surplus real estate?
Answer:
Section 176 (23) of the Town Law provides in part that a Board of Fire Commissioners may declare real property as surplus and no longer needed for fire district purposes. If the value of the property is over $10,000.00 but less than $50,000.00, the surplus resolution is adopted subject to a permissive referendum. If the value is over $50,000.00 the resolution is subject to a mandatory referendum.

4. MOVING FUNDS FROM CAPITAL RESERVES

Question? 
The Fire District needs to move funds from our Capital Reserve account to our checking account to pay for needed repairs to one of our engines, what type of voter approval is needed?
Answer:
Assuming that the repair to apparatus is an authorized expenditure defined by your capital reserve account, the Board needs to first pass a resolution at a meeting indicating that the expenditure is subject to a permissive referendum pursuant to Section 6-g of the General Municipal Law, once the resolution is passed publish a copy of your resolution in your official newspaper within 10 business days and wait 30 days from the passage of your resolution to see if any taxpayers come forward with the required petition. If they don’t; you can then move forward with the transfer of funds and the expenditure.

5. CONFLICTS OF BOARD MEMBER AND FIRE COMPANY DIRECTOR

Question? 
A member of the fire company has been approached to run for a vacancy on the fire company Board of Directors, the member is currently a sitting Fire District Commissioner. Can this be considered to be a conflict of interest?
Answer:
While there is no statutory prohibition to being a fire district commissioner and a member of the fire department board of directors the only potential conflict is relative to the fact that both the Board of Fire Commissioners and the Board of Directors are responsible for disciplinary issues, however that can be remedied by recusal from the matter should you perceive a conflict.

6. FIRE DISTRICT ELECTIONS

Question? 
Who is able to vote in a fire district election?
Answer:
Pursuant to section 175 of the Town law an individual must be a registered voter of the town in which the fire district is located and a resident of the fire district for 30 days prior to election date to vote.

7. ELECTION PETITIONS

Question? 
When a petition for commissioner is complete does it have to be handed in by the person running for the position or can it be delivered by anyone?
Answer:
Section 176 (7) of the Town Law only requires that either the letter or petition must be filed with the fire district secretary at least 20 days before the election , without indicating who must file the document.

8. VFBL COVERAGE

Question? 
At what point in time is a volunteer who is responding to an activation, call, incident or event covered by the VFBL when there is a request for assistance?
Answer:
VFBL coverage, pursuant to Article 2, Section 5 Coverage - of the Volunteer Firefighters Benefit Law includes preparation for, necessary travel to, activities at, travel from and activities back at the station associated with an emergency to which the fire department has been activated would cover any injury resulting from said activity.

9. DEATH OF SITTING COMMISSIONER

Question? 
Our fire district has a situation where a sitting commissioner running for another term submitted a petition but passed away prior to the election, what are the District’s options?
Answer:
There is no authority to add a candidate to the ballot after the petition or letter submission deadline. The suggested approach is to organize a write in campaign for an individual who is willing to accept the responsibility for the position of fire district commissioner.

10. COMMISSIONERS IN FLORIDA DURING WINTER

Question? 
This is a common question, one of our commissioners winters in another state, they participate in fire district by telephone calls and participates during monthly meetings via electronic Video Communication (for example SKYPE, Google Talk, iChat, OOVOO, AIM/AV by AIM). We have notified Town Hall that we conduct meetings via Video Communication, have we taken the proper action?
Answer:
While participation in fire district board meetings is permitted to be conducted via video communications under section 104(4) of the Public Officer’s Law, there has to be notice given to the public that videoconferencing will be used, the locations of the meeting attendees and must state that the public has the right to attend the meeting at any of the locations, which includes the location out of state. As long as this requirement is fulfilled, the commissioner out of state is legally attending the meeting and he is counted toward any quorum requirements.

§104. Public notice. (Public Officer’s Law Article 7)
1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.
2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice.
4. If videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations. 5. When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body's internet website.
 

Edition 6
 
1. RESIDENCY REQUIREMENTS FOR SECRETARIES
 
Question? 
Is there a residency requirement for a fire district Secretary?
Answer:
Section 175 ( 3 ) of the Town Law provides in part that every fire district commissioner, treasurer and secretary must at the time of their election or appointment and throughout their term of office be a resident of such fire district. Although there is an exception, Town Law § 174 titled Fire District Officers; “When the position of fire district treasurer or fire district secretary is appointive, and in the case of the director of purchasing, when such office has been established, and if no qualified resident of the district is willing to perform the duties of fire district treasurer, fire district secretary or director of purchasing, a person who is a nonresident of such fire district may be appointed as fire district treasurer, fire district secretary or director of purchasing.”

2. PROCEEDS FROM SALE OF CAPITAL ASSETS

Question? 
If there are proceeds from the sale of capital assets of a fire district, are they to go back to the general fund prior to being transferred to a reserve fund from which the original purchase of equipment was made?
Answer:
Notwithstanding an opinion from the Comptroller’s office, there are no restrictions on the deposit of funds received from the sale of surplus property of the fire district pursuant to Section 176 (23) of the Town Law. Section 6-g (5) of the General Municipal law does provide in part that “ there MAY be paid into any such capital reserve fund: …. b. such revenues as are not required by law to be paid into any other fund or account, including the proceeds from the sale of any capital improvement or equipment owned by such fire district”. The language of Section 6-g of the G.M.U. is read as being permissive (as opposed to required) relative to the transfer of funds into a capital reserve fund, from the sale of a capital asset.

3. VIOLENCE IN THE WORKPLACE

Question? 
At a recent drill one of our firefighters had a disagreement with a chief, subsequently the firefighter assaulted the chief. The Chiefs have begun suspension / expulsion charges against the offending firefighter. Can the Board of Fire Commissioners bring charges against the member?
Answer:
In addition to the authority of the Fire Chief , pursuant to Section 176-a of the Town Law, to suspend a firefighter for improper conduct subject to the action of the Board of Fire Commissioners at its next meeting, the Board of fire commissioners pursuant to Section 176 (10 ) of the Town Law may remove members for cause . If the Board decides that action against a fire fighter should be taken that may result in his removal from the department they need to follow the process set forth in Section 209-l of the General Municipal Law. It should be noted however that when the misconduct is so serious that removal is obvious, sometimes the firefighter will resign. The Board should have Violence in the Workplace policy it can reference and it is much easier and less expensive if the member is removed by the fire company members for cause and in accordance with due process.

4. ELECTIONEERING FROM THE POLLING PLACE?

Question? 
During the recent fire district commissioner elections individuals were making calls to encourage voting for a particular candidate from the fire station where the voting was being held. Does the calling constitute illegal campaigning and does it have any bearing on the election results?
Answer:
Since the calls were being made from a backroom, out of the sight and hearing of those in the main hall, which was being used as a polling place, would not rise to the level of electioneering. Even if the telephone calls from the back room did reach the level of
electioneering the violation would be for the individuals making the calls and not one of the candidates as long as they were not present


5. FIRE DISTRICT ELECTIONS, POSTPONEMENT

Question? 
Questions concerning a fire district election, can two fire commissioners administer the election? In anticipation of bad weather on the day of the election, can the election be postponed or rescheduled?
Answer:
Commissioners cannot serve on the Fire District’s election board and there is no authority to change the date of the annual fire district election, because of weather, without an executive order from the Governor.

6. BENEVOLENT ASSOCIATION CONFLICTS WITH BOARD MEMBERSHIP

Question? 
May a commissioner be treasurer for the fire department and the benevolent association at the same time?
Answer:
Commissioners pursuant to State Law are prohibited from being the treasurer of the fire district, or the chief or assistant chief of the fire department of the fire district of which they are commissioner of; there is no statutory prohibition of being a commissioner of a fire district and the treasurer of the fire department. The fire department is a special fire corporation formed pursuant to the Not-For-Profit Corporation Law with its own bylaws, constitution and officers. The funds of the fire department are separate and distinct from the fire district funds which are derived in large part by taxes whereas the fire department and benevolent money is derived primarily from fund raising, 2% funds, and donations. There is no conflict between the two positions.

7. REFUSAL OF MANDATORY COMMISSIONER TRAINING

Question? 
Our Fire District has a commissioner who is in the second year of their second term and has refused to attend the mandatory training and has refused help in accessing on line training, what steps can the Board take to remediate this situation?
Answer:
Section 176-e of the Town law provides in part that each commissioner shall within 270 days of taking office take and successfully complete a commissioner specific training course. (In 2015 that date is Monday September 28th) Unfortunately the statute does not contain any specific penalty for not taking the training. When the State Comptroller's office audits a fire district they ask for copies of the training certificates for each of the commissioners. If you are going to be doing any statutory bonding, bond counsel in the preparation of the bond resolution may also ask to see the certificates. If you have a disciplinary action an attorney representing the accused firefighter may ask for copies of the certificates, for how can a commissioner set as judge and jury over a firefighter for failure to follow the rules and regulations of the fire district when the commissioner has failed to comply with State Law? Lastly some resident of the fire district could initiate an action pursuant to Section 36 of the Public Officers Law to remove the commissioner from office for maladministration in the failure to take the required training. The action pursuant to Section 36 of the Public Officers Law probably would not be successful but there is always the possibility. The commissioners should be setting the "tone at the top" and what type of example are you showing if you do not follow the law. Lastly any community controversy involving the Board of Fire Commissioners might land in the local newspaper with a statement of fact that one of the Board is in violation of State law.

8. CHIEF RESIGNATION PRIOR TO COMPLETION OF TERM

Question? 
If a Chief Officer resigns prior to the completion of his term, what recourse or responsibilities does the Board Have?
Answer:
While the Board cannot prevent their resignation, the resignation should be in writing and directed to the Board of Fire Commissioners which appointed him after his nomination by the fire department. As to their replacement the fire department should look to the by-laws for the appropriate procedure. During the period that the position is vacant the assistant chiefs in numerical order shall assume the duties and responsibilities of the Chief pursuant to Section 176-a of the Town Law.

9. BOARD APPOINTMENT OF CHIEFS

Question? 
What responsibility does the Board have in the appointment of a Chief?
Answer:

Any nominees for the position of chief of the fire department must come before the Board of Commissioners for approval pursuant to Section 176 (11-a and 11-b) for approval and appointment.

10. BOARD QUALIFICATIONS FOR CHIEF

Question? 
What authority does the Board of Fire Commissioners have to set qualifications for the Chief’s position?
Answer:
The line officers qualifications are solely determined by the Board of Fire Commissioners pursuant to opinion number 97-49 of the Attorney General of the State of New York.

11. BOARD CONTROL OVER COMPANY BY-LAWS


Question? 
What authority does the Board of Fire Commissioners have in relation to the By-Laws of the fire company?
Answer:
Pursuant to Section 602 ( f ) of the Not-For –Profit Corporation Law the by-laws of the fire department cannot be inconsistent with any other statute which would include the authority of the Board of Fire Commissioners to establish rules and regulations governing the membership of the fire districts fire department pursuant to Section 176 ( 11 ) of the Town Law. [i.e. the By-Laws cannot conflict with the Rules, Regulations or policies established governing the membership of the fire companies)] If the fire department will not voluntarily provide the Board of Fire Commissioners with a copy of the by-laws the Board could request a copy pursuant to Article 6 of the Public Officers Law ( Freedom of Information Law ).

12. NUMBER OF MEMBERS NEEDED TO CONSTITUTE A FIRE COMPANY

Question? 
Is there a numerical threshold for the number of members it takes to be considered a fire company?
Answer:
There is no numerical threshold for a fire districts fire company. That being said a Board of Fire Commissioners may, after a public hearing, contract with any city, village, fire district or incorporated fire company, having its headquarters outside the geographic confines of the fire district, to provide fire protection within the fire district if the Board of Fire Commissioners determines it’s fire company is not qualified to perform the firefighting service for the Fire District under Section 176 (22) of the Town Law. This would be an extreme, and I am sure an unpopular, reaction to the dwindling number of firefighters available within the company. In addition Section 176 (18a) may employ such person as may be necessary to effectuate the objects and purposes of the district.

Persons may be employed as paid firemen only after a public hearing with specific requirements in the law.


13. PURCHASE OF USED FIRE APPARATUS

Question? 
The fire district is prepared to purchase a used fire truck as recommended by our apparatus committee. The district will hold a special meeting to consider purchasing the $60,000 apparatus from funds on hand. What does the Board need to do to properly approve this purchase?
Answer:
Pursuant to Section 103(6) of the General Municipal Law, the fire district is authorized to purchase surplus and used equipment without competitive bidding from the Federal Government, state government or any other political subdivision, district or public benefit corporation. This authority does not include buying it from a dealer of used fire apparatus. If the money is in the general operating account then it can be paid for by a simple resolution authorizing the acquisition and drafting of a check against district funds. If the funds are from a capital reserve fund the transfer of funds would be subject to a permissive referendum pursuant to section 6-g of the General municipal Law following the process set forth in subparagraph 7 of said section 6-g.
 
Edition 7

1. LAW SUITS AGAINST THE BOARD IN A WRONGFUL DEATH

Question? 
Is it possible that a fire district can be sued for wrongful death other than as a result of taking legal action by a third party being sued as a contributing factor to the death. Is there no immunity from such suits against a third party where there was no negligence on the part of the authority having jurisdiction over the deceased firefighter?
Answer:
VFBL coverage would cover the death of a firefighter and that would be the exclusive remedy as against the fire district. Obviously the fire district can be sued at any time, for any purpose, but the exclusive remedy available to the estate of a fire fighter would be VFBL absent some showing of willful or gross negligence on the part of the fire district.

2. MEMBERS WHO SPEAK A SECOND LANGUAGE

Question? 
The fire district has accepted a number of members who speak a second language in addition to English. Members of the Board feel that these new members should only speak English in the fire station and on the fire ground, can the Board make a ruling as such?
Answer:
Title VII of the Civil Rights Law of 1964 prohibits any employer from discriminating against an individual on the basis of race, color, religion, sex, or national origin. While language itself is not a protected class, Title VII does “prohibit the use of language as a covert basis for national origin discrimination”. The Equal Employment Opportunity Commission (EEOC) has stated that rules requiring employees to speak only English in the workplace violate the law unless they are reasonable necessary to the operation of the business. A rule requiring employees to speak only English in the workplace at all times, including breaks and meals can rarely be justified. An English only rule should be limited to the circumstances in which it is needed for the employer ( such as the fire district’s fire department) to operate safely and efficiently, for example on the fire ground or during training. Circumstances in which an English only rule may be justified include; communications with fellow firefighters who speak only English: emergencies or other situations in which workers must speak a common language to promote safety or cooperative work assignments in which the English-only rule is needed to promote efficiency. Even if there is a need for English-only rule, an employer including fire districts, may not take disciplinary action against an employee (firefighter for violating the rule unless the employer has notified the employees (firefighters) about the rule and the consequences for violating it.

3. APPOINTING MEMBERS TO THE BOARD OF FIRE COMMISSIONERS

Question? 
If the current Board of Fire Commissioners only has three members, what is the process to appoint additional members to the board?
Answer:
Although it’s a provision of General Construction Law, Section 41 states that a quorum of a public body composed of 3 or more individuals is a majority of the total which in a fire district with five commissioner positions would require 3 to be present to conduct business and for the passage of any resolution. Following that logic it would appear that all three current commissioners would need to vote in favor of filling a vacancy and then once that vacancy is filled that three of the four would need to vote for the same person to fill the second vacancy to then have five commissioners.
That being said the Attorney General's office in opinion numbered 2008-1 noted that Section 176 (3) of the Town Law would allow two commissioners in office to appoint a third and then the three could appoint a fourth and the four then appoint a fifth. It would seem to follow that the appointments only require a majority of the newly constituted board at each stage to agree on the next appointment, in other words with three sitting commissioners two of them could appoint the fourth , and that three of the four could then appoint the fifth.

4. TERM OF THE OFFICE OF TREASURERS

Question? 
Is there a term of office for an appointed Fire District Treasurer?
Answer:
Section 176(2a) of Town Law provides in part, that the Board of Fire Commissioners at its organizational meeting shall appoint a fire district treasurer to hold office until the 31st day of December next succeeding their appointment.

5. PURCHASE OF PROPERTY

Question? 
The Fire District would like to purchase a piece of property that currently houses our fire department and district offices. When the fire district was established, a capital reserve fund with no specific purpose was established. What steps are needed to transfer funds from our capital reserve fund to purchase the property?
Answer:
Capital reserve funds for fire districts are established pursuant to section 6-g of the General Municipal Law. If the fund was established as a general capital reserve fund and not for a specific purpose; if the board wishes to spend money from such fund it may do so after passing a resolution by the Board stating the amount to be transferred and the purpose for which it is to be used subject to a permissive referendum. A copy of the resolution then has to be published in your official newspaper within 10 business days of its passage and then wait for 30 days to pass before transferring the funds to see if a petition is filled requiring a mandatory referendum. If you do not receive a petition requiring a mandatory referendum after the 30 days you can transfer the funds to purchase the property. It is always advisable that you have your local attorney assist you in this process.

6. BUDGET FILING REQUIREMENTS FOR DISTRICTS COVERING MORE THAN ONE TOWN

Question? 
If my fire district protects property in more than one town, what are the budget filing requirements?
Answer:
If your fire district, when created, covered more than one town, each year you shall submit your total budget to each of the towns, apportioning the amount to be collected among the towns in proportion to the taxable real property in each of the towns that the district protects.

7. FAILING TO EXECUTE THE OATH OF OFFICE

Question? 
What are the repercussions of a Commissioner who fails to execute their oath of office within the 30 day required time limit?
Answer:
Section 30 (1. h) of the Public Officers Law provides in part that every office shall become vacant after the refusal or neglect to file an official oath of office by the officer before, or within 30 days after commencement of the term of office for which they are elected or if an appointive office, within 30 days after notice of appointment.

When the State Association performs training, as mandated by Section 176-e. of the Town law each of the attorneys mentions the need to file the oath of office within 30 days of taking office, which for an appointed commissioner could be anytime during the year. The Board of Fire Commissioners, pursuant to section 176 (3) of the Town Law has the authority to fill a vacant position at any time so it would be possible for them to reappoint the person who failed to file their oath of office with the clear understanding that they need to go to Town hall of the town in which the fire district is located and file their oath of office as soon as possible but no later than 30 days after their appointment

Further, Section 174 (6.) of the Town Law provides in part that each commissioner of a fire district before entering upon the duties of their office shall take the constitutional oath of office and file the same with the town clerk of the town OR in one of the towns in which such fire district is located. It’s recommend that when you file the oath for the commissioner with the town clerk that you get a time stamped copy for your files. Don’t forget that the oaths must be filed within 30 days of taking office which for a commissioner elected on 12/10/14 and whose term begins on 1/01/15 it must be filed on or before 1/30/15. The same requirements, pursuant to section 176 (3.) of the Town Law applies to fire district secretary and treasurer

8. ALLOWING FIRE FIGHTERS FROM OTHER DEPARTMENTS

Question?  
8. Our Fire District has a firefighter from another department who would like to respond to our calls with our department since they are regularly in the fire district. The firefighter’s home fire district is supportive but what actions do we have to take to make this legal and provide protection for all parties?
Answer:
Section 209-i of the General Municipal Law (GMU) governs emergency service by a volunteer firefighter to a fire department or company, other than the one of which they are a member. Subdivision 1-a of the aforementioned section provides the statutory authority and guidance that needs to be followed when the offer of assistance is on a continuing basis because of the firefighters residence or employment. While a mutual written agreement is good it is suggested that the firefighter wear your turnout gear when training or responding to an emergency in your district. It should be noted that in the event of an injury sustained by the firefighter while responding under the terms of the agreement they are covered by your V.F.B.L.. It is also good practice that the fire district adopt a rule, regulation or policy relative to the process to be followed using this provision of 209-I (1-a) of the GMU. Note that the acceptance of the assistance pursuant to this statute is subject to the Approval of the Board of Fire Commissioners, but does not require the approval of the county fire coordinator, although notifying them by copy of the agreement is a good idea.

9. ALLOWING INSULIN DEPENDENT MEMBERS

Question? 
Is there any prohibition on insulin dependent diabetics becoming interior firefighters?
Answer:
In a review of the OSHA Fire Brigade Standard, 29 C.F.R. Section 1910.156 relative to the requirement that the jurisdiction having control of the fire department needs to assure that the firefighter who are expected to do interior structural fire fighting are physically capable of performing duties which may be assigned to them during emergencies. The Standard goes on to state that the employer shall not permit employees with known heart disease , epilepsy, or emphysema, to participate in fire brigade emergency activities unless a physician’s certificate of the employees fitness to participate in such activities is provided. There is nothing in the standard prohibiting insulin dependent diabetics from participating in interior attach fire emergencies. The key is a professional and comprehensive annual medical screening program for all members of the fire department.

10. PROVIDING BOARD MINUTES BY THE SECRETARY

Question? 
Our Secretary has failed to provide the Board with any minutes of our regular meetings. The secretary is unable to produce the minutes which were supposedly on a shared server. What does the Board need to be concerned about?
Answer:
Section 178 of the Town Law provides in part that the Secretary of the fire district shall attend all meetings of the board of fire commissioners, act as clerk thereof, and keep a complete and accurate record of the proceedings of each meeting and of all propositions, rules and regulations adopted. The secretary shall have such additional powers and perform such additional duties as the board of fire commissioners may determine. The Secretary may also need to be reminded that he is an appointee of the Board of Fire Commissioners pursuant to Section 176 (2) of the Town Law. Lastly the secretary should be reminded that pursuant to Section 106 of the Public Officers Law minutes shall be taken at all open meetings of a public body ( Fire District Commissioners meetings, Town Board meetings, etc.) which shall consist of a record or summary of all motions , proposals, resolutions and any other matter formally voted upon, and the vote thereon. Subparagraph 3 of said section provides in part that minutes of all public bodies SHALL be available to the public in accordance with the freedom of information law within two weeks of the date of such meeting. Best practices dictate that copies of the minutes shall be available either in paper form or electronically and according to a good record
management plan should be backed up since according to the State Archives records schedule, official minutes and hearing procedures shall be retained permanently.

 
Edition 8

1. BOARD VACANCY DUE TO DEATH

Question? 
What actions may the Board of Fire Commissioners take if a vacancy occurs as a result of the death of a board member?
Answer:
When a vacancy occurs by death, change of residency or resignation of a sitting commissioner, the remaining members of the board of commissioners MAY fill that vacancy, pursuant to section 176 (3) of the Town law, by appointment by a majority vote of the remaining commissioners then in office. If the vacancy occurred prior to October 1st, whoever is appointed to that position would need to run for the balance of the term in December of that year. There is no statutory authority for a fire district to conduct a special election to fill a vacant commissioner’s position. You can also appoint a new Chairman, unless you appointed a deputy chairman at your organizational meeting, in which case that person would be your chairman, until next year’s organizational meeting in January.

2. FILING DATE OF AUD WITH OSC

Question? 
What is the filing date for the Annual Report required to be filed with Office of the State Comptroller?
Answer:
The Annual Report to the New York Comptroller is due within 60 days from the end of your fiscal year, in other words by the end of February. Pursuant to section 30(5) of the General Municipal Law upon written request from the treasurer the comptroller may extend such sixty day period for filing such report for an additional sixty days. I would suggest you request such extension setting forth the recent death of the former treasurer and a delay in gathering the records for the previous year.

3. BOARD MEMBER CONFLICTS

Question? 
Within a fire district elected Board members include an Assistant Chief and a Trustee on the Board of Directors of fire departments not within or associated with the district. Is there a conflict with them be a Commissioner on the Board in the District in which they reside?
Answer:
The prohibition contained in Section 174 (4.) of the Town Law, relative to not holding the office of Fire District Commissioner and Fire Department Chief or Assistant Chief, only applies to the Fire District's fire department and not to a commissioner also being a chief or assistant chief of another fire department. There is no prohibition relative to being a Fire District Commissioner and a member of the Board of Trustees of a Fire Department.

4. VFBL COSTS

Question? 
Is it normal that fire districts established in a Town share part of the cost of workers’ compensation (Volunteer Firefighter’s Benefit Law) insurance?
Answer:
Basically it’s all over the board as to who pays for VFBL coverage. Many fire districts pay their entire V.F.B.L. coverage from their own funds, some towns or even counties pay the premium in its entirety without seeking reimbursement and other jurisdictions may look for some contribution from the covered fire districts.

5. OFFICIALLY BECOMING A MEMBER

Question? 
When does a member officially become a member of the fire company/department?
Answer:
Pursuant to Section 176-b (2) of the Town Law the membership of any person elected by the fire company shall become effective when approved by resolution of the Board of Fire Commissioners. Membership shall be deemed to have been approved in the event that no action is taken by the Board of Fire Commissioners either approving or disapproving the election, within forty days after service of written notice of election to membership shall have been made by the secretary of the fire company upon the secretary of the board of fire commissioners either personally or by mail. VFBL coverage should commence when the board of fire commissioners approve of the membership or 40 days have passed from the date of notification of the election of the individual has been made by the Secretary of the Fire Company to the Secretary of the Fire District and no action has been taken by the Board of Fire Commissioners.

6. BACKGROUND CHECKS

Question? 
We are currently looking at implementing a background check for prospective new members, should the District or the Department take the lead on implementing the policy and completing the checks?
Answer:
The initial contact with a new applicant for membership in the fire district’s fire department/company is with the fire department membership committee. The request to the sheriff’s office or O.F.P.C. for the arson, and now sexual registry, is from the Chief’s office. I would suggest that the application itself indicate in writing on the face of the document what level of background check is going to be made to the new applicants so they know in advance, and some may wish to withdraw their application. After the individual goes through the application process and is voted on by the membership of the department the results of the background check should also be shared with the commissioners for their review process in deliberate process as to whether or not to accept the applicant into the fire district’s fire department/company.

7. HOW MANY FIRE DISTRICT CAN A TOWN HAVE

Question? 
May each township in the state of New York only form one fire protection district?
Answer:
There is no law in the state of New York that limits the number of fire protection districts that may be formed within an individual Town. There are 38 fire departments in the Town of Brookhaven, Suffolk County.

8. CONSOLIDATION OF FIRE DISTRICTS

Question? 
What is the process that has to be followed to incorporate a fire protection district which is divided between two established fire districts and can a single town have more than one fire protection district?
Answer:
Unfortunately Section 176-d of the Town Law (Dissolution or alteration of Boundaries of Fire Protection District when added to an adjoining fire district) was repealed several years ago. The process that would now need to be followed involving altering the boundaries of a current protection district so as to split it and then add a portion of the fire protection district to two existing fire districts, would be to follow the process set forth in Section 172-c and Section 170 of the Town Law. Article 17-A of the General Municipal Law (Consolidation & Dissolution of Local Government Entities) should also be referenced. Unfortunately what was a fairly straightforward process under the former statute (Section172-d of the Town Law) has become more circuitous under the process we now have.

9. USING FIRE COMPANY FUNDS TO IMPROVE FIRE DISTRICT PROPERTY

Question? 
The fire district owns the building where the fire department would like to refurbish the kitchen using fire department funds with the agreement that the fire district reimburse the fire department for the cost of the refurbished kitchen in the event the district’s building is sold. Is this arrangement possible?
Answer:
The Fire Department can make a gift of the renovations to refurbish the kitchen in a building owned by the fire district and the fire district can accept that donation in kind, however there is no authority for the fire district to pay the department at a later date for the renovations made.

10 DEPOSIT OF FIRE DISTRICT FUNDS IN A CREDIT UNION OR SAVINGS BANK

Question? 
May a Fire District deposit funds in a credit union or a savings bank, and are there any restrictions on the deposits of a fire company?
Answer:
The restriction relative to the deposit of funds applies to Local Governments as defined in Section 10 of the General Municipal Law. Local Governments, as therein defined, includes district corporations which a fire district is as defined in Section 174 (7) of the Town Law. Fire Districts may only deposit their funds in a “bank” or “trust company”. They may not deposit their funds in a credit union or savings bank. The Statute , Section 10 of the General Municipal Law, does not apply to the funds of the fire department, which was formed under the Not for Profit Corporation Law. The funds of the fire department may be deposited in a credit union, savings bank or any other banking institution.

 
Edition 9

1. SELLING ABANDON PROPERTY

Question? 
Do we need to have a referendum to sell an old abandon fire station?
Answer:
Section 176 (23) of the Town Law provides in Part that if the board of fire commissioners may sell or otherwise dispose of real and personnel property it no longer needs for protection of its residents. The Board of Fire Commissioners should pass a resolution of the Board declaring the real property or equipment as surplus and no longer necessary for fire protection. If the value is less than $10,000.00 the mere passage of the resolution is all that is required prior to selling or otherwise disposing of the items or real property. If the value is over $10,000.00 but less than $50,000.00 the adopting of the resolution is subject to a permissive referendum pursuant to the process set forth in Section 6-g (7) of the General Municipal Law. Section 6-g (7) of the General Municipal provides that within 10 business days of the adoption of the surplus property resolution by the board they should publish in their official newspaper a copy of the resolution saying it was adopted subject to a permissive referendum pursuant to Section 6-g (7) of the General Municipal Law. The Board must wait 30 calendar days to see if residents owning 25% of the assessed valuation of the fire district sign a petition requiring a mandatory referendum. If that does not happen, and in my personnel experience I have never seen it done, the Board can then go ahead and dispose of the property or equipment by sale or whatever other method it determines to be appropriate.

2. REFERENDUM FOR SURPLUS EQUIPMENT

Question? 
The fire district is purchasing a new pumper and will declare a pumper worth approximately $50,000 surplus, does the District need a public referendum?
Answer:
If the value of the surplus property or equipment is in excess of $50,000.00 the surplus resolution is subject to a mandatory referendum following your election process.

3. CIVIL SERVICE

Question? 
Our County Civil Service Department has asked the Fire District how many paid employees we have. How should the District properly respond since we have a Secretary and Treasurer who receive compensation?
Answer:
The Fire District should indicate that there are no paid emergency response personnel. The Fire District Secretary and Treasurer are appointed individuals by a Municipal Board of Fire Commissioners who have no regularly scheduled hours and who serve for an annual stipend determined at the beginning of each year. Any maintenance work done at the fire house is done by independent contractors on hourly bases and the Board of Fire Commissioners are publicly elected individuals who serve without compensation.

4. BEING EXCUSED FROM BOARD MEETINGS

Question? 
What is the ruling concerning fire commissioners requesting to be excused from meetings?
Answer:
There is no “rule“ relative to a fire commissioner requesting permission to be excused from a meeting. Section 176-c of the Town Law provides in part that any commissioner may be removed for dereliction of duty, and that dereliction of duty shall include, but not limited to, excessive unexcused absences from regularly scheduled meetings. Any removal for this cause needs to follow the process set forth in section 36 of the Public Officers Law.

5. CAPITAL RESERVE FUNDS

Question? 
The Fire District currently has two capital reserve funds, one for apparatus replacement and one for roof replacement if needed. The Board would like to change the roof replacement capital reserve to a capital improvement capital reserve. How do we make this change?
Answer:
The establishment of a capital reserve fund must follow the process set forth in Section 6-g of the General Municipal Law. The Board of Fire Commissioners must first pass a resolution to create a new Capital reserve fund for the purpose of capital improvements and additions to the fire house. That resolution is subject to mandatory referendum which can be at your annual election in December or at a special election on any Tuesday so long as it is not a national holiday. The publication, New York Fire District Officers’ Guide, contains examples of both the necessary resolutions that the Board of fire commissioners need to adopt and the legal notice of the referendum. As to the existing capital reserve for roof replacement, after the resolution for the new reserve fund has been adopted by the Board and approved by the residents at the referendum vote, the funds remaining in the roof replacement fund can be transferred to the new capital reserve fund.

The board of fire commissioners at the time they adopt their proposed budget in late September can budget for funds to be placed in properly established reserve funds. After the budget hearing on the third Tuesday in October you can modify your proposed budget prior to submitting to the Town for collection, but you cannot increase the amount budgeted for the reserve funds over the amount indicated in the proposed budget.

6. REGISTRATION OF FIRE DISTRICT VEHICLES

Question? 
Are fire district owned Chief’s vehicles required to be registered by NYS Department of Motor Vehicles?
Answer:
Title IV., Article 14, Of the Vehicle and Traffic Law of the State of New York deals with the registration of vehicles. Section 401 of the Vehicle and Traffic Law states in part that the provisions of this article with respect to the payment of registration fees shall not apply to ( I ) fire vehicles , as defined in section 115-a of the Vehicle and Traffic Law. A ”fire vehicle” is therein defined as a vehicle operated for fire service purposes owned and identified as owned by a fire district.


7. BIDDING OF APPARATUS?

Question? 
The fire district has a capital reserve fund to purchase fire apparatus and advertised for a permissive referendum to expend money to purchase a truck. The district has found an acceptable used truck we would like to purchase. Do we need to go out to bid to purchase the truck and do we need to post notices to have a special board meeting to approve a resolution to purchase the truck?
Answer:
The fire district has followed the correct procedure pursuant to Section 6-g(7) of the General Municipal Law to transfer funds from the apparatus reserve account, a permissive referendum is required. If the used apparatus is owned by another fire district or municipal fire department, the State of New York or any political subdivision such as a fire district, or public benefit corporation pursuant to Section 103 (6) of the General Municipal Law may purchase the vehicle without going through the bidding process. If the seller does not meet the above mentioned criteria, the bidding process of Section 103(2) of the General Municipal Law must be followed. You should still follow your procurement policy to see if there are any other vehicles that would meet the needs of the fire district at the same or lower price.

In answer to the second question; Section 104 of the Public Officers Law , provides in part that public notice of a meeting scheduled less than one week before the meeting shall be given to the extent practical to the news media and shall be posted conspicuously in one or more public locations at a reasonable time prior thereto.

8. VOTING IF ABSENT

Question? 
Can commissioners vote for a resolution of the Board in abstention?
Answer:
A commissioner who is not physically present at a meeting can participate and vote only if videoconferencing is being used, following the process set forth in Section 104 (4) of the Public Officers Law. You would need to inform the public prior to the meeting that videoconferencing was going to be used, identify the locations and state that the public has the right to attend the meeting at any of the locations.

9. EXEMPT FIREMAN'S ASSOCIATION MEMBERS

Question? 
Does a Medic who is a member of the fire department but who does not train or possess knowledge as a firefighter have any standing to be a member of an Exempt Fireman’s Association?
Answer:
Section 209-b of the General Municipal Law provides in part that the authorities having control of fire departments and fire companies , in our case fire districts , may organize within such departments or companies emergency rescue and fire aid squads composed of fireman who are members of such departments or companies. These individuals are covered by your VFBL and are able to participate in the fire districts LOSAP program if they have one. They are just as much a fireman as a member of your fire police squad which was formed pursuant to Section 209-c of the General Municipal Law.

10. MOVING FUNDS FROM ONE LINE TO ANOTHER

Question? 
May the Board of Fire Commissioners modify their budget by moving money allocations from one line item to another?
Answer:
There are no regulations that would prevent a Board of Fire Commissioners from transferring, by resolution, money in one line item of an adopted budget during the course of the year to another; except a transfer from funds already placed in a reserve fund.

11. COMMENTS OF CHIEFS DURING BOARD MEETINGS

Question? 
We currently have a Chief that interrupts and argues during a Board of Fire Commissioner’s meeting, what action can or should the Board take to control this behavior?
Answer:
The Board of Fire Commissioners meetings are subject and guided by the Open Meetings Law as set forth in Article 7 of the Public Officers Law, and consistent with recommendations from the Committee on Open Government. The stated purpose of the Open Meetings Law is to provide the public with an opportunity to listen to and observe their duly elected officials perform their duties and responsibilities. It is not a forum at which any individual other than the elected officials can openly voice their opinions. The chief is in attendance pursuant to Section 176-a (1.) of the Town Law, to report to the Board of Fire Commissioners the condition of the property of such district and such other information as may be required of him. If he is causing a disturbance to the orderly discussion of the meeting he should be instructed that he should only offer comments when so requested by the chairperson or other members of the Board.

12. WORKPLACE VIOLENCE POLICY

Question? 
We are in the process of creating a workplace violence policy, does the scene of a fire include the workplace?
Answer:
The fire scene is definitely a workplace for the volunteers and is subject to any workplace policy that the Board of Fire Commissioners may adopt. It should be noted however, pursuant to both Section 176 (11) and 176-a (1) of the Town Law, that when the fire department is on duty that no member of the board of Fire Commissioners should interfere with the duties of the Chief or Assistant Chief. But as an employee of the Board it is the Chiefs charge to enforce the policies, rules and regulations as set forth by the Board of Fire Commissioners.

 
Edition 10

1. LOSAP

Question?
Would it be appropriate to award LOSAP points to someone who has a temporary and partial disability?
Answer:
Section 217 (c) (viii) of the General Municipal Law clearly states that an injury in the line of duty shall enable the firefighter to receive five points for each full month of such disability. The disability however must be either total and temporary or partial and permanent. A partial and temporary disability does not meet the intent or the requirements of the statute. Ultimately it would be up to the compensation board or other competent authority to make the decision as to the level of disability.

2. DRIVERS

Question?
Are the drivers of fire apparatus required to be in the possession of a CDL class license to drive fire apparatus in a non-emergency mode?
Answer:
The regulations were amended in May of 2009 to allow the operation of a fire vehicle during its use as an emergency vehicle or in the performance of “Official Duties”, which would include training, parades and other such activities for which if a fire fighter were injured they would be covered by VFBL coverage.

3. DISABILITY AND MEMBERSHIP

Question?
Our department has an inactive member, who is on disability retirement from his regular job and is planning on returning as an active firefighter upon attaining age 65, claiming that his disability benefit come to an end. How should the District proceed?
Answer:
If the individual in question is an “inactive firefighter” before he returns to an active status he will need to be examined by the fire department’s physician to determine what level of activity he should be participating in . As to his disability retirement and the termination of same it is suggested that he discuss the issue with his attorney to determine whether his return to active firefighting status will have any effect on any benefits he presently receives or maybe entitled to in the future.

4. LOSAP AND IRAs

Question?
Is it possible to take a distribution from a LOSAP program and roll it over into an IRA account?
Answer:
LOSAP distributions cannot be rolled over into an IRA. In fact, even if a firefighter gets a distribution, those proceeds are not “earned income” and you cannot even deposit them into an IRA. LOSAP is not a pension plan at all, and certainly not a “qualified” plan that would be eligible for rollover.
If a volunteer entitled to a LOSAP distribution resigns prior to the entitlement age and the plan administrator desires to pay them off early so you can be rid of the administrative burden of tracking them is restricted by NYS law. The NYS service award program statute does not permit a sponsor to pay a participant prior to the entitlement age except for death or total and permanent disability. The NYS service award statute is General Municipal Law, Article 11-A. Here is a link to the NYS web site: http://public.leginfo.state.ny.us/navigate.cgi just click under laws, then general municipal, then Article 11-A. The definition of entitlement age is under section 215.
On the federal side, the section of the Internal Revenue Code is 457(e)(11). The difficulty with the federal legislation is that section of the IRS code in effect exempts LOSAP from the requirements of 457. It doesn’t really say what it exactly is. So unfortunately that leaves it up to some interpretation, and different vendors make different interpretations.

5. RECEIVING DONATIONS

Question?
May a fire district receive a donation from a private firm/individual that is strictly designed for a purchase of a future piece of equipment above and beyond the real property taxes?
Answer:
Political subdivisions of the State of New York , including fire districts, are authorized to accept gifts or donations . In an unnumbered subparagraph of Section 176 (18.)(16) of the Town Law, titled Powers and Duties of fire district commissioners, it is noted in part that the limitations on the spending limits of a fire district shall not be applicable to the use of the proceeds of a gift or gifts given to a fire district, and such proceeds may be expended for purposes authorized or pursuant to law. You can deposit the funds into your general fund or a capital reserve fund established pursuant to Section 6-g of the General Municipal Law (GMU). If you do not currently have a capital reserve fund you must follow the process delineated in the aforementioned section 6-g of the GMU to establish one.

6. LINE OF SUCCESSION FOR CHIEF'S

Question?
The Chief of our department has resigned; the Board of Fire Commissioners is having a meeting to address the issue. Is the Chief’s resignation covered by a line of succession provision in Town Law? Our fire department holds elections in December, does the replacement chief serve until the elections occur?
Answer:
Section 176-a(1) of the Town Law provides the only line of succession for the position of chief and assistant chief of the fire district’s fire department. In the absence of the chief the assistants move up in numerical order to perform the duties and exercise powers of the chief. In a 1981 informal opinion of the Attorney General it was noted that the board of fire commissioners had no power of appointment to fill a vacancy in the position of chief engineer but may call a special meeting of the members of the fire department to nominate a candidate to be appointed by the board of fire commissioners to the position of chief engineer. In an earlier opinion (1951) from the New York Comptroller’s office they noted that the procedure to fill a vacancy caused by a resignation in the office of chief engineer should be substantially the same as prescribed for the making of the original appointment. A former chief may not be appointed to the position of chief without first having been nominated by the membership of the department.


7. WRITE-IN FOR ELECTIONS

Question?
What section of Town Law allows for the occurrence of write-in's during a fire district election?
Answer:
Section 176 (7.) of the Town Law provides in part that the ballots prepared for the election of fire district officers shall specify the names of the candidates duly filed and in addition provide proper blank spaces for each office to be filled at such election. Attorneys for fire districts have taken that language as the authority and requirement to permit write in candidates.

8. SELF INSURANCE BY DISTRICTS FOR MEMBER'S

Question?
Is there anything in NYS Law that would preclude a Fire Department from self-insuring its members for loss of life? The Fire District would like to establish an insurance trust fund to payout member’s beneficiaries rather than purchasing commercial insurance. Is this allowed? Would a trust fund be an appropriate vehicle?
Answer:
It is the opinion of counsel that the fire department using its 2 % foreign fire insurance could use to establish a self- insurance life insurance policy for the benefit of all its members. The concern is however as to whether you could provide sufficient benefit if on the unfortunate chance there were several deaths in one year which could severally taxing financial resources.

9. DISTRICT BASED EMS

Question?
Our Fire District has a fire based EMS system where we provide basic life support service to our fire district, we have two EMTS living in our fire district but are members of a loca volunteer ambulance corps who would like to be mutual responders to our FD as EMTs. I realize firefighters can be mutual responders; can EMT's do the same?
Answer:
Section 209 of the General municipal Law authorizes and allows for outside service by fire departments and ambulance districts to areas not within the jurisdictional limits of the areas they serve, and section 209-I authorizes emergency service by volunteer firefighters outside of the area regularly served by the fire company or fire department of which they are a member. There is no statutory authority that we are aware of which provides similar authorization to an EMT of an ambulance district who responds individually and not as part of a response by the ambulance organization of which they are a member. Those individuals may wish to join the fire department as an EMT, since the prohibition in Section 176-b (10) of Town Law, of not belonging to two fire companies would not apply.

10 PURCHASING USED APPARATUS

Question?
The District’s ladder truck is old and has failed testing causing it to be out of service. It is the only ladder in this portion of the county. The District is researching a piece of used apparatus, what are the provisions for emergency purchase in relation to the bidding process.
If it is the intention of the fire district to purchase a used aerial piece there is statutory authority for the process.

Answer:
Section 103 (6) of the General municipal Law provides in part that surplus and second-hand supplies , material and equipment may be purchased without competitive bidding from the federal government, the State of New York or from any other political subdivision, district or public benefit corporation. If the plan for the financing of the apparatus is the issuance of statutory installment bonds, serial bonds or entering into an installment purchase contract, they all require a mandatory referendum.

11. MEMBERS WITH DISABILITIES

Question?
11. The Fire District has a young man with a disability who would like to become a member of the fire department. What are the legal ramifications or precedents governing this situation?
Answer:
The ADA statute provides that employers must make reasonable accommodations for individuals with disabilities. The US Justice Department, which enforces the ADA, have determined that volunteer fire departments are employers and thus need to make reasonable accommodations for applicant individuals who have learning or physical disabilities and who want to be volunteer firefighters. Not every member has to be an interior attack firefighter. There are positions and activities within the volunteer fire service that individuals with developmental disabilities are able to perform. There are volunteer fire departments in the Capital area that have volunteers who have learning or physical disabilities, who are assigned duties commensurate with their abilities.

 
Edition 11

1. DONATIONS TO FIRE COMPANIES

Question?
A donor would like to make a donation to the fire company on the condition that it is a registered 501 (c) (3), in order that they have documentation that they are giving to a not for profit entity. Is the fire district considered a not for profit and can the district accept the donation and pass it to the fire company?
Answer:
A fire district, pursuant to Section 174 (7) of the Town Law of the State of New York, is a political subdivision of the State and a district corporation. Section 501 (c) (3) of the Internal Revenue Code applies to corporations, community chest funds, cooperating associations, or foundations for religious, charitable or scientific purposes. Fire departments often apply for this status but not fire districts. Contributions or gifts to or for the use of a state, a possession of the United States, or any political subdivision of any of the forgoing are recognized as Charitable Contributions pursuant to Section 170 (C)(1) of the Internal Revenue Code but only if the contribution or gift is made for exclusively public purposes. In opinion number 91-19 the New York Comptroller stated that a fire district may not make a gift to a fire company of an amount equal to the cost of firefighting equipment previously given as an unconditional gift by a fire company to the fire district. Council is therefore of the opinion that a fire district may not make gifts to the fire department of funds received by the fire district, but may spend the funds receive as a gift or contribution for fire district purposes as set forth in Article 11 of the Town Law.


2. CONFLICTS WITH TOWN OFFICES AND CHIEF'S

Question?
Our Fire District has a chief officer who is contemplating running for the office of Town Justice, is there any conflict of interest in holding both positions?
Answer:
The only statutory prohibition for an assistant chief of a fire districts fire department is that he cannot be a commissioner of that fire district (Section 174-4 of the Town Law). There is an opinion of the New York Attorney General’s office that no chief officer can be the maintainer of the fire district’s firehouse (2005-20). There does not appear to be any opinions of the either the Attorney General’s Office or the New York Comptroller’s office that found the positions of Town Judge and Assistant Fire Chief to be in conflict or incompatible.


3. LEASE PURCHASE AGREEMENTS FOR APPARATUS

Question?
Our Fire District is in the process of obtaining a new piece of apparatus through a lease/purchase agreement. Do we need a Mandatory Referendum? Do we need a Permissive Referendum? We are also going to use funds in capital reserve for a down payment; do we need to have a Permissive Referendum to spend the funds from our reserve fund?
Answer:
A number of years ago the New York State Comptroller's office rendered opinion, number 98-19, which stated in part that an installment purchase contract by a fire district, pursuant to Section 109-b of the General Municipal Law, is subject to a mandatory referendum.

As to your second question, subparagraph 7 of Section 6-g of the General Municipal Law provides in part that an expenditure from a reserve fund shall be made only upon authorization by the board of fire commissioners and for a specific capital improvement or a specific item or specific items of equipment. However , if a proposed expenditure is from a fund established for a type of capital improvement or equipment and if it is required by law that the authorization by such board of fire commissioners of the issuance of obligations for such capital improvement or equipment be subject to a permissive or mandatory referendum, then the authorization of such an expenditure shall be subject to a permissive referendum. To pass a resolution authorizing an expenditure form a capital reserve fund you then need to follow the process set forth in the aforementioned 6-g (7) of the General Municipal Law.

4. FIRE STATION LEASE

Question?
Our fire district is approaching the end of the lease for our current fire station, where our apparatus is housed. The District would like to lease property from another entity which owns appropriate property upon which the District would construct a new fire station. The question is may the District legally expend funds on a building without owning the land?
Answer:
Section 176 (14 ) of the Town Law authorizes a Board of Fire Commissioners for the preservation, protection and storing of fire apparatus and for the social and recreational use of fireman and residents of the district to acquire by purchase , lease , gift , devise or condemnation real property and erect , construct , alter, repair and equip suitable buildings.

Also section 176 (21) of the Town Law provides that the Board of Fire Commissioners shall have and exercise all the powers conferred upon the fire district (the aforementioned subparagraph 14) and such additional powers as shall be necessarily implied there from.
It is assumed that this will be a long term lease with the duration being reflective of the cost of the construction of the fire house and the fact that the fire district will be making a significant capital improvement and that the lease payments will reflect that the Fire District is leasing vacant land on which it plans on making a capital improvement.

All of the above being it is the opinion of counsel that the Board of Fire Commissioners has the authority to lease real property to and construct leasehold improvements on said property for the purposes authorized by Section 176 of the Town Law.

5. HOW TO RESIGN AS A COMMISSIONER

Question?
What is the proper and legal way for an elected Fire Commissioner to resign their post?
Answer:
Section 31 of the Public Officer’s law provides in part that public officers (fire district commissioners) may resign their offices by submitting a written notification of their intent to resign, to the secretary of the Board of Fire Commissioners or to the Board of Fire Commissioners at the office of the Board of Fire Commissioners. The effective date should be stated in the written notification and cannot be more than 30 days after the delivery of the written notification. If the stated effective date is more than 30 days after the date of delivery it shall be deemed to be 30 days after delivery. A resignation once delivered may not be withdrawn, canceled or amended except by consent of the secretary or Board of Fire Commissioners. If the effected date of the resignation is prior to October 1st any person appointed to the position would need to run for the balance of the term this year and if the effective date is October 1st or Later a person appointed to the position would not need to run this year unless the term of the office was to end this year [Section 176 (3) of the Town Law ].

6. VOTING OUTSIDE OF BOARD MEETINGS

Question?
Is it permitted to act on or approve forgotten items after a meeting of the Board as long as there is approval by each member or a majority of the Board?
Answer:
The Open Meetings law is governed by Article 7 of the Public Officers Law. The State of New York, Department of State, Committee on Open Government has rendered literally thousands of opinions interpreting the Law. In opinion OML-AO-4306, Robert Freeman, Executive Director, noted that voting and a valid meeting may occur only when a majority of the total membership of a public body has gathered together in the presence of each other or through the use of videoconferencing. His stated opinion was that neither a public body nor its members individually may take action or vote by means of telephone calls or e-mail. In 1998 Broome County Supreme Court stated that a vote taken by phone was a nullity. In a subsequent opinion in 2005 the Appellate Division found that the Open Meetings Law prohibited voting by phone and nullified the action taken by a Town Board in that instance.

7. FIRE DISTRICT ELECTION PETITION DEADLINES

Question?
7. When is the last day that election petitions can be picked up to distribute for signature for Board candidates?
Answer:
Section 176 (7) of the Town Law provides in part that the Board of Fire Commissioners shall require that candidates for district offices file their names with the secretary of the fire district at least twenty days prior to the date of such fire district elections and in addition MAY provide by resolution that such nominations be submitted in petition form subscribed by twenty-five qualified voters of the district. The statute is silent relative to the date that the board can pass the resolution with the requirement for a petition and when those petitions would be available. It is recommended that the resolution be passed at the September meeting and remain in effect until rescinded and that the resolution set forth a date for the earliest collection of names on a petition. It is just a recommendation but October 1st would be a reasonable date to start the collection of names on a petition as that would give a potential candidate approximately 45 days to collect the necessary signatures and deliver the petition to the Fire District secretary at least 20 days before the election. That would also ensure that the signatures are not old signatures which have been sitting on a petition for a long period of time.

8. WEBSITE VS FACEBOOK

Question?
8. In developing a fire district budget, the law states that if the district maintains a website that the proposed budget is required to be posted to the site. If the district does not have a web site but has a facebook page, is it considered a website?
Answer:
Section 175-c of the Town law requiring posting on the fire district’s “website”, if one exists , of notices relative to hearings and elections does not apply to “facebook’, “twitter”, or any other social media networking.

9. PAYING MILEAGE BY FIRE DISTRICT

Question?
9. May the fire district or department pay volunteers a mileage reimbursement for going to calls?
Answer:
An official or chief may only be paid for the operation of a private vehicle while it is used in the performance of an official function. Costs incurred in commuting from home to the usual place of business, in our case the firehouse, are private expenses and, therefore, not reimbursable since they are not actually and necessarily incurred in the performance of their official duties. There is no authority for the fire district to reimburse firefighters for mileage in responding to the firehouse or returning home there from after an alarm.

10. TREASURER VS CHIEF CONFLICT

Question?

10. May a fire district treasurer also be the fire chief?
Answer:
Section 174 (4) of the Town Law provides in part that a person shall not hold the office of fire district commissioner and the office of fire chief or assistant chief of the fire department of the fire district at the same time. The same subparagraph provides that a person shall not hold the office of fire district commissioner and fire district treasurer at the same time. Section 175 (3) of the Town Law provides in part that membership in a volunteer fire company shall not disqualify a person from being the fire district commissioner, treasurer or secretary. There is no statutory prohibition for a person holding the office of fire chief and fire district treasurer at the same time.

 
Edition 12

1. LOSAP POINTS FOR DISABLED MEMBER

Question?
Under the statute governing the point system for LOSAP, specifically the disability points for a VFBL injury, it states in the event that any active volunteer firefighter is either totally and temporarily disabled, or partially and permanently disabled…the firefighter shall receive five points for each full month of such disability. What it doesn’t address is what if the member has resigned or has been moved to a social status but continues to have the permanent partial disability. What happens if a member who is in a social status is deemed by WCB to have a permanent partial disability due to the original VFBL injury? I was under the impression that only active members could participate in the LOSAP program.
Our LOSAP administrator is stating that the law is very vague on the point system and since they do not specifically mention what happens to the disability points for non-active members that it could be in our best interest to keep providing disability points up to the maximum of 40 years if that member has a permanent partial disability. Although they suggested that maybe our attorney contacts OSC for more clarification.

Answer:
Section 217 ( C ) ( viii ) of the General Municipal Law does not appear to include a termination period, or date, for point accrual for an individual injured in the course of their performance of their duties as a volunteer firefighter, assuming they continue to be certified, by an appropriate authority, as either totally and temporarily disabled, or partially and permanently disabled. Since the statute is vague on this issue, it is an option to contact the Office of the State Comptroller to obtain guidance.

2. RESOLUTION EXCEEDING TAX CAP

Question?
May the resolution to exceed the tax cap be made after the required public hearing? Can the resolution to adopt the budget be made at a regular meeting on the last day of the deadline to adopt or is a special meeting required to pass the override prior to the resolution of adoption?
Answer:
The resolution to “override” the tax cap levy must be done before the adoption of your final budget. Your final budget must be adopted on or before November 4th. Two certified copies of the Budget for the next fiscal year must be delivered to the town clerk of the Town or Towns in which the fire district is located on or before November 7th. The motion to “override” the Tax levy cap should not be made before the conclusion of your budget hearing which is held on the third Tuesday of October.

The resolution for adoption and the resolution for overriding the tax cap can be performed at the same meeting on the date of the adoption deadline but must be performed in the specific order, first the resolution of override and then the resolution for the adoption of the budget.

3. USING FIRE POLICE FOR NON FIRE RELATED ACTIVITIES

Question?
For several years our Fire Police and fire company have provided EMS coverage and shut down a road for a 5K run sponsored by the local church. Recently we have also provided the same service in the Fire District for a charity 5k event. Recently a Fire Police School Instructor told our new fire police they would not be provided VFBL coverage for working those events.
Answer:
A member of a fire police squad would only be covered under VFBL at such times as the fire department are on duty, or when, on orders of the chief of the fire department of which they are a member, they are separately engaged in a response to a call for assistance pursuant to the provisions of 209 of the General Municipal Law (Mutual Aid). It is the opinion of counsel that they do not have coverage under VFBL if they are working a Non-Fire related parade or any other non-fire department activity.

Section 209(c) of the General Municipal Law provides that the authorities having control of fire departments may organize within such department’s fire police squads composed of volunteer fireman who are members of such department or companies. Members of the fire police squads so organized and at such times as the fire department, fire company, or an emergency squad and first aid rescue squad of the fire company or fire department are on duty, or when on orders of the chief of the fire department of which they are members they are separately engaged in response to a call for assistance pursuant to section 209 of the General Municipal law, shall have the powers of and render service as peace officers. Section 209 ( 1 ) of the GML provides that the term “assistance” includes the service of firefighting forces, fire police squads, emergency rescue and first aid squads rendered in case of a fire or other emergency. Given that they may be called upon to perform services at a non-fire department event, it is suggested that minimally the chief would have to schedule a drill for the fire department and preferably calling in other departments to participate in a training exercise or drill for the fire police to show proper placement of cones and other traffic control devices, inspection of proper turnout gear for the fire police and training in traffic control in the event of an emergency.


4. GIFTS OF PROPERTY

Question?
The fire district has the potential of being gifted adjacent property. When we are gifted property is the fire district able to acknowledge the donation so the party gifting the property can be provided documentation so that they can obtain tax benefits for the donation?
Answer:
Section 176(14) of the Town Law provides in part that the Board of Fire Commissioners may acquire by purchase, lease, gift, devise or condemnation real property for the preservation, protection and storing of fire apparatus and for the social and recreational sue of the firemen and residents of the district. Nothing prevents the Board of Commissioners to acknowledge the gift, with the recommendation that its current assessed valuation used as the value of the gift.

5. CDL LICENSE REQUIREMENTS

Question?
Are our district firefighters required to have a CDL license when returning from calls? Also, are motor vehicle inspections required for the district’s fire apparatus?
Answer:
In answer to the first question; Section 501-a of the Vehicle and Traffic Law State of New York and part 383.3 of the Code of Federal Regulations all clarifying the issue that firefighters do not need a CDL license to operate fire apparatus even when operated in a non-emergency mode.
In answer to the second question; Section 301 of the Vehicle and Traffic Law provides that every motor vehicle registered in the state shall be inspected once a year for safety; however Section 308 specifically exempts fire vehicles from those inspections. It should be noted however that section 307 provides that the owner of any motor vehicle, whose motor vehicle is not required to be inspected may, nevertheless, voluntarily comply with the provisions relative to inspection. From a liability standpoint a fire district should have whoever does their maintenance perform and document an inspection on the vehicles as if the state required inspection. If apparatus is involved in an incident due to mechanical failure you can be assured that inspections and maintenance schedule of the apparatus will be an issue.

6. MEMBER SERVICE TO OTHER DEPARTMENTS

Question?
How can an experienced volunteer render service to another agency other than the department to which they belong?
Answer:
A number of years ago legislation was introduced at the request of the Association of Fire Districts of The State of New York adding a new Subparagraph 1-a to section 209-I of the general Municipal Law which provides in part that a volunteer firefighter who, because of his residence or place of employment is regularly in the area served by a volunteer fire company or department of which he is not a member may nevertheless volunteer his services on an on-going basis to the officer in command thereof to assist in an on-going manner. The acceptance of the offer of assistance by the commanding officer of is subject to the approval of the board of fire commissioners. Once they have approved of the acceptance of the continuing assistance that firefighter shall be entitled to all powers, rights, privileges and immunities granted by law to volunteer firefighters of the department that they are offering assistance to including benefits provided by VFBL.

7. RECEIVING REIMBURSEMENTS FOR EXPENDED ITEMS

Question?
Our fire district has been party to reimbursements as a result of billing for expendable items, PPE damage and personnel time due to hazardous material releases. When the fire district receives reimbursement funding does it have to be applied to a particular budget line item?
Answer:
Section 176 ( 18.) in an unnumbered paragraph following subparagraph 16 , provides in part that spending limitations of a fire district shall not apply to insurance proceeds received for the loss , theft, damage or destruction of real or personal property when used or applied to repair or replace such property. Such proceeds may be appropriated by resolution of the board of fire commissioners at any time for such objects and purposes. It is a recommendation that proceeds received to cover losses sustained as the result of a petroleum spill should be “substantially” used to replace or repair the lost or damaged items.

8. CHANGING THE TREASURER FROM ELECTED TO APPOINTED

Question?
The fire district wishes to change the office of treasurer from an elected position to an appointed position. What steps does the District have to take to make this change?
Answer:
Section 176 (2-a) of Town Law provides the authority to a Board of Fire Commissioners to submit a proposition to change the position of an elected treasurer to an appointed treasurer at an election other than one at which the treasurer is required to be elected. Section 175-c (3) provides that notice required for elections among other information shall include “details regarding other matters to be voted on”. “Other matters”, would include notice that the board has passed a resolution to change the elected treasurer’s position to an appointed position. The notice to appear in the official publication of the fire district relative to the election should also include notice relative to the vote on the resolution which was adopted by the Board of Fire Commissioners.

9. CONFLICT OF FIRE DISTRICT MANAGER VS SECRETARY

Question?
Our fire district is considering having a Fire District Manager who would also act as District Secretary. Would this overlap be legal and is there a conflict of interest for the same person to hold both positions?
Answer:
The New York Attorney General's office renders opinions relative to Compatibility of Office; and the New York State Comptroller's office renders opinions on conflicts of Interest between offices of a municipal organization. There do not appear to be any opinions reported by either Government office in which they determined that the position of Secretary to the Board of fire Commissioners, an annually appointed position, who acts as the clerk of the fire district and keeps the records of the fire district, and the position of Fire District Manager, who will be responsible for the day to day operations and maintenance of the fire district's property and equipment were incompatible or in conflict with each other.

10. BOARD MEMBERS BEING FIRE DISTRICT EMPLOYEES

Question?
10. Is there any way in which a Fire Commissioner could be an employee of the fire district?
Answer:
Several years ago the New York Attorney General’s office rendered opinion number 97-44 which stated in part that a person may not hold the positions of master mechanic of the fire district and fire district commissioner. They noted that fire district commissioners, acting as a board, are authorized to employ persons who are necessary to carry out the purposes of the district under the provisions of Town Law Section 176 (18-a); terms and conditions of employment of paid employees. Section 801 of the General Municipal Law (GMU) provides that with some limited exceptions found in Section 802 of the GMU, no municipal officer shall have an interest in any contract with the municipality of which he is an officer, when such officer, individually or as a member of a board, has the power or duty to (a) negotiate, prepare, authorize or approve the contract or authorize or approve payment thereunder (b) audit bill or claims under the contract. Therefore a fire district commissioner cannot be an employee of the fire district.

 
Edition 13

1. PREVAILING WAGE RATE QUESTION

Question?
Our fire district is looking for a clarification pertaining to work performed under the prevailing wage rate regulations. We are having repair work performed on our overhead doors and have been asked by the contractor if we are subject to prevailing wage rates?
Answer:
Article 8, Section 220 of the Labor Law of the State of New York provides in part that the wages paid to laborers, workman or mechanics upon public works, shall be not less that the prevailing rate of wages for that occupation in that geographic area. The only exception is if the business is a sole proprietorship and the work is being done by the owner. Maintenance work involving the employment of laborers, workers or mechanics is subject to Article 8.

2. ELECTION PETITIONS

Question?
Our fire district requires 25 signatures on an election petition for the office of fire district commissioner. May a qualified voter sign more than one petition?
Answer:
In 1989 the New York State Comptroller’s office rendered an informal opinion numbered 89-62 that provided in part that a qualified voter is not prohibited from signing nominating petitions for two or more candidates for the same fire district office unless the board of fire commissioners imposes such a prohibition.

3. RIGHTS OF VOTERS FOR FIRE DISTRICT ELECTIONS

Question?
Our fire district also contracts to provide services to a geographically defined fire protection district within the same town. Are residents of the fire protection district allowed to vote in a fire district election?
Answer:
Section 175 (2 ) of the Town Law clearly states that you must be a resident of the Fire District for at least 30 days prior to the election and a registered voter. The language in the statute is similar to language in Section 5-102(1) of the Election law which requires residency in the political subdivision of the state which is conducting an annual election or special election. Section 175 (2) of the Town Law is cited in the case of Sauer vs. Springbrook Fire District , 726 N.Y.S. 2nd 511 . Residency in a fire protection district does not entitled an individual to vote in fire district elections.

4. APPROVAL OF NEW FIRE COMPANY MEMBERS

Question?
It is our understanding that the Board of Fire Commissioners are supposed to approve new volunteer member before the department/company does, is that correct?
Answer:
Section 176-b of Town Law clearly states that the department/company votes on the applicant prior to the candidate’s application being sent to the secretary of the fire district for action by the board members. If more than 40 days pass after the secretary of the fire department/company forwards the application to the secretary of the fire district and the fire district takes no action the application is deemed approved by the board of fire commissioners.

5. SUBMISSION OF LETTERS FOR INTENT TO RUN FOR BOARDS SEATS

Question?
A sitting commissioner, who is also the secretary of the board is running for re-election. He is being opposed by another person who is related to the chairman of the board. The person running against the seated commissioner submitted his name to the recording secretary late in the day on November 18th and sent written correspondence of his intent to run, to the board postmarked November 19th. Should his name be placed on the ballot?
Answer:
Section 176 (7) of the Town Law provides in part that the Board of Fire Commissioners shall require that candidates for district offices FILE their names with the secretary of the fire district at least twenty days prior to the date of such fire district elections. This year the date for candidates to FILE their names with the secretary was November 18th. The fact that the candidate did submit his name on November 18th and subsequently mailed a copy to the address in the notice would be in compliance with the statute which only requires it be FILED with the secretary without specifying the method or location of the FILING

6. VOTING RIGHTS OF MEMBERS

Question?
Our fire department has a class of membership known as “appointed” who are active members but are also members of departments in their respective home towns. Primarily college students while attending school locally. Should these members have voting rights within our department, if so is it up to the fire department or fire district?
Answer:
The individuals you refer to as "appointed members" are not members of your fire district’s fire department as apparently they are members of another fire department and by statute , Section 176-b (10) of the Town Law an individual shall not be eligible to volunteer membership in more than one fire company at one time. The individuals you reference are participating pursuant to Section 209-i (1-a) of the General Municipal Law which provides them with your V.F.B.L. coverage when participating in training, responses and drills with your department. That does make them members of your department and they should not be participating in your department’s election of company or line officers. They should also not be participating in your LOSAP program , if you have one.

7. RESIDENCY REQUIREMENTS OF MEMBERS

Question?
If a person is elected to membership and later terminated their place of residence or occupation, does their fire company membership also terminate?
Answer:
If a member is elected to the company of a fire district pursuant the process set forth in Section 176-b (6.) of the Town Law because he or she is not a resident of the fire district or an area outside the fire district which is protected by the fire district, and they subsequently move to a new residence, their membership could be continued following the process set forth in Section 176-b (5.) of the Town Law. In brief, the members must notify the fire company secretary prior to moving out of the fire district, and then the fire company must vote to continue membership by 75% of the voting members at a company meeting, and subsequently approved by resolution of the Board of Fire Commissioners. The same process must be followed each time a member moves if they remain outside of the fire district, or territory contracted for fire protection by the fire district.

8. PROTECTION OF VOLUNTEERS FROM EMPLOYER DISCIPLINE

Question?
Is there a law which protects volunteer firefighters from disciplinary action by their employer for leaving work or late arrival due to being involved with firefighting activities?
Answer:
Other than Section 202-l of the Labor Law and Section 82-a of the Civil Service Law (which only applies to State Employees) provides relief to volunteers who arrive late or leave during their regularly scheduled hours. There have been bills introduced in the legislature relative to this issue but have never made it to the floor for a vote.

9. SCOPE OF NYS ELECTION LAW

Question?
Is it accurate that the NYS Election law applies to fire district elections except may be modified or augmented by Town Law and any provisions therein that deal with fire district elections?
Answer:
It is assumed that fire district elections or referendums are governed by Town Law only, but the Board of Fire Commissioners may adopt additional rules, regulations and requirements found in Election Law so long as they are not in conflict with the applicable provisions of Town Law.

10. PROVISIONS FOR "PIGGYBACK" PURCHASING

Question?
Under the provisions for “piggybacking” purchases, would the Houston-Galveston Area Council (HGAC) purchasing contracts, which is an out of state organization, comply with New York’s rules and regulations on purchasing?
Answer:
Piggyback competitive bids let by other political subdivisions of New York State, the United States or any agency thereof, or any state or other political subdivision or district therein qualify, if and only if they meet the following three prerequisites which fall within subparagraph 16 of Section 103 of the General Municipal Law, which are: 1) the contract must have been let by the United States or any agency thereof, any state or any political subdivision or district therein, 2) the contract must have been made available for use by other governmental agencies and 3) the contract must have been “let to the lowest responsible bidder or on the basis of best value in a manner consistent with section 103 of the General Municipal Law".

11. WRITE IN BALLOTS

Question?
During a fire district election is it legal to have a ballot that has a written in name?
Answer:
Ballots prepared for the election of fire district officers shall specify the names of the candidates properly filed with the fire district secretary. In addition, the ballot must provide blank spaces for each office to be filled at each election. Therefore, every ballot for the election of a fire district officer must contain spaces for write-in candidates according to Town Law, Section 176 (7), and the Opinion of the Attorney General No. 97-45.

12. ELECTION BALLOT MARKS

Question?
During the election between two commissioner candidates, one of the ballots, instead of being marked with an X as instructed, had the name of the candidate circled. Is this grounds for denial?
Answer:
It is the opinion of counsel that since the voter did not place an X or check mark in the box next to the candidate’s name as instructed, the District’s election board was correct in their decision to NOT count the ballot.

13. ELECTION BALLOT WRITE IN VOTES

Question?
If at a Commissioner’s election a person gets write in votes, does the election board need to consider these votes or do they disregard it?
Answer:
Write in votes are permitted in fire district elections for fire commissioners and elected treasurers. If the write in has the most votes, they are the next commissioner taking office on the subsequent January 1st.

 
Edition 14

1. NEW COMMISSIONERS TAKING THE OATH OF OFFICE

Question?
A recent question was posed about the laws pertaining to swearing in newly elected, or re-elected commissioners, what is the citation that pertains in state law?
Answer:
Section 174 (6.) of the Town Law provides that each commissioner of a fire district before entering upon the duties of his office, shall take the constitutional oath of office and file same with the town clerk of the town or one of the towns in which such fire district is located. It is strongly suggest when he or she files their oath of office with the town clerk that they have a second copy time stamped for their own file and have same provided to the fire district secretary for retention in the fire districts records. Pursuant to Section 30 (1. h.) of the Public officers law refusal or neglect to file the official oath before or within 30 days after the commencement of office results in the office being vacant.

2. TAX LEVY RESERVE RESERVE FUNDING PROCESS

Question?
If the fire district finds itself in the position of raising the levy beyond the designated tax cap without passing a resolution by three of the five commissioners, when does the district have to set aside funds for the specific tax levy reserve to lower taxes in subsequent years?
Answer:
Reviewing the memo from the Office of the State Comptroller dated January 2012 relative to Reserves for Excess Tax Levy (just because you didn’t vote to override the cap) there is no reference to a specific date by which the excess tax levy must be placed in the tax levy reserve fund but it should be done as soon as practical. If the fire district currently has sufficient unencumbered funds in January it would be wise to set up the reserve fund then. Otherwise the reserve fund would have to be set up when funds are received from the County/Town when tax revenues are received. It is recommended that this process be reviewed with the District’s legal counsel and/or their accountant.

3. COMMISSIONERS TERM OF OFFICE IN REFERENCE TO DATE

Question?
Does a newly elected commissioner’s term start on January 1st or at the time of being sworn in? Also, does the outgoing commissioner’s term end on December 31st or when their replacement is sworn in?
Answer:
A Fire District Commissioner’s term of office, who was elected on the second Tuesday of December commences on 1st day of January following his or her election. He or she must file their Oath of Office with the Town Clerk within 30 days after the commencement of the term of their office. Failure to do so results in their office being deemed vacated [Public Officers Law, Section 30 (1) (h)]. Similarly the term of office of the person going out of office ends on December 31st of the last year of their term of office.

4. DONATIONS OF FUNDS FROM THE TOWN TO THE FIRE DISTRICT

Question?
May a town make a donation to the fire district to offset costs, which in turn may serve to lower the tax rate?
Answer:
While the fire district may accept donations it would be advised to seek an opinion from the New York State Comptroller’s office if the Town is permitted to make such a transfer of funds to another governmental entity. Article VIII, Section 1 of the State Constitution prohibits, counties, towns, villages, cities and school districts from making gifts or loans of their money or property to or in aid of any individual, or private corporation, association or undertaking. Arguably, because a fire district, is a district corporation and political subdivision of the State, pursuant to Section 174 (7) of the Town Law, and not one of the enumerated entities to which a town is prohibited from making gifts to; and because the donation would be for a public purpose to benefit the residents of the town, one could support the position that the town could make such a donation but there should be consultation with OSC to be sure.

5. TERMS OF THE TREASURER AND SECRETARY

Question?
Can the terms of the Treasurer and Secretary be extended longer than one year?
Answer:
Section 176 (2.) of the Town Law notes that at the first meeting of the Board of Fire Commissioners each year the Board shall appoint a fire district secretary, which implies a one year term. Subparagraph 2-a of Section 176 provides in part that the Board of Fire Commissioners shall annually appoint a fire district treasurer to hold office until the thirty-first day of December next succeeding their appointment, thus implying a single year term.

6. CREDIT CARD POINT USE

Question?
6. Where the fire district has credit cards that accumulate bonus points, how can those points are used legally?
Answer:
Credit card points should be used for a purchase or activity that would benefit the Fire District, not the individual who is holding the card or any other single individual.

7. CUSTODY OF TRAINING AND PERSONNEL FILES

Question?
Who should be in custody of training and personnel files?
Answer:
Training files may be maintained by the fire department/company but any other personnel related files should be retained by the Fire District’s Secretary in secured cabinets with limited access.

8. MULTIPLE COMMISSIONER TAKING ON-LINE COMMISSIONER TRAINING

Question?
Is it possible for multiple fire commissioners to take the required six hour fire commissioner training pursuant to Section 176-e on-line all at one time?
Answer:
In relation to the Association of Fire District’s on-line Commissioner training, multiple commissioners may take the training by adhering to the following procedures;
  • Provide a list of names to the Association of Fire District’s legal counsel
  • Counsel will prepare an affidavit to be signed by each of the attendees. The Affidavit will attest to the fact that they were in attendance at the webcast training.
  • The affidavit will be emailed to the district for each of the commissioner’s to sign.
  • The affidavit will be signed and sent to the Association’s Education Coordinator who will prepare the attendance certificates.
Remember that during the training session there are various prompts that must be recorded and responded to, to insure attendance so that certificates can be issued. Example of the Affidavit:

9. VFBL COVERAGE FOR MEMBERS FROM OTHER DEPARTMENTS

Question?
If a volunteer offers service to another fire department of which they are not a member but which has accepted their service in a continuing and on-going manner (for example a bunk-in program) who will be responsible for providing the VFBL coverage in the event they are injured while responding or training with the department which they are not a member?
Answer:
According to case law the NYS Workman’s Compensation Board has made the following determination;

The Board Panel notes that under VFBL 30(6)(g) provides that “where volunteer firemen are injured in the line of duty on or after the first day of March, 1964 and in death cases where death result from injuries sustained on or after such date, the liability for benefits under this chapter shall be determined pursuant to subdivision 1-5, inclusive of this section except as otherwise provided in article 5 of the workman’s compensation law, section 209-I of the general municipal law and in section 21 of this chapter.**

GML 209-I (1)(a) provides that: “A volunteer firefighter who because of their residence or usual occupation, is regularly in the area served by a volunteer fire company or department of which he is not a member may nevertheless volunteer his services on an on-going basis to the officer in command thereof to assist such fire company or fire department for the purpose of assisting such company or department’s general or emergency ambulance service, or for the purpose of assisting such fire company or fire department at a fire or other emergency scene or for the purpose of training with such fire company or department. After his services are so accepted, the volunteer firefighter shall then be entitled to all powers, rights and privileges and immunities granted by law to volunteer firefighters during the time such services are rendered in the same manner and to the same extent as if her were a volunteer member of the fire company or department which he is assisting, including benefits under the volunteer firefighter’s benefit law. Any such commanding officer when authorized by the legislative body or the city or village, the board of fire commissioners or other governing board of the fire district, or the town board of the town in relation to (a) fire companies serving territory outside villages and fire districts or (b) a town fire department, as the case may be, shall have power, in his discretion to so accept the services of a volunteer firefighter.”

Where volunteer was a member of their home department, and residing in another fire district as a student participating in a bunk in program (Room and Board in exchange for volunteer hours) while volunteering for the department hosting the bunk in program the person was injured at a call. The Board Panel found that GML 209-i(1)(a), is the governing stature in the case since the claimant was clearly working for the fire department offering the bunking program and injuries were sustained while engage in firefighting activities under that department’s exclusive control and supervision.

In conclusion, it is the finding of the Workman’s Compensation Law Judge that if the services of a volunteer firefighter are accepted by a department other than their home fire department due to circumstances allowed under statute, the fire district accepting the service of said volunteer is responsible for the VFBL coverage, not the home district.

**2014 NY WRK. COMP. LEXIS 2244 ROSCOE/ROCKLAND VFD APRIL 09, 2014

10. QUESTIONS ON VOTING

Question?
10. At a recent meeting a motion was made and seconded on a resolution and the Board members voted in the following manner; one commissioner voted NO, one commissioner abstained from the vote and three voted YES for the motion. Was this motion legally passed?
Answer:
Assuming your Board of Fire Commissioners is composed of five members at least three (a majority of the whole) must be present to have a quorum and conduct any business and if only three are present all three must unanimously act to conduct any business. If only three were present and one abstained the resolution did not pass. If four were present, and one voted no, two voted yes and one abstained the resolution failed because you did not have a majority of the whole voting in favor of the resolution. If there were five present with three voting yes, one abstaining, and one voting no, the resolution passes.

 
Edition 15


1. COMPENSATION FOR A DEPUTY TREASURER

Question?
1. Currently our Deputy Treasurer does not get paid but due to increasing demands the district is considering compensation. Is it permissible to pay a Deputy Treasurer?
Answer:
Section 177-b of the Town Law authorizes the Board of Fire Commissioners to appoint an individual as a deputy fire district treasurer. During the absence or inability to act of the fire district treasurer the deputy fire district treasurer shall be vested with all of the powers and may perform all the duties of the fire district treasurer including the giving and filing of an official undertaking. The fire district treasurer shall not be liable for the acts of the deputy fire district treasurer. Section 174 (3.) of the Town Law provides in part that the fire district treasurer shall receive such compensation as the fire district commissioners may determine. Lastly Section 176 (21) of the Town Law provides that the Board of Fire Commissioners shall have and exercise all the powers conferred upon the fire district and such additional powers as shall be necessarily implied therefrom. Arguably therefore because the Board of Fire Commissioners may appoint a person as deputy fire district treasurer (Section 176-b) to serve in the absence of the treasurer, and can establish the rate of compensation for the treasurer (Section 174 (3.)) the Board of Fire Commissioners can establish the rate of compensation for the deputy fire district treasurer when he or she serves in the absence of the treasurer. What the rate of compensation is should be governed by the duties, responsibilities and qualifications of the person so appointed as deputy treasurer.


2. SPRINKLER AND EXHAUST SYSTEMS REQUIREMENTS FOR PURCHASED BUILDING

Question?
2. Our fire district is purchasing an existing structure to serve as our new fire station, would the station require a sprinkler system and a vehicle exhaust system?
Answer:
Unfortunately the answer for the sprinkler is; it depends.  There are several variables depended on change of use, square footage and other factors. It is strongly suggested that the district meet with the local code enforcement officer and review the plans for the building.  Some local ordinances might require the installation of sprinklers; it is certainly highly recommended given the number of fire stations that have been encountered fires recently.  The vehicle exhaust system is not required but should be considered for health reasons and to reduce exhaust soot on the inside of the building.


3. FIRE DISTRICT RENTAL OF EXCESS BUILDING SPACE

Question?
3. The building that the fire district owns is larger than what is needed, is it permissible for the District to rent out storage space?
Answer:
Excess space is permitted to be rented out but it must be considered that it could negatively impact the department’s tax exempt status.  It should also be considered that the use might create the need for rated fire separations due to the use of the space and adjacent spaces.  The fire department should review the use of the occupancies and the requirements that might be triggered.


4. SALE OF FIRE DISTRICT BUILDING AND VACANT PROPERTY

Question?
4. The property that the fire district currently owns includes a building and a vacant lot. What are the requirements for selling the property?
Answer:
The sale of your current building and vacant lot will be governed by Section 176 (23) of the Town Law. If the two parcels are separate and the vacant lot has a value of less than $10,000.00 all the Board of Fire Commissioners need do is pass a resolution declaring the property as surplus and no longer needed for the purposes of the fire district and then sell it in a manner so as to maximize the dollar return to the fire district and taxpayers. It’s a good practice to utilize a realtor familiar with property values in your community. A structure with a value in excess of $10,000.00 but less than $50,000.00 the passage of the surplus resolution is subject to a permissive referendum following the process set forth in Section 6-g (7.) of the General Municipal Law. If it is determined that the value of the property to be sold is in excess of $50,000, the resolution declaring the property to be surplus is subject to a mandatory referendum (public vote).  The District must pass a surplus resolution at a regularly scheduled meeting of the Board of Fire Commissioners, indicating that its passage is subject to a permissive referendum pursuant to section 6-g (7.) of the General Municipal Law, publish a copy of the resolution [including the reference to its adoption subject to a permissive referendum pursuant to Section6-g (7.) ] in your official newspaper within 10 business days, and then wait for 30 calendar days from the passage of the resolution to see if taxpayers owning 25% of the assessed valuation of real property within the fire district come forward with a petition requiring a mandatory referendum. If no petition is filed you may then go ahead and dispose of the property in a manner so as to maximize the return to the fire district and tax payers.


5. FIRE DEPARTMENT MEMBER RESIDENCE CHANGE WITHOUT NOTIFICATION

Question?
5. Our fire district had a member move to Florida without any notification to the District or Department, are we correct to assume that they are no longer a member?
Answer:
Pursuant to Section 176-b (4.) of the Town Law, it provides in part that the membership of a volunteer member of a fire company shall terminate when they cease to be a resident of the fire district or of any territory outside the fire district which is afforded fire protection by the fire department of the fire district, or any fire company thereof, pursuant to a contract for fire protection, unless the person follows the process set forth in subparagraph 5 of Section 176-b and is authorized by a vote of 3/4 membership in attendance at a meeting of the fire company to continue their membership. It appears that the individual in question did not apply to have his membership continued and he therefore ceased to be a member when he changed his residency to Florida.


6. SECRETARY APPOINTMENT BY NYS AS A NOTARY PUBLIC

Question?
6. Can the Secretary of the Board of Fire Commissioners be appointed by the State as a Notary Public without taking the exam?
Answer:
Section 176 (4-b.) of the Town Law provides in part that any fire commissioner,  secretary or treasurer of a fire district may administer any necessary oath in any matter or proceeding Lawfully before him, or in connection with any paper to be filed with him as such officer. This authority does not confer upon that individual the authority of a Notary Public without taking the State test for that position. Only an attorney becomes a notary without taking the test and then only after filing an oath of office with the county clerk’s office of the county of his or her residence.


7. FUNDING OPTIONS FOR PURCHASING NEW FIRE APPARATUS

Question?
7. When purchasing new fire apparatus what options are available to fire districts when securing funding?  Are Districts allowed to use banks, credit unions, lease to own or other means to secure funding?
Answer:
A fire district is not authorized to go to their local bank and negotiate a loan for apparatus. If there are not sufficient funds in a capital reserve fund to acquire apparatus you need to either go through the bonding process with the assistance of bond counsel or enter into an installment purchase contract again with the assistance of bond counsel and in both instances only  after a mandatory referendum.  Note that installment purchase contracts are drafted by the entity that is providing the financing to enable the District to pay the manufacturer of the apparatus.  You will want your attorney to review the documents before signing them to make sure the requirements of New York State Law have been met.


8. TIME LIMIT FOR PUBLIC BOND REFERENDUM

Question?
8. Is there a time limit on how long a bond referendum is good for?
Answer:
There is no statutory limit on the time that a bond referendum is good for although, informally the rule of thumb is that approximately two years is the limit due to the fact that you may have had some new taxpayers move in who did not have a chance to vote on the referendum.  If the vote was overwhelmingly positive you might be able to justify stretching that time period but not too far out.


9. ELECTION DATES FOR CHIEF OFFICERS

Question?
9. What day is the election of Chief Officers suppose to take place?
Answer:
Section 176 (11-a.) of the Town Law provides that the members of the fire department shall meet at a time and place designated by the board of fire commissioners on the Thursday following the first Tuesday in April each year and nominate persons for the offices of chief and assistant chief. That date this year was April 7th, 2016.  The same statute provides that if a Board of fire commissioners rejects a nominee for the position of chief or assistant chief they can order a new election.   If the fire company failed to hold an election it should be done as soon as possible, if the fire company does not agree, the officers would have to be held over until the appropriate day in April of next year.
 
Exception:  176 11-b.  The members of the fire department at a regular or special meeting of the department held after the month of April but prior to the month of November in any year may adopt a resolution recommending that future meetings for the nomination of the chief and assistant chiefs be held in December, either on the first Thursday, the first Saturday, the Thursday following the first Tuesday, the Saturday following the first Tuesday, the Thursday following the second Tuesday, or the Saturday following the second Tuesday in such month, instead of April as provided


10. SUPERVISOR OF FIRE DISTRICT CLEANING EMPLOYEES

Question?
10. While we understand that the Chief is in charge of members of the Department, the fire district employs two full time paid employees categorized as cleaners, a non-competitive civil service position.  These paid employees are also members of the volunteer department but employed by the District.  They have multiple responsibilities; the question is who their supervisor is?
Answer:
Section 176-a of the Town Law provides in part that the chief shall , under the direction of the Board of Fire Commissioners , have exclusive control of the members of the fire department of the fire district at all fires ,inspections , reviews, and other occasions when the fire department is on duty or parade: he shall also have supervision …..of all officers and EMPLOYEES of the fire department.  In 1997 the Attorney General of the State of New York rendered an opinion (97-4) that the positions of fire chief and house maintainer of a fire district are incompatible.  The duties of the house maintainer in that opinion were very similar to those of your two “cleaners”. They noted that under Town Law, it seems clear that the house maintainer is subordinate to the fire chief.  The fire chief is the supervisor and the house maintainer is the supervised employee.  While the duties of the cleaner are provided by the Board of Fire Commissioners, the chief is the supervisor of the cleaners and is charged with the responsibility to see that the duties as provided by the Fire District Commissioners are carried out.



11. ACCEPTANCE OF GIFT CARDS FROM INDEPENDENT EMS PROVIDERS FOR STANDBY SERVICES

Question?
11. Our fire district has volunteers who are EMT qualified individuals; a local combination paid/volunteer EMS provider is willing to provide gift cards to our volunteers as an incentive to provide stand by services during an event that a local business regularly holds which requires EMS availability.  What is the effect of our EMTs accepting gift cards from either the independent EMS provider, or from our fire company to provide this service?  Also, what is the effect if the members provided stand by services for this business but did not receive any personal donation or reward for doing so?
Answer:
There is definitely a need to be concerned with your firefighter/EMTs accepting gift cards from any source for services provided by them.  Any activities that they engage in on those occasions would not be covered by VFBL as a “line of duty" performance by a volunteer firefighter as defined in Section 3 (3.) of the Volunteer Firefighters' Benefit Law.  It should also be cautioned that the firefighter’s protection from liability afforded them under Section 205-b of the General Municipal law may be compromised by the acceptance of gift cards. Lastly, and least importantly any credit that they would receive towards a LOSAP benefit could not be earned for activities for which they are receiving a gift card.

The Second part of the question is answered by saying; Very possibly the standby activity could be classified as a drill and therefore injuries or liability would be covered under Section 5(1-e) of the VFBL and Section 205-b of the General Municipal Law.  But, it is strongly suggested that you confirm that possibility with the insurance carrier providing VFBL coverage for the Fire District, so that there is no back-peddling if an incident or a claim is made.


12. SERVICE AWARD PROGRAM (LOSAP) PAYMENTS 

Question?
12. Our fire district LOSAP program is currently capped at $20/year for 20 years for each participant or a maximum $400 month at age 60.  Some of our neighboring departments are capped at $40/year for 20 years for each participant but some of the firefighters think the state limit is $30  per year and that the other departments are funding the extra money through different sources, knowing little about the system could you please enlighten us?
Answer:
At the end of the Legislative Session of the New York State Legislature in 1988 the Service Awards Program (LOSAP) was signed into law with an effective date of 9/01/89.  Section 219 (b.) of the General Municipal Law limited the monthly benefit to $20.00 per month for every year of service not to exceed 40 years.  Subsequently in 2006 that section was amended, with an effective date of June 1, 2007, to allow for the benefit to be $30.00 per month with a maximum of 40 years.  If the Board of Fire Commissioners were at this time to decide to increase either the monthly amount or the number of years of maximum benefit they would need to follow the process set forth in Section 216 (3.e) of the General Municipal Law to amend their program.  It is suggested that the commissioners meet with whomever the administrator of your LOSAP program is to review the process and cost of making the change from $20.00 per Month to not more than $30.00 per Month and if you are thinking of also increasing the number of years a person can participate.  It is very likely that the increase in either the monthly benefit or increase in the number of years of participation may result in a significant increase in the cost of funding your program.
 
Edition 16

1. COMMISSIONERS REJECTION OF FIRE  DEPARTMENT CHIEF NOMINATION

Question?
1. The fire department held its elections in April; the nominee for the Chief’s position was rejected by the Board of Fire Commissioners.  Does the fire department membership need to nominate a different candidate for this position or can they nominate the member who was previously rejected?
Answer:
If the Board of Fire Commissioners does not approve a nomination, a different person should be nominated by the fire department for the office of chief or assistant.  Obviously if the same person is nominated and subsequently rejected by the Board; pursuant to Section 176(11-b) of the town law while the process to select a new nominee is followed, the individual currently in the position for which the nominee has been rejected continues in that position until a new nominee is approved.  Additionally in an opinion the New York Comptroller wrote in 1985; no hearing is required when a board of fire commissioners does not approve a nominee for fire chief, nor is the nominee required to be advised of the reasons for disapproval.


2. LAWN MAINTAINENCE SERVICE PREVAILING WAGE

Question?
2. The Fire District is advertising for bids for lawn maintenance, are the bidders required to pay prevailing wage rates for the lawn work.
Answer:
Pursuant to Section 220 (3.(a)) of the Labor Law the wages to be paid for a legal day’s work to laborers, workman or mechanics upon such work, shall be not less, than the prevailing wages for that activity.  As the law is understood that applies to all individuals who work at the fire house even individuals mowing the lawn unless it is a single individual who works for themselves with no employees.  If it is a landscaping company that does the work, their employees who do the mowing and trimming need to be paid prevailing wages for those activities.  You should check with the local office of the State Labor Department as to what the prevailing rate is for those activities because it is different in different parts of the State.


3. OPEN MEETING LAW: EMAIL BETWEEN DISTRICT OFFICIALS

Question?
3. As a Commissioner am I able to forward emails to the other members of the Board of Fire Commissioners without being in violation of the Open Meetings Law?
Answer:
The Open Meetings law ( Article 7 of the Public Officers Law) provides in part that there are only two ways in which a public body may validly conduct a meeting: by means of a physical gathering of a quorum of the public body or by a gathering of a quorum  of the public body by means of video-conferencing.  A public body may not take action or vote by means of e-mail, a telephone conference, or a series of telephone conversations.  There are numerous situations in which detailed communications have been prepared and disseminated to or among members of a public body in which the Open Meetings Law is not implicated.  Often these communications serve as a means of acquiring or exchanging information, knowledge, expertise or different points of view, all of which enable members of public bodies to carry out their duties effectively on behalf of the public.

If a member of a Board of Fire Commissioners has a particular interest or expertise and offers information to other members by means of an intra-agency memorandum or perhaps via email, would not lead us to believe it could be concluded that such action, by itself, would constitute a meeting, even if it leads to responses by other members of the Board of Fire Commissioners.  If the Chairman of the Board of Fire Commissioners transmits materials to members of the board to prepare for a meeting, I do not believe that the Open Meetings Law would be implicated.


4. RESIGNATION OF THE ENTIRE BOARD OF FIRE COMMISSIONERS

Question?
4. What actions can be taken if all of the members of the Board of Fire Commissioners resign their posts?
Answer:
Section 176 (3) of the Town Law provides that if there is a vacancy in a fire district position the remaining commissioners then in office may appoint a qualified person to the vacant position.  A number of years ago the Attorney General’s Office rendered an informal opinion 2008-1 that two fire commissioners then in office may appoint qualified persons to fill three vacancies on the board.  There are no published opinions relative to a situation where all the positions are vacant. The law abhors a vacuum in administrative positions.
 
Fire districts are originally formed by an action of the Town Board.  It is suggested that the Town Board write to the Attorney General’s office for an advisory opinion suggesting that the Town Board follow the process set forth in Section 174 of the Town Law relative to the appointment of the first board of fire commissioners after the formation of the fire district pursuant to Section 170 of the Town Law.  That process provides that the Town Board would appoint the five members of the Board of Fire Commissioners and that they would subsequently all run for election on the second Tuesday in December with the individual getting the most votes getting a five year term and the individual getting the second most votes a four year term and so on.  Until there is a reply from the Attorney General’s office it is suggested that the Town Board provide interim administration of the fire district.


5. FIRE DISTRICT ACCEPTANCE OF DONATION OF GOODS

Question?
5. Our Fire District has been offered a donation of goods from a local company, which is being offered to only local non-profit organizations. 
Answer:
Fire Districts are authorized to accept donations of money or products.  If the amount of the donated product exceeds the reasonable and expected needs of the fire district the board could pass a resolution determining the excess donated products as surplus and dispose of the items to other local non-profit organizations that could make use of the products.


6. PE REVIEW OF CONSTRUCTION PROJECT MODIFICATION

Question?
6. The fire district has started a construction project that is in excess o $5,000.00, during the course of the construction work on the station engineered light weight wood trusses have been modified. The modifications to the structural members of the roof were not reviewed by a professional engineer or architect. Should we  stop the project until the issues in question can be reviewed by a professional?
Answer:
Section 7209 (3.) of the Education Law of the State of New York provides in part that no political subdivision of the State of New York (eg. Fire District)  shall engage in the construction or maintenance of any public work involving engineering or land surveying for which plans, specifications and estimates have not been made by, and the construction and maintenance supervised by, a professional engineer or land surveyor . This requirement shall not apply to public works wherein the contemplated expenditure for the completed project does not exceed five thousand dollars.  To protect the fire district’s investment a professional should have reviewed the plans initially and overseen the project.


7. OWNERSHIP OF FIRE COMPANY PURCHASES

Question?
7. It is understood by many that if the fire company, of a fire district purchases structures or equipment that by law it automatically reverts to ownership by the fire district.  Is there a legal citation for this?
Answer:
There is no such statute to be found.  Often a fire department or company will transfer equipment and sometimes even real property to the fire district without compensation , but it is done voluntarily and not as a result of some statute in law.


8. WAITING PERIOD FOR PERMISSIVE REFERENDUM

Question?
8. Our fire district has published a permissive referendum notice within 10 days after our last Board meeting for the purpose of using reserve funds to replace one of the Chief’s cars.  Is the waiting period for a permissive referendum 10 days or 30 days from the date of the Board meeting at which the purchase was authorized?
Answer:
Section 6-g (7.) of the General Municipal Law provides that any resolution to spend money from a fire district’s capital reserve fund is subject to a permissive referendum .  Within ten business days after the passage of the resolution to transfer the funds, an abstract of the resolution must be published in the official newspaper of the fire district indicating the date and substance of the resolution and indicating it was passed subject to a permissive referendum.  The resolution shall not take effect until thirty days after its adoption nor until approved by an affirmative vote by a majority of those voting in any referendum should it be required if taxpayers owning 25% of the taxable real property present a petition requiring such referendum.  It is unknown if there has ever been a successful referendum by taxpayers rejecting a resolution to transfer funds from a capital reserve fund. The petition must be presented within 30 days from the passage of the resolution.


9. FIRE PERSONNEL CONCEALED WEAPONS CARRY

Question?
9. May a Volunteer firefighter carry a concealed weapon on calls?
Answer:
The Second Amendment to the U.S. Constitution protects the rights of Citizens to bear arms.  Some States do impose restrictions on who can carry concealed weapons and the types of weapons that can be owned by individuals.  It is highly recommended that no weapons be carried by emergency fire personnel at an emergency scene, so as to not to endanger themselves or fellow firefighters.  It is also highly recommended that the Board of Fire Commissioners pass a rule or resolution banning the carrying of weapons at an emergency scene or training session of its fire department.


10. DISTRICT OFFICIAL CONFLICT OF INTEREST - BID AWARD EQUIPMENT PURCHASE

Question?
10. Our fire chief is now selling fire equipment in his spare time on a commission basis. He just went out to bid on turnout gear that will be funded by a FEMA grant.  His company was low bid, its quality equipment, and he says he's not receiving a commission on the sale.  May we purchase from this company?   Could this turn into a legal issue in the future?  How do we protect ourselves? 
Answer:
Section 800 (5.) of the General Municipal Law (GMU) defines “municipal officer or employee” to include a fire chief and assistant chief.  An “interest” is defined as a direct or indirect pecuniary or material benefit accruing to a municipal officer.  Finally a “contract” means any claim, amount or demand against or agreement with a municipality expressed or implied.  

Conflicts of Interest are prohibited pursuant to Section 801 of the GMU unless one of the exceptions listed in Section 802 of the GMU would apply.  The only exception that might apply under Section 802 would be that in subparagraph (j.) but that is limited to annual purchase of less than $5,000.00 per year in counties with populations of less than 200,000.  I assume several sets of turnout gear are going to cost more than $5,000.00.  The fact that the salesman waives his commission does not correct the conflict of interest issue as there may be a perception of an indirect material benefit to him in obtaining this contract for his employer with the fire district of which he is the chief or assistant chief.


11. COMMISSIONER WHO MOVES RESIDENCE OUT OF DISTRICT

Question?
11. We've recently had a commissioner move out of the district will they have to resign?
Answer:
Section 175 (3) of the Town Law provides in part that “every fire district commissioner, treasurer and secretary must at the time of his election or appointment and throughout his term of office be a resident of such fire district.” If the absence is temporary while the individual is looking for a new residence within the district that maybe permitted but if the intent is not to return to the district, then the position is deemed to be vacant and the remaining board members may fill the vacancy pursuant to Section 176 (3) of the Town Law.


12. NON-PAGED FIRE CHIEF INVESTIGATION AND MEMBERS LOSAP CREDIT

Question?
12. Fire Communications recently called for the Chief to investigate a situation.  The call did not go to the entire department, only to the chief, are the members who responded to the fire station entitled to a LOSAP point?
Answer:
In 1994 the New York Comptroller’s office rendered an opinion (94-25) that Section 217(c)(v) of the General Municipal Law does not authorize credit to be granted towards a year of firefighting service under a service award program for attendance at “meetings” of an emergency rescue and first aid squad, a fire police squad or the “executive board “ of a fire company.  If the call did not go out to the entire membership of the department it is opined that credit should not be awarded as participation in a department response, since the ”department” was neither requested nor did they respond.  A point may however be awarded under the miscellaneous category, Section 217 (c)(vii), as participation in an activity covered by VFBL and not otherwise listed in activities.  Section 5 (1)(a.) of the VFBL provides benefits and coverage for travel to, working at, and travel returning from a fire or other emergency to which the fire company or any unit thereof has responded to or would be required or authorized to respond to.  If further clarification on the matter is desired it should be presented to the Office of the State Comptroller for a response.
 
Edition 17


1. FIRE PROTECTION CONTRACT TAX CAP

Question?
1. Our Fire District will be submitting a bid for fire protection for a portion of an adjacent Town.  With the current tax cap in place, does this affect the Fire District’s proposal for the next five years, beginning in 2017?
Answer:
Pursuant to Section 176 (16) of the Town Law, a Board of Fire Commissioners may contract to provide fire protection outside of the boundaries of the fire district at such terms as the board of fire commissioners may determine proper provided that such service can be supplied without undo hazard to the fire district furnishing such service.  The terms of the contract can call for whatever price is negotiated between the Board of Fire Commissioners and the Town Board.  The tax collected from the residents for the protection is part of the towns tax cap and not of the fire district tax cap calculation, as the money received, by the fire district, is pursuant to a contract for services for the protection services being provided.  If the contract calls for annual increases in excess of the 2% or rate of inflation, whichever is lower, (i.e. the “tax cap”) that is an issue that the town has to deal with.


2. FIRE DISTRICT COMMISSIONER RESIGNATION

Question?
2. if a fire commissioner resigns their position, must it be in writing?
Answer:
Section 31 of the Public Officers law, (POL), deals with resignations of public officers. Section 31 (1.h.) of the Public Officers Law povides that a public officer (eg. Fire district commissioner) of a municipal corporation (eg. Fire district) may resign by notifying the clerk (eg. Secretary of the corporation. Subparagraph 2 of Section  31 of the POL, provides in part that every resignation shall be in writing addressed to the officer or body to whom it is made.


3. FIRE DISTRICT ENTITY TYPE

Question?
3. Our Fire District is in the final stages of agreeing to a project agreement applicable to a $1.4 million addition fully funded by HUD and administered through the Governor's Office Strom Recovery (GOSR).  They have asked the following question: "GOSR will work with our attorney to provide the fire district with a draft for review and approval. Could you identify the kind of entity that the fire district is so we can accurately describe it in the preamble?
Answer:
Pursuant to Section 174 (7.) of the Town Law of the State of New York, a fire district is a political subdivision of the State of New York and a district corporation within the meaning Section 102 of the Business Corporation Law.


4. PURCHASE REQUEST EMAIL APPROVAL

Question?
4. Can a purchase request be approved by email by the Board of Fire Commissioners?
Answer:
All purchases by the Fire District must be approved by a resolution of the Board of Fire Commissioners at an open meeting of the Board and doing it by email exchange is not authorized.


5. DATE CHANGE FOR BUDGET HEARING AND FIRE COMMISSIONER ELECTIONS

Question?
5. Our district's 2017 Budget Public Hearing is scheduled to be held on the 3rd Tuesday in October, October 18, 2016 and our Annual Commissioner Election is scheduled to be held on the second Tuesday in December, December 13, 2016. The Board of Fire Commissioners will be asked if both of these dates can be changed to 1 week earlier.
Answer:
The election of Fire District officers is set by Section 175 of the Town Law as the second Tuesday in December.  Several fire districts have had the date of their annual election changed, but that was done by legislative action amending Section 175 and pertains to only those districts named in the legislation.  Relative to the annual budget hearing; Section 181 [3(a)] of the Town Law provides in part that the board of fire commissioners SHALL hold a public hearing on the third Tuesday in October to discuss the contents of the proposed budget (emphasis added). There is no authority to change that date. In summary both dates are set by statute and cannot be changed.


6. TRANSFER OF FIRE COMPANY PROPERTY TO FIRE DISTRICT

Question?
6. One of the fire companies in our fire district is in the process of purchasing a piece of property, a house, which adjoins the current fire station.  The intent is to demolish the house and use the lot for much needed parking.  After completion of the demolition and improvements the fire company desires to relinquish the property to the fire district.  Are there any procedures or requirement with the purchase by the Fire Company and future transfer to the District?
Answer:
The fire company which is acquiring the property should have their attorney do either a 40 year title search on the property or obtain title insurance.  They may also want to have an environmental study done on the property prior to taking title to the property to make sure that they are not acquiring an environmental headache.  Once they own the property they may need to acquire a demolition permit from the local building department before tearing down any structures on the property.  As to the transfer to the Fire District they, the fire company, may need Supreme Court approval before the transfer the property if it is all or substantially all of the assets of the fire company. T he attorney handling the matter for the fire company will have a better handle on whether there is a need for Supreme Court approval.  Pursuant to Section 176 (14) of the Town Law the fire district is authorized to acquire real property for its needs by “gift” among other methods.


7. ESTABLISHMENT OF NEW RESERVE FUND USING UNRESTRICTED FUND BALANCE MONIES

Question?
7. Our board would like to establish a new Reserve Fund for building a new fire station. We would be moving money from our unrestricted fund balance to this new account to begin the fund. I personally would like the reserve fund for capital improvements to any of our buildings (versus just for one building we want to construct).This prompts the following questions:
  1. Do I understand Chapter 7 in the Officer's Guide correctly in that the district does not need approval from the taxpayers to establish this new reserve fund since the monies are coming from existing non-restricted funds?
  2. If the above is true, we only need a resolution correct?
  3. Are all resolutions subject to permissive referendum?
  4. Would I be correct in call this a "Capital Reserve" fund?
Answer:
Assuming that when you refer to an “unrestricted fund balance“ you are referring to funds currently in a properly created reserve fund.  Those funds could be transferred to another reserve fund which has already been created.  However from your questions it appears that the fire district has not yet passed a resolution and had the mandatory referendum to create a new capital reserve fund.  Effective January 1, 2007 the creation of any new Capital reserve fund must be done by a resolution of the Board of Fire Commissioners subject to a mandatory referendum of the residents of the Fire District.  The process for the necessary resolution and mandatory referendum is set forth in Section 6-g. of the General Municipal Law.


8. COMMISSIONER REMOVAL FROM OFFICE FOR CONFIDENTALITY BREACH

Question?
8. What happens if a fire commissioner breaches confidentiality, can they be removed from office, what is the legal recourse? 
Answer:
Pursuant to Section 36 of the Public Officers Law, a fire district officer maybe removed from office by the state supreme court for any misconduct, maladministration, malfeasance or malversation in office. An application for such removal may be made by any resident of the fire district, and shall be made to the appellate division of the state Supreme Court held within the judicial department embracing such fire district. Such application shall be made upon notice to such officer of not less than 8 days, and a copy of the charges upon which the application will be must be served with such notice. The whole process is not simple and should be referred to your attorney for his assistance. Before you head down this path you may want to convene a meeting of the Board of Commissioners with your attorney and then go into executive session, following the process set forth in Section 105 of the Public Officers Law. The purpose of the executive session will be to discuss with the commissioner in question the concerns relative to the perceived breach of confidentiality of the discussions relative to the budget.  It should be noted that budget discussions are subject to the Open Meetings Law and ultimately the fire district public hearing, concerning its budget, as conducted pursuant to Section 181 of the Town Law.


9. LOSAP POINTS FOR VOLUNTEER FIREFIGHTER DISTRICT EMPLOYEE

Question?
9. At our budget meeting the fire district discussed creating the position of training officer, which would be a paid part time position.  The person being considered to fill the position is a member of the fire department.  The question is; if the member is being paid for the position are they still entitled to LOSAP for participating in company drills and other functions?
Answer:
Prior to the repeal of Section 217 (f) of the General municipal Law in 2015, a volunteer firefighter could not receive credit for activities performed as a volunteer firefighter during normal periods of employment as a municipal officer.  The answer to your question is not as clear as it was prior to the repeal of 217 (f) of the GML.  Arguably now, even though compensated, they may be able to receive LOSAP credits during that period that they are both a volunteer and a trainer.
 
The intent of the repeal was to deal with firefighters responding to emergencies while employed by a local government entity. The District may also have other issues relative to VFBL coverage of an individual who is a paid training officer and gets injured during the training period. The question becomes are they a volunteer or a paid employee covered under workers compensation during this activity?  Concerns having also been recently raised relative to paying individuals for activities that could be viewed as an activity that career firefighters would normally be performing.  In summary it is advisable that the District not use a volunteer from your company as a paid training officer and if the District is going to employ a paid training officer they should reach out to the local civil service office for assistance in defining the position.


10. INSTALLMENT PURCHASE CONTRACT PUBLIC REFERENDUM

Question?
10. Our fire district is considering a lease purchase or installment purchase for equipment.  Is this type of purchase subject to a public referendum?
Answer:
Opinion #98-19 issued by the State Comptroller’s Office states that an installment purchase contract by a fire district is subject to a mandatory referendum.  General Municipal Law, §109-b authorizes political subdivisions, including fire districts, to enter into installment purchase contracts for the financing of equipment, machinery and apparatus but there are a number of procedural requirements set forth in section 109-b with respect to installment purchase contracts.  Among other things, section 109-b provides that, "subject to the provisions of subdivision five of this section", the governing board of the political subdivision must adopt a resolution authorizing the installment purchase contract (General Municipal Law, §109-b[2][b]). Subdivision 5 of section 109-b prescribes referendum requirements for installment purchase contracts.  As it relates to fire districts, subdivision 5(a) of section 109-b states that, if an authorization for the issuance of obligations to finance the equipment, machinery or apparatus would have been subject to mandatory or permissive referendum, then the authorization to enter into the installment purchase contract is also "subject to a permissive or mandatory referendum, as the case may be, in the same manner as provided for in such referendums on the issuance of obligations".  Local Finance Law, §38.00 requires a referendum, at a regular or special election in the manner provided by Town Law, §179, prior to any issuance of obligations by a fire district. Accordingly, since there is a mandatory referendum requirement for the issuance of obligations by a fire district to finance equipment, machinery or apparatus, an installment purchase contract of a fire district, pursuant to General Municipal Law, §109-b(5), is similarly subject to a mandatory referendum.


11. COMMISSIONER WHO MOVES JUST OUTSIDE OF DISTRICT

Question?
11. One of our commissioners is about to move just outside of our fire district, can they still serve as a commissioner?
Answer:
Pursuant to Section 175 (3) of the Town Law, every fire district commissioner, treasurer and secretary must at the time of their election or appointment and throughout their term of office be a resident of such fire district.  From what you have written below it does not appear that the move is temporary with the intent to move back into the fire district.  Therefore the position will become vacant pursuant to Section 175 (3) of the Town Law when they move to their new residence.


12. DISTRICT RESIDENCE REQUIREMENTS FOR FIRE DEPARTMENT CHIEF OFFICERS

Question?
12.  Does the Fire Chief or Assistant Chief have to live in the fire district?
Answer:
Pursuant to Section 176 ( 11-a. & 11-b.) of the Town law, the board of fire commissioners may by resolution require that any or all of such fire department officers shall be residents of the fire district. Absent such a resolution there is nothing in New York statutes that require a chief or assistant chief to be a resident of the fire district.
 
Edition 18

1. CHIEF OFFICER MAINTAINENCE BID

Question?
1. May a Chief in the Fire District submit a bid for snowplowing and landscaping to the fire district?
Answer:
The New York Attorney General's office has rendered several opinions (2005-20, 97-4) that the positions of fire chief or assistant chief are incompatible with the position of fire district house maintainer or cleaner.  Their conclusions were based upon supervisory relationship between the fire chief and the employee.  The New York Comptroller in opinion 2000-7 indicated that a conflict of interest existed where a member of the Board of Fire Commissioners had an interest in a corporation which did landscaping work for the fire district.  Based upon those opinions it is believed that the chief should NOT be hired to do the snowplowing or lawn maintenance.


2. FIRE DISTRICT - FIRE DEPARTMENT SHARED MAIL BOX

Question?
2. Is it a good idea to have the Fire District and the Fire Company share a mail box?
Answer:
The fire district and company should not share mail boxes.  There is the potential for confusion and potentially some important or time sensitive mail not getting to the appropriate addressee.


3. ELECTION PETITIONS REQUIREMENTS FOR FIRE COMMISSIONER CANDIDATES

Question?
3. When are petitions for fire commissioner candidates required to be distributed and when are they required to be turned in?
Answer:
Pursuant to section 176 (7) of the Town Law the Board of Fire Commissioners shall require that candidates for district offices file their names with the secretary of the fire district at least 20 days prior to the date of such fire district elections and in addition may provide by resolution that such nominations be submitted in petition form subscribed by twenty-five qualified voters of the district.  Therefore the petitions if required must be filed at least twenty days before the election.  There is no statutory requirement as to when you should hand out the petitions to prospective candidates.  That being said the Board of Fire Commissions could by resolution set a beginning date under their general authority of Section 176 (21) to exercise such additional powers as shall be implied from the specific authority found in statute.


4. OPENING BANK STATEMENT MAIL

Question?
4. If the treasurer and the secretary are the same person should they be opening the bank statements for the fire district?
Answer:
The duties and powers of a fire district treasurer and secretary are set forth in Section 177 of the Town Law (Treasurer) and Section 178 of the Town Law (Secretary).  One person may be appointed to both positions and a commissioner may serve as the secretary but may not be the treasurer. There is no statutory prohibition for a treasurer to opening the bank statements, but for the purposes of best practices it is a better policy for a commissioner, who by statute cannot be the treasurer, to open the monthly bank statements. This practice provides more oversight and internal control by the board of fire commissioners, which is often found lacking when there is a misappropriation of fire district funds. It is also a good policy to periodically to rotate the responsibility of opening the bank statements among all members of the board of commissioners.

The same best practice, control and oversight would apply to the fire department where you should have a different member of the board of officers of the department open the bank statements other than the treasurer and again periodically rotate that responsibility. The issue is not so much an issue of conflict of interest as such, but rather an issue of internal control, accountability and oversight of the activities of the treasurer of the fire district and the fire department. 


5. PROPOSED BUDGET PREPARATION / SIGNITURE AND DELIVERY TO TOWN CLERK

Question?
5. If the fire district Secretary is not available to sign the proposed budget to be presented to the Town, is it permissible to have the Chairman sign along with the Treasurer?
Answer:
Section 181 of the Town Law provides for the Annual Budget of the fire district and the levy of taxes. Subparagraph 3. (c) of Section 181 provides that within 3 days after the adoption of the annual budget of the fire district, the fire district secretary shall prepare and  deliver to the town clerk of each of the town in which the fire district is located two certified copies of the annual budget. The statute is very specific and there is no authority for someone other than secretary to perform those functions. The budget is not due to the town clerks until November 7th.


6. FIRE COMPANY LINE OFFICER HOLDING TOWN FIRE MARSHALL POSITION

Question?
6. May the Fire District’s chief or any district line officer also hold the position of Town Fire Marshall??
Answer:
In the absence of a constitutional or statutory prohibition against dual-office holding, one person may hold two offices simultaneously unless they are incompatible. There is no statutory prohibition to a person holding the office of fire district chief and town fire marshal. We therefore must look to the two positions to see if they are compatible.

The position of Town Fire Marshall is authorized by Section 130(5) of the Town law and the position is an appointed position of the Town Board and has duties enumerated in that statute. The position of Fire District Chief is an appointed position by the Board of Fire Commissioners pursuant to Section 176 (11-a. and 11-b) of the Town Law and the person so appointed is charged with the duty of carrying out the rules and regulations of the Board of Fire Commissioners pursuant to section 176-a. of the Town Law. Neither position is subservient to the authority or review of the other, therefore it is opined that the two positions are compatible.


7. DISTRICT CONCERN FOR ABILITY OF FIRE COMPANY TO PROVIDE SERVICE

Question?
7. As Chairman of a fire district we are currently in a situation where the fire company is not able to provide the members necessary to keep the fire company operational.  They have been operating outside of their bylaws for some time and have presented us an incomplete slate of line officers, and some of them are not qualified with little or no training.  I don’t think we can continue like this placing the remaining volunteers at risk due to unqualified leadership.
Answer:
Section 176 (22.) of the Town Law provides in part that the Board of Fire Commissioners may contract for the furnishing of fire protection within the fire district with any city, village, fire district, or incorporated fire company having its headquarters outside such fire district and maintaining adequate and suitable apparatus and appliances for the furnishing of fire protection in the district seeking assistance.  The statute goes on to set the parameters for the entering into the contract. You should review this statute with an attorney who is familiar with fire service law as a specialty. There are several private consultants who review fire district and fire department operations that may be able to come and provide some guidance for a fee. The State Association would be able to provide you with the name of legal counsel that is familiar with fire service operations and law.


8. COMMISSIONER ELECTION BALLOT WITHOUT CANDIDATES

Question?
8. With Fire District elections rapidly approaching, we are having a difficult time finding a candidate to fill a vacant position.  What is the procedure if we are unable to find someone to place on the ballot?
Answer:
 In the absence of a named candidate for the position of Fire District Commissioner the fire district still needs to conduct its annual election on December thirteenth between the hours of 6 pm. and 9 pm. The ballot should have a blank space for a write in candidate. Hopefully you will get some support for a write in candidate who will accept the position and file their Oath of Office with the Town Clerks office. If you receive no write in candidates the current board members can appoint someone, pursuant to Section 176 ( 3.) of the Town Law, who is willing to accept the appointment. However If it is appointment, that person would then need to run next year for the balance of the term (4 years).


9. REGISTERED VOTER SIGNITURE ON MULTIPLE CANDIDATE PETITIONS

Question?
9. During this year’s election, there will be two candidates on the ballot.  If the name of a registered voter appears on both petitions, is that signature valid on both petitions?
Answer:
In 1989 the Office of the New York State Comptroller rendered an opinion that a qualified voter is not prohibited from signing nominating petitions for two or more candidates for the same fire district office unless the board of fire commissioners imposes such a prohibition (Opinion 89-62). The Board of Fire Commissioners may by resolution impose “requirements” on nominating petitions pursuant to Section 176 (7.) of the Town Law, but the statute does not indicate the nature of those requirements.


10. NEW FIRE STATION CONSTRUCTION - PREVAILING WAGE

Question?
10. Our fire district plans to build a new fire station, one of the suggestions is to have a contractor build the station then sell it back to the fire district upon completion, thus avoiding the prevailing wage rate.
Answer:
It is likely that the Department of Labor and the local unions would characterize this process as an attempt to avoid the requirements of the Labor Law. Any interaction between the contractor and Authority Having Jurisdiction, the AHJ, in this instance, the Fire District, relative to the construction would be seen as control being exercised by the Board of Fire Commissioners thus making it a public works project subject to all of the requirements of the General Municipal Law, regarding bidding and the Wicks Law, and the labor Law regarding prevailing wages.  
 
Assuming after the independent contractor builds this building on his own without any involvement from the AHJ and then decides he wants to sell it to the fire district and assuming that a building which the AHJ supposedly had no involvement in the design fits the needs of the fire district, the fire district will then need to go through the process of bond resolution and referendum to pay for said building. What happens if the voters do not approve the bond issuance and the contractor now owns a building that looks like a fire house but the AHJ has no authority to purchase? It would be inadvisable to navigate through this uncharted process.


11. ELECTION INSPECTOR NUMBER INCREASE

Question?
11. Our fire district recently held a referendum where we had approximately 800 voters and four election inspectors plus the Chair person.  Can the number of election inspectors be increased?
Answer:
Pursuant to Section 175 (1.) of the Town Law, the board of fire commissioners shall designate a resident fire district elector, who shall be a registered voter of the town, to act as the chairman of any election of said district and shall designate not less than two nor more than four resident fire district electors, who shall be registered voters of the Town to act as election inspectors and ballot clerks at such election.  It is suggested that the Board of Fire Commissioners consider hiring additional clerical help to assist the ballot clerks in preparing for the election.


12. DISTRICT AMBULANCE FINANCED BY FIRE COMPANY

Question?
12. Our Fire District operates an ambulance which has been financed by funds turned over to the fire district from the fire company.  Upon purchase of the ambulance it is titled, registered and insured by the fire district.  Does the purchase of this ambulance need to go out to bid?
Answer:
Regardless of the source of the funds for the new ambulance, the fact that it is going to be delivered to the fire district, is going to be titled and registered to the fire district, insured by the fire district and the fire district is going to have some involvement in drafting the specifications of the vehicle this is a public purchase subject to the bidding requirements of Section 103 of the General Municipal Law.
 
Edition 19

1. DISTRICT FUNDS USE FOR FUNERAL OF FORMER COMMISSIONER

Question?
1. One of our past commissioners has unfortunately passed away, with the funeral pending.  One of the members of the Board asked if the fire district could assume any of the costs involved such as food or refreshments following the funeral.
Answer:
There is no authority for the Fire District to pay for food or refreshments following the wake or funeral of a former fire district commissioner.  Pursuant to section 176 (33.) of the Town Law the board of fire commissioners may authorize the use of fire equipment and apparatus belonging to the fire district for the purpose of participation in the funeral of a deceased member or former member of a fire department or fire company within the district including the transportation of the body of the deceased firefighter.


2. WITHDRAWAL OF DISTRICT CANDIDATE AFTER FILING ELECTION PETITION

Question?
2. If our fire district has two candidates for Commissioner running in this year’s election, and one of the candidates decides to withdraw their name after the November deadline for the submission of petitions, does their name still have to appear on the ballot?
Answer:
Town Law §176 provides a procedure whereby a Board of Fire Commissioners in a fire district can require candidates to file a nominating petition in order to be placed on the ballot for a fire commissioner or elected treasurer office, but no procedure for a nominated candidate to withdraw the petition. At least one court has refused to recognize the right to withdraw a petition.

Case Law:
“A fire district is a political subdivison of the State which is created by authority of the Town Law (see, Town Law § 174[7]). Fire district elections are conducted in accordance with specific provisions of the Town Law, which permit a district resident to run for office by filing a nominating petition subscribed by 25 qualified voters at least 20 days prior to the date of the election (see, Town Law § 176[7] ). However, the Town Law contains no provision authorizing fire district commissioners to remove a candidate's name from the ballot once he or she has duly filed a proper nominating petition.” Cusumano v. Bd. of Comm'rs of Franklin Square & Munson Fire Dist., 251 A.D.2d 404, 405–06, 674 N.Y.S.2d 86, 87 (1998).
 
Thus, unless the reason for withdrawal is a statutory impediment to serving in the office such as a conviction of the crime of arson in any degree, the candidate should not be permitted to withdraw his or her petition once filed.
 
If a fire district Board wishes to adopt a set of written rules to govern its fire district’s elections, it might consider permitting candidate petition withdrawal requests submitted before the deadline for filing petitions under the statute (twenty days before the date of the election), but it must keep in mind that applicable case law does not support petition withdrawals.


3. ELECTIONEERING DURING FIRE DISTRICT ELECTIONS

Question?
3. As the fire district election clerk I have two questions; Are the candidates for election allowed to be in the room where voting is taking place during the election, and are the candidates allowed to greet voters as they enter the building or room where the voting is taking place?
Answer:
Section 175 of the Town Law, titled “Election of fire district officers”, was amended several years ago to add a new subparagraph 4, which focused on the issue of electioneering in fire district elections.  It provided that polling place notices shall be posted one hundred feet from entrance to the polling place at least one half hour before the election.  The statue goes on to provide that while the polls are open, no person shall do any electioneering within the polling place or on any public street within one hundred feet, or within [inside of] the 100 feet distance markers.  No electioneering banner, button, poster or placard in favor of a candidate shall be allowed within the 100 feet distance markers.  Any person who violates this subparagraph shall be guilty of a misdemeanor.  The individual candidates can come in and vote and then they should leave the voting place and go home until the polls are closed and then they can return to watch the canvassing of the votes.


4. AFDSNY COUNSEL LEGAL ADVICE

Question?
4. Can the General Counsel for the Association of Fire Districts give legal advice that involves a dispute among Board members?
Answer:
The General Counsel who is funded by the Association of Fire Districts of the State of New York cannot become involved or offer advice in the case of an internal dispute within fire districts.  The General Counsel is permitted to provide answers to legal questions affecting the fire district as a whole.  In the event of an internal dispute between board members the board or individual members need to retain legal counsel.  If an individual retains counsel, they would be liable for the cost of said counsel.  If a majority of the board elects to hire legal counsel the expense would be borne by the district.


5. CHRISTMAS GIFTS FOR FIRE DISTRICT PAID STAFF

Question?
5. The Board is considering giving the paid staff a little something for Christmas possibly a gift card to a local grocery store, is that allowable?
Answer:
The answer to this question is quite simple, no; monetary gifts using taxpayer monies are not permissible and unethical.


6. INSPECTION DINNER AWARDS EXPENSE

Question?
6. The Fire District would like to give items of appreciation to our Officers and responders at our annual inspection dinner, is this permissible?
Answer:
Section 176-d. authorizes an annual appropriation from a fire district budget to fund an annual firefighter’s inspection dinner for each fire company within the fire district.  Inexpensive awards and plaques to be presented to firefighters may be purchased as an expense incidental to the awards dinner.  Cash, checks or gift cards with a monetary value as “appreciation gifts” would not be appropriate.


7. REMOVAL OF DISTRICT CANDIDATE FROM DECEMBER BALLOT

Question?
7. Our Fire District has only one candidate on the ballot for our upcoming election in December.  The candidate has subsequently asked that his name be removed from the ballot, how are we to proceed?
Answer:
Town Law §176 provides a procedure whereby a Board of Fire Commissioners in a fire district can require candidates to file a nominating petition in order to be placed on the ballot for a fire commissioner or elected treasurer office, but no procedure for a nominated candidate to withdraw the petition. At least one court has refused to recognize the right to withdraw a petition.

Case Law:
“A fire district is a political subdivison of the State which is created by authority of the Town Law (see, Town Law § 174[7] ). Fire district elections are conducted in accordance with specific provisions of the Town Law, which permit a district resident to run for office by filing a nominating petition subscribed by 25 qualified voters at least 20 days prior to the date of the election (see, Town Law § 176[7] ). However, the Town Law contains no provision authorizing fire district commissioners to remove a candidate's name from the ballot once he or she has duly filed a proper nominating petition.” Cusumano v. Bd. of Comm'rs of Franklin Square & Munson Fire Dist., 251 A.D.2d 404, 405–06, 674 N.Y.S.2d 86, 87 (1998).
 
Thus, unless the reason for withdrawal is a statutory impediment to serving in the office such as a conviction of the crime of arson in any degree, the candidate should not be permitted to withdraw his or her petition once filed.
 
If a fire district Board wishes to adopt a set of written rules to govern its fire district’s elections, it might consider permitting candidate petition withdrawal requests submitted before the deadline for filing petitions under the statute (twenty days before the date of the election), but it must keep in mind that applicable case law does not support petition withdrawals.


8. FIRE DEPARTMENT LINE OFFICER QUALIFICATION

Question?
8. We have a small department of 15 members, this year we have two captain’s position openings and four candidates for the position.  Only one of the four meets our qualifications and three that lack one course to be qualified, although the course has not been offered in our area.  Are we allowed to allow all of the candidates to run for the position with the understanding that they must take the course when offered locally?
Answer:
Pursuant to opinion number 97-49 from the New York Attorney General’s office the establishment of qualifications to hold line offices in a fire department of a fire district are established solely by the board of fire commissioners of the fire district. Based on that premise, given the fact that one of the requirements for the captains position, as established by the Board of Fire Commissioners, is a course that has not been offered in your area, the Board of Fire Commissioners has the power to waive that requirement for this election with the written proviso that the successful candidate, if he has not taken the course will do so the next time it is available in your area.


9. DISTRICT TREASURER CANDIDATE CONFLECT OF INTEREST

Question?
9. Our current fire district treasurer is resigning their position.  One of the applicants is the president of the EMS agency that contracts with the fire district to provide emergency medical services.  If appointed or elected treasurer would this be a conflict of interest?
Answer:
Pursuant to Section 177 of the Town Law of the State of New York, the Treasurer of the fire district is the chief fiscal officer of the fire district. There is no distinction made between an elective treasurer and appointed treasurer relative to their powers and duties.  Article 18 of the General Municipal Law (Conflicts of Interest of Municipal Officers and Employees), in Section 800 (6) the definition of “treasurer”, includes a fire district treasurer, again, making no distinction between an elective versus appointed treasurer.  It is the opinion of legal counsel that a Fire District treasurer who is also the president of the contract EMS agency being paid by the Fire District, would have a prohibited conflict of interest as defined in Section 801 of the General Municipal Law, in preparing and signing checks to the agency which he is president of and would subsequently be issuing payments to, therefore the same person should not occupy both positions.

Section 801 states:  Conflicts of interest prohibited. Except as provided in section eight hundred two of this chapter, (1) no municipal officer or employee shall have an interest in any contract with the municipality of which he is an officer or employee, when such officer or employee, individually or as a member of a board, has the power or duty to (a) negotiate, prepare, authorize or approve the contract or authorize or approve payment there under (b) audit bills or claims under the contract, or (c) appoint an officer or employee who has any of the powers or duties set forth above and (2) no chief fiscal officer, treasurer, or his deputy or employee, shall have an interest in a bank or trust company designated as a depository, paying agent, registration agent or for investment of funds of the municipality of which he is an officer or employee. The provisions of this section shall in no event be construed to preclude the payment of lawful compensation and necessary expenses of any municipal officer or employee in one or more positions of public employment, the holding of which is not prohibited by law.


10. FIRE DISTRICT COMMISSIONER AND TOWN JUSTICE COMPATIBILTY

Question?
10. Is there a conflict of interest with a Town Justice running for election to be a Fire District Commissioner?
Answer:
There is no statutory prohibition for a person to simultaneously hold the position of fire district commissioner and town judge based on the official duties of both positions.


11. FIRE DISTRICT COMMISSIONER RUNNING FOR ASSISTANT CHIEF POSITION

Question?
11.Our fire district has a commissioner who has run and won the position of Assistant Chief of the Fire Company.  The newly elected chief knows that he will have to step down as a commissioner at the 1st of the year.  Should the assistant chief elect, who is still a commissioner until the end of the year, recuse himself from making decisions on matters involving the chief or assistant chiefs?
Answer:
This question raises a number of issues relative to a commissioner who decides he wants to be chief or assistant chief of the fire districts fire department.  Section 174 (4) of the Town Law provides in part that a person who is a fire district commissioner may, if otherwise qualified, be a candidate for nomination as chief or assistant chief, and be nominated, but only, if such commissioner has filed with the fire district secretary at least five days but not more than ten days, before the meeting of the fire department at which such nomination is going to be made a written notice that he will be a candidate.  Assuming he has done that the statute goes on to say , if he is duly nominated for such office at the meeting of the fire department , he shall forthwith cease to be a fire district commissioner and his office as such commissioner shall thereupon become vacant immediately.  The statute goes on further to say that if he lost the nomination for the position for which he sought he shall not participate in any vote of the board of  commissioners  for the position which he sought nomination. Lastly Section 176 (11-b.) of the Town Law provides that nominations for the positions of chief and such assistant chiefs as the fire district may have, shall be considered at the Organizational meeting of the Board of Fire Commissioners


12. FIRE DISTRICT COMMISSIONER AND FIRE DEPARTMENT OFFICER COMPATIBILITY

Question?
12. At our recent fire district elections a question came up about a member who holds the office of fire police captain and if he could also be a fire commissioner?  May the fire department treasurer, a fire company board member or safety officer be precluded from running for commissioner?
Answer:
Section 174 (4.) of the Town Law specifically provides that a person shall not hold the office of fire district commissioner and the office of chief or assistant chief of the fire district's fire department at the same time. Section 175 (3) of the Town Law provides in part that membership in a volunteer fire company shall not disqualify an individual from holding the office of fire district commissioner, treasurer, or secretary. In an opinion rendered by the New York Attorney General's office (I 91-43), they noted that there would not appear to be any appreciable conflict between the positions of fire district commissioner and line officer of the fire company other than the statutory prohibition relative to the offices of chief and assistant chief of the fire department. They went on to note that the chief and assistant chiefs, rather than line officers, have exclusive control of the members of the fire department at all fires. It is the opinion of legal counsel that the positions of fire district commissioner and captain of the fire police are compatible.Relative to the position of treasurer of the Fire Company and member of the board of directors and the position of fire commissioner it is noted that the fire company is an organization formed under, and governed by the Not-For-Profit -Corporation Law. The officers of that organization (company officers) including its board of directors, president, secretary and treasurer are separate and distinct from the Board of Fire Commissioners and there are no opinions finding those positions incompatible.
 
Edition 20

1. JOINT FIRE DISTRICT FORMATION - BUILDING AND ASSETS

Question?
1. If a joint fire district is formed with a Village and contiguous fire protection districts what happens to the apparatus, equipment or stations that might belong to the Village?  Are they just transferred from the Village to the new Joint Fire District? 
Answer:
Pursuant to Section 189-b. of the Town Law the board of trustees of a village or the  commissioners of a fire district , all of the territory of which is embraced within the boundaries of a joint fire district established or extended pursuant to Article 11-A of the Town Law, may by resolution authorize the sale or transfer of a firehouse (including the plot of land on which the building or fire district is situated), fire apparatus and fire equipment owned by such village or by such fire district to said joint fire district with or without consideration and, upon such terms and conditions as to such board of trustees or board of fire commissioners may deem fitting or proper. So basically they can sell or give the assets of the village fire department to the newly formed or expanded joint fire district. If there is some indebtedness typically the newly formed fire district will have a referendum to enter into a bonded indebtedness to pay off whatever is owed on the property, equipment or apparatus to be transferred. If nothing is owed the village has the option to transfer the property, equipment or apparatus to the newly formed district.


2. DISTRICT ELECTION OPEN POSITION

Question?
2. As a result of our recent fire district elections an open position had four different write in votes.  One person had three votes, one person had two votes and the remaining two had one vote each.  The person, who received three votes, declined the position.  If the person receiving two votes declines the position and it comes down to the two persons receiving one vote each, what are our options.
Answer:
You should get the individual who got three votes to decline in writing.  The person with two votes would then be the winner.  If he also declines then there would need to be a run off of the two individuals with one vote each.  If one of them declines then you are left with the one who did not decline.  If they both decline then the district has a vacancy which can be filled by the current members following the process set forth in Section 176 (3.) of the Town Law.


3. ESTABLISHMENT OF QUALIFICATIONS TO HOLD LINE OFFICE

Question?
3.Our District’s Board of Fire Commissioners approved a motion to change the way that a fire company elects deputy chiefs, which is now contrary to the Company By-Laws.  Is this the correct process to follow? .
Answer:
The New York State Attorney General’s Office rendered opinion numbered #97-49, stating in part that the establishment of qualifications to hold line offices in a fire department of a fire district is established solely by the board of fire commissioners of the fire district.  The Board of Fire Commissioners pursuant to Section 176 (11) of the Town Law adopts rules and regulations governing all fire companies and fire departments within the fire district.  The by-laws of the fire department adopted pursuant to Section 1402 (e) of the Not-for-Profit Law may not be inconsistent with the rules and regulations adopted by the Fire District Board of Fire Commissioners.  It is suggested that a representative of the fire department’s by-law committee meet with the Board of Fire Commissioners to discuss the inconsistencies relative to the nomination of the line officers of the fire department, but at the end of the day it is the Rules and Regulations of the Fire District that controls the nominations of line officers.


4. INSURANCE COVERAGE FOR COUNTY SPECIALIZED TEAMS

Question?
4. I am currently the chief of my department and I also serve as a deputy fire coordinator.  The position is a volunteer position appointed by the County Fire Coordinator and approved by the legislature.  This also holds true for our County fire investigators.  We have been told that the county does not cover us for any type of insurance benefits while serving in the capacity of deputy fire coordinator.  We have been instructed that our home fire district must pass a resolution and certify in writing that if we are injured in the course of our duties our home fire district will cover us as if we were responding with our own department.
Answer:
Several years ago this issue was raised as a result of a death of a Deputy Fire Coordinator.  It was resolved by treating the positions of deputy county coordinators as a specialized county team created by a resolution of the County Legislature pursuant to Section 209-bb of the General Municipal Law.  Pursuant to Section 209-bb (1.c.) municipalities that insure volunteer firefighters may extend insurance coverage to members of such specialized teams by resolution.  It is recommended by counsel that you confirm with your board of Fire Commissioners that they approve of your membership in this specialized county team and extend the VFBL coverage that they have obtained, to your participation in the team and in turn it is recommended by counsel that the Fire District Board of Fire Commissioners obtain, in writing, a statement, from the carrier of the Fire District's V.F.B.L. coverage, that they extend their coverage to your participation in the county wide specialized team of "deputy fire coordinators" or “investigator”.


5. FIRE DISTRICT SECRETARY APPOINTMENT OF NON-RESIDENT

Question?
5. Our fire district secretary has resigned, is it permissible to appoint a secretary from outside the fire district?
Answer:
Section 174 (4.) of the Town Law provides in part that if the position of secretary is vacant and if no qualified resident of the district is willing to perform the duties of fire district secretary, a person who is a non-resident of such fire district may be appointed as secretary. The Board of Fire commissioners before appointing a non-resident should determine that there is no one willing and qualified within the district. I would suggest posting the position in several locations within the fire district and publish a notice in your official newspaper of the fact that the fire district is seeking to employ a part-time secretary who resides within the fire district. If you don't come up with a candidate, from within the Fire district, in two or three weeks, the hiring of an out of district individual would be appropriate.


6. ORGANIZATIONAL MEETING - CHAIRMAN SELECTION

Question?
6. We recently held our District organizational meeting but were unable to come to a decision on a Chairman.  Are we able to reschedule and how will rescheduling affect the approval of the chiefs?
Answer:
Town Law Section 174 requires that each year the Board of Fire Commissioners in a fire district conduct an organization meeting during the first fifteen (15) days of January. The particular provision reads as follows:

The fire district secretary in office at the time such election is held shall immediately notify the officers elected of their election and that an organization meeting will be held on the day specified in said notice, which shall not be later than the fifteenth day of January next ensuing. At such organization meeting, the treasurer shall preside until such time as a chairman of the board of fire commissioners shall be chosen, but such treasurer shall not be entitled to a vote at such meeting.” N.Y. Town Law § 174 (McKinney).
 
You have advised that your Board of Fire Commissioners in your district scheduled your organization meeting for 2017, the meeting was opened, but only four (4) fire commissioners were in attendance. The four (4) fire commissioners in attendance could not agree on a member of the board to be selected and appointed as the Chairman. The board members in attendance then voted to adjourn the meeting until the regularly scheduled monthly board meeting set for January 10, 2017 based upon the belief that five (5) board members would be present and that a Chairman could then be selected to conduct the meeting. I note that the statute does provide for the organization meeting to be conducted in such a manner that the fire district treasurer would preside at the meeting until such time as the board selected a chairman. While the treasurer does not have the authority to cast a vote on any motion or resolution; he or she could have conducted the meeting in such a manner that all business on which at least three (3) commissioners would vote in favor of could have been conducted.
 
In any event, the organization meeting can be completed on January 10, 2017 as the requirement is that it be conducted within the first fifteen (15) days of January..
 
It is advised that since the organization meeting was scheduled for a particular date and adjourned in order to be recommenced on January 10th, that the board direct the Fire District Secretary to give notice to the public as specified for the conduct of public meetings under Public Officers Law Section 104. While the Fire District Secretary may have given proper notice for the organization meeting as originally scheduled and proper notice for the regular meeting to be held on January 10th; I believe that for purposes of clarity that special notice should be given with regard to the rescheduled and to be completed organization meeting. The statute provides the following with regard to the method of giving notice of a public meeting:

1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given or electronically transmitted to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.
2. Public notice of the time and place of every other meeting shall be given or electronically transmitted, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice.
4. If videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.
5. If a meeting will be streamed live over the internet, the public notice for the meeting shall inform the public of the internet address of the website streaming such meeting.
6. When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body's internet website. N.Y. Pub. Off. Law § 104 (McKinney).
 
Please note that the publication of a legal notice is not required since many boards provide the extra notice of an actual legal notice publication when notice to the media is the minimum standard.
 
Finally, with regard to the status of the chief and assistant chiefs whose offices where the subject of a fire department election in December and whose nominations were to be considered at the organization meeting in January; I note that the applicable statute [Town Law Section 176- (11-b)] provides that those officers having been appointed in 2016 remain in office until their successors are appointed by the Board of Fire Commissioners [“Any such person shall assume the duties of his office as soon as he has been appointed thereto by the board of fire commissioners and shall serve until his successor is appointed. “ N.Y. Town Law § 176 (McKinney)].


7. FIRE DISTRICT RESIDENT SEEKING AGRICULTURAL EXEMPTION

Question?
7. The Board of Fire Commissioners was recently approached by a district land owner wanting the District to recognize the agricultural exemption in reference to his fire district tax.  Having never dealt with this situation is this something that the District can or must do?
Answer:
There is special authority given to the Board of Fire Commissioners in a fire district to recognize agricultural value assessments by statute.  Article 25 AA of the Agriculture and Markets Law permits the granting of agricultural value assessments for land used for agricultural purposes under certain circumstances, but the partial exemption to real taxes that this assessment formula provides does not apply to fire district taxes unless the Board of Fire Commissioners of the fire district adopts a special resolution to permit their application to fire district taxes.  The objective of Article 25 AA of the Agriculture and Markets Law is to support agriculture and the ability of lands to be used for that purpose, but each time that partial assessments are given to certain properties means that other properties in the fire district will bear the financial burden of the fire district budget more heavily.  Agriculture and Markets Law§ 306 explains the process that must be followed for landowners benefiting from the assessment to obtain relief from the special assessments and special ad valorem levies of certain local governments;
Use of assessment for certain purposes. The governing body of a water, lighting, sewer, sanitation, fire, fire protection, or ambulance district for whose benefit a special assessment or a special ad valorem levy is imposed, may adopt a resolution to provide that the assessments determined pursuant to subdivision one of this section for property within the district shall be used for the special assessment or special ad valorem levy of such special district. N.Y. Agric. & Mkts. Law § 306 (McKinney).

More specifically for fire districts there is a procedure under Town Law § 176 to grant the special treatment with reference to the fire district real property tax levy;
May adopt a resolution authorizing the application of the agricultural value assessment established pursuant to article twenty-five-AA of the agriculture and markets law to the special assessment or special ad valorem levy made on behalf of the district on land benefitting from the agricultural value assessment under article twenty-five-AA of the agriculture and markets law located within the district. A copy of this resolution shall be delivered to the assessor or assessors of the unit or units in which the district is located and shall be effective on the assessment roll prepared after the next taxable status date following its adoption. A resolution repealing this exemption shall be delivered to the assessor or assessors of the assessing unit or units in which the district is located and shall be effective on the assessment roll prepared after the next taxable status date following its adoption. N.Y. Town Law § 176 (McKinney).

A further explanation would be as follows:
Generally, a fire district itself has no power to tax real property, no power to assess real property, and no power to grant or withhold a real property tax exemption. However, the Town Law permits the board of fire commissioners of a fire district to adopt a resolution authorizing the application of the agricultural value assessment established pursuant to Article 25-AA of the Agriculture and Markets Law, which is the basis for a partial exemption from real property taxation, to the special assessment or special ad valorem levy made on behalf of the district on land benefiting from such agricultural value assessment located within the district. A copy of this resolution must be delivered to the assessor or assessors of the unit or units in which the district is located, and is effective on the assessment roll prepared after the next taxable status date following its adoption. A resolution repealing this exemption must be delivered to the assessor or assessors of the assessing unit or units in which the district is located, and is effective on the assessment roll prepared after the next taxable status date following its adoption. 27 N.Y. Jur. 2d Counties, Etc. § 1185.

It should be noted that the law does not give the Board of Fire Commissioners any power beyond this method to recognize the agricultural value assessment.  You have probably not seen these resolutions done in your work at the town assessor offices because there may be a concern among local boards of fire commissioners that if they grant the resolution to apply agricultural value assessments that a greater burden will fall on other taxpayers.


8. FIRE DEPARTMENT / COMPANY APPLICANT BACKGROUND CHECKS

Question?
8. May the Fire District perform background checks other than sex offender and arson?
Answer:
Thank you for your inquiry on background checks for applicants for membership in a volunteer fire department or company. You are correct that by statute a mandatory background check is done through the records of the State Division of Criminal Justice Services [DCJS] under Executive Law Section 837-0 for arson and sex offense convictions. Procedurally that statute provides that; 
 
3. (a) All searches concerning the application for membership in a fire company shall be conducted under the provisions of subdivision six of section eight hundred thirty-seven of this article without the assessment of any fee to the applicant or fire company and shall pertain solely to ascertaining whether the applicant stands convicted of arson or a crime which requires the person to register as a sex offender under article six-C of the correction law.
(b) The results of the search shall be communicated in writing, within ten business days of receipt from the division, to the chief of the fire company from which the search request originated by either the sheriff's department or the office of fire prevention and control, and shall be kept confidential by the chief, except as provided in paragraph (c) of this subdivision. The results of the search shall only state either that: (i) the applicant stands convicted of arson and/or a crime which requires the person to register as a sex offender under article six-C of the correction law, or (ii) the applicant has no record of conviction for arson or a crime which requires the person to register as a sex offender under article six-C of the correction law. The results of the search shall not divulge any other information relating to the criminal history of the applicant. N.Y. Exec. Law § 837-o (McKinney).
 
Thus, it is clear that DCJS is only permitted to divulge the arson and sex offense convictions on the applicant.  This search is done free of charge for the fire chief and thus, your fire district.  It should be noted that the referenced provision of Executive Law Section 837 states;
 
6. Establish, through electronic data processing and related procedures, a central data facility with a communication network serving qualified agencies anywhere in the state, so that they may, upon such terms and conditions as the commissioner, and the appropriate officials of such qualified agencies shall agree, contribute information and, except as provided in subdivision two of section 306.2 of the family court act, have access to information contained in the central data facility, which shall include but not be limited to such information as criminal record, personal appearance data, fingerprints, photographs, and handwriting samples; N.Y. Exec. Law § 837 (McKinney).
 
It is believed that the provision is meant to provide the methodology to be used for this search and not to limit the right of a volunteer fire department or fire district to perform an additional search at its own expense to obtain further information on the applicant.  However, it should be noted that if a fire district decides to do an additional background check that same must be undertaken in accordance with federal and state laws such as the Fair Credit Reporting Act which require a disclosure process for people whose backgrounds are being checked.  You may find that additional background checking is costly and requires significant work to develop a procedure which complies with state and federal law.  It is important to remember that there is a movement to legislatively limit access to criminal backgrounds in order to reduce the possibility that people are discriminated against due to prior criminal convictions.  For this reason it is important to carefully develop policies and practices with regard to background checking of applicants.


9. PROFESSIONAL FIRM AS FIRE DISRICT TREASURER

Question?
9. Is there any prohibition from the use of a professional firm to act as the fire district’s treasurer?
Answer:
The position of fire district treasurer is a public office. The fire district treasurer must take and file an oath of office. A professional firm cannot be a public officer. It cannot file an oath of office. A professional firm can act as an advisor to the treasurer and assist him or her with the performance of his or her duties, but the professional firm cannot take the place of the treasurer.

In some districts they retain the services of an internal auditor who assists the treasurer and that is certainly legal … but there is an actual treasurer. The employees of the firm could review documents and prepare a report and payments for approval and signature by the treasurer, but in the end the treasurer must perform the duty of signing and issuing the report and signing the checks approved for payment
.
The treasurer residence is an issue is addressed by statute;
When the position of fire district treasurer or fire district secretary is appointive, and in the case of the director of purchasing, when such office has been established, and if no qualified resident of the district is willing to perform the duties of fire district treasurer, fire district secretary or director of purchasing, a person who is a nonresident of such fire district may be appointed as fire district treasurer, fire district secretary or director of purchasing. Town Law § 174 [McKinney]

There would be no residence requirement for a firm providing professional services to assist the treasurer.


10. FIRE DISRICT LODD EXPENSES

Question?
10. Is there any prohibition from the use of a professional firm to act as the fire district’s treasurer?
Answer:
The position of fire district treasurer is a public office. The fire district treasurer must take and file an oath of office. A professional firm cannot be a public officer. It cannot file an oath of office. A professional firm can act as an advisor to the treasurer and assist him or her with the performance of his or her duties, but the professional firm cannot take the place of the treasurer.


11. FIRE DISRICT LODD EXPENSES

Question?
11. May the minimum percentage requirement for active calls be raised from 10% to a higher percentage?
Answer:
The chart of calls and percentage applicable for LOSAP credit in the emergency call categories is fixed under General Municipal Law, Section 217.  A fire district cannot alter the percentages.
(vi) Participation in department responses -- twenty-five points for responding on the minimum number of calls, as outlined below:
 
A. Total number of calls volunteer fire company responds to annually other than emergency rescue and first aid squad calls (ambulance calls)0 to 500500 to 10001000 to 15001500 & up
Minimum number of calls volunteer firefighter must run annually in order to receive 25 points credit10%7.5%5%2.5%
B. Total number of calls emergency rescue and first aid squad (ambulance)0 to 500500 to 10001000 to 15001500 & up
Minimum number of calls volunteer firefighter must run annually in order to receive 25 points credit10%7.5%5%2.5%
 

12. NONE

Question?
11. Placeholder
Answer:
Placeholder