Can a NY county create a fire marshal position by resolution, or does it need a local law?

Subject

Fire marshal may be created by local law; marshal's vehicle qualifies as a fire vehicle

Plain-English summary

Ulster County asked whether its legislature could establish the position of fire marshal by resolution, and whether the new fire marshal would automatically have lights-and-siren rights for emergency response.

The AG found no state enabling statute for local fire marshals. The position has only scattered statutory mentions. Criminal Procedure Law § 2.10 grants peace officer powers to fire marshals of specific named municipalities. Vehicle and Traffic Law § 115-a treats a county or assistant county fire marshal's vehicle as a "fire vehicle." Otherwise, the position is locally established.

The AG concluded the county can create the position, but only through local law, not by resolution. The home-rule authority comes from two parts of Municipal Home Rule Law § 10: subsection (1)(ii)(a)(1), which lets a county enact local laws on the qualifications and duties of its officers, and subsection (1)(ii)(a)(12), the police-power grant, which lets a county legislate on government, protection, order, conduct, safety, health, and well-being. A charter county can also create the position through a charter law under § 33(3)(b). But a resolution is the wrong instrument because resolutions handle temporary matters; creating an office is a permanent legislative act that requires a local law.

Once the position is properly created, the marshal's vehicle is categorized as a "fire vehicle" under Vehicle and Traffic Law § 115-a. The opinion does not specify particular driving privileges. Peace officer status requires the Legislature to add that municipality's fire marshal to the list in Criminal Procedure Law § 2.10.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What's the difference between a local law and a resolution?

The opinion says a resolution typically deals with temporary matters and cannot establish an office and its duties under the county's home-rule authority. It identifies local law, or charter law for a charter county, as the proper instrument.

Why don't fire marshals get peace officer status automatically?

Because Criminal Procedure Law § 2.10 enumerates the categories of personnel that have peace officer powers, and the statute is jurisdiction-specific in many of its provisions. The Legislature has named specific municipalities' fire marshals as peace officers, but a newly created county fire marshal does not become a peace officer just by existing. The county would need to seek state legislation adding its marshal to § 2.10.

What can a fire marshal do if not a peace officer?

The opinion says the duties of a county fire marshal, many in the law-enforcement category, must be established by local or charter law. It does not enumerate specific investigative, inspection, driving, or arrest powers.

Why was the AG so insistent on local law over resolution?

The AG says the county's authority to establish a fire marshal and define the office's duties must be exercised by local or charter law. The opinion does not assess the consequences or liability from an attempted resolution.

Does the same analysis apply to towns and villages?

The opinion addresses a county fire marshal. It does not decide how a town or village would create such a position.

Statutory framework

Municipal Home Rule Law § 10(1)(ii)(a)(1) is the general grant for a county to legislate on the qualifications and duties of its officers and employees.

Municipal Home Rule Law § 10(1)(ii)(a)(12) is the police-power grant: counties may enact local laws on government, protection, order, conduct, safety, health, and well-being of persons or property within the county.

Municipal Home Rule Law § 33(3)(b) authorizes charter counties to use charter law to create the position.

Vehicle and Traffic Law § 115-a lists a vehicle operated by a county or assistant county fire marshal as a fire vehicle. The opinion does not analyze particular traffic privileges.

Criminal Procedure Law § 2.10 lists the categories of personnel who have peace officer powers. Adding a county fire marshal requires state legislation.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-23_pw.pdf

Original opinion text

CRIMINAL PROCEDURE LAW § 2.10; MUNICIPAL HOME RULE LAW
§§ 10(1)(ii)(a)(1), 10(1)(ii)(a)(12), 33(3)(b); VEHICLE AND TRAFFIC LAW § 115-a. The position of fire marshall may be created by local law. Upon creation of that office, the fire marshall's vehicle would be categorized as a fire vehicle under section 115-a of the Vehicle and Traffic Law. April 26, 1995

Francis T. Murray, Esq.
County Attorney
County of Ulster
P. O. Box 1800
Kingston, NY 12401

Informal Opinion
No. 95-23

Dear Mr. Murray:
You have asked whether a county legislature, by resolution, may establish the position of fire marshall and, if it may, whether the fire marshall would automatically have the rights and privileges established by State law with respect to the operation of vehicles. We have not found any State enabling legislation for the establishment of the position of fire marshall by local governments. There are a few statutory references to that office. See section 2.10 of the Criminal Procedure Law which grants to fire marshalls of specific municipalities peace officer powers and section 115-a of the Vehicle and Traffic Law which lists a vehicle operated by a county or assistant county fire marshall as a fire vehicle. Thus, it appears that the position of fire marshall is locally established.1 We believe, however, that the office and its duties must be established by local law, rather than by resolution, under the grant of powers to municipalities in the Municipal Home Rule Law. Under that grant of authority, a county is authorized to adopt and amend local laws establishing local positions and their qualifications. Municipal Home Rule Law
§ 10(1)(ii)(a)(1). Additionally, counties are authorized to adopt and amend local laws dealing with the government, protection, order, conduct, safety, health and well-being of

1

We have confirmed that this is true in practice.

2
persons or property within its borders. Id., § 10(1)(ii)(a)(12). This is the so-called grant of police power, which may be utilized to establish the position of fire marshall and define its duties. A charter county can also establish the position of fire marshall and define its duties through the enactment of a charter law. Id., § 33(3)(b). A resolution, which typically deals with matters of a temporary nature, may not establish legislation of this genre. As indicated earlier, the establishment of the position of fire marshall by a county would automatically create rights under State law. Vehicle and Traffic Law § 115-a. The duties of the position, many in the category of law enforcement, must be established by local or charter law. A fire marshall of a particular municipality, however, may be designated as a peace officer only through action by the State Legislature adding that fire marshall to the list of peace officers delineated in section 2.10 of the Criminal Procedure Law. As alluded to above, in response to your second question once the position of fire marshall is properly created in your county, that officer's vehicle would be designated as a fire vehicle under section 115-a of the Vehicle and Traffic Law. We conclude that the position of fire marshall may be created by local law. Upon creation of that office, the fire marshall's vehicle would be categorized as a fire vehicle under section 115-a of the Vehicle and Traffic Law. The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office. Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions