Can a fire district employee hold both the fire chief position and a separate position as house maintainer at the same fire district?

Plain-English summary

The Woodmere Fire District asked whether an employee already serving as a "house maintainer" (a light-maintenance job at the firehouse, including answering the phone and disposing of garbage) could also serve as fire chief. The Attorney General's office said no.

Under Town Law § 176-a(1), the fire chief supervises "all officers and employees of the fire department," holds them strictly to account for neglect of duty, and may suspend them for improper conduct subject to action by the board of fire commissioners. The house maintainer, employed by the board of fire commissioners under Town Law § 176(18-a), is one of the employees the chief supervises. The two positions therefore fail the classic test of People ex rel. Ryan v Green, 58 NY 295 (1874): one office cannot be subordinate to the other if the same person holds both, because no one can effectively or impartially supervise himself.

The fire district had argued that the house maintainer's duties came from the board of fire commissioners rather than the chief, so the supervisor-subordinate problem did not arise in practice. The AG's office rejected that work-around. The Town Law provisions governing the chief-employee relationship are binding on every fire district in the State. Fire districts, unlike municipalities, do not have home-rule authority to rearrange the statutory chain of command.

Currency note

This opinion was issued in 1997. 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

Q: What is an "incompatible office"?
A: Under People ex rel. Ryan v Green, 58 NY 295 (1874), two offices are incompatible if one is subordinate to the other, or if there is an inherent inconsistency between the two sets of duties. "You cannot be your own boss" captures the supervisor-subordinate form. An auditor and a director of finance, the opinion noted, would be an example of the second form, an inherent inconsistency.

Q: Does the compatibility rule cover positions of employment in addition to offices?
A: Yes. The opinion expressly states the rule covers an office and a position of employment, or two positions of employment, the same way it covers two offices.

Q: Could the fire commissioners simply tell the house maintainer to take orders from them and not the chief?
A: No. The Town Law puts the chief in charge of fire department employees by statute. The board cannot rewrite the supervisory chain by internal arrangement. Fire districts have only the powers the State Legislature gives them, and the Legislature has placed supervision of fire department members and employees with the chief.

Q: When two offices are compatible, what handles routine conflicts?
A: The opinion noted that, where positions are compatible but a specific transaction creates a conflict of interest, the official can avoid the conflict by declining to participate in that particular matter. Recusal works for one-off conflicts. Incompatibility, by contrast, is structural: recusal cannot fix a relationship where the same person is permanently both supervisor and supervised.

Q: What happens if someone tries to hold both positions anyway?
A: Accepting an incompatible second office is generally treated under New York law as constructively resigning the first. So a fire district employee who accepted the chief position would have effectively given up the house maintainer position; trying to hold both at the same time would be unlawful.

Background and statutory framework

Fire districts are creatures of the Town Law. Town Law § 176(18-a) authorizes the board of fire commissioners to employ persons necessary to accomplish the district's objects and purposes. Section 176(19) gives the commissioners exclusive management and control of fire district property. The fire chief's authority comes from Town Law § 176-a(1): the chief has exclusive control of fire department members at all fires, inspections, and other on-duty occasions; supervises the maintenance and use of engines, fire trucks, hoses, and other equipment; supervises "all officers and employees of the fire department"; holds them strictly accountable for neglect of duty; and may suspend them for improper conduct subject to commission action.

That supervisory grant is broad. It does not carve out employees whose day-to-day instructions come from the board. The chief's supervisory authority over all fire department employees is a statutory command, not a default rule the commissioners can alter. Fire districts, unlike home-rule municipalities, lack the constitutional authority to vary the chain of command by local arrangement.

Citations and references

Statutes:

• N.Y. Town Law § 176 (fire district powers; commissioners' authority to employ)
• N.Y. Town Law § 176-a (fire chief's powers and duties)

Cases:

• People ex rel. Ryan v Green, 58 N.Y. 295 (1874) (leading case on compatibility of public offices; one office may not be subordinate to another)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-4_pw.pdf

Original opinion text

TOWN LAW §§ 176(18-a), (19), 176-a(1).
The positions of fire chief and house maintainer of a fire
district are incompatible.

February 27, 1997

Marvin Ross, Esq.
Woodmere Fire District
P. O. Box 599
Lawrence, NY 11559-0599

Informal Opinion
No. 97-4

Dear Mr. Ross:
You have asked whether an employee of the fire district
whose job title is house maintainer may accept the position of
fire chief and hold both positions.
In the absence of a constitutional or statutory prohibition
against dual-officeholding, one person may hold two offices
simultaneously unless they are incompatible. The leading case on
compatibility of office is People ex rel. Ryan v Green, 58 NY 295
(1874). In that case the Court held that two offices are
incompatible if one is subordinate to the other or if there is an
inherent inconsistency between the two offices. The former can
be characterized as "you cannot be your own boss", a status
readily identifiable. The latter is not easily characterized,
for one must analyze the duties of the two offices to ascertain
whether there is an inconsistency. An obvious example is the
inconsistency of holding both the office of auditor and the
office of director of finance.
There are two subsidiary aspects of compatibility. One is
that the principle equally covers an office and a position of
employment or two positions of employment. Also, where positions
are compatible, a conflict of interests may arise out of the
simultaneous holding of the positions. The conflict can be
avoided by declining to participate in the disposition of the
particular matter.
You have informed us that the duties of the house maintainer
are light maintenance work at the fire house which is owned and
operated by the fire district, including answering the telephone,
disposing of garbage and other minor maintenance duties. You
have also indicated that the house maintainer's "duties and
instructions come from the Board of Fire Commissioners".

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The board of fire commissioners of a fire district is
authorized to employ persons necessary to effectuate the objects
and purposes of the district. Town Law § 176(18-a). The
commissioners have exclusive management and control of fire
district property. Id., § 176(19).
The fire chief of the fire department of a fire district,
under the direction of the board of fire commissioners, has
exclusive control of the members of the fire department at all
fires, inspections and other occasions when the fire department
is on duty or parade. Id., § 176-a(1). Under the direction of
the fire commissioners, the fire chief also supervises
maintenance and use of the engines, fire trucks, pumpers, hose
wagons and other apparatus and equipment used for the prevention
or extinguishment of fires. Id. The fire chief has supervision
over "all officers and employees of the fire department". Id.
It is the fire chief's responsibility to ensure that the
rules and regulations of the board of fire commissioners are
observed and that the orders of the board are duly executed. Id.
When required by the board of fire commissioners, the chief
reports to the board on the condition of the property of the fire
district and other information requested. Id. The chief
shall hold the members, officers and
employees of the fire department strictly to
account for neglect of duty and may suspend
them for improper conduct, subject to the
action of the board of fire commissioners at
its next meeting. Id.
If the chief is absent or disabled, the first assistant chief or
other assistant chiefs, in order of rank, are to perform the
duties and exercise the powers of the chief. Id.
We believe that the positions of fire chief and house
maintainer are incompatible. Under the above provisions of the
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. Obviously, one
person cannot effectively or impartially supervise him or
herself. While you have indicated that the house maintainer
receives his duties and instructions from the board of fire
commissioners, the provisions of the Town Law governing the
relationship between the fire chief and employees of the fire
district are binding on fire districts in this State. Fire
districts have only those powers that have been delegated to them

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by the State Legislature. Unlike municipalities, which have home
rule authority, fire districts are controlled by the State
Legislature.
We conclude that the positions of fire chief and house
maintainer of a fire district are incompatible.
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