Can a New York fire district require its paid firefighters and fire officers to live in the state, or are they free to live across state lines?

Plain-English summary

The Eastchester Fire District is a career department and its general counsel wanted clarity on two intertwined questions. First, are paid firefighters and officers subject to the same statewide residency requirements that apply to public officers under Public Officers Law § 3? Second, can the board of fire commissioners enact and enforce its own state-residency rule for these employees?

The AG split the answer. Section 3(1) of the Public Officers Law, the general state residency requirement for public officers, does not apply to paid fire department personnel. Section 3(4) carves out persons employed in a paid fire department of a city, town, village, or fire district, treating them as not holding a civil or local office for purposes of § 3. That carve-out covers rank-and-file firefighters as well as lieutenants, captains, and the assistant chief and chief, because § 3(4) speaks to "persons employed in the paid fire department" broadly.

But § 3(4) also limits how restrictive a local residency rule can be. If any general or local rule requires paid fire department personnel to live in the political subdivision where they work, that requirement is satisfied if they live in the county (or one of the counties) where the subdivision is located. So a fire district cannot require residency within the fire district itself.

Within that ceiling, the board can adopt residency requirements. Town Law § 176(11-c) authorizes the board to adopt a resolution to employ paid firefighters and officers and to set their powers, duties, and chain of command. The AG read that authority as implicitly including residency conditions. Because § 3(4) sets a floor (county residency at most strict) but does not block broader rules, a state-residency requirement is permissible.

The footnote notes that volunteer fire officer nominees must be state residents under § 176(11-a), and the board may require volunteer officers to live in the fire district.

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

Why is residency for firefighters treated differently from other public officers?

Public Officers Law § 3 was written for elected and appointed officials. Paid fire department personnel are employees rather than officers of the political subdivision in the traditional § 3 sense. The Legislature carved them out in § 3(4) but built in a county-or-broader residency rule, recognizing the practical need for staffing flexibility.

Could the board narrow residency to require living in the fire district itself?

No. Section 3(4) provides that any local rule requiring residency in the political subdivision is satisfied by residence in the county where the subdivision sits. That is a statutory floor on how narrowly a local rule can be drawn. The opinion concluded the narrowest residency the board could establish is county-of-location residency.

Does this apply to volunteer firefighters too?

Town Law § 176(11-a) sets a state-residency requirement for nominees to volunteer fire department offices, and lets the board require volunteer officers to reside in the fire district. The body of the opinion is about paid personnel; volunteers operate under their own statutory rules described in the footnote.

What about the chief and assistant chief specifically?

Section 3(4) speaks to persons "employed in the paid fire department," which the AG read as covering not only rank-and-file firefighters but also lieutenants, captains, the assistant chief, and the chief. The same county-residency floor and the same authority to enact a broader (e.g., state) residency requirement apply across all of those ranks.

Why would a fire district want to require state residency?

The opinion does not develop the policy rationale, but typical considerations include rapid recall during emergencies, familiarity with state EMS and fire protocols, and political accountability. The AG took no view on whether state residency is wise, only that it is lawful.

Background and statutory framework

Public Officers Law § 3(1) generally requires public officers to reside in the state, and if the office is local, in the political subdivision. Section 3 is dotted with exceptions for specific offices and categories.

Section 3(4) treats persons employed in paid fire departments of cities, towns, villages, or fire districts as not holding a civil or local office for purposes of § 3. It also provides that any law or rule requiring local residency for such persons is satisfied if they reside in the county or one of the counties where the subdivision is located. Section 3(9) covers cities of over one million in population separately.

Town Law § 176(11-c) authorizes the board of fire commissioners to adopt a resolution employing paid firefighters and paid fire officers, including the chief, setting powers and duties and establishing the chain of command. Section 176(11-a) addresses qualifications and residency of volunteer fire department officer nominees.

Citations

• Public Officers Law § 3 (residency for public officers); § 3(1) (general state and local residency); § 3(4) (paid fire department carve-out and county-residency floor); § 3(9) (cities over one million).
• Town Law § 176(11-c) (board authority to employ paid firefighters and officers); § 176(11-a) (volunteer officer residency).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-6_pw.pdf

Original opinion text

PUBLIC OFFICERS LAW § 3; TOWN LAW § 176(11-c).
The board of fire commissioners of a fire district may
require that persons employed by the paid fire department of the
district reside within the State of New York.
February 27, 1997
Nicholas M. DiCostanzo, Esq.
General Counsel
Eastchester Fire District
255 Main Street
Eastchester, NY 10709-2901

Informal Opinion
No. 97-6

Dear Mr. DiCostanzo:
You have explained that the Eastchester Fire District is
primarily a paid career fire department. Your inquiry relates to
the residency of several classifications of career firefighters,
including rank and file firefighters, lieutenants and captains,
and the assistant chief and chief. Specifically, you have asked
whether personnel in the above titles must under State law
maintain State residency and, if not, whether the board of fire
commissioners may promulgate and enforce regulations requiring
State residency for existing personnel and new employees in these
titles.
As you have noted, section 3(1) of the Public Officers Law
provides the qualifications for holding public office and
requires that a public officer be a resident of the State, and if
the office is local, a resident of the political subdivision or
municipal corporation. Section 3 of the Public Officers Law,
however, includes many exceptions to the general residency
requirement. Under section 3(4), persons employed in a paid fire
department of a city (regarding a city of over one million in
population see, section 3[9]), town, village or fire district are
deemed not to hold a civil or local office within the meaning of
section 3 and the provisions of that section do not apply to
these persons.
Subdivision 4 also states that the provisions of any
general, special or local law; city or village charter, code or
ordinance; or any rule or regulation requiring that persons
employed by a paid fire department reside in the political
subdivision or municipal corporation of the State for which they
are chosen or within which their official functions are required
to be exercised

2
shall not apply to the appointment or
continuance in office of any such person so
employed, if such person resides in the
county, or one of the counties, in which such
political subdivision or municipal
corporation is located.
Therefore, under section 3(4) of the Public Officers Law,
general State residency requirements for public officers do not
apply to employees of paid fire departments. Under that same
section 3(4), in the event that a general or special law or a
local law or regulation requires that an employee of a paid fire
department reside within the political subdivision or municipal
corporation where he or she is employed, that residency
requirement is deemed to be satisfied if the paid employee
resides in the county or one of the counties in which the
political subdivision or municipal corporation is located.
In answer to your first question then, the general residency
requirements for public officers provided by section 3 of the
Public Officers Law do not apply to persons employed by a paid
fire department of a fire district. Further, section 3(4), in
applying to "persons . . . employed in the paid fire department"
is broad in its application and would encompass not only rank and
file firefighters but also officers such as lieutenants and
captains and the assistant chief and chief of the fire
department.
In response to your second question, we believe that the
board of fire commissioners may adopt a resolution to require, as
a condition of appointment or retention, that a paid firefighter
in any of the above categories reside within the State of
New York. Section 176(11-c) of the Town Law authorizes the board
of fire commissioners to adopt a resolution to employ paid
firefighters and paid fire officers, including but not limited to
a paid chief of the fire district's fire department. Such a
resolution establishes the powers and duties of the paid
firefighters and officers and the chain of command in the fire
department, including the volunteers and paid firefighters. Town
Law § 176(11-c).
In our view, the board of fire commissioners implicitly has
authority in adopting such a resolution to establish residency
requirements for paid firefighters and paid officers. Since
section 3(4) of the Public Officers Law is an overriding State
law which sets forth the narrowest residency requirement that may
locally be established for persons employed by a paid fire
department, the board of fire commissioners may not establish a

3
residency requirement inconsistent with that provision. Under
section 3(4), the narrowest residency that may be established is
residency in the county or one of the counties in which the fire
district is located. Therefore, the board of fire commissioners
may establish, as a condition of appointment or retention of
persons employed by a paid fire department, a requirement that
these persons reside within the State.1
We conclude that the board of fire commissioners of a fire
district may require that persons employed by the paid fire
department of the district reside within the State of New York.
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

1

We note that under section 176(11-a) of the Town Law
nominees for offices in a volunteer fire department must be
residents of the State. The board of fire commissioners,
however, may require that any or all volunteer fire department
officers must be residents of the fire district.