Can the assistant chief of a New York fire district's fire department also sit on the board of fire commissioners?

Plain-English summary

The Fort Hunter Fire District had a question about an assistant chief sitting on the board of fire commissioners. The district's argument was that an assistant chief is essentially a line officer (someone who assumes command of firefighting operations) rather than a member of the supervisory chain, so the usual incompatibility analysis should not apply.

The AG answered shortly. The Town Law settles the question directly. Section 174(4) prohibits one person from holding the office of fire district commissioner together with the office of chief or assistant chief. No compatibility analysis is needed. The Legislature drew the line.

The district pointed to an earlier AG opinion, Op Atty Gen (Inf) No. 91-43, but the AG explained that the prior opinion actually supports the same conclusion. The 91-43 opinion distinguished the chief and assistant chief from other officers such as a lieutenant or captain. The reason: the board of fire commissioners supervises the fire department through the chiefs and assistant chiefs. Because the line of supervision runs through those positions, you cannot mix the supervised role and the supervising board. The 91-43 opinion concluded that a commissioner could compatibly serve as captain or lieutenant, because those positions sit below the chief and assistant chief in the supervisory chain, but the line stops at the chief and assistant chief.

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 does the Town Law single out chiefs and assistant chiefs?

Because the board of fire commissioners exercises ultimate authority over the fire district, and that authority is implemented through the chief-of-department line. Combining the supervised and supervising roles in one person would short-circuit oversight. The Legislature codified the rule in Town Law § 174(4) rather than leaving it to case-by-case analysis.

What positions can a commissioner hold within the fire department?

Op Atty Gen (Inf) No. 91-43 (which the AG cited approvingly) treats positions like lieutenant and captain as compatible with serving as a commissioner. Those officers sit below the chief and assistant chief and do not exercise the supervisory authority the board exercises through the chiefs.

What happens if someone holds both positions in violation of § 174(4)?

The AG opinion does not address remedies. Generally, the statutory prohibition operates by force of law: acceptance of the second incompatible office can be treated as a resignation from the first under New York's broader dual-office rules. Local counsel should consult the Town Law and the specific facts.

Does this apply to volunteer fire departments?

Town Law § 174 governs fire district commissioners and the fire department of the fire district. It applies regardless of whether the department is staffed by volunteers, paid firefighters, or a combination, when the structure runs through the fire district commissioner / chief / assistant chief model.

Could the fire district avoid the issue by re-titling the assistant chief?

No. Substance controls. Calling an assistant chief by a different name does not change the office's function in the chain of command. The bar applies to the office, not to the label.

Background and statutory framework

Town Law § 174 governs the structure of fire district fire departments and the relationship between the board of fire commissioners and the department's officers. Subdivision (4) expressly bars one person from holding the office of fire district commissioner together with the office of chief or assistant chief of the fire department.

Op Atty Gen (Inf) No. 91-43 distinguished the chief and assistant chief (squarely in the supervisory chain that runs from the board down through the department) from other officers like captain and lieutenant (subordinate line officers). The 91-43 opinion treated the latter combinations as compatible.

Citations

• Town Law § 174(4) (statutory prohibition on holding fire district commissioner and chief/assistant chief offices simultaneously).
• Op Atty Gen (Inf) No. 91-43 (commissioner may hold lieutenant or captain office; chiefs are distinguishable because supervision runs through them).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-21_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Page 1 of 1

Opn. No. 97-21
TOWN LAW § 174(4).
A person may not serve simultaneously as the assistant chief of the fire department of a fire district and as a member of the board of fire commissioners. April 29, 1997 William N. Young, Jr., Esq. Informal Opinion Fort Hunter Fire District No. 97-21 P.O. Box 309 Guilderland, New York 12084 Dear Mr. Young: You have asked whether an assistant chief of the fire department of a fire district may also serve as a member of a board of fire commissioners. You are aware that section 174 of the Town Law prohibits a person from holding at the same time the office of fire district commissioner and the office of chief or assistant chief. Representatives of the fire district you represent, however, argue that since the assistant chief is authorized to assume command of firefighting operations, he or she is in fact a line officer of the fire district and no incompatibility would result if the occupant of that office also held the office of fire district commissioner. In our view, a person may not serve as the assistant chief of the fire department of the fire district and as fire district commissioner at the same time. Section 174(4) expressly prohibits this dual office holding. We note that you have referred to Op Atty Gen (Inf) No. 91-43 as a basis for the argument that a person may hold simultaneously the position of assistant chief and fire district commissioner. That opinion, however, distinguishes the chief and assistant chief from other officers such as a lieutenant or captain. In that opinion, we state that since the supervision of the fire department by the board of fire commissioners is carried out through the chiefs and assistant chiefs, there does not appear to be any incompatibility between the position of commissioner and positions such as a captain or lieutenant. We conclude, then, that a person may not serve simultaneously as the assistant chief of the fire department of a fire district and as a member of the board of fire commissioners. 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

http://www.oag.state.ny.us/lawyers/opinions/1997/informal/97_21.html

4/20/2006