Can someone with an arson conviction join a New York volunteer fire company or serve as a fire commissioner if they have a Certificate of Relief from Disabilities?

Plain-English summary

The Gordon Heights Fire District's counsel asked whether a Certificate of Relief from Disabilities could clear an arson conviction for two separate purposes: joining a volunteer fire company, and serving as a fire district commissioner. The AG split the answer.

Volunteer firefighter membership. Town Law § 176-b(16) provides that a person convicted of arson in any degree is ineligible to be elected or appointed as a volunteer member of a fire company, and that membership terminates immediately on a conviction during membership. "Arson in any degree" includes attempted arson (the Penal Law attempt rules in § 110.00 and § 110.05 graduate attempted arson into the corresponding lower-grade felony). So the bar attaches to attempted arson in the third degree.

A Certificate of Relief from Disabilities, issued under Correction Law § 701, can remove the automatic statutory bar. But removing the automatic bar does not require the company or the district to accept the applicant. § 701(3) preserves the discretion of any judicial, administrative, or licensing body (or anyone with comparable discretionary authority) to deny a license or privilege based on the underlying conviction. Town Law § 176-b confirms that fire companies and fire district commissioners have broad discretion over who is admitted. The AG cited Springer v Whalen and Belmar v New York City Board of Education for the principle that courts uphold discretionary refusals based on the facts of the conviction even after a Certificate has issued.

Fire commissioner. Town Law § 174(5) and § 175(3) bar a person convicted of arson in any degree from holding the office of fire district commissioner (or treasurer or secretary). A current fire commissioner convicted during a term is disqualified from completing the term. Critically, a Certificate of Relief from Disabilities cannot fix this. Correction Law § 701(1) limits the Certificate's effect to forfeitures, disabilities, or bars to employment. Public office is not employment for this purpose. Because fire commissioner is a public office (Town Law § 174 establishes the office; 1980 Op Atty Gen (Inf) 111 confirms its character), the Certificate has no application.

The AG declined to address whether a fire district or fire company that accepts an arson-conviction applicant could face civil liability if the firefighter later engaged in arson-like conduct. That issue is left for case-by-case analysis.

Currency note

This opinion was issued in 1998. 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 same Certificate work for the volunteer member position but not for fire commissioner?

Because of the wording of Correction Law § 701(1). The Certificate removes forfeitures, disabilities, and employment bars "automatically imposed by law" because of a conviction. It does not reach bars to public office. Volunteer firefighter membership has been treated as an employment-like status; fire commissioner is an elected or appointed public office.

What counts as "arson in any degree" for these statutes?

The Penal Law has four grades of arson (first through fourth degree) and the attempt rules in § 110.00 and § 110.05 graduate attempted arson into the corresponding lower-grade felony (attempted arson in the third degree is a class D felony, one notch below arson in the third degree). The fourth degree is unique because it requires recklessness, and People v DeJesus, 190 AD2d 1012 (4th Dept 1993), holds that you cannot attempt a reckless crime, so attempted arson in the fourth degree is not a crime. Convictions for any other degree of arson, including the attempts, trigger the statutory bars.

Can the fire district adopt a policy of categorical denial for arson convictions?

The opinion suggests yes, framed as broad discretion to evaluate the facts of the conviction. A categorical policy would have to be careful to avoid running afoul of Correction Law § 752 (which limits denials of employment based solely on conviction) and Springer-line cases, both of which expect a fact-specific consideration. But the Certificate does not preempt the district's authority to weigh the conviction.

Can the local fire district or fire company face liability if the firefighter later commits arson?

The AG explicitly did not opine on this. Each case would turn on negligent-hiring principles and on whether the district or company knew or should have known of the conviction and the risk. The opinion notes only that the Certificate does not insulate the entity from this kind of suit.

What about other criminal convictions besides arson?

The Town Law disqualifications are arson-specific. Other felonies might affect membership or office under different statutory or common-law bars (for instance, felony-related forfeitures of public office under Public Officers Law § 30). The arson rule is the strict, automatic one.

Background and statutory framework

Volunteer fire company membership. Town Law § 176-b governs membership in volunteer fire companies in fire districts. Subdivision 16 contains the arson disqualification. Membership is otherwise governed by company bylaws and the approval of the board of fire commissioners for newly organized companies.

Fire commissioner office. Town Law § 174 establishes the office and § 174(5) bars an arson-convicted person from candidacy. § 175(3) extends the bar to treasurer and secretary positions and forces disqualification mid-term on conviction.

Penal Law arson scheme. Penal Law § 150.05 (arson 4), § 150.10 (arson 3), § 150.15 (arson 2), § 150.20 (arson 1) establish the four arson grades. § 110.00 and § 110.05 govern the attempt offense and grading.

Correction Law Certificate of Relief from Disabilities. § 700(1)(a) defines "eligible offender." § 701(1) authorizes issuance to remove forfeitures, disabilities, and employment bars, but explicitly excludes the right to retain or be eligible for public office. § 701(3) preserves discretionary authority of bodies to consider the conviction.

Citations

• Town Law § 176-b(16) (arson bar on volunteer firefighter membership).
• Town Law § 174 (fire district commissioner office); § 174(5), § 175(3) (arson bars).
• Penal Law § 110.00, § 110.05 (attempt offense, grading); § 150.05-150.20 (arson grades).
• Correction Law § 700(1)(a) (eligible offender); § 701 (Certificate of Relief from Disabilities); § 701(1) (limit to employment, not public office); § 701(3) (preserves discretionary authority).
• People v DeJesus, 190 AD2d 1012 (4th Dept), lv denied, 81 NY2d 969 (1993) (no attempt of a reckless crime, so no attempted arson 4).
• Springer v Whalen, 68 AD2d 1011 (3d Dept), lv denied, 47 NY2d 710 (1979); Belmar v New York City Board of Education, 122 AD2d 478 (3d Dept), app dismissed, 69 NY2d 707 (1986) (discretionary denial despite Certificate).
• 1986 Op Atty Gen (Inf) 67; 1977 Op Atty Gen (Inf) 169; 1980 Op Atty Gen (Inf) 111 (prior AG opinions on fire-service eligibility and public office).
• Op Atty Gen No. 91-F10; Op Atty Gen No. 94-F2 (discretionary authority post-Certificate).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-50_pw.pdf

Original opinion text

CORRECTION LAW §§ 700(1)(a), 701; TOWN LAW §§ 174, 175, 176-b;
PENAL LAW §§ 110.00, 110.05, 150.05, 150.10, 150.15, 150.20.
A person convicted of arson in any degree is, by statute,
ineligible to become a member of a volunteer fire company.
However, the issuance to that person of an unrestricted
certificate of relief from disabilities prevents automatic
statutory disqualification. The certificate does not, however,
prevent the fire company or fire district commissioners from
exercising discretion to deny membership based upon the facts and
circumstances surrounding the arson conviction.
A person convicted of arson in any degree is, by statute,
ineligible to hold the office of fire district commissioner. A
certificate of relief from disabilities does not apply to a
public office, such as fire district commissioner.
November 3, 1998
William F. Glass, Jr., Esq.
Gordon Heights Fire District
611 High Street
Port Jefferson, New York 11777

Informal Opinion
No. 98-50

Dear Mr. Glass:
You have requested an opinion regarding whether a
certificate of relief from disabilities, issued pursuant to
Correction Law § 701, permits an individual convicted of
attempted arson in the third degree to become a member of a
volunteer fire company or to serve as a fire commissioner.
Under Town Law § 176-b(16), "[a] person who has been
convicted of arson in any degree shall not be eligible to be
elected or appointed as a volunteer member of a fire company.
The membership of any volunteer member of a fire company shall
immediately terminate if he is convicted of arson in any degree
while a member of a fire company." This statutory bar may be
removed by obtaining a certificate of relief from disabilities
issued pursuant to Correction Law § 701. A certificate of relief
from disabilities may be granted "to relieve an eligible
offender of any forfeiture or disability, or to remove any bar
to his employment, automatically imposed by law by reason of his
conviction of the crime or of the offense specified therein."
Correction Law § 701(1). Accordingly, a person who has been
issued a certificate of relief from disabilities is not
automatically disqualified by reason of a conviction of arson in
any degree from becoming a member of a volunteer fire company.
While in this instance disqualification is not automatic, it
is important to note that both the fire district and the fire
company would continue to have broad discretion to determine
whether to appoint or elect the person as a volunteer member.
Town Law § 176-b; 1986 Op Atty Gen (Inf) 67; 1977 Op Atty Gen
(Inf) 169. While a certificate of relief from disabilities
removes all statutory disabilities and bars, it does not "in any
way prevent any judicial, administrative, licensing or other
body, board or authority from relying upon the conviction
specified therein as the basis for the exercise of its
discretionary power to suspend, revoke, refuse to issue or refuse
to renew any license, permit or other authority or privilege."
Correction Law § 701(3). In our view, the fire company or fire
district commissioners may exercise this discretion regarding
proposed or existing volunteer members convicted of arson in any
degree. A certificate of relief from disabilities simply
prevents the specified conviction from acting as an automatic
bar. Op Atty Gen No. 94-F2.
In answer to your question, then, although a certificate of
relief from disabilities removes the statutory disability imposed
by Town Law § 176-b(16), both the fire district and the fire
company may continue to exercise their discretion in determining
whether to appoint or elect a person convicted of attempted arson
in the third degree as a volunteer member. We note that
"[c]ourts have repeatedly upheld a discretionary body's denial or
forfeiture of a right, privilege or license after an examination
by that body of the facts and circumstances surrounding a felony
conviction, despite the issuance of a certificate of relief from
civil disabilities by the original sentencing court in each
instance." Op Atty Gen No. 91-F10 (citing, Springer v Whalen, 68
AD2d 1011 [3d Dept], lv denied, 47 NY2d 710 [1979]; Belmar v New
York City Board of Education, 122 AD2d 478 [3d Dept], app
dismissed, 69 NY2d 707 [1986]).
You have also asked whether a person convicted of attempted
arson in the third degree would be able to serve as a fire
commissioner. "A person who has been convicted of arson in any
degree shall not be eligible for nomination, election or
appointment to the office of fire district commissioner or fire
district officer." Town Law § 174(5). Additionally, "[a] person
who has been convicted of arson in any degree shall not be
eligible for election or appointment to the office of fire
district commissioner, treasurer or secretary. Any fire district
commissioner, treasurer or secretary who is convicted of arson in
any degree during his term of office shall be disqualified from
completing such term of office." Town Law § 175(3). Therefore,
a person who has been convicted of attempted arson in the third
degree clearly would be ineligible to serve as a fire
commissioner. In this instance, a certificate of relief from
disabilities does not remove the statutory bar. Although a
certificate of relief from disabilities removes statutory bars to
employment, it does not apply to the right of a person to retain
or to be eligible for public office. Correction Law § 701(1).
Accordingly, because the position of fire commissioner is a
public office, see, Town Law § 174; 1980 Op Atty Gen (Inf) 111, a
certificate of relief from disabilities does not permit a person
convicted of attempted arson in the third degree to serve as a
fire commissioner. That person is disqualified.
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,
YVONNE M. HOVE
Assistant Attorney General