Can a New York village mayor also serve as a fire commissioner of a joint fire district established by that village?

Plain-English summary

The Hammondsport Fire District is a joint fire district, formed in 1980 by the Town of Urbana and the Village of Hammondsport. Its commissioners are appointed by the town board and village board sitting together. The Village's territory falls entirely within the joint district, and the Village supplies water to the district under contract. The district's counsel asked whether the same person could serve simultaneously as Village Mayor and as a Hammondsport Fire District commissioner. The AG concluded no.

The compatibility test. New York follows the common-law doctrine that, absent a constitutional or statutory bar on dual officeholding, one person may hold two offices unless they are incompatible. O'Malley v. Macejka and People ex rel. Ryan v. Green frame the test: incompatibility exists where one office is subordinate to the other or where there is an inherent inconsistency. No statute expressly bars a village mayor from serving as a fire commissioner of a joint fire district. Town Law § 174(4) (restrictions on fire district officer dual holding) doesn't reach the village mayor combination. Village Law § 3-300(4) lets a village officer hold another public office unless the duties of the two conflict.

The structural conflict. The Town Law and Village Law place substantial decisional authority over the joint fire district in the village board and town board acting jointly. Town Law § 189-a(4) gives them authority to extend the joint district to include other contiguous territory. Town Law § 185 (incorporated by reference) authorizes them to dissolve the district on a sufficient petition. Town Law § 189-f makes the district's acquisitions of real property subject to town and village board approval (Hammondsport had not opted out of this requirement). Village Law § 11-1124 lets the village (which had no separate water board) contract with fire districts for water; the village and joint district could contract for various other purposes (Town Law § 189-b allows sale of firehouse and fire equipment from village to joint district).

The AG had previously held similar combinations incompatible in the town-fire-district context. Op. Att'y Gen. (Inf.) No. 92-16, No. 87-69, 1948 Op. Att'y Gen. (Inf.) 3, and 1946 Op. Att'y Gen. (Inf.) 8 all concluded that town board members could not serve as town fire district commissioners, because the town board's authority over the fire district created divided loyalties. Op. Att'y Gen. (Inf.) No. 87-63 reached the same conclusion for town board member and fire district attorney. The joint-district statutory framework was different but raised the same structural concern: the village board exercising power over the district while a member of that board sat as a commissioner.

The Whitehall doctrine. The AG noted in a footnote that, where a governing body lacks statutory authorization to appoint one of its own members to a position, the appointment is barred (Wood v. Town of Whitehall). Hammondsport's commissioners were appointed by the joint town-village session, so if the mayor had been a board member at the time of the fire commissioner appointment, the doctrine would have applied. The opinion noted that the mayor in question had not been a village board member when he was appointed to the fire commission, so the Whitehall doctrine was not the basis of the conclusion. The structural incompatibility was.

Recusal not enough. The AG explicitly rejected recusal as a fix. Even if the mayor recused himself from any village board action involving the fire district, "the impartiality of the village board might still be questioned, especially as to matters that could have a particularly significant affect on the Fire District." Op. Att'y Gen. (Inf.) No. 99-39 had reached the same conclusion in an analogous town board situation. Appearances of impropriety, even without actual conflict, undercut public confidence in government.

A distinction worth noting. The AG flagged a different question it was not addressing: whether a village mayor may sit on the board of a village fire department (not a joint fire district). Op. Att'y Gen. (Inf.) No. 99-23 had said yes for the village trustee/fire commissioner pairing, because a village fire department is part of the village government rather than an independent political subdivision. The joint fire district is independent, which changes the analysis.

Currency note

This opinion was issued in 2004. 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: Why is a joint fire district different from a village fire department for dual-office analysis?
A: A joint fire district is an independent political subdivision of the state, separate from the village and town that established it. A village fire department is part of the village government. When the offices are in two separate entities with contracting and oversight relationships, divided loyalties are likely. When they are in the same entity, the analysis is different.

Q: Could the mayor cure the conflict by recusing from fire-district matters?
A: No. The AG concluded that the village board's authority over the fire district is so substantial that even with recusal, the appearance of impropriety would persist. The board's impartiality could be questioned on matters affecting the district.

Q: What if the village board had no real authority over the district?
A: That would change the analysis. The AG relied on specific statutory powers: extension of the district, dissolution, real property acquisition approval, and contracting authority. Where those substantive powers exist, structural incompatibility follows.

Q: Does this opinion bar the mayor from any fire-related role?
A: No. It addresses the joint fire district commissioner role. Op. Att'y Gen. (Inf.) No. 99-23 had previously allowed a village trustee to serve as a village fire department commissioner. Other fire-related roles would have to be analyzed on their own facts.

Q: What is the Whitehall doctrine and why didn't it apply here?
A: Wood v. Town of Whitehall holds that, absent statutory authorization, a governing body cannot appoint one of its own members to another position. Hammondsport's commissioners are appointed by the joint town-village session, so the Whitehall doctrine could have applied if the mayor had been a village board member when appointed to the fire commission. The mayor was not a board member at that time, so the doctrine was not the basis of the conclusion.

Background and statutory framework

The Town Law Article 11-A and Village Law Article 22-A framework for joint fire districts was enacted in 1988 (L. 1988, ch. 241), replacing the older unconsolidated-law provisions of L. 1938, ch. 595. Town Law § 189-a establishes the district. § 189-e governs the appointment or election of commissioners. § 189-f governs real property acquisitions. § 189-b governs sale of firehouse and equipment. § 185 (read into Article 11-A by § 189-a(2)(d)) governs dissolution.

The Village Law side: § 3-301(4) defines the village board of trustees as including the mayor; § 4-400(1)(a) gives the mayor the right to vote, including tie-breaking. § 3-300(4) is the dual-office-holding provision. § 11-1124 authorizes village water commissioners to contract with fire districts for water. § 3-308 and § 3-310 govern the water-commissioners function generally; in the absence of a separate board, the village trustees perform that function.

The AG's earlier opinions on town board / town fire district commissioner incompatibility (Op. Att'y Gen. (Inf.) No. 92-16, No. 87-69, 1948 Op. Att'y Gen. (Inf.) 3, 1946 Op. Att'y Gen. (Inf.) 8) and town board / fire district attorney incompatibility (No. 87-63) supplied the analytic template. The 2004 opinion applied that template to the joint-district / village-mayor pairing.

Citations and references

Statutes:

• Town Law Article 11-A (joint fire districts)
• Town Law §§ 174(4), 185, 189-a, 189-b, 189-e, 189-f, 189-i
• Village Law Article 22-A (joint fire districts)
• Village Law §§ 3-300(4), 3-301, 3-308, 3-310, 4-400(1)(a), 11-1124, 22-2210, 22-2212
• L. 1988, ch. 241 (enacting current framework, repealing L. 1938, ch. 595)

Cases:

• O'Malley v. Macejka, 44 N.Y.2d 530 (1978)
• People ex rel. Ryan v. Green, 58 N.Y. 295 (1874)
• Matter of Dupras v. County of Clinton, 213 A.D.2d 952 (3d Dep't 1995)
• Wood v. Town of Whitehall, 120 Misc. 124 (Sup. Ct. 1923), aff'd 206 App. Div. 786 (3d Dep't 1923)

Prior AG opinions:

• Op. Att'y Gen. (Inf.) No. 2002-14
• Op. Att'y Gen. (Inf.) No. 96-32
• Op. Att'y Gen. (Inf.) No. 91-44
• Op. Att'y Gen. (Inf.) No. 92-16
• Op. Att'y Gen. (Inf.) No. 87-69
• 1948 Op. Att'y Gen. (Inf.) 3
• 1946 Op. Att'y Gen. (Inf.) 8
• Op. Att'y Gen. (Inf.) No. 87-63
• Op. Att'y Gen. (Inf.) No. 85-6
• Op. Att'y Gen. (Inf.) No. 95-34
• Op. Att'y Gen. (Inf.) No. 99-23
• Op. Att'y Gen. (Inf.) No. 99-39
• Op. Att'y Gen. (Inf.) No. 98-26
• Op. Att'y Gen. (Inf.) No. 96-7
• Op. Att'y Gen. (Inf.) No. 89-53
• Op. State Compt. No. 68-884

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2004-6_pw.pdf

Original opinion text

TOWN LAW ART. 11-A, §§ 174(4), 185, 189-a, 189-b, 189-e, 189-f, 189-i; VILLAGE LAW ART 22-A, §§ 3-300(4), 3-301, 3-308, 3-310, 4-400(1)(a), 11-1124, 22-2210, 22-2212; L. 1938, CH. 595.

Because the statutory scheme governing joint fire districts gives the town and village boards substantial power to affect the existence and structure of a joint fire district, the positions of village mayor and fire commissioner of a joint fire district established by that village are incompatible.

May 18, 2004

Patrick M. Malgieri, Esq.
Counsel
Hammondsport Fire District
Boylan, Brown, Code, Vigdor & Wilson, LLP
2400 Chase Square
Rochester, New York 14604

Informal Opinion
No. 2004-6

Dear Mr. Malgieri:

In your capacity as counsel for the Hammondsport Fire District, you have asked for an opinion regarding whether the position of mayor of the Village of Hammondsport is compatible with the position of fire district commissioner of the Hammondsport Fire District ("the Fire District"), a joint fire district formed in 1980 by the Town of Urbana and the Village of Hammondsport ("the Village"). We conclude that the positions are not compatible and should not be held by the same individual.

Background

You have provided the following relevant facts concerning your inquiry: The fire commissioners of the Fire District are appointed by members of the town board and village board of trustees in joint session. All of the Village territory is included within, and thus receives fire services from, the Fire District. The Village currently provides water service to the Fire District pursuant to contract.

Statutory Framework

Article 11-A of the Town Law and Article 22-A of the Village Law govern the establishment and operation of a joint fire district. The provisions of Article 11 (the article governing town fire districts) may also apply to the extent not inconsistent with the provisions of Article 11-A. See Town Law § 189-a(2)(d), (3)(d), (4)(e); id. § 189-f.

A joint fire district is a fire district established by a town and a village located in that town (or by more than one town and village) to provide fire protection services in all or a portion of contiguous territory in the municipalities. See Town Law §§ 189-a, 189-i; Village Law § 22-2210. It is established by resolution of the town board and village board of trustees, subject to permissive referendum. See Town Law § 189-a(2). However, once created, it is an independent political entity serving the property and property owners included within the district. See Op. Att'y Gen. (Inf.) No. 2002-14; Op. Att'y Gen. (Inf.) No. 96-32. The affairs of a joint fire district are under the management of a board of fire commissioners, who are either appointed jointly by the town and village boards or elected by the voters in accordance with Article 11 of the Town Law, as determined at the time the fire district is established. Town Law § 189-e; see Op. Att'y Gen. (Inf.) No. 91-44.

The mayor and the trustees of the village constitute the members of the legislative body of a village, the board of trustees. Village Law § 3-301(4). The mayor presides at the meetings of the board of trustees, is authorized to vote on any matters, and must vote in the case of a tie. Village Law § 4-400(1)(a); see also Op. Att'y Gen. (Inf.) No. 85-6.

Analysis

In the absence of a constitutional or statutory prohibition against dual officeholding, one person may hold two offices simultaneously unless they are incompatible. Two offices are incompatible if one is subordinate to the other or there is an inherent inconsistency between the two offices. See O'Malley v. Macejka, 44 N.Y.2d 530, 535 (1978); People ex rel. Ryan v. Green, 58 N.Y. 295, 304-05 (1874); Matter of Dupras v. County of Clinton, 213 A.D.2d 952, 953 (3d Dep't 1995).

We are not aware of any statutory provisions that prohibit one individual from serving as village mayor and as fire commissioner of a joint fire district established by the village board and serving that village. The restrictions on dual office holding by fire district officers do not bar such officers from serving as village mayor. See Town Law § 174(4). Village Law § 3-300(4) provides: "Except as is otherwise provided by law, no person shall be disqualified from holding a village office by reason of holding any public office unless such public officer could not fully discharge the duties and obligations of the village office while carrying out the duties and obligations of any such other office." In the absence of an explicit ban, the relevant inquiry therefore is whether the duties of the two offices conflict.

We have previously analyzed a similar compatibility question involving the positions of town board member and fire commissioner of a fire district established by the town under Town Law Article 11; we have consistently concluded that those positions are not compatible. Op. Att'y Gen. (Inf.) No. 92-16; Op. Att'y Gen. (Inf.) No. 87-69; 1948 Op. Att'y Gen. (Inf.) 3; 1946 Op. Att'y Gen. (Inf.) 8; see also Op. Att'y Gen. (Inf.) No. 87-63. We found those positions incompatible because certain actions of the board of fire commissioners and town board are statutorily subject to the approval of the other body, the bodies may contract with one another for various purposes, and the town board has statutory authority to dissolve and discontinue the fire district. Although the statutory framework governing joint fire districts differs somewhat from the provisions governing town fire districts, for similar reasons we believe the positions of village mayor and fire commissioner of a joint fire district established by the village are incompatible.

Thus, for example, under the statutory framework applicable to joint fire districts, the village board of trustees (acting with the town board) is authorized to make fundamental determinations affecting the fire district, such as whether to extend the joint fire district to include other contiguous territory, Town Law § 189-a(4), and, upon the filing of a legally sufficient petition, whether to dissolve the fire district, see Town Law § 185(1),(3). Additionally, acquisitions of real property by the joint fire district are subject to the approval of the town and village boards. See Town Law § 189-f.

You have also indicated that the Village supplies water to the Fire District pursuant to contract. See Village Law § 11-1124. The village and joint fire district could potentially contract with one another for other purposes as well. See, e.g., Town Law § 189-b.

Thus, the governing statutory scheme gives the village board of trustees (together with the town board) considerable power over the existence and structure of the Fire District, and contemplates that the two entities may contract with one another for various purposes. Under these circumstances, we believe the positions are inherently inconsistent.

Notably, an individual serving on the governing boards of both entities would have divided loyalties in deliberating and acting upon matters that involve the other entity. Such divided loyalties create at least an appearance of a conflict, which we have repeatedly emphasized should be avoided to maintain public confidence in government. See, e.g., Op. Att'y Gen. (Inf.) No. 98-26; Op. Att'y Gen. (Inf.) No. 96-7; Op. Att'y Gen. (Inf.) No. 89-53. Given the fact that the village board may exercise considerable authority over the Fire District, we do not believe recusal would be an adequate remedy to avoid the appearance of a conflict: even if the mayor were to recuse himself from participating in matters before the village board involving the Fire District, the impartiality of the village board might still be questioned, especially as to matters that could have a particularly significant affect on the Fire District. See Op. Att'y Gen. (Inf.) No. 99-39.

In conclusion, because the statutory scheme governing joint fire districts gives the village board of trustees (acting with the town board) substantial power to fundamentally affect the existence and structure of the Fire District and to approve certain decisions of the Fire District, and also contemplates that the municipal bodies may contract for various purposes, we believe the positions of village mayor and fire commissioner of a joint fire district established by that village are incompatible and should not be held by the same individual.

The Attorney General issues formal opinions only to officers and departments of State government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

LAURA ETLINGER
Assistant Solicitor General
In Charge of Opinions