Can the same person serve as assistant fire chief of a New York fire district and also as the paid firehouse maintainer?

Plain-English summary

The Hicksville Fire District's attorney asked the AG whether the same person could serve as assistant fire chief and as the paid firehouse maintainer (the worker who does janitorial and handyman work at the firehouse). Prior AG opinions had held that the fire chief and various fire-district employee positions were incompatible. The Hicksville attorney noticed that Town Law § 176-a(1), which describes the chief's supervision over "officers and employees of the fire department," uses "fire department" while other parts of Article 11 use "fire district fire department." He suggested the firehouse maintainer is a fire-district employee but not a fire-department employee, so the chief's supervisory authority might not reach the maintainer.

The AG rejected the textual distinction. The phrase "fire department" in § 176-a(1) covers all the fire companies operating within the fire district. Village Law § 10-1008 defines "fire department" for villages the same way, and a 1931 statute did so for fire districts before its 1932 repeal as part of a recodification. The firehouse maintainer supports the operation of the firehouse, which is the base of operations for the fire department's mission. Under Town Law § 176(10), the board of fire commissioners can "organize, operate, maintain and equip fire companies" to provide fire protection. The maintainer is part of the operational support for those fire companies and therefore is a fire-department employee.

State Comptroller Opinion 63-679 had reached the same conclusion in 1963: fire district employees who maintain firehouses, answer alarms, clean apparatus, and perform custodial duties are "employees of the fire department" within Town Law § 176-a. The AG followed that reading.

Because the chief is responsible for supervising "all officers and employees of the fire department," any fire-district employee whose job supports fire protection falls within the chief's supervisory authority. A supervisor-subordinate relationship is the classic foundation for incompatibility of office; you can't sensibly be your own boss. The same analysis applies to the assistant chief, who performs the chief's duties in the chief's absence under § 176-a(1).

The fire commissioners themselves are the only entity that can hire fire-district employees (§ 176(18-a)). Even the chief's appointment by the commissioners requires their formal action (§ 176-b(2)). So "employees of the fire department" in § 176-a(1) means employees hired by the commissioners; the chief's supervisory authority is over employees the commissioners hire to support fire protection, including the maintainer.

Currency note

This opinion was issued in 2005. 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 "incompatibility of office" in New York?
A: It's a common-law doctrine that prevents one person from holding two offices whose duties conflict. The classic test: would the duties of one position require the holder to make decisions about the other position? When one position supervises another, that's the clearest case of incompatibility.

Q: Why is the firehouse maintainer treated as a fire-department employee?
A: The firehouse is the operational base for fire protection. The maintainer's work (cleaning, repairs, supplies, equipment maintenance) directly supports the fire department's mission. Under Town Law § 176-a(1), the chief supervises "officers and employees of the fire department," and the firehouse is at the center of that mission.

Q: Could a local resolution change this result?
A: The opinion didn't address whether a fire commissioners' resolution could reshape the chief's supervisory scope. The chief's authority comes from § 176-a(1), which is statutory. A resolution that purports to remove certain employees from the chief's supervision would conflict with the statute.

Q: What other positions has the AG found incompatible with fire chief?
A: Op. Att'y Gen. (Inf.) No. 97-4 (firehouse maintainer); Op. Att'y Gen. (Inf.) No. 83-35 (clerk of the works). State Comptroller Opinions Nos. 64-124 (dispatcher-houseman), 59-756 (relief houseman or dispatcher with assistant chief), and 57-653 (cleaner of fire headquarters) reached similar conclusions.

Q: What if the maintainer is a volunteer rather than a paid employee?
A: The opinion didn't address volunteer status. Town Law § 174(7) treats paid and volunteer members of a fire district fire department as employees of the fire district. The supervisory relationship between the chief and the firefighters is well-established. Volunteer dual roles raise their own analysis.

Q: Can a board of fire commissioners hire the chief's spouse or child?
A: That's a separate anti-nepotism or conflict-of-interest analysis. The 2005 opinion (and its companion 2005-08 on county clerk anti-nepotism) addressed county anti-nepotism policies. Fire districts can adopt anti-nepotism rules within their own governance authority.

Background and statutory framework

A fire district is an independent political subdivision (Town Law § 174). It has authority to raise money through taxes (§ 181) and is governed by an elected board of fire commissioners (§§ 175, 176). The board's powers under § 176 include organizing fire companies (§ 176(10)), making rules and regulations governing the fire companies and departments (§ 176(11)), appointing the chief and assistant chiefs from nominations by department members (§ 176(11-a)), employing necessary persons for fire-district purposes (§ 176(18-a)), and contracting for fire service outside the district (§ 176(16)).

The fire chief's authority and duties are in Town Law § 176-a(1). The chief is "in charge of the fire department" subject to the direction of the board of fire commissioners. The chief has "exclusive control of the members of the fire department of the fire district at all fires, inspections, reviews and other occasions when the fire department is on duty or parade," "supervision of the engines, fire trucks, pumpers, hose wagons and other apparatus," and "supervision" of "all officers and employees of the fire department." The chief must enforce board rules and regulations and report property conditions to the board. The chief holds members, officers, and employees of the fire department accountable for neglect of duty and may suspend them for improper conduct.

The "fire department" terminology is consistent. Village Law § 10-1008 defines "fire department" as the members of all of the fire, hose, protective, and hook-and-ladder companies of a village. A 1931 statute (L. 1931, ch. 57, § 1) used the same definition for fire districts; the definition was repealed as part of the 1932 recodification (L. 1932, ch. 634, § 340), but the phrase has retained its meaning. The AG explained that the use of "fire department" in Article 11 "denotes the firefighting capacity of the fire district."

The supervisory framework matters for incompatibility analysis. Op. Att'y Gen. (Inf.) No. 97-4 held that the fire chief and the firehouse maintainer were incompatible, based on the chief's supervisory authority over fire department employees. Op. Att'y Gen. (Inf.) No. 83-35 reached the same conclusion for fire chief and clerk of the works. State Comptroller opinions had also applied the principle.

Op. Att'y Gen. (Inf.) No. 97-49 noted that firefighting operations are fire district activities; this 2005 opinion extends that logic to the support functions performed by the firehouse maintainer.

Citations and references

Statutes:

• Town Law art. 11 (fire district framework)
• Town Law § 170 (formation)
• Town Law § 171 (procedure)
• Town Law § 173 (organization)
• Town Law § 174 (powers and status as political subdivision)
• Town Law § 174(7) (employees of fire district)
• Town Law § 175 (board of fire commissioners)
• Town Law § 176 (powers of board of fire commissioners)
• Town Law § 176(10) (organize and operate fire companies)
• Town Law § 176(11) (rules and regulations)
• Town Law § 176(11-a) (appointment of chief and assistant chiefs from member nominations)
• Town Law § 176(16) (contracts for fire service outside the district)
• Town Law § 176(18-a) (employment of necessary persons)
• Town Law § 176-a (fire chief's authority)
• Town Law § 176-a(1) (chief's supervisory duties)
• Town Law § 176-b (chief's appointment)
• Town Law § 176-b(2) (board approval of member appointments)
• Town Law § 181 (taxation)
• Village Law § 10-1008 (definition of fire department)
• L. 1931, ch. 57, § 1 (former definition of fire department for fire districts)
• L. 1932, ch. 634, § 340 (1932 repeal)

Prior AG opinions:

• Op. Att'y Gen. (Inf.) No. 97-49 (firefighting operations are fire-district activities)
• Op. Att'y Gen. (Inf.) No. 97-4 (fire chief and firehouse maintainer incompatible)
• Op. Att'y Gen. (Inf.) No. 83-35 (fire chief and clerk of the works incompatible)

State Comptroller:

• Op. St. Compt. 63-679 (firehouse maintainers are employees of the fire department)
• Op. St. Compt. 64-124 (fire chief and dispatcher-houseman incompatible)
• Op. St. Compt. 59-756 (assistant fire chief and relief houseman or dispatcher incompatible)
• Op. St. Compt. 57-653 (fire chief and cleaner of fire headquarters incompatible)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2005-20_pw.pdf

Original opinion text

TOWN LAW, ART. 11, §§ 170, 171, 173, 174, 175, 176, 176-a, 176-b, 181; VILLAGE LAW § 10-1008; L. 1931, CH. 57, § 1; L. 1932, CH. 634, § 340.

The positions of fire district assistant fire chief and fire district firehouse maintainer are incompatible.

August 9, 2005

Joseph F. Frank
Fire District Attorney
Hicksville Fire District
5550 Merrick Road
Massapequa, New York 11758

Informal Opinion
No. 2005-20

Dear Mr. Frank:

You have requested an opinion regarding the compatibility of the positions of assistant fire chief and firehouse maintainer. You have explained that the firehouse maintainer is employed by the fire district to perform janitorial and handyman work on the firehouse. You recognize that we have previously opined that a fire chief may not simultaneously serve in various positions of employment with the fire district, including house maintainer. See Op. Att'y Gen. (Inf.) No. 97-4 (fire chief and fire district house maintainer incompatible positions); Op. Att'y Gen. (Inf.) No. 83-35 (fire chief and fire district clerk of the works incompatible positions); see also Opns. St. Comptr. Nos. 64-124 (fire chief and dispatcher-houseman incompatible), 59-756 (assistant fire chief and relief houseman or dispatcher incompatible), and 57-653 (fire chief and cleaner of fire headquarters incompatible). Our conclusions have been based on the supervisory relationship between the fire chief and the employee. Id. Implicit in our conclusions has been the understanding that the employee is an "employee of the fire department" subject to the chief's supervision by virtue of Town Law § 176-a(1). You have noted, however, that the statute regarding the fire chief's responsibilities refers only to the "officers and employees of the fire department," Town Law § 176-a(1), while elsewhere in Article 11, the statutes refer to "fire district fire departments." You have suggested that the different phrases have different meanings, and that the firehouse maintainer, while an employee of the fire district, is not also an employee of the fire department, and thus is not supervised by the fire chief. As explained below, we conclude that the firehouse maintainer is an employee of the fire department, and thus we continue to be of the opinion that the positions of fire chief and firehouse maintainer are incompatible. Because, as you recognize, the assistant fire chief performs the duties and exercises the powers of the fire chief in the fire chief's absence, see Town Law § 176-a(1), our conclusion regarding the incompatibility of these positions applies to an assistant fire chief as well.

I. Statutory Framework

Once established under a procedure outlined in Town Law Article 11 (see id. §§ 170, 171, 173), a fire district constitutes an independent political subdivision with the authority to raise money by the levying of taxes. Id. §§ 174(7), 181. The fire district is governed by a board of fire commissioners who are elected by the eligible voters within the fire district. Id. §§ 175, 176. The powers of the board of fire commissioners include appointing a fire chief and assistant fire chiefs nominated by the members of the fire district's fire department, id. § 176(11-a), and employing such persons as are necessary to effectuate the objects and purposes of the fire district, id. § 176(18-a). The board of fire commissioners is also authorized to adopt rules and regulations governing all fire companies and fire departments within the fire district. Id. § 176(11).

The fire chief, subject to the direction of the board of fire commissioners, is in charge of the fire department. He or she has exclusive control of the members of the fire department of the fire district at all fires, inspections, reviews and other occasions when the fire department is on duty or parade. Town Law § 176-a(1). He or she also is charged with the supervision of the engines, fire trucks, pumpers, hose wagons and other apparatus and of the equipment and other property used for the prevention or extinguishment of fire. Id. He or she is responsible for supervising all officers and employees of the fire department, and must see that the rules and regulations of the board of fire commissioners are observed and that the orders of the board of fire commissioners are duly executed. Id. He or she must, whenever required by the board of fire commissioners, report to the board the condition of the property of the fire district. Id. He or she is to 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.

II. Analysis

As explained below, we believe that an individual employed by the fire district who is assigned duties relating to the support of fire protection services is an "employee of the fire department" within the meaning of Town Law § 176-a(1). See Op. St. Comptr. 63-679 (fire district employees who maintain fire district firehouses, answer emergency alarms, clean fire apparatus, and perform general custodial duties are "employees of the fire department" as used in Town Law § 176-a). You expressed the view that the phrase "fire department," as used regarding the fire chief's supervision of officers and employees, is distinguishable from the phrase "fire district fire department," used elsewhere in Article 11. We note, however, that Town Law § 176-a(1), outlining the responsibilities of the fire chief, gives him or her "exclusive control of the members of the fire department of the fire district" when on duty as well as "supervision of . . . . all officers and employees" of the same "fire department." Town Law § 176-a(1) (emphasis added). We therefore believe that the phrase "fire department," as used in section 176-a(1), is synonymous with the phrase "fire district fire department."

The board of fire commissioners is authorized to "organize, operate, maintain and equip fire companies" to provide fire protection service within the fire district. Town Law § 176(10). "Fire department" is the statutory term used to describe all of the fire companies operating within the fire district. See Village Law § 10-1008 ("fire department" refers to the members of all of the fire, hose, protective, and hook and ladder companies of a village); Act of March 9, 1931, ch. 57, § 1, 1931 N.Y. Laws 373, 374 (same for fire districts) (repealed by Act of April 8, 1932, ch. 634, § 340, 1932 N.Y. Laws 1355, 1474). The fire department thus is the mechanism by which a fire district provides fire protection service, cf. Op. Att'y Gen. (Inf.) No. 97-49 (firefighting operations are fire district activities), and the use of the phrase "fire department" in Article 11 denotes the firefighting capacity of the fire district. See, e.g., Town Law § 176-a(1) (the fire chief has, under the direction of the board of fire commissioners, "exclusive control of the members of the fire department of the fire district at all fires, inspections, reviews and other occasions when the fire department is on duty or parade"); id. § 176(16) (the board of fire commissioners may contract to have the fire department or fire company of the fire district provide fire service to territory outside the fire district); id. § 176(11-a) (the members of the fire department of the fire district meet at a time and place designated by the board of fire commissioners to nominate persons for the offices of chief and assistant chiefs, those individuals in command at the scene of a fire).

We conclude that an employee of the fire district whose duties include maintenance of the firehouse is an employee of the fire department subject to the supervision of the fire chief. We note that under Town Law Article 11 the fire department is unable to hire employees. Only the board of fire commissioners is granted the power to hire. See Town Law § 176(18-a). Indeed, even the appointment of members of the fire department, who are clearly under the supervision of the fire chief, id. § 176-a(1), requires approval by the board of fire commissioners. Id. § 176-b(2); cf. id. § 174(7) (paid and volunteer members of a fire district fire department are employees of the fire district). Therefore, the phrase "employees of the fire department" in section 176-a(1) necessarily implies employment by the board of fire commissioners, the governing body of the fire district. We reach this result in view of the statutory responsibilities of the fire chief. The fire chief is responsible for supervising the property used for the prevention or extinguishment of fire and must report to the board of fire commissioners on the condition of the property of the fire district. The ability of the fire chief to perform his or her statutory duties would be undermined if the supervision of an individual hired to maintain the firehouse, the base of operation for the provision of fire protection service, did not reside in the fire chief (subject to the direction of the board of fire commissioners). We thus continue to be of the opinion that a fire chief, or assistant fire chief, may not simultaneously be employed as firehouse maintainer.

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,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions