In a New York fire district that has both paid and volunteer firefighters, can the paid firefighters vote at the annual meeting to nominate the volunteer fire chief and assistant chiefs?

Plain-English summary

The Arlington Fire District in Dutchess County had both paid and volunteer firefighters. Its board of commissioners had not adopted a resolution to employ a paid fire chief, so the chief and assistant chief positions were volunteer positions. Town Law § 176(11-a) provides that "the members of the fire department of the fire district shall meet" at an annual meeting to nominate persons for those positions. Some commissioners thought only volunteer firefighters could vote at the meeting; others thought paid firefighters were also "members of the fire department" and eligible to vote. The district's attorney asked the AG.

The AG concluded that paid firefighters are members of the fire department under Town Law § 176(11-a) and are eligible to vote on chief nominations. The conclusion rested on several strands.

First, the text of article 11 of the Town Law uses "members of the fire department" in ways that necessarily include paid firefighters. The clearest example is § 176-a(1), which gives the chief "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." If "members" excluded paid firefighters, the chief would have no statutory authority to direct paid firefighters at a fire, which the AG called an absurd result.

Second, the Legislature has expressly classified paid firefighters as members. Town Law § 174(7) says "[t]he officers and employees of a fire district, including the paid and volunteer members of the fire department thereof, are officers and employees of such fire district." That language treats "paid members of the fire department" as a recognized category. The AG rejected the argument that "members" and "employees" are mutually exclusive: a paid firefighter is both an employee and a member.

Third, other Town Law provisions in article 11 use "members" in contexts where paid firefighters are obviously included: rules and regulations governing the duties of "members" (§ 176(11)), insurance covering "members of the fire department" against on-duty injuries (§ 176(19)), and use of equipment at the funeral of a deceased "member" of a fire company or department (§ 176(33)).

Fourth, General Municipal Law § 207-a defines a "paid fireman" eligible for line-of-duty disability benefits as "any paid officer or member of an organized fire company or fire department of a . . . fire district." And § 209-l, which addresses removal of "volunteer officers and volunteer members" of fire district departments, only makes sense if the underlying department can have paid members as well.

Fifth, case law backs the same reading in the analogous fire-insurance premium-tax setting. In Renn v. Kimbark, 51 N.Y.2d 189 (1980), the Court of Appeals held that paid firefighters are "active members" of the fire department for purposes of sharing the foreign-fire-insurance premium tax distributed under Insurance Law §§ 9104 and 9105, absent a specific legislative carve-out. The Fourth Department's 2006 Hahn v. Garrett decision applied that rule to a fire district with both paid and volunteer firefighters.

Finally, the AG noted a practical point: on the fire ground, paid firefighters work under the direction of the volunteer chief and assistant chiefs they are voting to nominate. Letting them vote on that leadership is consistent with the operational reality and the statutory chain of command.

Currency note

This opinion was issued in 2006. 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

Are paid firefighters "employees" or "members" of the department?
The AG's view in 2006 was that the labels are not mutually exclusive. A paid firefighter is an employee for employment-law purposes and a member for purposes of article 11's references to "members of the fire department."

Does this apply to fire companies inside a fire district?
The opinion is specifically about Town Law § 176(11-a), which addresses the nomination meeting for chief and assistant chiefs of the fire department of a fire district. The same membership reasoning would inform interpretation of other "members of the fire department" references in article 11, but each statute should be read in its own context.

What if the district had a paid fire chief?
Town Law § 176(11-c) lets a district resolve, after public hearing, to employ paid fire officers including a paid fire chief. If the district had done that, the chief position would not have been a volunteer position and the § 176(11-a) nomination process would not have applied in the same way. The Arlington Fire District had not adopted that resolution.

Can the board of commissioners limit voting by its own rule?
The opinion does not address that question directly. It does, however, ground "member of the fire department" in the statute, not in internal rules, so a board rule that purported to exclude paid firefighters from § 176(11-a) voting would have to be tested against the statutory definition the AG identifies.

Does this affect collective bargaining for paid firefighters?
No. The opinion is about voting at the annual nomination meeting under Town Law § 176(11-a). It does not address Taylor Law representation, contracts, or wages.

Background and statutory framework

A New York fire district is a special-purpose local government created under Town Law article 11. The governing board is the board of fire commissioners. The district may use volunteer firefighters, paid firefighters, or both. Under § 176(11-c), the board can employ paid firefighters and paid officers after a public hearing; without such a resolution, fire chief and assistant chief positions remain volunteer roles.

Section 176(11-a) governs the nomination of volunteer chiefs. The "members of the fire department of the fire district" meet at a time and place designated by the board to nominate persons for those offices. The board then either appoints the nominee or, if it disapproves, calls another meeting for a new nomination.

The Insurance Law § 9104/§ 9105 system collects taxes on premiums charged by foreign fire insurance companies and distributes the proceeds to the fire department providing protection at the location of the insured risk. Renn v. Kimbark held that, absent an express statutory carve-out, paid firefighters share that money along with volunteers, because both are "active members" of the department.

The 2006 AG opinion knits these statutes together. The same word, "members," appears throughout article 11; the Legislature treats paid firefighters as members in § 174(7); General Municipal Law § 207-a confirms the same; and the Court of Appeals' treatment of "members" for insurance-premium purposes points the same way. Reading § 176(11-a) to exclude paid firefighters would put it out of step with the rest of the statutory framework.

Citations

• Town Law Article 11; § 174(7) (paid and volunteer members are officers and employees of the fire district); § 176-a(1) (chief's exclusive control of members on duty); § 176(11) (rules governing duties of members); § 176(11-a) (annual nomination meeting); § 176(11-c) (resolution to employ paid firefighters and officers); § 176(18), (18-a) (employment and compensation of paid firefighters); § 176(19) (member injury insurance); § 176(33) (use of equipment at member funerals).
• General Municipal Law § 207-a (line-of-duty disability for paid firemen, defined to include "paid officer or member"); § 209-b(1) (emergency rescue and first-aid squads composed of "firemen who are members" of departments); § 209-l (removal of volunteer officers and members, implying departments can have paid members too).
• Insurance Law §§ 9104, 9105 (foreign-fire-insurance premium tax distribution to fire department).
• Renn v. Kimbark, 51 N.Y.2d 189 (1980) (paid firefighters share insurance-premium tax proceeds with volunteers absent express carve-out).
• Hahn v. Garrett, 27 A.D.3d 1103 (4th Dep't 2006) (applying Renn to fire district with paid and volunteer firefighters).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2006-10_pw.pdf

Original opinion text

General Municipal Law §§ 207-a, 209-b(1), 209-l; Town Law Article 11, §§174(7), 176-a, 176(11), 176(18), 176(19), 176(33); Insurance Law §§ 9104, 9105

Paid firefighters are members of the fire district fire department eligible to cast ballots at the annual meeting to nominate a volunteer fire chief.

October 10, 2006

Gerard J. Comatos, Jr.
Attorney
Arlington Fire District
Van DeWater and Van DeWater, LLP
40 Garden Street
P.O. Box 112
Poughkeepsie, New York 12602

Informal Opinion No. 2006-10

Dear Mr. Comatos:

You have requested an opinion regarding whether paid firefighters and emergency service personnel employed by the Arlington Fire District are "members of the fire department" of the Fire District eligible to cast ballots at the annual meeting to nominate a chief and assistant chiefs of the fire department.

You have explained that fire and emergency services are provided through the fire department by both paid and volunteer personnel. The board of fire commissioners has not passed a resolution, subject to public hearing, to employ a paid fire chief, see Town Law § 176(11-c), and thus the positions of fire chief and assistant chief are volunteer positions.

Section 176(11-a) of the Town Law provides that:

[t]he members of the fire department of the fire district shall meet at a time and place designated by the board of fire commissioners . . . and nominate persons for the offices of chief and such assistant chiefs as may be provided for in the rules and regulations adopted by the board of fire commissioners. . . . The board of fire commissioners at its meeting next succeeding the making of such nominations shall consider the same and shall appoint such persons to the offices to which they have been respectively nominated or, if a nomination is not approved the board of fire commissioners shall call another meeting of the members of the fire department at which a new nomination shall be made to take the place of any nomination not approved . . . .

You have indicated that the fire commissioners disagree as to whether the "members of the fire department" include the paid firefighters, with some fire commissioners believing that only the volunteer firefighters are eligible to cast ballots to nominate a volunteer chief and assistant chiefs.

As explained more fully below, we believe that the paid firefighters of the fire department are "members of the fire department" of the fire district under Town Law § 176(11-a) and thus are eligible to cast ballots to nominate a volunteer chief and assistant chiefs.

First, as used in article 11 of the Town Law, which governs fire districts, the phrase "members of the fire department" appears to include both paid and volunteer firefighters. Most significantly, Town Law § 176-a provides that "[t]he chief shall, under the direction of the board of fire commissioners, have 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) (emphasis added). When the fire department is on duty, the board of commissioners may not interfere with the duties of the fire chief or assistant chiefs. Id. The use of "member" in this context must include paid as well as volunteer firefighters; otherwise, the fire chief's ability to direct firefighting operations would be limited and paid firefighters would be subject to no direction.

Moreover, the Legislature has indicated that paid firefighters can be "members" of a fire department. See Town Law § 174(7) ("The officers and employees of a fire district, including the paid and volunteer members of the fire department thereof, are officers and employees of such fire district"). While it has been suggested that paid firefighters are not "members" of the fire department but instead are "employees" of the fire department, we think that the terms "members" and "employees" in article 11 are not mutually exclusive. Rather, a person may simultaneously be both a "member" of a fire department and an "employee" of the fire department. See id. (including paid and volunteer "members" of the fire department in "officers and employees").

Other uses of the word "member" in relation to the members of the fire department in article 11 can include paid firefighters. See, e.g., Town Law § 176(11) (the board of fire commissioners may "adopt rules and regulations governing all fire companies and fire departments in said district and prescribing the duties of the members thereof"); id. § 176(19) (the board of fire commissioners may "insure the members of the fire department of the district against injury or death in the performance of their duties"); id. § 176(33) (the board of fire commissioners may "authorize the use of fire equipment and apparatus belonging to the fire district for the purpose of participation in the funeral of a deceased member or former member of a fire department or fire company within the district").

Including paid firefighters as "members" of a fire district fire department is also consistent with provisions of the General Municipal Law governing firefighters. For example, section 207-a of the General Municipal Law, providing certain benefits to paid firemen injured while performing their duties defines "paid fireman" as "any paid officer or member of an organized fire company or fire department of a . . . fire district." General Municipal Law § 207-a(1) (emphasis added). Section 209-l provides for the removal of "volunteer officers and volunteer members" of fire district fire departments, suggesting that the fire department can have paid members as well.

Considering paid firefighters to be "members of the fire department" is also consistent with relevant case law. In the context of disbursing fire insurance premium tax funds "to the treasurer or other fiscal officer of the fire department affording fire protection in . . . [the] fire district" to be used for the benefit of "the fire department," Insurance Law § 9105; see also id. § 9104, the Court of Appeals has explained that the predecessors to these insurance statutes

had their origins at a time when fire protection was provided solely by volunteer groups. Funds were generated from taxes collected from insurance companies in order to aid injured and disabled firemen and their families. . . . With the advent of the full-time paid fireman, however, these statutes have been construed to apply to volunteer and paid firemen alike. This is understandable when one considers the clear language of sections [9104 and 9105] of the Insurance Law which creates no preference in favor of volunteer firemen as recipients of these moneys.

Renn v. Kimbark, 51 N.Y.2d 189, 193-94 (1980). The Court further explained that "in the absence of an express legislative enactment precluding the paid firemen of a particular city from sharing the insurance premium tax, all firemen in the locality," as "active members" of the fire department, "were entitled to share ratably in the funds collected pursuant to the Insurance Law." Id. at 194-95; see also Hahn v. Garrett, 27 A.D.3d 1103 (4th Dep't 2006) (paid firefighters in a fire district fire department composed of paid and volunteer firefighters were entitled to a share of fire insurance premium tax funds).

Finally, the conclusion that the paid firefighters are "members of the fire department" who may vote to nominate their candidates for volunteer fire chief and assistant chiefs is sensible in light of the fact that paid firefighters, like volunteer firefighters, will be subject to the control of the fire chief and, in his absence, the assistant chiefs.

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