Does Syracuse's city charter requirement that city employees live in Syracuse apply to its paid firefighters, or do firefighters get a broader residency rule?

Plain-English summary

Syracuse's city charter required city employees to live in Syracuse. The Corporation Counsel asked the AG whether that requirement applied to the city's paid firefighters, or whether Public Officers Law § 3(9), which provides a broader multi-county residency option for paid firefighters in cities of over one million population, applied to Syracuse.

The AG concluded that § 3(9) does not apply to Syracuse and that § 3(4) does. Under § 3(4), the city's charter residency requirement is satisfied for paid firefighters by residency anywhere in Onondaga County.

The structure of Public Officers Law § 3 has three relevant pieces. Subsection (1) is the general rule: a person holding a "local office" must reside in the political subdivision or municipal corporation. Subsection (4) excepts paid firefighters from being treated as holding a "local office" for purposes of section 3, and at the same time relaxes any residency requirement imposed by any general, special, or local law, charter, code, ordinance, or rule, allowing the firefighter to satisfy the requirement by residing in the county (or one of the counties) in which the municipality is located. Subsection (9) provides a still-broader residency rule: in addition to the same county, the firefighter can live in a contiguous county, a county contiguous to the city, or a county within 15 miles. The question was whether (9) applied to all paid firefighters or only to those in cities of over one million population.

The text is ambiguous because of the way (9) was amended over time. Originally enacted in 1962, the subsection plainly applied to paid firefighters of "any city of over one million population." That covered only New York City. The 1962 act was passed in coordination with the New York City mayor's office to ease NYC firefighter residency. Subsequent 1963 and 1965 amendments added correction-department employees and certain health-department officers and inspectors to the same broader rule. Those amendments rearranged the structure of the subsection and put the "over one million population" qualifier in a position that, on a literal reading, looked like it might apply only to the health-department employees added last.

The AG traced the bill jackets to confirm legislative intent. The State Department of Civil Service had specifically flagged the ambiguity in 1963 and described the legislative intent as broader rule application to the same set of cities. The 1965 Budget Report on Bill described the amendment as expanding "the type of officers and employees to whom the New York City rule applied," not as altering the existing applicability. The AG also cited the contemporaneous 1965 budget report on a different bill, which described § 3(9) as "govern[ing] residence requirements at the time of appointment . . . for New York City firemen." Read together, the legislative history shows the "over one million population" qualifier was meant to apply to all groups covered by § 3(9).

The conclusion: Syracuse is not a city of over a million people, so § 3(9) does not reach Syracuse firefighters. Section 3(4) applies. Syracuse firefighters can live anywhere in Onondaga County and still satisfy the city's charter residency rule. The AG's earlier opinions (97-6 and 1975-241) had read the statutes the same way.

Currency note

This opinion was issued in 2007. 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 do NYC firefighters get a broader rule than Syracuse firefighters?
The 1962 amendment was a NYC-specific accommodation. The geographic reach of NYC made strict city residency particularly burdensome, and the Legislature carved out a broader rule. Other cities live with § 3(4)'s county-wide rule.

Does § 3(4) override a city charter that says firefighters must live in the city?
Yes. The statute by its terms says "[t]he provisions of any general, special or local law, city or village charter, code or ordinance, or any rule or regulation" requiring residency within the city "shall not apply to the appointment or continuance in office of any such person so employed, if such person resides in the county . . . in which such political subdivision or municipal corporation is located."

Can a firefighter live in a different county and commute?
Under § 3(4) alone, no, unless the county is one of two or more counties the municipality straddles. The county-wide rule binds. Under § 3(9), which applies to NYC, yes, with the contiguous-county and 15-mile alternatives.

What about volunteer firefighters?
Section 3(4) is specific to "persons employed in the paid fire department." Volunteer firefighters are usually governed by the rules of the fire company or fire district they serve, not by § 3.

Does the same rule apply to police officers?
Police officers have their own residency framework in Public Officers Law § 3, with carve-outs in other provisions. The 2007 opinion does not analyze police residency.

Background and statutory framework

Public Officers Law § 3 has long been the basic statute for residency qualifications of New York public officers and employees. Subsection (1) sets the default: a person holding a "local office" must reside in the political subdivision or municipal corporation. The statute is full of carve-outs to that default for various job categories.

Subsection (4) is the firefighter carve-out. It does two things: (a) declares that paid firefighters are not "holding a civil office or local office" within the meaning of § 3, so § 3(1) does not apply to them by its own terms; and (b) provides that the city's own residency requirements (in charter, code, ordinance, or rule) are satisfied for paid firefighters by residency in the county or counties where the city sits.

Subsection (9) is the NYC carve-out for paid firefighters, correction-service employees, and certain health-department officers and inspectors. It allows residency in (a) the city's county, (b) a contiguous county, (c) a county contiguous to the city, or (d) a county within 15 miles of the city. The 1962 enactment (Chapter 976) created this; the 1963 amendment (Chapter 375) added correction officers; the 1965 amendment (Chapter 865) added health-department officers and inspectors.

The 2007 opinion is a textbook statutory-construction problem: a literal reading of the post-1965 § 3(9) makes the "over one million population" qualifier look like it only modifies the health-department piece. The AG goes to the bill-jacket materials and confirms that, despite the awkward grammar, the qualifier applies to all three groups. The Civil Service Department spotted the ambiguity in 1963 and the budget reports for the 1965 amendments explicitly described the rule as remaining NYC-specific.

Citations

• Public Officers Law § 3 (residency qualifications); § 3(1) (general residency rule); § 3(4) (paid-firefighter county-wide rule); § 3(9) (NYC paid firefighter, correction, and health department officer multi-county rule).
• L. 1962, ch. 976, § 1 (original NYC firefighter residency carve-out).
• L. 1963, ch. 375, § 1 (added correction officers).
• L. 1965, ch. 865, § 1 (added health-department officers and inspectors).
• Letter from Robert F. Wagner, Mayor, New York City, to Governor Rockefeller (April 25, 1962), Bill Jacket for ch. 976 (1962).
• Letter from Charles W. Potter, Local Government Advisory Board, to Robert MacCrate (April 18, 1962), Bill Jacket for ch. 976 (1962).
• Memorandum from H. Eliot Kaplan, State Department of Civil Service (April 4, 1963), Bill Jacket for ch. 375 (1963) (flagging textual ambiguity).
• Memorandum from State Senator Thomas J. Mackell (April 2, 1963), Bill Jacket for ch. 375 (1963).
• Budget Reports on Bill (July 8 and 9, 1965), Bill Jackets for chs. 865 and 985 (1965).
• Op. Att'y Gen. (Inf.) No. 97-6 (consistent prior reading); 1975 Op. Att'y Gen. (Inf.) 241 (same).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2007-10_pw.pdf

Original opinion text

Public Officers Law §§ 3, 3(1), 3(4), 3(9); Session Laws 1962 Chapter 976 § 1, 1963 Chapter 375 § 1, 1965 Chapter 865 § 1

Public Officers Law § 3(9) does not pertain to the paid members of the uniformed force of the paid fire department of the City of Syracuse. They are therefore governed by Public Officers Law § 3(4). Because the charter of the City of Syracuse requires that city employees live within the city, pursuant to Public Officers Law § 3(4), persons employed in the city's paid fire department must reside within Onondaga County.

December 20, 2007

Rory A. McMahon
Corporation Counsel
City of Syracuse
300 City Hall
Syracuse, New York 13202

Informal Opinion No. 2007-10

Dear Mr. McMahon:

You have requested an opinion as to whether the provisions of Public Officers Law § 3(9), relating to residency requirements, apply to paid firefighters in the city of Syracuse ("the City"). The overarching question you have asked is whether the City's paid firefighters must reside within Onondaga County. As explained below, we are of the opinion that Public Officers Law § 3(9) does not apply to the City's paid firefighters, and that they must reside within Onondaga County.

I. Background

Public Officers Law § 3 sets forth qualifications for holding public office. It provides, in relevant part, that no person is capable of holding a local office unless he or she is "a resident of the political subdivision or municipal corporation of the state for which he shall be chosen . . . or within which his official functions are required to be exercised." Public Officers Law § 3(1). It also establishes numerous exceptions to this general rule. With respect to firefighters, it provides that

[e]xcept as otherwise provided in subdivision nine of this section, persons heretofore or hereafter employed in the paid fire department of a city, town, village or fire district shall not be deemed to be holding a civil office or a local office within the meaning of this section and the provisions of this section shall not apply to such persons. The provisions of any general, special or local law, city or village charter, code or ordinance, or any rule or regulation requiring a person to be a resident of the political subdivision or municipal corporation of the state for which he shall be chosen or within which his official functions are required to be exercised shall not apply to the appointment or continuance in office of any such person so employed, if such person resides in the county, or one of the counties, in which such political subdivision or municipal corporation is located.

Public Officers Law § 3(4). You have explained that the City's charter requires that city employees live within the City.

Under the plain language of subdivision 4 of section 3, persons employed in the paid fire department of the City are not subject to the residency requirement of section 3 because they are not holding a local office within the meaning of that section. Moreover, under the authority of this provision, if an employee of the paid fire department of the City is required by any law, including the city charter, to reside within the City, that requirement is deemed satisfied if the employee lives in Onondaga County, the county in which the City is located.

Subdivision four is qualified by subdivision nine of section three, expressly exempting certain public employees from state and local residency requirements. Subdivision nine provides that

[n]either the provisions of this section, nor of any general, special or local law, charter, code, ordinance, resolution, rule or regulation, requiring a person to be a resident of the political subdivision or municipal corporation of the state for which he or she shall be chosen or within which his or her official functions are required to be exercised, shall apply to the appointment of a paid member of the uniformed force of a paid fire department, who, for purposes of this section shall include persons employed as fire alarm dispatchers, or to the appointment of any person employed in a department of correction in the correction service classification of the classified civil service, or to the appointment of officers and inspectors who are employees of a department of health of any city of over one million population who resides (a) in the county in which such city is located; or (b) in a county within the state contiguous to the county in which said city is located; or (c) in a county within the state contiguous to such city; or (d) in a county within the state which is not more than fifteen miles from said city.

Public Officers Law § 3(9) (emphasis added).

The question thus is whether the language in the exemption underlined above, relating to cities "of over one million population," qualifies all three groups covered by the exemption, namely certain members of a paid fire department, certain employees of a department of correction, and certain employees of a department of health, or whether it qualifies only certain employees of a department of health. As explained below, we conclude that the underlined language applies to all three groups of persons, and thus, because Syracuse is not a city of over one million population, that subdivision nine does not apply to Syracuse firefighters.

II. Analysis

The history of subdivision nine demonstrates that the exemption provided by the subdivision as a whole, and not merely the part pertaining to health department employees, was intended to apply to New York City (a "city of over one million in population"). As first enacted, the statute unambiguously provided that

[n]either the provisions of this section, nor of any general, special or local law, charter, code, ordinance, resolution, rule or regulation, requiring a person to be a resident of the political subdivision or municipal corporation of the state for which he shall be chosen or within which his official functions are required to be exercised, shall apply to the appointment of a paid member of the uniformed force of a paid fire department of any city of over one million population who resides (a) in the county in which said city is located; or (b) in a county within the state contiguous to the county in which said city is located; or (c) in a county within the state contiguous to such city; or (d) in a county within the state which is not more than fifteen miles from said city.

Act of April 30, 1962, ch. 976, § 1, 1962 N.Y. Laws 3847, 3847-48. It was understood at the time to pertain to the members of the uniformed force of the New York City Fire Department, and indeed was enacted with the approval of New York City. See, e.g., Letter from Robert F. Wagner, mayor, New York City, to Nelson A. Rockefeller, Governor (April 25, 1962), reprinted in Bill Jacket for ch. 976 (1962), at 5-6; Letter from Charles W. Potter, assistant counsel, Local Government Advisory Board, to Robert MacCrate, counsel to the Governor (April 18, 1962), reprinted in Bill Jacket for ch. 976 (1962), at 9-11.

Subsequent amendments to subdivision nine related to the residency requirements that applied to the appointment of "any person employed in a department of correction in the correction service classification of the classified civil service," Act of April 16, 1963, ch. 375, § 1, 1963 N.Y. Laws 1749, 1749, and "officers and inspectors who are employees of a department of health," Act of July 16, 1965, ch. 865, § 1, 1965 N.Y. Laws 2064, 2065. Although it was recognized that "[t]he interposition of the new matter added" by the amendments "between the reference to paid fire department members and the reference to a city of over one million population, coupled with the repetition in the new matter of 'to the appointment of' . . . might suggest that as thus amended these provisions would apply to all paid fire department members and not be limited to only those in a city of over one million population," Memorandum from H. Eliot Kaplan, president, State Department of Civil Service (April 4, 1963), reprinted in Bill Jacket for ch. 375 (1963), at 4, these amendments implemented an intent only to expand the type of officers and employees to whom the New York City rule applied, not to alter the earlier applicability of the rule to New York City's paid firefighters. See Memorandum from Thomas J. Mackell, State Senator, to Nelson A. Rockefeller, Governor (April 2, 1963), reprinted in Bill Jacket for ch. 375 (1963), at 1-2; Budget Report on Bill (July 9, 1965), reprinted in Bill Jacket for ch. 865 (1965), at 5; see also Budget Report on Bill (July 8, 1965), reprinted in Bill Jacket for ch. 985 (1965), at 47 ("This bill [amending subdivision four to its current form] exempts all employees of 'paid fire departments' outside New York City from local residency requirements for appointment . . . [to] office as long as the fireman lives in a county in which the political subdivision is located. . . . Although not affected by this bill, [a] separate subdivision ([§ 3(9)]) govern[s] residence requirements at the time of appointment . . . for New York City firemen.").

Based upon this history, we conclude that subdivision nine of Public Officers Law § 3 does not pertain to the paid members of the uniformed force of the City's paid fire department, and that they are therefore governed by subdivision four. This is consistent with earlier interpretations of subdivisions four and nine by this Office, as reflected in previous opinions. See Op. Att'y Gen. (Inf.) No. 97-6 (in which we stated, "Under section 3(4), persons employed in a paid fire department of a city (regarding a city of over one million in population see, section 3[9]), town, village or fire district are deemed not to hold a civil or local office within the meaning of section 3 and the provisions of that section do not apply to these persons." 1997 Op. Att'y Gen. (Inf.) 1014, 1015); 1975 Op. Att'y Gen. (Inf.) 241 (in which we explained that "[s]ubdivision 9 of section 3 . . . [was] enacted by Chapter 976 of the Laws of 1962 and relate[s] only to residency requirements for firemen in the fire department of the City of New York and contain[s] geographical provisions broader than those which apply to paid fire department personnel throughout the rest of the State. Subsequent amendments have added to the types of employment contemplated in Public Officers Law [§ 3(9)], but its applicability has continued to be restricted to New York City." 1975 Op. Att'y Gen. (Inf.) 241, 244). Because the City's charter requires that city employees live within the City, we further conclude that, pursuant to Public Officers Law § 3(4), persons employed in the City's paid fire department must reside within Onondaga County.

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