If three of five seats on a New York fire-commissioner board become vacant at once, can the two remaining commissioners fill those vacancies by appointment, or do they fall below quorum?

Plain-English summary

In February 2008 the Big Flats Fire District in Chemung County lost three of its five fire commissioners almost overnight: two resigned at a meeting on February 14, and a third (not present) died the next day. The two remaining commissioners, who had no district attorney to consult, wrote to the AG asking how to fill the three vacancies and how to act without first naming counsel.

The AG concluded that the two sitting commissioners can fill all three vacancies by appointment. The reasoning works through two competing statutes:

Town Law § 176(3): the special rule. This subsection says that "[w]henever a vacancy shall occur in any fire district office, the board of fire commissioners of such district, or a majority of the members thereof in office, may appoint a qualified person to fill the vacancy." The phrase "majority of the members thereof in office" applies regardless of how many seats are vacant. Two of two members in office is a majority of two.

General Construction Law § 41: the general rule. This statute sets a default quorum: a majority of the "whole number" of authorized positions, computed as if there were no vacancies and no disqualifications. Under § 41, two members of a five-seat board fall short of three and could not act.

The conflict and how the AG resolved it. A 1964 State Comptroller opinion read § 41 to block the two-member board. The AG disagreed and pointed to General Construction Law § 110, which says the General Construction Law yields when "the general object, or the context of the language construed," shows the Legislature meant something different. Roosevelt Islanders for Responsible Southtown Dev. v. Roosevelt Island Operating Corp., 291 A.D.2d 40 (1st Dep't 2001), applied that override to an analogous statute that let "the directors then in office" act by majority. The First Department read "then in office" as a clear legislative override of § 41. Town Law § 176(3)'s "majority of the members thereof in office" reads the same way. So the two commissioners constitute a legal quorum for vacancy-filling.

A practical sequencing tip. The AG recommended that the two commissioners not appoint all three replacements in one stroke. Instead, appoint one, let that person qualify, then the three of them appoint the fourth, and so on. That broadens the pool of officers participating in each successive selection.

Status of the appointees. Town Law § 176(3) makes these interim appointments. An election to fill the remainder of the unexpired terms has to be held at the next annual fire district election. The appointees serve until December 31 after that election; the elected replacements take over January 1.

The AG also addressed why it answered at all: it normally issues informal opinions only to the local government's attorney, but the district had no attorney, and naming one was the very authority in question.

Currency note

This opinion was issued in 2008. 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

What if only one commissioner is left?
The opinion does not directly address a one-member-remaining board. Town Law § 176(3) requires "a majority of the members thereof in office." One member of one in office is arguably a majority, but the AG's analysis hinges on a plural-members reading. A district reduced to a single commissioner should seek further guidance rather than assume the same power.

Can the two commissioners appoint a related-party or political ally?
The opinion does not impose any qualification beyond Town Law § 176(3)'s "qualified person." It does recommend the staggered-appointment approach to broaden participation, but the legal floor is whatever Town Law treats as qualification for fire commissioner.

What about quorum for other board business while seats are vacant?
The opinion's holding is specific to vacancy filling under § 176(3). Other board acts (issuing contracts, calling elections, approving spending) are still subject to the General Construction Law § 41 default quorum analysis, which the AG did not displace for non-vacancy decisions. The board should fill seats first and then act on substantive business.

Why didn't the 1964 Comptroller opinion control?
Comptroller opinions are persuasive but not binding on the AG. The First Department's 2001 Roosevelt Islanders decision postdates the Comptroller opinion and supplies an explicit statutory-override rationale that the Comptroller had not considered. The AG followed the Appellate Division, not the older Comptroller view.

Do interim appointees have the full vote and authority of elected commissioners?
Yes, for the period of their interim service. Once the election fills the remainder of the unexpired term, the elected commissioners take over.

Background and statutory framework

Fire districts in New York are governed by Town Law Article 11. Section 174(2) makes the office of fire district commissioner an elective office. Section 176 sets the powers and duties of the board, and § 176(3) is the vacancy-filling provision.

General quorum rule. General Construction Law § 41 sets the default rule that public bodies of three or more members act by majority of the whole authorized number, ignoring vacancies. The "whole number" device exists to prevent a body from operating with a depleted membership.

Override mechanism. General Construction Law § 110 lets specific statutes displace the GCL's defaults. The Roosevelt Islanders case applied this override to Roosevelt Island Operating Corporation's statute allowing action by "majority of the directors then in office." That decision is the AG's anchor for the same reading of "majority of the members thereof in office" in Town Law § 176(3).

State Comptroller's 1964 opinion. Op. St. Comptr. No. 64-788 had read § 41 as a hard quorum rule even where the subordinate statute used "in office" language. The AG rejected that reading as inconsistent with the GCL § 110 override and the 2001 First Department analysis.

Citations

• Town Law Article 11 (fire districts).
• Town Law § 174(2) (fire commissioner is elective office).
• Town Law § 176, § 176(2), § 176(3) (board powers and duties; vacancy-filling by majority of members in office; interim service until next annual election).
• General Construction Law § 41 (default quorum: majority of whole authorized number).
• General Construction Law § 110 (override where statute's object or context indicates a different rule).
• Roosevelt Islanders for Responsible Southtown Dev. v. Roosevelt Island Operating Corp., 291 A.D.2d 40, 49-50 (1st Dep't 2001) ("directors then in office" displaces § 41 quorum).
• 1964 Op. St. Comptr. No. 788 (contrary view; not followed).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2008-1_pw.pdf

Original opinion text

TOWN LAW §§ 176, 176(2), 176(3), Article 11; General Construction
Law §§ 41, 110

Pursuant to Town Law § 176(3), two fire commissioners then in
office may appoint qualified persons to fill three vacancies on
the board.

April 9, 2008

Tod Gardner
Greg Goldthwait
Fire Commissioners
Big Flats Fire District #1
c/o Thomas W. Reed II
2 West Market Street
Suite D
P.O. Box 143
Corning, New York 14830

Informal Opinion
No. 2008-1

Dear Commissioners Gardner and Goldthwait:

You have asked how to fill existing vacancies on the board of fire commissioners. We understand that, due to death and resignations, three vacancies occurred on the board in rapid succession, leaving two commissioners sitting on the board.

Article 11 of the Town Law governs the establishment and operation of fire districts. Section 176 of the Town Law outlines the powers and duties of the fire district commissioners, who constitute the board of fire commissioners. Of particular relevance here, section 176(3) provides that, "[w]henever a vacancy shall occur in any fire district office, the board of fire commissioners of such district, or a majority of the members thereof in office may appoint a qualified person to fill the vacancy." Town Law § 176(3). This language applies to vacancies in both appointive and elective offices. Id. The office of fire district commissioner is elective. Id. § 174(2).

By its terms, section 176(3) authorizes you two commissioners, as the "members [of the board of fire commissioners] in office," to appoint qualified persons to fill vacancies on the board. Despite the language of section 176(3), however, the Office of the State Comptroller in 1964 opined that two fire commissioners could not exercise the appointment power granted by the statute, because they did not constitute a quorum under section 41 of the General Construction Law. See 1964 Op. St. Comptr. No. 788. Section 41 establishes general quorum and voting requirements for public bodies, providing that,

[w]henever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers . . . shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words "whole number" shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting.

General Construction Law § 41.

Admittedly, if this provision were applicable, you as the two remaining members of a five member board, see Town Law § 174(2), would not constitute a quorum of the board and, thus, could not exercise the authority granted by Town Law § 176(3). However, we are of the opinion that General Construction Law § 41 is inapplicable in the circumstances presented.

Section 41 of the General Construction Law does not trump another statute where, as is the case with Town Law § 176(3), its "general object, or the context of the language construed . . . indicate that a different meaning or application was intended from that required to be given" by the General Construction Law. General Construction Law § 110. See Roosevelt Islanders for Responsible Southtown Dev. v. Roosevelt Island Operating Corp., 291 A.D.2d 40, 49 (1st Dep't 2001) ("General Construction Law § 110 permits variance from the quorum requirements of section 41 when the language or general object of a statute indicates to the contrary."). In our opinion, the express statement in Town Law § 176(3) that "a majority of the members [of the board] in office" may appoint a qualified person to fill a vacancy in a fire district office renders the provisions of General Construction Law § 41 inapplicable.

Indeed, statutory language similar to Town Law § 176(3) has been judicially construed to constitute an express departure from the quorum requirement of General Construction Law § 41. Instructive in this connection is Roosevelt Islanders for Responsible Southtown Dev. v. Roosevelt Island Operating Corp., 291 A.D.2d 40 (1st Dep't 2001) (hereinafter referred to as "Roosevelt Islanders").

In Roosevelt Islanders, the question presented was whether a determination made by four members of the board of directors of the Roosevelt Island Operating Corporation ("RIOC"), a public benefit corporation, was valid. By statute, the RIOC board was composed of nine members. At the time of the vote in question, only six board positions were filled, and only four directors attended the meeting at which the vote was taken. All four members present voted in favor of the question before them. Construing a statute that provided that "any action taken by the directors of the corporation shall be taken by majority vote of the directors then in office," the court concluded that this language "evinc[ed] a clear, explicit indication from the Legislature that a majority of the directors of the Board then in office constitutes a quorum." 291 A.D.2d at 49-50. Therefore, the court held, an affirmative vote by four out of the six current board members, a majority of the directors then in office, was valid. Id.

Here, like the situation in Roosevelt Islanders, the language of Town Law § 176(3) constitutes an explicit statement of intent to establish a quorum requirement different from that contained in General Construction Law § 41 for the purpose of filling vacant fire district offices.

In sum, we conclude that you, as the two fire commissioners in office, may appoint qualified persons to fill the three vacancies that now exist on the board. These appointees will serve on the board on an interim basis. An election to fill the unexpired portions of the terms must be held at the next annual fire district election. Town Law § 176(3). The appointees will serve until December 31 following that election, and the elected commissioners will commence to serve on January 1. Id. To maximize participation in the selection of qualified individuals to fill the vacant commissioner positions, however, we recommend that you appoint one commissioner and, upon his or her qualification, the three of you appoint a fourth commissioner, and so on.

The Attorney General issues formal opinions only to officers and departments of state government. This is thus an informal opinion.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions