Can a person serve as both a battalion chief in a village fire department and as village mayor or village trustee in New York?

Plain-English summary

The Village Attorney for Fayetteville, NY asked the AG whether a battalion chief in the Village fire department could simultaneously serve as village mayor or village trustee. Village Law § 10-1012 explicitly forbids one person from holding both a mayoral or trustee office and the office of "chief or assistant chief" of a village fire department, but the statute does not name "battalion chief" as a covered position.

The AG concluded that the battalion chief was the functional equivalent of an assistant chief and therefore fell within the statutory prohibition. The reasoning rested on (1) the actual operating structure of the Village's fire department, where the battalion chief assumed control when both the chief and first assistant chief were absent, making the role analogous to a statutory second assistant chief; and (2) the legislative purpose of § 10-1012, which is to prevent a board of trustees from appointing one of its members to another public position with which the board has appointment authority.

Currency note

This opinion was issued in 2014. 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 did the opinion conclude?

The AG was of the opinion that a battalion chief in a village fire department could not also serve as village mayor or village trustee, because the battalion chief functioned as an assistant chief within the meaning of Village Law § 10-1012.

Why did the statutory list of incompatible positions matter?

Village Law § 10-1012 explicitly listed only "chief or assistant chief" as positions incompatible with mayor or trustee. The Village's organizational chart added a "battalion chief" rank between the first assistant chief and the captain. The AG had to decide whether that intermediate rank fell within the statutory category.

How did the AG decide the battalion chief was an assistant chief in function?

By looking at duties. The Village's battalion chief assumed control of the department on emergency calls when the chief and first assistant chief were absent. That responsibility paralleled the statutory role of a second assistant chief. The AG cited an earlier informal opinion (No. 98-33) that similarly treated a "deputy chief" as the equivalent of a first assistant chief.

What was the policy concern behind the prohibition?

The Legislature was concerned that the same body of trustees that appoints fire department officers should not have its own members holding those appointed positions. The Sponsor's Statement in support of the original bill, citing Wood v. Town of Whitehall (1923), framed the prohibition as anti-self-dealing.

Background and statutory framework

Under New York Village Law, a village without a separate board of fire commissioners administers its fire department through the village board of trustees and a "fire council" composed of the chief, assistant chief, and wardens. Village Law §§ 10-1000, 10-1014. The board of trustees, on nominations from the fire department members, appoints the chief, first and second assistant chiefs, and any additional chiefs the bylaws authorize. Village Law §§ 3-301(4), 10-1012. Members elect a captain, lieutenant, and any other officers the bylaws provide for, subject to board approval. Village Law § 10-1010. The board approves the election of new volunteer members. Village Law § 10-1006(2), (12).

The chief has exclusive control of department members at fires, inspections, and reviews, and is responsible for firefighting equipment and department property. Village Law § 10-1018. In the chief's absence, the first assistant takes over, then the second, and so on.

The dual-office prohibition in § 10-1012 reflects a broader common-law incompatibility doctrine. Two offices are incompatible if their functions are inconsistent, such as when one is subordinate to or audits the other. The AG applied this framework, plus the explicit statutory bar, to conclude the battalion chief role was incompatible with mayor or trustee.

Citations

The controlling statute is Village Law § 10-1012. Related provisions on department governance and officer roles are Village Law §§ 3-301(4), 10-1000, 10-1006(2), 10-1006(12), 10-1010, 10-1014, and 10-1018. The dual-office policy rationale comes from Wood v. Town of Whitehall, 120 Misc. 124 (Sup. Ct. Washington Co.), aff'd, 206 A.D. 786 (3d Dep't 1923), as cited in the 1970 Sponsor's Statement. Earlier AG informal opinion authority on equivalent ranks: Op. Att'y Gen. (Inf.) No. 98-33 (deputy chief equivalent to first assistant chief) and 1976 Op. Att'y Gen. (Inf.) 301 (village trustee cannot hold position requiring fire chief functions).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2014-4_pw.pdf

Original opinion text

Village Law §§ 3-301(4), 10-1000, 10-1006(2), 10-1006(12), 10-1010, 10-1012, 10-1014, 10-1018;
The battalion chief of a village fire department cannot also serve as village mayor or village trustee.

September 3, 2014
Edward H. Spencer III
Village Attorney
Village of Fayetteville
Mackenzie Hughes LLP
P.O. Box 4967
Syracuse, New York 13221-4967

Informal Opinion
No. 2014-4

Dear Mr. Spencer:

You have asked whether a battalion chief in the Village's fire department may simultaneously serve as either mayor or trustee for the Village. Your question arises because the Village Law generally prohibits one person from serving as both village mayor or village trustee and fire chief or assistant chief. Village Law § 10-1012. The Village Law does not use the term "battalion chief." As explained below, we are of the opinion that the battalion chief cannot also serve as village mayor or village trustee.

You have explained that the Village operates a fire department. The Village does not have a separate board of fire commissioners. Thus the administration of the fire department is divided between the Village's board of trustees and a "fire council," which is composed of the fire chief, assistant chief, and wardens selected by the members of the fire department. Village Law §§ 10-1000, 10-1014. In accord with the Village Law, the Village's board of trustees, composed of the mayor and four trustees, appoints, from nominations made by the members of the fire department, the fire department's chief, first and second assistant chiefs, and any additional chiefs the fire department's bylaws provide for. Village Law §§ 3-301(4), 10-1012. The board of trustees also approves the election of new volunteer members of the fire department. Village Law § 10-1006(2),(12).

The fire chief has exclusive control of the fire department's members at all fires, inspections, and review. Village Law § 10-1018. He is responsible for the Village's firefighting equipment and the fire department's property. Id. He supervises all of the fire department's officers and employees and is to hold them strictly to account for neglect of duty. Id. In case of the inability or absence of the chief, the first assistant performs the duties of the chief. Id. If the first assistant is unavailable, the second assistant performs the chief's duties, and so on through the fourth assistant. Id.

The members of the fire department elect a captain, a lieutenant, and any other officers that the fire department's bylaws provide for. Village Law § 10-1010. The election of these officers is subject to the approval of the board of trustees. Id.

You have explained that the hierarchy of officers within the Village's fire department varies slightly from that established by statute. In the Village's fire department, the most superior officer is the chief, followed by the first assistant chief, the battalion chief, the captain, and the lieutenant. You have further explained that the battalion chief assumes control of the fire department when it responds to a call and both the chief and the first assistant chief are absent. If the chief or first assistant chief subsequently arrives at the scene of the call, the battalion chief relinquishes control to the superior officer.

From the hierarchy and the description of the duties you provided, we are of the opinion that the position of battalion chief is the functional equivalent of the statutorily-established second assistant chief. As such, it comes within the statutory prohibition of Village Law § 10-1012 that "a person shall not hold the office of village mayor or village trustee and the office of chief or assistant chief of a village fire department at the same time." See Op. Att'y Gen. (Inf.) No. 98-33 ("deputy chief" equivalent of first assistant chief and within statutory prohibition).

Moreover, this conclusion is consistent with the purpose of the statutory prohibition. In enacting the prohibition, the Legislature recognized that a board appointing one or more of its members to another public position is contrary to public policy. See Sponsor's Statement in Support of Bill, reprinted in 1970 McKinney Session Laws 2956, 2957 (citing Wood v. Town of Whitehall, 120 Misc. 124 (Sup. Ct. Washington Co.), aff'd, 206 A.D. 786 (3d Dep't 1923)). This is exactly the position the mayor or trustee would be in if he were to also serve as battalion chief.

And, although you have indicated that the battalion chief fills the role of chief only at the scene of a call, from the officer structure you provided it appears that the battalion chief would be in line to perform the duties of the chief in any capacity if the chief and the assistant chief were unavailable. See Village Law § 10-1018. The role the fire chief holds on the fire council and in relation to the board of trustees that renders those positions incompatible would similarly apply to the battalion chief filling in for the chief or the assistant chief. See Sponsor's Statement in Support of Bill, reprinted in 1970 McKinney Session Laws 2956, 2957; see also 1976 Op. Att'y Gen. (Inf.) 301 (village trustee cannot hold position in fire department which would necessitate performing function of chief upon occasion).

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