Can a New York county's director of emergency services also serve as the assistant fire chief of a joint fire district located in the same county?

Plain-English summary

A counsel to the Delhi Joint Fire District wrote in to ask whether one person could serve at the same time as the county's director of emergency services and as an assistant fire chief in the joint fire district. The concern: when a fire breaks out while the person is at work in the county role, won't they have to skip responding to the fire, creating a conflict?

The Attorney General's office concluded the two roles are legally compatible. The starting point is a 19th-century Court of Appeals rule in People ex rel. Ryan v. Green: incompatibility means a legal conflict in duties, not a physical impossibility of being in two places at once. Practical conflicts are handled by abstention; only when the duties of one office are subordinate to or subject to review by the other do the offices become legally incompatible.

Applying that rule, the AG found no legal incompatibility. The assistant fire chief is a fire district employee answering to the fire chief and the board of fire commissioners. The county director of emergency services supervises only county employees. There's no reporting line, no review authority, and no overlap that creates a legal conflict. Their duties are complementary: the county develops emergency programs and infrastructure (training facilities, communications systems, mutual-aid plans), and the fire district uses or participates in those programs. If a specific situation creates a real conflict, the dual office-holder can simply abstain from acting in one capacity for that matter.

The AG was careful to caveat: this is a legal compatibility ruling. Whether the dual role is prudent as a policy or operational matter is a separate question the AG did not address.

Currency note

This opinion was issued in 2017. 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.

Historical context

Why this opinion contrasts with the 2016-4 coroner/DA opinion

A reader looking at this opinion next to AG Op. 2016-4 (coroner cannot also be the DA's chief investigator) sees the rule's two halves. In 2016-4, the DA's chief investigator answered directly to the DA; the coroner had statutory independence; one office was effectively subordinate to the other for the work in question. Legal incompatibility followed. Here, the assistant fire chief answers to the fire chief and board of fire commissioners (not to the county), and the county director of emergency services has no review authority over the fire district's operations. No subordination, no incompatibility.

What the opinion meant for joint fire districts

A joint fire district's board of fire commissioners (per Town Law § 189-a(2)(d), governed by the same statutes as a single-town fire district) sets the rules and regulations for the fire department, including how members must respond. If the practical concern is that the dual-role person might not respond to fires while at the county job, the board of fire commissioners can address that by rule. The legal compatibility question and the operational policy question travel separately.

What the opinion meant for county emergency-services directors

A director who participated in firefighting through a fire district role would be using the same county-developed programs, training facilities, and communication systems they help administer at the county level. The opinion treats that overlap as constructive (the director experiences the systems firsthand) rather than as a conflict.

Common questions

Q: What's the New York test for incompatibility of office?
A: Two offices are incompatible if their duties are inherently inconsistent, for example, if one is subordinate to or subject to review by the other. People ex rel. Ryan v. Green, 58 N.Y. 295 (1874). Mere physical impossibility of performing both at the same time does not create incompatibility; it just means the office-holder will have to choose, on a given day, which to attend to.

Q: What if a real conflict comes up?
A: The standard answer in compatibility opinions is abstention. The dual office-holder declines to act in one of the capacities for the specific matter. The opinion notes this remedy applies if a conflict ever arises between the assistant fire chief role and the county director role.

Q: Could the fire district require the assistant fire chief to respond to fires?
A: Yes, by rule or regulation under Town Law § 176(11). The board of fire commissioners has broad authority to set duties and response requirements for fire department members. The compatibility opinion does not displace that authority; it just confirms that holding both roles is not legally barred.

Q: What does the county director of emergency services do?
A: Per the description provided to the AG, the role plans, organizes, implements, and evaluates the countywide emergency-services program. Specific duties include developing emergency plans (continuity of government, mutual-aid plans, the county comprehensive plan under Executive Law § 23), administering communications systems, liaising with state and local emergency departments, and supervising training facilities.

Q: What does an assistant fire chief do?
A: Under Town Law § 176-a(1), the fire chief has exclusive control of fire department members at fires, inspections, and reviews; supervises apparatus and equipment; and oversees personnel. The assistant fire chief steps in for the fire chief in the chief's absence, performing the chief's duties and exercising the chief's powers.

Background and statutory framework

The fire district's structure is set by Town Law § 176-a (read with § 189-a(2)(d) for joint districts). The fire chief, with assistants in line behind, is the operational leader; the board of fire commissioners is the governing body. Section 176(11) authorizes the board to adopt rules and regulations governing fire-department duties. Section 176(11-a) requires that fire chiefs and assistants be nominated by the department and appointed by the board.

The county role is creature of Executive Law § 23 and similar statutes that vest counties with comprehensive emergency-management responsibilities, plus locally adopted job descriptions. The function is governmental coordination, not operational control over individual fire departments.

The two reporting lines never meet. That structural separation is what made the offices compatible in the AG's analysis.

Citations and references

Statutes:
- N.Y. Town Law § 176(11), § 176-a, § 176-a(1), § 189-a(2)(d)
- N.Y. Executive Law § 23

Cases:
- People ex rel. Ryan v. Green, 58 N.Y. 295, 304-05 (1874), incompatibility means inherent conflict, not physical impossibility
- O'Malley v. Macejka, 44 N.Y.2d 530, 535 (1978), same rule, applied to mid-20th-century facts

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2017-2_pw_4.pdf

Original opinion text

TOWN LAW §§176(11), 176-a, 176-a(1), 189-a(2)(d); EXECUTIVE LAW § 23

The positions of assistant fire chief of a joint fire district and county director of emergency services are compatible.

December 13, 2017

William N. Young, Jr.
Counsel
Delhi Joint Fire District
1881 Western Avenue, Suite 140
Albany, New York 12203

Informal Opinion
No. 2017-2

Dear Mr. Young:

You have requested an opinion regarding the compatibility of the positions of assistant fire chief and director of emergency services of the county in which the joint fire district is located. As explained below, we are of the opinion that the positions are compatible as a matter of law.

You have expressed concern that, in the event of a fire while the director of emergency services is at work, he will choose to remain at work instead of responding to the fire. But the inability to perform the duties of two positions simultaneously does not itself render the positions incompatible. "[P]hysical impossibility is not the incompatibility of the common law, which existing, one office is ipso facto vacated by accepting another." People ex rel. Ryan v. Green, 58 N.Y. 295, 304 (1874).

Rather, incompatibility exists when the functions or the duties of the positions are inconsistent; for example, if one position is subordinate to or subject to review by the other. Id. at 304-05; see also O'Malley v. Macejka, 44 N.Y.2d 530, 535 (1978). And because the positions you described, assistant fire chief and county director of emergency services, both have duties to perform with respect to preparing for and in an emergency, we must consider the areas where those duties overlap to determine whether the positions are incompatible.

The fire chief is in charge of a fire district fire department, subject to the direction of the board of fire commissioners, which is the fire district's governing body. Town Law § 176-a (1); see also id. § 189-a(2)(d) (operation of joint fire district governed by statutes governing fire districts). The fire 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. 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. Id. In the fire chief's absence, the assistant fire chief performs the duties and exercises the powers of the fire chief. Id. If the assistant fire chief cannot perform the chief's duties in the chief's absence, the other assistant chiefs, in designated order, perform them. Id.

According to the description you provided, the county director of emergency services is responsible for planning, organizing, implementing, and evaluating a countywide program for emergency services. This includes developing, maintaining, and administering emergency plans to provide for government continuity in the event of an emergency; preparing for the county board of supervisors both the county fire mutual aid plan and the countywide comprehensive plan for emergency services authorized by Executive Law § 23; administering a countywide communication system for emergency services; overseeing the development of inter- and intra-county mutual aid programs; liaising between state and local public safety and emergency departments, including fire departments; preparing incident reports determining the cause and origin of mutual aid fires as requested by jurisdictional fire chiefs; supervising, scheduling, maintaining, and upgrading fire training facilities and equipment; and participating in meetings, drills and exercises.

We identify no inherent inconsistency between the positions. First, the assistant fire chief is not subordinate to the county director of emergency services. The assistant fire chief, a district employee, answers to the fire chief and the board of fire commissioners; the county director of emergency services supervises only county employees, and not district employees such as the assistant fire chief.

Second, the powers and duties of the two positions are not inconsistent. The positions function within separate governments, the county and the fire district. Their functions potentially overlap if the fire department uses or participates in any programs or systems provided by the County, fire training, for example, or the countywide communication system for emergency services, or in the event of an emergency within the county. Under both of these circumstances, however, the duties of the positions, of the county director of emergency services to develop or maintain the programs or systems and of the assistant fire chief to utilize or participate in them, are in fact complementary, with the individual, when serving in his capacity as assistant fire chief, experiencing for himself the programs and systems that he oversees as director of emergency services. In the unlikely event of a conflict arising between the duties of the positions, the individual can abstain from acting in one capacity with respect to the matter.

In sum, we conclude that the positions of assistant fire chief and director of emergency services of the county in which the joint fire district is located are compatible as a matter of law. We offer no opinion as to whether having the same person perform both roles is prudent as a policy or operational matter.

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