Opinion 89-40


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


FIRE COMMISSIONERS -- Reimbursement for Expenses (loss of wages)
VOLUNTEER FIREFIGHTERS -- Reimbursement for Expenses (loss of wages)
WORDS AND PHRASES -- Employer (meaning for purposes of General Municipal Law, §72-o)

GENERAL MUNICIPAL LAW, §72-o; TOWN LAW, §§178-c, 178-d: (1) A fire district may not reimburse a fire district commissioner for wages lost because the commissioner was subpoenaed to testify in a case in which the fire district was the defendant, unless the commissioner is a member of a fire company and, in that capacity, eligible for reimbursement pursuant to General Municipal Law, §72-o. (2) A volunteer officer or member of a fire department who is self-employed as a sole proprietor or a partner in a partnership may not be reimbursed for actual lost wages pursuant to General Municipal Law, §72-o.

You ask whether a fire district may reimburse a self-employed fire district commissioner for "wages lost" because the commissioner was subpoenaed to testify in court in a case in which the fire district was the defendant.

Initially, we note that Town Law, §174(3) provides that fire district commissioners shall receive no compensation for their services. There are, however, three statutes which authorize reimbursement of certain expenses and which are pertinent to this inquiry: General Municipal Law, §72-o, Town Law, §178-c and Town Law, §178-d.

General Municipal Law, §72-o (added by L 1988, ch 456) generally provides that, when authorized by the board of fire commissioners, the chief officer of a fire district fire department, subject to any rules or regulations governing the department, may authorize reimbursement of all actual and necessary expenses of travel, meals and lodging necessarily and reasonably incurred by volunteer officers or members of the department who appear before a court or other tribunal pursuant to a subpoena and under certain other circumstances. Section 72-o also provides that the board of fire commissioners may authorize reimbursement of all "actual lost wages necessarily and reasonably incurred" by volunteer fire officers and firefighters, up to a maximum of one hundred dollars per day.

General Municipal Law, §72-o, however, only applies to "volunteer officers or members of the [fire] department" (emphasis supplied). The only officers of a fire district fire department provided for by statute are the chief and one or more assistant chiefs (see Town Law, §§176[11-a], 176-a). A commissioner is prohibited from serving simultaneously as chiefor an assistant chief of the fire district fire department (Town Law, §174[4]). Therefore, although a fire district commissioner may be a member of a volunteer fire company (see Town Law, §175[3]), a commissioner is not an officer of the fire district fire department.

Based on the foregoing, we believe that a fire district commissioner may not be reimbursed in his or her capacity as commissioner pursuant to General Municipal Law, §72-o because a fire district commissioner is not an officer of the fire district fire department. We also believe, however, that when an individual is both a fire district commissioner and a member of a volunteer fire company, that individual is a member of the fire district fire department by virtue of being a member of the volunteer fire company. Therefore, such an individual may be reimbursed pursuant to General Municipal Law, §72-o if subpoenaed to testify in his or her capacity as a member of the fire district fire department.

As to whether a self-employed volunteer fire officer or firefighter may be reimbursed for actual lost wages pursuant to General Municipal Law, §72-o, we note that any claim for actual lost wages must have attached to it a statement by the volunteer's "employer", presumably indicating the amount of actual lost wages. Therefore, to be eligible for reimbursement for actual lost wages, a volunteer must have an "employer".

Section 72-o does not define the term "employer". In this regard, however, we note that the evident purpose of requiring a claim for actual lost wages to be accompanied by a statement by the volunteer's "employer" is to establish a control designed to ensure that the amount of actual lost wages is accurately reported by someone other than the claimant. This purpose could be frustrated if a self-employed volunteer is considered to be his or her own "employer" because the claim for lost wages and the documentation to support the amount of the claim would be prepared by the same person. Therefore, we believe that section 72-o, on its face, suggests that a self-employed volunteer is not his or her own "employer" for purposes of that section.

In support of this conclusion, we note that it is a general rule of statutory construction that, absent a showing of legislative intent to the contrary, "words of a statute will be interpreted in their ordinary acceptance and significance and the meaning commonly attributed to them" (Phaneuf v City of Plattsburgh, 84 Misc 2d 70 at 74, 75, 376 NYS2d 781 at 785, affd 50 AD2d 614, 375 NYS2d 500, mot for lv to app dsmd 38 NY2d 1004, 384 NYS2d 441). While the legislative history of General Municipal Law, §72-o indicates that the purpose of reimbursing volunteer fire officers and firefighters for actual lost wages resulting from compliance with a subpoena is to "reimburse them for time lost... in other obligations arising out of their position as volunteer firefighters" (see Memorandum in Support of Senate Bill No. 4531-B, enacted as L 1988, ch 456), we find nothing in the legislative history which indicates an intent that the term "employer" should be interpreted in a manner contrary to its ordinary meaning.

Thus, in the absence of a statutory definition or clear statement of legislative intent to the contrary, we believe that the term "employer" ordinarily connotes an employer-employee relationship. The distinguishing characteristics of an employer-employee relationship are the employer's selection and engagement of the employee, the payment of compensation, the employer's power of dismissal and the employer's power of control over the employee's conduct (see Albany College of Pharmacy v Ross, 94 Misc 2d 389, 404 NYS2d 779). In this regard, we note that there is judicial authority for the proposition that one person cannot occupy the inconsistent position of employer and employee (Graphic Arts Mutual Insurance Company v Monello, 41 Misc 2d 943, 246 NYS2d 645; Lyle v H.R. Lyle Cider and Vinegar Company, 243 NY 257). This suggests that a sole proprietor or a partner is not considered to be his or her own employer. Further, it has been held that a self-employed independent contractor, with no employees, has no Workers' Compensation obligation because the contractor is not an "employer" (Employers Mutual Liability Insurance Company of Wisconsin v Bromley, 4 Misc 2d 702, 158 NYS2d 669). Similarly, the courts have enjoined labor picketing against a business operated by a partnership, without outside employees, on the grounds that a labor dispute did not exist because a partnership without outside employees does not give rise to an employer-employee relationship (see Kershnar v Heller, 14 NYS2d 595, mod on other grnds, 285 App Div 751, 15 NYS2d 451; see also Boro Park Sanitary Live Market v Heller, 280 NY 481, stating that "[w]here an owner of a business does the work himself without employees the 'relation of employer and employee' does not exist..."). Therefore, based on these authorities, it appears that a self-employed individual doing business as a sole proprietor or as a partner in a partnership does not have an employer-employee relationship with himself and, consequently, such an individual is not generally regarded as having an "employer".

Accordingly, based on the foregoing, it is our opinion that a self-employed volunteer doing business as a sole proprietor or partner in a partnership is not considered to be his or her own "employer" for purposes of section 72-o. Therefore, we believe that such a self-employed volunteer may not be reimbursed for actual lost wages pursuant to section 72-o.

With respect to whether a fire district commissioner may be reimbursed for lost wages pursuant to Town Law, §178-c, we note that section 178-c provides, in relevant part, that when incurred by the authority of the board of fire commissioners, the actual and necessary expenses of all fire district officers, including commissioners (see Town Law, §174), incurred and paid in executing the duties of the office shall be a fire district charge (see also Public Officers Law, §64). Section 178-c, however, does not expressly authorize reimbursement to a fire commissioner for compensation lost from regular employment due to firemanic functions (1969 Opns St Comp No. 69-953, unreported; see also 23 Opns St Comp, 1967, p 142; 2 Opns St Comp, 1946, p 217; cf. General Municipal Law, §72-o). Further, we believe that wages lost from private employment while an individual is performing his or her public duties are not actual and necessary expenses incurred in the performance of public duties within the meaning of section 178-c (see 1989 Opns St Comp No. 89-18, p 36; 1973 Opns St Comp No. 73-1050, unreported). Moreover, reimbursing a fire district commissioner for lost wages would be tantamount to paying compensation to the commissioner, which, as previously noted, is prohibited by Town Law, §174(3) (see 23 Opns St Comp, 1967, p 146). Therefore, in our opinion, wages lost from private employment are not reimbursable pursuant to Town Law, §178-c.

Finally, we note that Town Law, §178-d provides, in relevant part, that whenever the fire district commissioners or board of fire commissioners of any fire district, or any fire district officers, are instructed by the board of fire commissioners to defend any action brought against them, or to bring or defend an action or proceeding affecting any district property or claim of the district, or involving its rights or interests, or to continue such action or defense, all their costs and reasonable expenses, as well as all costs and damages adjudged against them, shall be a district charge. Although one purpose of section 178-d is to provide specific authority to reimburse fire district officers, including a fire district commissioner, for reasonable litigation expenses incurred at the behest of the board of fire commissioners, section 178-d does not expressly authorize reimbursement of wages lost from private employment as a result of court appearances or other time devoted to the litigation. In the absence of such express authorization (see, e.g., General Municipal Law, §72-o), it is our opinion that lost wages are not reimbursable as litigation expenses pursuant to Town Law, §178-d.

In summary, it is our opinion that a fire district may not reimburse a fire district commissioner for wages lost because the commissioner was subpoenaed to testify in a case in which the fire district was the defendant, unless the commissioner is a member of a fire company and, in that capacity, eligible for reimbursement pursuant to General Municipal Law, §72-o. Further, in our opinion, a volunteer who is self-employed as a sole proprietor or partner in a partnership may not be reimbursed pursuant to section 72-o. Therefore, it is also our opinion that a fire district commissioner who is also a member of a fire company, but is self-employed as a sole proprietor or partner in a partnership, may not be reimbursed for lost wages under General Municipal Law, §72-o if as a member of the company he or she is subpoenaed to testify in a case in which the fire district was the defendant.

October 23, 1989
Louis L. Motyka, Secretary/Treasurer
Gardenville Fire District No. 2