Opinion 89-41


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 DISTRICTS -- Powers and Duties (establishment of service award program); (referendum requirement); (necessity of public hearing)
VOLUNTEER FIREFIGHTERS -- Service Award Program (establishment of); (referendum requirement); (necessity of public hearing)

GENERAL MUNICIPAL LAW, §216; TOWN LAW, §179: A mandatory referendum to establish a service award program for the volunteer firefighters of a fire district may be conducted at a special election or at the fire district's annual election, but in either case, the board of fire commissioners is not required to hold a public hearing before the establishment of a service award program.

You ask whether a public hearing is required prior to the establishment of a service award program for the volunteer firefighters of a fire district pursuant to General Municipal Law, Article 11-A.

General Municipal Law, Article 11-A (§214 et seq, added by L 1988 ch 775, eff. September 1, 1989) authorizes the establishment of a "service award program" for the volunteer firefighters of: (1) a "political subdivision"; or (2) fire departments and fire companies located in a fire protection district of a "political subdivision" which has contracted with the departments or companies for fire protection (General Municipal Law, §216[1],[2]). The term "political subdivision" is defined for this purpose to mean a county, city, town, village or fire district (ibid.; Volunteer Firefighters' Benefit Law, §3[10]). Therefore, a service award program may be established for the volunteer firefighters of a fire district.

A service award program may be either a "defined benefit plan" (see General Municipal Law, §§215[2], 217, 219) or a "defined contribution plan" (see General Municipal Law, §§215[3], 217, 218), established or maintained pursuant to Article 11-A to provide "service awards" for "active volunteer firefighters" (see General Municipal Law, §215[9]). A "service award" is the benefit payable to an eligible "active volunteer firefighter" in the form of a lump sum, a life annuity with or without survivor benefits, period certain annuities, or any other form provided under the program (see General Municipal Law, §§215[7],[8], 217[h]). All forms of benefit payments, however, must be actuarially equivalent to each other (see General Municipal Law, §217[h]).

To be eligible to participate in a service award program, an "active volunteer firefighter" must meet certain age and length of service requirements (General Municipal Law, §217[a]). A participant in a serviceaward program obtains a non-forfeitable right to a percentage of the award based on "years of firefighting service" (General Municipal Law, §§215[11], 217[b]-[g]). While a participant is entitled to begin receiving an "unreduced" service award upon reaching "entitlement age", no service award program may provide for the payment of benefits before age 55, except in the case of death or disability (General Municipal Law, §§215[4], 218[c]-[e], 219[e]).

A service award program is funded by annual appropriation (see General Municipal Law, §219-a[2][a]). In the case of a fire district, the appropriation is not subject to the district's spending limitation (see Town Law, §176[18][7-a], added by L 1988 ch 775).

The procedure to establish a service award program for the volunteer firefighters of a fire district is set forth in General Municipal Law, §216(1) which provides as follows:

Upon the affirmative vote of at least sixty percent of the governing board of the political subdivision of the state, as defined in [Volunteer Firefighters' Benefit Law, §3(10)], having control of the fire departments and fire companies, there shall be held a mandatory referendum of the eligible voters within such political subdivision to determine whether such governing board shall establish a service award program for the volunteer firefighters of such political subdivision.

Therefore, upon a three-fifths vote of the board of fire commissioners, a mandatory referendum of the eligible voters within the fire district must be held to determine whether to establish a service award program for the volunteer firefighters of the fire district. There is no requirement in section 216, however, that the board of fire commissioners hold a public hearing before it votes on whether the establishment of a service award program should be presented to the voters (cf. Municipal Home Rule Law, §20[5], which requires a local government to hold a public hearing prior to adopting a local law).

With regard to whether a board of fire commissioners is required to conduct a public hearing after it has voted to submit a proposition on the establishment of a service award program to the voters, but prior to the actual conduct of the referendum, we note that General Municipal Law, Article 11-A does not prescribe any procedures for conducting the referendum even though it does set forth the content of the proposition (see General Municipal Law, §§216, 217[d], 218[d],[e] and 219[c]; cf. Local Finance Law, §38.00[a] which provides that a referendum required by that section in connection with a bond or capital note resolution is to be held at a regular or special election of the fire district in the manner provided in Town Law, §179). Further, while Town Law, §179 contains provisions for the submission of certain specified propositions for a vote at a special election conducted pursuant to that section or at the annual fire district election conducted pursuant to Town Law, §175, it is silent with regard to propositions required to be submitted to referendum by General Municipal Law, §216.

Although Article 11-A of the General Municipal Law fails to prescribe how a referendum required by that statute is to be conducted, it is a principle of statutory construction that statutes should not be construed so as to render them ineffective (McKinney's Statutes, §144). Therefore, in the absence of statutory direction, we believe that such direction must be implied. Further, because Town Law, §§175 and 179 are the only statutes which generally govern the conduct of referenda by fire districts, we believe that the Legislature intended that those procedures be followed for purposes of General Municipal Law, Article 11-A. Accordingly, since nothing contained in those procedures or General Municipal Law, Article 11-A requires a public hearing prior to the vote on a proposition, we conclude that a board of fire commissioners is not required to hold a public hearing prior the mandatory referendum on a service award program.

Finally, although we conclude that a board of fire commissioners is not required to hold a public hearing prior to the establishment of a service award program, we note that the board is subject to the Open Meetings Law (Public Officers Law, §100 et seq; see §102[2]). Therefore, the board's actions in connection with consideration and implementation of a service award program are subject to the requirements of that law. In this regard, you may wish to contact the Committee on Open Government, which is authorized to issue advisory opinions in relation to the Open Meetings Law (see Public Officers Law, §109), for further information with respect to the requirements of that law, including the ability of the public to be heard at a meeting of a board of fire commissioners.

October 24, 1989
Joseph R. Attonito, Esq.
Stony Brook Fire Department