Opinion 89-51


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 PROTECTION AND PREVENTION -- Contracts (additional payments for the services of private contractors); (cost of VFBL insurance)
FIRE PROTECTION DISTRICTS -- Fire Protection Contracts (additional payments for the services of private contractors); (cost of VFBL insurance)

TOWN LAW, §184(5): A fire protection contract entered into by a town, on behalf of a fire protection district, must specify a definite sum to be paid each year for all of the services to be rendered under the contract. There is no authority for the town to make additional payments to the fire company providing fire protection to pay the cost of the services of private contractors engaged by the fire company in connection with fighting a fire within the fire protection district.
VOLUNTEER FIREFIGHTERS' BENEFIT LAW, §30(12): A fire protection contract is generally required to provide that the party receiving fire protection pay for any increases in the cost of Volunteer Firefighters' Benefit Law insurance attributable to the protected area during the contract unless a sum for such increased cost has been specifically included in the contract price.

We are in receipt of your letter concerning the payment of certain costs related to the provision of fire protection in a fire protection district within the town. You indicate that a volunteer fire company provides fire protection services within the fire protection district pursuant to contract. You ask whether the town is authorized to make payments to the volunteer fire company in addition to the annual sum specified in the contract if, in the course of fighting a fire, the company finds it necessary to engage the services of private contractors to provide heavy equipment, such as bulldozers, in connection with fighting a fire within the district.

Section 184(5) of the Town Law provides that a fire protection contract entered into by a town, on behalf of a fire protection district, must "specify a definite sum to be paid each year for all the services to be rendered thereunder." This Office has previously concluded that the sum specified in the contract is in lieu of any additional items of cost, including the cost of extra equipment, and that a town is without authority to make payments in addition to the sum specified in the contract (23 Opns St Comp, 1967, p 697). Therefore, it is our opinion that a town, on behalf of a fire protection district, may not make payments to the fire company providing fire protection within the district, in excess of the definite sum specified in the fire protection contract, to pay the cost of services of private contractors engaged by the company in connection with fighting a fire within the district.

We note that a single, limited exception to the "definite sum" requirement, is found in section 30(12) of the Volunteer Firefighters' Benefit Law (VFBL). Under section 30(12), a fire protection contract is generally required to provide that the party receiving fire protection pay for any increases in the cost of VFBL insurance attributable to the protected area during the contract term unless a sum for such increased cost has been specifically included in the contract price. Aside from this exception, it is assumed that the parties will take the costs of providing fire protection, including the cost of extra equipment, into consideration when determining the annual sum specified in the contract.

November 28, 1989
Charles H. Jennings, Esq., Town Attorney
Town of Lodi