Opinion 90-19


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Powers and Duties (regulating activities of fire companies)
FIRE COMPANY -- By-Laws (regulating internal affairs of company) -- Corporate Status (distinguished from fire department) -- Membership (residency requirements) -- Officers (residency requirements)-- Powers and Duties (consent to fire protection contract)
FIRE DEPARTMENT -- Villages (distinguished from fire company)
FIRE PROTECTION DISTRICTS -- Fire Protection Contracts (consent by fire company to contract)
VILLAGES -- Powers and Duties (administration of village fire department)

GENERAL MUNICIPAL LAW, §209-d; NOT-FOR-PROFIT CORPORATION LAW, §1402; VILLAGE LAW, §10-1000, et seq.: A village fire department is administered by a board of fire commissioners or, where no board of fire commissioners has been appointed, by the village board of trustees and the council of the fire department. Although the fire companies in a village are associations or corporations, separate and distinct from the village, the village authorities exercise a certain degree of control over their organization, incorporation, governance and membership. A fire company must consent to a contract for the provision of fire protection outside the village and the fire chief of the village fire department cannot consent on behalf of the members of the company.

This is in reply to your letter concerning the relationship between a village and its fire department. You ask us to review and comment on the proposed "constitution and by-laws" of the village fire department and generally inquire about the respective powers and duties of the village board, the officers of the fire department, and the officers of the fire company with respect to the functioning of the village fire department. The proposed constitution and by-laws, which are made subject to the approval of the village board of trustees, address, among other things, eligibility for fire company membership, the structure and functions of a board of fire commissioners and eligibility to hold fire company office. You also specifically inquire as to the residency requirements that may be imposed on officers of the fire company. Finally, you ask whether the chief of the fire department may execute contracts for the provision of fire protection outside the village on behalf of the members of a fire company.

It is the policy of this Office to render opinions on matters arising under the State Constitution or the various statutes which define the rights and obligations of municipal corporations and their officers. It is not a general function of this Office, however, to approve or disapprove particular proposed local enactments. Consequently, we will not comment onthe propriety of the specific provisions of the documents submitted for our review, nor address those issues relating only to the internal affairs of a fire company which do not involve the rights and obligations of the village and its officers. We will, however, discuss in general the provisions of State law which are pertinent to the issues raised by your inquiry.

Article 10 of the Village Law (§10-1000 et seq.) governs the administration of a village fire department. While the terms "fire department" and "fire company" may be used interchangeably in certain instances, they must be distinguished for the purpose of applying the provisions of Article 10. Under section 10-1008 of the Village Law, the village fire department is a corporation consisting of the members of all the fire, hose, protective and hook and ladder companies of a village. A fire company is an association or a corporation, separate and distinct from the village, but is, in certain respects, under the control of the village authorities (see Village Law, §§10-1000[6], 10-1004, 10-1006, 10-1010; General Municipal Law, §204-a; Not-For-Profit Corporation Law, §1402[e][1]; see also 1988 Opns St Comp No. 88-55, p 111; 1987 Opns St Comp No. 87-76, p 113; 1987 Opns St Comp No. 87-66, p 100; 1981 Opns St Comp No. 81-53, p 55).

Article 10 provides for the administration of the village fire department either by a board of fire commissioners or by the village board of trustees and the "council of the fire department" (Village Law, §§10-1000, 10-1014). The village board of trustees is authorized, but not required to establish a board of fire commissioners (Village Law, §3-308[1]). The board of fire commissioners must consist of at least three members who are appointed by the mayor, subject to the approval of the board of trustees (Village Law; §3-308[4],[5]).

The general powers of the board of fire commissioners are set forth in section 10-1000 of the Village Law, which provides that the exercise of these powers is subject to the approval of the board of trustees (see also Village Law, §3-308[4]). Among these powers is the authority to adopt rules for the admission, suspension, removal, and discipline of the members, officers and employees of the fire department, as well as to prescribe their powers and duties (Village Law, §10-1000[5]). The board of fire commissioners is also empowered to adopt rules and regulations governing fire departments and companies, prescribing the duties of the members thereof and to enforce discipline and provide for public drills, parades, funerals, inspections, and reviews (Village Law, §10-1000[6]). Article 10 further grants the board of fire commissioners certain powers and duties relating to the organization, incorporation, membership and election of officers and delegates of the fire companies in the village (Village Law, §§10-1000[6], 10-1004, 10-1006[2], [8], 10-1010). In addition, the board of fire commissioners is vested with the care, custody and control of all village property of the fire department, may purchase suitable and necessary fire-fighting equipment and may erect and maintain suitable and necessary buildings for the fire department (Village Law, §10-1000[1],[2],[3]).

In the alternative, Article 10 provides that, in a village in which separate fire commissioners are not appointed, the administration of the fire department is to be undertaken by the village board of trustees and the "council of the fire department", which consists of the chief, the assistant chief, and the "wardens" of the several companies (Village Law, §10-1014). The council of the fire department is vested with all the powers, duties, and liabilities of a board of fire commissioners prescribed in section 10-1000 of the Village Law, except that the council may only make recommendations to the board of trustees with respect to equipment, buildings, water supply, the compensation of the members, officers, and employees of the fire department, the employment of part-time, paid firefighters, and the compensation of persons other than members or officers of the fire department appointed to take charge of village property (Village Law, §10-1014). The council is also authorized to prescribe by-laws for the management of the affairs and the disposition of the funds of the fire department, to call meetings of the department, and to designate days for public exercise, inspection, and review (id.) The powers and duties ordinarily vested in the board of fire commissioners relating to the appointment of volunteer firefighters and the restriction of membership in the fire companies, however, devolve upon the board of trustees rather than the council of the fire department (Village Law, §10-1006[12]; see Price v Board of Trustees of the Village of Stamford, 139 Misc 2d 535, 527 NYS2d 701).

Under section 10-1012 of the Village Law, the officers of the village fire department are the chief, the first and second assistant chiefs, and such additional assistant chiefs as may be provided in the by-laws of the fire department. The officers are nominated annually by the delegates to the fire department general convention or, if the board of fire commissioners adopts a rule so requiring, by the duly qualified members of the department. The board of fire commissioners either appoints the nominee to the office for which he or she was nominated or rejects the nomination thereby requiring that a new nomination be submitted (Village Law, §10-1012; cf. People ex rel. Wallace v Carpenter, 77 Misc 244, 135 NYS 593, regarding the appointment of fire department officers in a village which has not established a board of fire commissioners; see also 1966 Opns St Comp No. 66-32, unreported; 15 Opns St Comp, 1959, p 235). The officers must be members of the village fire department and residents of New York State, but the board of trustees, or the board of fire commissioners subject to the approval of the board of trustees, may, by resolution, require that any or all of the officers be village residents (Village Law, §10-1012; see also Village Law, §10-1006[9]; Public Officers Law, §3[5]; cf. Village Law, §10-1006[3]-[8] regarding residency requirements for volunteer members of village fire companies).

The duties of the chief are set forth in section 10-1018 of the Village Law, which provides, in part, that the chief, under the direction of the board of fire commissioners, has:

exclusive control of the members at all fires, inspections and reviews, the supervision of the engines, hose and other apparatus owned by the village for the prevention or extinguishment of fires, of all property owned by the fire department, and of all officers and employees thereof elected or employed by the council or by a separate board of fire commissioners, if any.

The chief is also president of the council of the fire department and presides over the meetings of the fire department (Village Law, §10-1018). If the chief is absent or unable to act, the ranking assistant chief present performs the duties and exercises all the powers of the chief (id.).

While the chief and assistant chiefs referred to in sections 10-1012 and 10-1018 are officers of the village fire department, each fire company is also authorized and required to have its own officers by virtue of its status as a separate unincorporated association or not-for-profit corporation and pursuant to the provisions of the Village Law (see Village Law, §10-1004; Not-for-Profit Corporation Law, §1402; 6 Opns St Comp, 1950, p 108). In this regard, we note that a fire company operates in accordance with its certificate of incorporation, by-laws, or both, may be managed by a board of directors and may have officers such as a president, vice president, secretary and treasurer (see, e.g., Not-for-Profit Corporation Law, §§202[a][13], 602[f], 701, 713). In addition, section 10-1010 of the Village Law requires the members of each fire company to elect annually, from their own number, a captain, a lieutenant, and such further officers as may be provided for in the company by-laws, who must be approved by the board of fire commissioners, as well as one warden and one delegate to the general convention of the fire department. Under section 10-1010, the captain, the lieutenant, and other officers provided for in the by-laws serve for one year, the wardens for two years, and the delegates for three years.

There is no statutory requirement that fire company officers, other than those specified by the Village Law, be designated by any particular titles (see, e.g., Not-for-Profit Corporation Law, §713[a]). Consequently, we have previously expressed the opinion that, in relation to a fire company within a fire district, a fire company may establish offices such as "fire company chief" in its by-laws (Opn No. 87-66, supra). The designation of a fire company officer as a "chief" would not, however, entitle the individual holding that office in the company to perform the duties and exercise the powers of the chief of the village fire department (id).

Since the fire company officers referred to in section 10-1010 must be members of the company, they must, in general, be residents of the village or of the territory outside the village which is afforded fire protection by the village fire department or any company thereof pursuant to a fire protection contract, unless the board of trustees, or the board of fire commissioners, subject to the approval of the board of trustees, adopts a resolution restricting membership to residents of the village (Village Law, §10-1006[3],[6],[8]). In addition, it would appear that the fire company's by-laws may impose residency restrictions on the members of the company (see 10 Opns St Comp, 1954, p 126; see also 1976 Atty Gen [Inf Opns] 118).

As discussed above, the board of fire commissioners is authorized to adopt rules and regulations governing the fire companies and the fire department, prescribing the duties of the members thereof, and to enforce discipline (Village Law, §10-1000[6]). The fire company, as an association or a corporation, is, on the other hand, authorized to adopt by-laws pertaining to the conduct of its affairs, its rights or powers and the rights or powers of its members, directors, and officers (see, e.g., Not-for-Profit Corporation Law, §§202[a][13], 602[f]; 1987 Opns St Comp No. 87-6, p 10). Therefore, the distinction between the village fire department and the fire company is also relevant to the regulation of the affairs of the fire company.

In the case of town fire districts, this Office has previously expressed the view that the board of fire commissioners of a district has control of the external affairs of the fire companies within the fire district and that the constitution and by-laws of the fire company regulate the internal affairs of a company (see Town Law, §176[11]; 1974 Opns St Comp No. 74-1131, unreported; 1973 Opns St Comp No. 73-1024, unreported; 1969 Opns St Comp No. 69-142, unreported; 24 Opns St Comp, 1968, p 390). In addition, it has been our opinion that the by-laws of a fire company within a fire district may not be inconsistent with the rules and regulations enacted by the board of fire commissioners of the fire district (see, e.g., Opn No. 87-6, supra). There is, however, no statutory requirement that a fire district approve the by-laws of a fire company (id). Since the provisions of section 10-1000(6) of the Village Law relating to the adoption of rules and regulations governing fire companies in the village are analogous to those authorizing a board of fire commissioners of a fire district to adopt rules and regulations for fire companies (see Town Law, §176[11]), it is our opinion that these same conclusions apply to the relationship between a fire company within a village and the village authorities in control of the fire department.

We note that although Article 10 of the Village Law generally governs village fire departments, section 10(1)(ii)(e)(3) of the Municipal Home Rule Law authorizes villages to adopt local laws which supersede provisions of the Village Law relating to the property, affairs or government of the village or other matters in relation to which and to the extent to which it is authorized to adopt local laws by section 10, unless the Legislature has expressly prohibited the adoption of such a local law. Consequently, a village may adopt local laws superseding certain provisions of Article 10 (Opn No. 88-55, supra; 1980 Opns St Comp No. 80-746, unreported; but see, e.g., Village Law, §10-1006[14] relating to the volunteer members of the department, which specifically prohibits the adoption of a local law "changing, amending or superseding" that section). Since, however, your inquiry does not propose the adoption of any local law, we will not comment further with respect to the village's authority to supersede any particular provision of Article 10.

Finally, in relation to the manner in which the fire company expresses its consent to a contract, entered into by the village, for the provision of fire protection outside the village, we note that section 209-d of the General Municipal Law provides, in part, that:

Notwithstanding any other provision of law, no contract shall be made by a municipality or fire district whereby the services of a volunteer fire department or company are to be supplied outside of such municipality or fire district... unless such volunteer fire department or company consents thereto.

Section 209-d does not specify what form the required consent is to take. It has been the opinion of this Office that, in a village, the volunteer fire company must express its consent to the contract and that the village cannot consent on behalf of the members of the company (33 Opns St Comp, 1977, p 25; see also 1987 Opns St Comp No. 87-73, p 110). Therefore, since the chief is an officer of the fire department and not the fire company, the chief may not execute fire protection contracts on behalf of the company. The procedure to be followed by the fire company in granting its consent to a particular contract is a matter of the company's internal affairs and generally will be governed by its by-laws (see, e.g., Not-for-Profit Corporation Law, §§402(c), 602(f), 701, 713; see also, in general, White on New York Corporations, §§701.02, 713.03).

June 7, 1990
Kenneth E. Wood, Mayor
Village of Millport