Opinion 90-57


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 (need for referendum on contract to receive fire protection from village with service award program)
FIRE PROTECTION AND PREVENTION -- Contracts (cost of service award program for village fire department); (need for referendum on contract with village having service award program) -- Villages (authority and procedure to establish service award program)
FIRE PROTECTION DISTRICTS -- Fire Protection Contracts (cost of service award program for village fire department) -- Service Award Program (authority and procedure to establish for village fire department)
REFERENDUM -- Mandatory (to establish service award program for village fire department); (need for on contract to receive fire protection from village with service award program)
VILLAGES -- Power and Duties (authority and procedure to establish service award program)
VOLUNTEER FIREFIGHTERS -- Service Award Program (authority and procedure to establish for village fire department)

GENERAL MUNICIPAL LAW, §216(1),(2); TOWN LAW, §§176(22), 184: The establishment of a service award program for the volunteer firefighters of a village fire department is subject to a mandatory referendum of the eligible voters within the village, but is not subject to referendum in any area outside the village which contracts to receive fire protection services from the village fire department. In negotiating the consideration payable to a village under a fire protection contract, the parties may take account of the cost to the village of funding a service award program. Payment under such a contract is not subject to referendum.

In separate inquiries, we have been asked: (1) whether the establishment of a service award program for the volunteer firefighters of a village fire department is subject to mandatory referendum in one or more fire protection districts which contract to receive fire protection services from the village fire department; and (2) whether the board of fire commissioners of a fire district must obtain voter approval before making payments under a fire protection contract with a village when, in negotiating the amount payable under the contract, the parties have taken into account the cost to the village of a service award program for the volunteer firefighters of the village.

Article 11-A of the General Municipal Law (§214 et seq.) contains provisions relating to service award programs for volunteer firefighters. The authority and procedures for establishing a service award program are set forth in General Municipal Law, §216. Subdivision 1 of section 216 provides that upon the affirmative vote of at least sixty percent of the governing board of a "political subdivision" having control of the fire departments and fire companies, there shall be a mandatory referendum of the eligible voters within "such political subdivision" to determine whether the governing board shall establish a service award program for the volunteer firefighters of the political subdivision. Subdivision 2 of section 216 provides that, upon the affirmative vote of at least sixty percent of the governing board of a "political subdivision" which has contracted with the volunteer fire departments or fire companies located in a fire protection district of such political subdivision, there shall be a mandatory referendum of the eligible voters residing within such "fire protection districts" to determine whether the governing board shall establish a service award program for the volunteer firefighters of such fire departments or companies. For the purpose of section 216, the term "political subdivision" means a county, city, town, village or fire district (see General Municipal Law, §216[1],[2]; Volunteer Firefighters' Benefit Law, §3[10]).

Since a village is a "political subdivision" and the village board of trustees has "control" over the village fire department and the companies comprising the department (see Village Law, §10-1000; Not-For-Profit Corporation Law, §1402[e][1]; see also 1990 Opns St Comp No. 90-19, p 42), a service award program for the volunteer firefighters of the village fire department may be established pursuant to General Municipal Law, §216(1). Establishment of the program pursuant to subdivision 1 of section 216 requires an affirmative vote by at least sixty percent of the village board of trustees and is subject to a mandatory referendum of the eligible voters within the village. Section 216(1), however, does not require or authorize the establishment of a service award program for a village fire department to be subject to mandatory referendum in any area outside the village.

Further, the mandatory referendum in fire protection districts required by General Municipal Law, §216(2) is inapplicable to the establishment of a service award program for a village fire department. Section 216(2) is an independent grant of authority intended to permit establishment of service award programs for volunteer firefighters of incorporated fire companies or departments which are located in fire protection districts and are not otherwise part of a political subdivision (see General Municipal Law, §214[2]). Moreover, section 216(2) only authorizes a political subdivision to establish a service award program when the political subdivision has contracted with volunteer fire departments or fire companies "located in a fire protection district of such political subdivision" (emphasis supplied). It is not applicable where a town board contracts on behalf of a fire protection district to receive fire protection services from a fire department or company located outside the district, such as a village fire department (see Town Law, §170[1], providing that fire protection districts are established outside incorporated villages; cf. Village Law, §§2-252, 2-254, relating to newly incorporated villages). Therefore, when a village establishes a service award program for the volunteer firefighters of the village fire department, neither subdivision 1 nor subdivision 2 of section 216 requires or authorizes a referendum in any area outside the village, such as a fire protection district, which receives protection from the village fire department.

As further support for this conclusion, we note that where a service award program is established for the volunteer firefighters of a village fire department, the board of trustees is required to appropriate annually the amount needed to fund the program (see General Municipal Law, §§219[d], 219-a[2][a]). Thus, the statutory responsibility for funding a service award program for a village fire department rests with the village, and not with any area outside the village.

Although the village is responsible, by statute, for funding the program, we note that a fire protection contract pursuant to which a village fire department provides fire protection services to either a fire district or a fire protection district must specify a "definite sum" to be paid each year for all of the services rendered under the contract (see Town Law, §§176[22], 184[5]). The "definite sum" consideration payable under such a contract is in lieu of additional items of cost and is deemed to cover the expenses to be incurred by the village fire department in connection with the contract (see 1981 Opns St Comp No. 81-347, p 380; but cf. Volunteer Firefighters' Benefit Law [VFBL], §30[12], pertaining to increases in the cost of VFBL coverage attributable to the protected area). There are no statutory provisions which regulate the consideration paid to a village under a fire protection contract and, therefore, the contract price is fixed solely as a result of negotiation between the parties involved and depends on numerous factors which vary in each situation (see 1982 Opns St Comp No. 82-355, p 450). Thus, since the establishment of a service award program would increase the cost to the village of providing fire protection services to both the village and either a fire district or a fire protection district, the parties to a fire protection contract, in negotiating the consideration payable to a village (see General Municipal Law, §209-d), may take into account the cost to the village of funding a service award program.

We also note, however, that a fire protection contract pursuant to which a village fire department provides fire protection services to either a fire district or a fire protection district must run for a "definite period of time", not to exceed five years, and may be renewed subject to certain public hearing requirements (see Town Law, §§176[22], 184[2]-[4]). There is no requirement, however, that either party agree to a renewal contract. Therefore, although the consideration payable under a fire protection contract may take into account the cost to the village of funding a service award program, a village should not necessarily rely on a fire protection contract as a permanent source of revenue when determining whether to establish the program.

With respect to whether a referendum is required in a fire district prior to entering into, or making payment under a fire protection contract with a village having a service award program, Town Law, §176(22) provides that the board of fire commissioners shall not enter into a contract pursuant to which the fire district receives fire protection services from another jurisdiction until a public hearing has been held by the board on at least ten days prior published notice (see also Town Law, §184[2], imposing similar requirements on a town board contracting on behalf of a fire protection district). There is no requirement, however, that the board of fire commissioners submit the contract to a referendum prior to either executing or making payment under the contract (see Town Law, §176[18][1], which excludes payments under a fire protection contract from a fire district's spending limit). This is so irrespective of whether the parties have taken into account the village's cost of funding a service award program for its volunteer firefighters in negotiating the "definite sum" payable by the fire district. Therefore, the board of fire commissioners is not required or authorized to obtain voter approval before entering into, or making payments under the contract.

Finally, we note that there is presently pending an action for a declaratory judgement in which the constitutionality of General Municipal Law, Article 11-A has been challenged (see Caruso v State of New York, Supreme Court, Albany County).

January 8, 1991
Jorge Batlle, Assistant Fire Chief
Village of Skaneateles

Richard T. Haefeli, Esq., Attorney at Law
Westhampton Fire District