Opinion 91-42


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 DEPARTMENT -- Villages (authority to transfer department funds to village treasurer); (cooperative investment of department funds and village funds); (gift of department funds to village subject to condition regarding use)
VILLAGE TREASURER -- Powers and Duties (authority to have custody of fire department funds)
VILLAGES -- Powers and Duties (cooperative investment of fire department funds and village funds)

GENERAL MUNICIPAL LAW, §119-n; MUNICIPAL HOME RULE LAW, §10[1][i]; VILLAGE LAW, §4-408: A village and its fire department may not agree to transfer fire department moneys into the custody of the village treasurer to be jointly invested with village moneys.

You ask whether a village and a village fire department may agree to transfer to the village treasurer the custody of moneys presently held by the fire department for the acquisition of firefighting equipment. The moneys would be jointly invested by the village treasurer with village moneys.

Village Law, §4-408 provides that the village treasurer shall be the chief fiscal officer of the village and that it shall be his or her responsibility to have custody of all moneys belonging to the village. A village fire department is a corporation consisting of the members of all the fire, hose, protective and hook and ladder companies of a village (Village Law, §10-1008). Moneys paid to the village fire department as, for example, membership dues, foreign fire insurance tax proceeds (see Insurance Law, §§9104, 9105) and the proceeds of fire department fund raising activities (see General Municipal Law, §204-a) belong to the fire department and not the village (see, e.g., 1991 Opns St Comp No. 91-12, p 32). Therefore, they are not required to be held in the custody of the village treasurer pursuant to Village Law, §4-408.

Further, we are aware of no statute which authorizes a village and a village fire department to agree to transfer custody of village fire department funds from the department to the village treasurer for investment purposes. While municipal corporations are authorized to enter into cooperative investment agreements (see 1988 Opns St Comp No. 88-46, p 89), there is no similar statutory authority for a village and a village fire department to enter into such an agreement (see General Municipal Law, §119-n).

As to the village's home rule power in this instance, we note that villages are authorized to adopt local laws, not inconsistent with general laws or the constitution, relating to their property, affairs or government (Municipal Home Rule Law, §10[1][i], [ii][e][3]). Since fire department moneys are not village property and the administration of the moneys is a matter of the internal affairs of the fire department, however, it is our opinion that a village may not, by local law, authorize itself to enter into the proposed contract.

Finally, we note that while the village may not agree to take custody of moneys of a fire department, the fire department, in its discretion, may offer a gift of its moneys to the village (see Not-For-Profit Corporation Law, §202). The village board is authorized to accept such a gift upon lawful terms and conditions prescribed by the fire department (Village Law, §1-102[2]). Thus, the village may accept a gift of fire department moneys on the condition that the moneys be used only to acquire village firefighting equipment (1979 Opns St Comp No. 79-666, unreported). Once accepted, the moneys become village funds (see 1991 Opns St Comp No. 91-19, p 162; Opn No. 79-666, supra) which would be held in the custody of the village treasurer and may be invested by the village in the same manner as all other village moneys (see General Municipal Law, §§6-f, 11).

October 15, 1991
W.J. Gibbons, Village Attorney
Village of Cooperstown