Opinion 91-44


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Compensation (health insurance)
FIRE DISTRICTS -- Appropriations and Expenditures (health insurance for fire commissioners)
INSURANCE -- Health Insurance (authority to cover fire district fire commissioners under State health insurance plan)

CIVIL SERVICE LAW, §§160, 163(2),(4), 167(2); TOWN LAW, §174(3): A member of a board of fire commissioners of a fire district may not be provided health insurance through the State health insurance plan at the expense of the district.

You ask whether a member of the board of fire commissioners of a fire district may be provided health insurance through the State health insurance plan at the expense of either the district or the individual.

The State health insurance plan is operated pursuant to Article XI of the Civil Service Law (§160 et seq.) and regulations of the president of the Civil Service Commission promulgated pursuant to that Article (see Civil Service Law, §160; 4 NYCRR 73). Pursuant to Article XI and the regulations, a fire district, as a "district corporation" (see Town Law, §174[7]), may elect to participate in the State health insurance plan with respect to its "employees" or its "employees" and "retired employees" (see Civil Service Law, §163[2],[4]; 4 NYCRR 73.1[b]-[i], 73.2). In either case, it appears that the statute and regulations require a fire district, as a participating employer, to pay a minimum percentage of the premium or subscription charges for the coverage (see Civil Service Law, §167[2]; 4 NYCRR 73.3[b]). For this purpose, the term "employee" includes "a paid elective official of the State or paid member of a public legislative body or other local elective official ..." (4 NYCRR 73.1[c][1][ii], as amended November 1, 1989, emphasis supplied). We are informed by the Department of Civil Service that the 1989 amendment to their regulations which added the underlined phrase was intended to expand eligibility for coverage to include unpaid local elective officials.

Although a member of a board of fire commissioners of a fire district is an unpaid local elective official (see Town Law, §174[2],[3]), the authorization in the Civil Service Law and regulations adopted pursuant thereto must be read together with Town Law, §174(3). The latter statute expressly prohibits fire commissioners from receiving "compensation" for their services. This Office has expressed the view that, for municipal law purposes, the term "compensation" generally connotes both the salary and fringe benefits of a municipal officer and employee (see, e.g., 1987 Opns St Comp No. 87-34, p 52). In particular, we have concluded that theexception from a fire district's spending limitation in Town Law, §176(18)(4) for the "the compensation of paid fire district officers ..." encompasses both salaries and fringe benefits (id.). Since there is nothing in section 174(3) or its legislative history to suggest a contrary interpretation, we similarly conclude that the prohibition in that provision covers both salary and fringe benefits, including health insurance coverage (see also 1978 Opns St Comp No. 78-621, unreported, 1972 Opns St Comp No. 72-897, 21 Opns St Comp 1965, p 601, in which we concluded that a fire district may not pay for coverage under a local health insurance plan established pursuant to General Municipal Law, §92-a for a member of the board of fire commissioners).

Therefore, notwithstanding the authorization in the Civil Service Law and the regulations to include unpaid elective officials, it is our opinion that a fire district may not provide coverage under the State health insurance plan to a member of its board of fire commissioners if the district pays all or part of the premiums or subscription charges on behalf of the commissioner. On the other hand, if Civil Service Law, §167 and the regulations promulgated thereunder were to permit a commissioner to pay the employer contribution for coverage, we believe that the commissioners could be afforded coverage under the State health insurance plan. In this regard, we note that 4 NYCRR 73.1[c][1][ii], authorizes school board members to be covered under the State health insurance plan provided that the total cost of participation is borne by the school board member. We defer to the Civil Service Department as to whether elected fire district commissioners can be treated in the same manner as school board members so that the commissioners may participate in the State health insurance plan.

October 16, 1991
Richard T. Nolan, Esq.
Mt. Sinai Fire District