Opinion 93-16


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

VOLUNTEER FIREFIGHTERS -- Service Award Program (credit for activities performed by local government employees during regularly assigned work periods)

WORDS AND PHRASES -- "Regularly Assigned Work Periods" (meaning for purposes of General Municipal Law, §217[f])

GENERAL MUNICIPAL LAW, §217(c),(f): Volunteer firefighters who also serve as paid employees of a political subdivision may not earn credit under a service award program for responding to fire alarms during their "regularly assigned work periods". "Regularly assigned work periods" are those times during which an individual is required ordinarily to be at work under the terms and conditions of his or her employment. Permitting a volunteer firefighter to take time off to respond to fire alarms does not alter the periods when, in fact, the volunteer is ordinarily expected to be at work.

This is in reply to your letter concerning the accrual of credit under a service award program by volunteer firefighters who also serve as paid employees of a political subdivision. Pursuant to General Municipal Law, §217(f), such firefighters may not earn credit under a service award program for responding to fire alarms during their "regularly assigned work periods". You state that the firefighters' employer, however, is willing to consider the time spent in responding to such alarms to be outside their "regularly assigned work periods" for the sole purpose of enabling them to earn credits. You ask whether this action by the employer will permit credits to be earned.

General Municipal Law, §217(c) provides that a "year of firefighting service" must be credited under a service award program for each calendar year after the establishment of the program in which an "active volunteer firefighter" accumulates at least 50 points. Points must be granted for the performance of certain designated activities, in accordance with a system established by the sponsor (id.). Such activities may include participation in department responses (see General Municipal Law, §217[c][vi]).

General Municipal Law, §217(f), however, also provides that "[i]n computing credit for those active volunteer firefighters who also serve as paid employees within a political subdivision of the state, credit shall not be given for activities performed during the individual's regularly assigned work periods". Thus, although a local government may provide its employees with paid or unpaid leave to enable them to respond to fire alarms while at work (see General Municipal Law, §92; 1980 Opns St Comp No. 80-335-A, p 100), a volunteer firefighter may not earn points under a service award program for responding to an alarm during his or her "regularly assigned work periods".

The phrase "regularly assigned work periods" is not defined by statute or by case law. The term "regularly", however, is commonly defined to mean "[a]t fixed and certain intervals, regular in point of time" and "[i]n accordance with some consistent or periodical rule or practice" (Black's Law Dictionary, 4th Ed. Rev; see also 76 C.J.S. 609-610). Based on this definition, in our view, "regularly assigned work periods" are those times during which an individual is required ordinarily to be at work under the terms and conditions of his or her employment.

Permitting a firefighter to take time off to respond to fire alarms does not affect the time during which the individual is ordinarily expected to be at work. Therefore, it is our opinion that a volunteer firefighter who is allowed time off to respond to an alarm during the period he or she is ordinarily expected to be at work is performing activities during his or her "regularly assigned work periods". The fact that the employer is willing to consider the time spent responding to fire calls as outside "regularly assigned work periods" for the sole purpose of earning service award credit does not alter the periods when, in fact, the employee is ordinarily expected to be at work.

March 23, 1993
Frank T. Simeone, Esq., Attorney at Law
Town of Woodbury Fire District