Opinion 94 - 32


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 PROTECTION AND PREVENTION -- Villages (continuation of service award program if fire department ceases to provide service outside village or if fire department is dissolved); (authority to transfer responsibility for service award program to fire company)

VOLUNTEER FIREFIGHTERS -- Service Award Program (continuation if village fire department ceases to provide service outside village or if fire department is dissolved); (authority for village to transfer responsibilities to fire company)

GENERAL MUNICIPAL LAW, §§215(1), 216(3)(d), 219(d), 219-a(2)(a),(b): A village is required to continue a service award program established for the village fire department in the event that the fire department ceases to provide service under contract to an area outside the village. The dissolution of a village fire department for which a service award program has been established would preclude the former members of the department from earning service credit under the program on the basis of activities performed after the dissolution. There is no authority for a village to transfer its responsibilities in connection with a service award program to a fire company.

We have been asked several questions concerning the establishment of a service award program for the volunteer firefighters of a village fire department. The village fire department provides service to an area outside the village under contract with the town in which the village is located. Assuming that the village were to establish a service award program for the volunteer firefighters of the fire department, we are asked whether: (1) the village would be required to continue the program in the event that the fire department ceased to provide service under contract to the area outside the village; (2) the village would be required to continue the program in the event that the village dissolved its fire department; and (3) the village could dissolve its fire department on the condition that an independent fire company agree to take over and administer the program.

As a general proposition, once a village establishes a service award program for the volunteer firefighters of the village fire department, the program remains in effect until it is amended or abolished by the affirmative vote of at least sixty percent of the board of trustees of the village, subject to a mandatory referendum of the eligible voters of the village (see General Municipal Law, §216[3][d]). During the period in which a service award program for the volunteer firefighters of a village fire department is in effect, the village 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 responsibility for funding the program rests with the village, and not with any area outside the village (1990 Opns St Comp, No. 90-57, p 131).

When a village fire department provides fire protection services to an area outside the village pursuant to a fire protection contract, the consideration payable under the fire protection contract may take into account the cost to the village of funding a service award program and the village may apply a portion of the consideration paid under a fire protection contract to defray the cost of the service award program (see Opn No. 90-57, supra). However, a failure to renew the contract does not affect the village's responsibility to fund the program or result in the termination of the program (see General Municipal Law, §§216[3][d], 219[d], 219-a[2][a]). Of course, in the event that the fire protection contract is not renewed, the village has the option of amending or abolishing the service award program in the manner discussed above.

The service award statute does not expressly address the effect of the dissolution of a village fire department on a service award program established for the members of the department. However, section 216(1) of the General Municipal Law only authorizes a village to establish a service award program for the volunteer firefighters of the village. There is no authority for a village to establish or maintain a service award program for individuals who are not volunteer firefighters of the village.

Moreover, the authority for a village to establish a service award program is intended to facilitate the recruitment and retention of volunteer firefighters by the village fire department, through the payment of a form of deferred compensation funded by the village for the performance of certain activities under the auspices of the village fire department (see General Municipal Law, §215[1]; see also 1988 NYS Legislative Annual, p. 307). Thus, although it is not entirely clear, it is consistent with the Legislative intent to conclude that the dissolution of a village fire department would have the effect of discontinuing a service award program established for the volunteer firefighters of the department, at least to the extent that the former members of the department would be precluded from earning service credit under the program on
the basis of activities performed after the dissolution.(1)

As to whether a village can dissolve its fire department on the condition that an independent fire company agree to take over and administer a service award program established
by the village for the members of the fire department, there is no authority for a village to transfer its responsibilities in connection with a service award program to an independent fire company (see General Municipal Law, §219[2][b]). Therefore, it is our opinion that a village cannot dissolve its fire department subject to such a condition.

September 23, 1994
Patricia Lamb McCarthy
Deputy Comptroller

1. Note that the service award statute is silent with respect to what arrangements, if any, must be made for those members of the former fire department who acquire an "nonforfeitable right" to a service award based on activities performed prior to the dissolution of the fire department.