Opinion 94 - 33


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 Programs (participation by retired members of fire department)

GENERAL MUNICIPAL LAW, §§215(1), 217(a): "Retired" members of a fire department may not participate in a service award program unless they are subject to being called to duty under the department's rules and regulations.


We have been asked whether "active life retired members" and "life retired members" of a fire department for which a volunteer firefighters' service award program has been established may participate in the program.

Article 11-A of the General Municipal Law (§214 et seq.) governs the establishment and operation of volunteer firefighters' service award programs. Under article 11-A, only "active volunteer firefighters" who meet certain age and length of service requirements may participate in a service award program (General Municipal Law, §217 [a]). For this purpose, an "active volunteer firefighter" is a person who has been approved as an active member of a fire department or fire company by the authorities in control of the department or company and who is "faithfully and actually performing service" in the protection of life and property from fire and other emergency (see General Municipal Law, §215[1]).

We assume that "active life retired members" and "life retired members" of the fire department in question were at some point approved as active members of the department (see Town Law, §176-b; Village Law, §10-1006; Not-For-Profit Corporation Law, §1402). Although article 11-A does not define the circumstances under which a person is considered to be "faithfully and actually performing service", we are of the view that this service requirement is intended to limit the definition of "active volunteer firefighter" to currently active members of a fire department or company.

The distinguishing characteristic of currently active members of a fire department or company is that they are subject to call for whatever duties may be assigned to them under the rules and regulations of the department or company (see 6 Opns St Comp, 1950, p 136). An individual performing the functions of a firefighter voluntarily and not as a matter of duty is not an active member (see 12 Opns St Comp, 1956, p 164), even though the person may be carried on a separate roster as an inactive, honorary, life, social, or some similarly named member (see 10 Opns St Comp, 1954, p 363).

Accordingly, if under the rules and regulations of the fire department in question either "active life retired members" or "life retired members" are not subject to being called to duty, it is our opinion that they may not be considered "active volunteer firefighters" for purposes of the service award statute.

August 2, 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 a "nonforfeitable right" to a service award based on activities performed prior to the dissolution of the fire department.