Opinion 96 - 7


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 DISTRICTS -- Powers and Duties (advertising to recruit volunteer firefighters)

MUNICIPAL COOPERATION -- Fire Protection (cooperation agreement for recruitment of volunteer firefighters) -- Municipal Funds (manner of apportioning costs under cooperation agreement)

TOWN LAW, §§176(10), 176-b; GENERAL MUNICIPAL LAW, §119-o: Several fire districts may enter into a cooperation agreement to implement an advertising campaign for the purpose of recruiting volunteer firefighters for the fire companies of the fire departments of the districts. The costs of the campaign may be apportioned by property valuations, population or any other equitable method or formula as agreed to by the parties to the agreement.

You ask whether several fire districts may join together in an advertising campaign for the purpose of recruiting volunteer firefighters for the fire departments of those districts. If so, you ask how the cost for this campaign may be allocated among the fire districts. Specifically, you ask whether costs may be allocated based on property valuations or population.

Article 5-G of the General Municipal Law, (§119-m et seq) generally authorizes "municipal corporations", including fire districts (see General Municipal Law, §119-n[a]), to enter into cooperative agreements. Subdivision one of section 119-o provides, in relevant part, that ". . . municipal corporations and districts shall have power to enter into, amend, cancel and terminate agreements for the performance among themselves or one for the other of their respective functions, powers and duties on a cooperative or contract basis . . ." (emphasis supplied). Thus, in order for fire districts to enter into a municipal cooperation agreement, they must have authority to perform separately the function which would be the subject of the agreement (see, NY Const. art IX, section 1[c]; see also e.g., 1993 Opns St Comp No. 93-6, p 10; 1991 Opns St Comp No. 91-14, p 53).

Fire districts are established for the purpose of providing fire protection and responding to certain other types of emergencies (see Town Law, §176[16], [22]; General Municipal Law, §§209, 209-b; Volunteer Firefighters' Benefit Law, §5[1]; 1992 Opns St Comp No. 92-41, p 105; 1986 Opns St Comp No. 86-34, p 55). In furtherance of these purposes, fire districts have only those powers expressly granted by statute and necessarily implied therefrom (Town Law, §176[21]; 1992 Opns St Comp Nos. 92-4, p 9 and 92-41, supra; see also 1982 Opns St Comp No. 82-242, p 302; 1981 Opns St Comp No. 81-196, p 209; 17 Opns St Comp, 1961, p 252; cf. Wells v Town of Salina, 119 NY 280).

Pursuant to Town Law, §176(10), fire districts are expressly authorized to organize, operate, maintain and equip fire companies. In addition, under Town Law, §176-b, the board of fire commissioners appoints the volunteer members of any newly organized fire company and, thereafter, has the right of approval over the election of additional volunteers. In our opinion, the power to organize, operate and maintain fire companies, and appoint or approve the election of members to fire companies, necessarily implies the power to take reasonable measures, such as advertising, to recruit candidates for membership in the fire companies of the fire district fire department (cf. 1972 Opns St Comp No. 72-781, unreported and 24 Opns St Comp, 1968, p 127, pertaining to the power of a municipality to utilize an employment agency). Since fire districts may individually advertise to recruit volunteers, they may join together and perform this function cooperatively pursuant to General Municipal Law, §119-o.

Subdivision 2(a) of section 119-o provides that a cooperation agreement may provide a method or formula for equitably allocating the operating costs of the activity performed under the agreement. It further states that the method or formula:

shall be established by the participating ... districts on a ratio of full valuations of real property, or on the basis of the amount of services rendered or to be rendered, or benefits received or conferred or to be received or conferred, or on any other equitable basis ...

Thus, the parties to the cooperation agreement may provide for apportioning the costs on the basis of full valuation of real property or, if they determine it to be equitable, population or some other method.

Accordingly, several fire districts may enter into a cooperation agreement to implement an advertising campaign for the purpose of recruiting volunteer firefighters for the fire companies of the fire departments of the districts. The costs of the campaign may be apportioned by property valuations, population or any other equitable method or formula as agreed to by the parties to the agreement.

April 18, 1996
William N. Young, Jr., Esq., Counsel
Westmere Fire District