Opinion 97 - 24

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Auxiliary (participation in service award program)

VOLUNTEER FIREFIGHTERS -- Service Award Program (participation by members of the "auxiliary" of an incorporated fire company located within a fire district)

GENERAL MUNICIPAL LAW, §§215, 217: The members of the "auxiliary" of an incorporated volunteer fire company located in a fire district may not participate in a service award program established for the members of the fire company unless they have been approved as members of the fire company and are subject to call for whatever duties may be assigned under the rules and regulations of the department or company.

You ask whether members of the "auxiliary" of an incorporated volunteer fire company located in a fire district may participate in a service award program established for the members of the fire company. You state that the constitution and by-laws of the fire company provide that the auxiliary is under the supervision of the fire company and that its primary function is to provide supplemental services to the fire company, i.e. fund raisers and refreshments at emergency incidents.

Article 11-A of the General Municipal Law (§214 et seq.) provides that "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]). There is nothing in article 11-A which specifically authorizes members of an auxiliary organization to participate in a service award program.

Thus, in order for a member of an auxiliary organization to participate in a service award program, he or she must be considered an "active volunteer firefighter". To be considered an active volunteer firefighter, he or she must meet two requirements. The individual must have been appointed, approved or deemed approved as a member of the department or company by the board of fire commissioners of the fire district pursuant to section §176-b (2) of the Town Law.  The individual also must be currently active, that is, subject to call for whatever duties may be assigned under the rules and regulations of the department or company (1994 Opns St Comp No. 94-33, p 59). An individual performing the functions of a firefighter voluntarily and not as a matter of duty is not an active member, even though the person may be carried on a separate roster as an inactive, honorary, life, social, or some similarly named member (id.).

Accordingly, it is our opinion that the members of the "auxiliary" of an incorporated volunteer fire company located in a fire district may not participate in a service award program established for the members of the fire company unless they have been approved as members of the fire company and are subject to call for whatever duties may be assigned under the rules and regulations of the department or company.

January 14, 1998
William N. Young, Jr., Esq., Counsel
Greenville Fire District