Opinion 98 - 2


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 CHIEFS -- Powers and Duties (control of use of personal equipment at fire)

FIRE COMMISSIONERS -- Reimbursement for Expenses (dinners after board meeting)

FIRE DISTRICTS -- Apparatus and Equipment (control of use of personal equipment at fire) -- Appropriations and Expenditures (dinners for fire commissioners)

TOWN LAW, §178-c: A fire district may not pay for post-meeting dinners of members of a fire district board of fire commissioners when a monthly meeting commences at 8:00 pm and ends approximately 9:00 pm or 10:00 pm, and the commissioners customarily arrive before the meeting at approximately 5:30 pm or 6:00 pm to review correspondence and bills until the meeting commences.

TOWN LAW, §§176(11), 176-a(1): The board of fire commissioners may adopt a rule or regulation limiting, controlling or prohibiting the use of personal equipment at a fire scene and, even in the absence of such a rule or regulation, the chief of the fire district fire department may restrict or prohibit such use.

You ask whether a fire district may pay for dinner expenses for fire commissioners under the following circumstances. The monthly meeting of the fire district board of commissioners commences at approximately 8:00 p.m. and ends at approximately 9:00 or 10:00 p.m. The commissioners customarily arrive before the meeting at approximately 5:30 or 6:00 p.m. to review correspondence and bills until the meeting commences. Each commissioner has dinner after the meeting.

Town Law, §178-c provides that, when incurred by the authority of the board of fire commissioners, the "actual and necessary expenses" of all fire district officers and paid employees, and of all paid and volunteer officers of the fire district fire department, incurred and paid by any such officer or employee in executing the duties of his or her position shall be a fire district charge. In discussing when meal expenses constitute "actual and necessary expenses", this Office has expressed the opinion that meal expenses may not be reimbursed unless a local official is traveling outside of his or her regular work area on official business for an extended period of time or is prevented from taking time off for meals due to a pressing need to complete the business at hand (see, e.g., 1981 Opns St Comp No. 81-13, p 13; 1979 Opns St Comp No. 79-717, unreported; OSC Financial Information for Fire District Officials, p 8-8). Meals would be a proper local government charge when the local government is faced with business of an immediate nature and meetings are essential at mealtime. Under those circumstances, the furtherance of public business is the main purpose of the meetings and the food is incidental thereto (id.). Thus, the cost of meals while performing the usual duties of the position within the local government is generally a personal expense.

In the instant situation, the meeting in question is the usual monthly board meeting, scheduled to commence after the ordinary dinner hour. The decision to arrive several hours before the meeting to review correspondence and claims, rather than to review these materials at another time prior to or at the meeting, appears to be a matter of personal choice by each commissioner based on custom. Moreover, the dinners are normally consumed after the meeting and, presumably, the board members are no longer performing official duties (see 1982 Opns St Comp No. 82-253, p 315). Based on these circumstances, it is our opinion that the cost of the meal is a personal expense, not a fire district expense.

Unrelated to your first question, you also ask whether a firefighter may purchase equipment which meets or exceeds fire department standards at his or her own expense for use in fighting fires. You indicate that there is concern with respect to policing this practice.

We believe that the use of such equipment would be under the control of the board of fire commissioners and the chief of the fire department fire district (see 9 Opns St Comp, 1952, p 379; Town Law, §§176[11], 176-a[1]). In this regard, we note that the board of fire commissioners may adopt rules and regulations governing all fire companies and fire departments in the district and prescribe the duties of the member thereof (Town Law, §176[11]). Further, Town Law, §176-a(1) provides that, the chief, under the direction of the board, has exclusive control of the members of the fire department at all fires and other occasions where the department is on duty and also has supervision of the apparatus, equipment and other property used for the prevention and extinguishment of fires. The chief also must see that the rules and regulations of the board of fire commissioners are observed and that the orders of the board are executed (Town Law, §176-a[1]). It is our opinion that, in the exercise of these powers, the board of fire commissioners could adopt a rule or regulation limiting, controlling or prohibiting the use of personal equipment at a fire scene and, even in the absence of such a rule or regulation, the chief could restrict or prohibit such use.

January 20, 1998
Joseph R. Attonito, Esq., Attorney at Law
Selden Fire District