Opinion 98 - 20


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 COMPANY -- Fire Police Squads (qualification for appointment to)

FIRE COMMISSIONERS -- Powers and Duties (establishment of minimum service requirement for appointment to fire police squad)

GENERAL MUNICIPAL LAW, §209-c; TOWN LAW, §176(11): An otherwise qualified individual may be assigned to a fire police squad immediately upon becoming a member of a fire company of a fire district fire department. A board of fire commissioners, however, may establish a reasonable minimum service requirement for appointment to a fire police squad, if the board determines that such a requirement is reasonably related to the functions to be performed and is in the best interest of the fire district.

You ask whether a volunteer firefighter, immediately upon becoming a member of a fire company, may be assigned to the fire police squad. If so, you ask whether a board of fire commissioners, in its discretion, may provide that newly-appointed members not be immediately assigned to the fire police squad.

General Municipal Law, §209-c provides that the "authorities having control" of fire departments and fire companies may organize, within such departments or companies, fire police squads composed of volunteer firefighters who are members of such companies. Members of fire police squads have the powers of and render service as peace officers, at such times as the fire department, fire company or an emergency rescue and first aid squad of the fire department or fire company are on duty, or when, on orders of the chief of the fire department or fire company of which they are members, they are separately engaged in response to a call for assistance pursuant to the provisions of General Municipal Law, §209. In the case of a fire district, the board of fire commissioners would have the authority to organize fire police squads (see Not-For-Profit Corporation Law, §1402[e], Town Law, §§176[10], 176-b). Section 209-c further provides that a member of a fire police squad must take and file an oath of office in that capacity. In addition, a member of the fire police squad is deemed to have satisfied any requirement for training as provided by any general or local law (see, e.g., Criminal Procedures Law, §§2.10[41], 2.30) if the person has satisfactorily completed a training course offered by the State Office of Fire Prevention and Control, or an equivalent course as approved by that office. There is nothing in section 209-c which would prevent an otherwise qualified individual from being assigned to the fire police squad immediately upon becoming a member of a fire company.

As to whether a board of fire commissioners, in its discretion, may provide a minimum period of time served as fire company member before appointment to the fire police squad, we note that we have previously expressed the opinion that a fire police squad is a component of a fire department or fire company (see, e.g., 1991 Opns St Comp No. 91-22 p 69). A board of fire commissioners may adopt rules and regulations governing all fire companies and departments in the district and, among other things, prescribe therein the duties of the members of the companies and department (Town Law, §176[11]; but see Town Law, §176-b[15], prohibiting discriminatory practices). It is our opinion that, pursuant to its authority to adopt rules and regulations, and as a necessary incident to its authority to "organize" fire police squads within the fire department or fire companies, the board of fire commissioners may establish a reasonable, minimum service requirement for appointment to a fire police squad. In our opinion, however, such a requirement may not be arbitrarily imposed (cf. Orloski v New York State Department of Civil Service, 99 AD2d 630, 472 NYS2d 185; DeHond v Nyquist, 65 Misc 2d 526, 318 NYS2d 650). Rather, we believe the board must determine that such a requirement, including the minimum service period, is reasonably related to the functions to be performed by members of the squad and is in the best interests of the fire district (id.; NY Const, art XIII, §1; Rathbone v Wirth, 150 NY 459; see 1992 Atty Gen [Inf Opns] No. 92-47, as to whether a member of a fire police squad holds a public office).(1)

Accordingly, an otherwise qualified individual may be assigned to a fire police squad immediately upon becoming a member of a fire company of a fire district fire department. A board of fire commissioners, however, may establish a reasonable minimum service requirement for appointment to a fire police squad, if the board determines that such a requirement is reasonably related to the functions to be performed and is in the best interest of the fire district.

December 1, 1998
Walter P. Wagner, Esq., Counsel
Lido and Point Lookout Fire District

1. It would appear that such a requirement may not include training requirements inconsistent with the provision of General Municipal Law, §209-c which, as noted, states that a member of a fire police squad is deemed to have satisfied any training requirement provided by general or "local law" if the person has completed a course offered or approved by the State Office of Fire Prevention and Control.