Opinion 99 - 1


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 Program (requirement that program assets be held in trust); (provision of death benefits to volunteer firefighters who have not earned a nonforfeitable right to a service award)

GENERAL MUNICIPAL LAW, §§217(j), 218(e), 219(f): (1) The assets of a service award program for volunteer firefighters must be held in trust. (2) A service award program may provide death benefits only in the case of an active volunteer firefighter who has a nonforfeitable right to service award.

You ask whether the assets of a service award program for volunteer firefighters must be held in trust. You also ask whether such a service award program may provide a death benefit to a volunteer firefighter who has not earned a nonforfeitable right to a service award.

Service award programs for volunteer firefighters are established pursuant to article 11-A of the General Municipal Law (§214 et seq.). Section 217 of the General Municipal Law sets forth a number of requirements for service award programs adopted pursuant to article 11-A. Subdivision (j) of section 217 provides, in relevant part, that "[a]ll program assets shall be held in trust for the exclusive purpose of providing benefits to participants and their beneficiaries or for the purpose of defraying the reasonable expenses of the operation and administration of the program" (emphasis supplied). Therefore, based on the express statutory language of section 217(j), it is clear that the assets of a service award program for volunteer firefighters must be held in trust.

As to death benefits, sections 218(e) of the General Municipal Law provides, in effect, that defined contribution service award programs "shall" provide death benefits in the event of the death of an "active volunteer firefighter who has a right to a nonforfeitable percentage" of a service award (emphasis supplied)(1). Similarly, section 219(f) of the General Municipal Law provides, in effect, that defined benefit service award programs "may" provide death benefits in the event of the death of an "active volunteer firefighter who has a right to a nonforfeitable percentage" of a service award (emphasis supplied). Both sections also provide for additional death benefits if "the active volunteer firefighter" dies during the course of service as a volunteer while actively engaged in providing line of duty services. It is clear that the references to additional benefits for "the active volunteer firefighter" relate to an "active volunteer firefighter who has a right to a nonforfeitable percentage" of a service award. Accordingly, it is our opinion that a service award program may provide death benefits only in the case of an active volunteer firefighter who has a nonforfeitable right to a service award.

January 19, 1999
Patricia L. McCarthy
Deputy Comptroller

1. Section 217(b) of the General Municipal Law generally provides that a participant in a service award program shall have a nonforfeitable right to 100% of a service award upon earning credit for 5 "years of firefighting service" (see General Municipal Law, §§215[11], 217[c], [d]) or at a faster rate as determined by the local government sponsor.