Opinion 2000 - 18


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 (establishment of service award program by joint fire district); (authority for service award program established by joint fire district to provide prior service credit for activities performed under auspices of village fire department)

FIRE PROTECTION AND PREVENTION -- Villages (authority to transfer responsibility for service award program to joint fire district)

VILLAGES -- Fire Department and Fire Protection (authority to transfer responsibility for service award program to joint fire district) -- Powers and Duties (authority to transfer responsibility for service award program to joint fire district)

VOLUNTEER FIREFIGHTERS -- Service Award Programs (establishment by joint fire district); (authority for village to transfer responsibility for service award program to joint fire district); (authority for service award program established by joint fire district to provide prior service credit for activities performed under auspices of village fire department)

GENERAL MUNICIPAL LAW 215(7-a), 216(1), 217(c), (d), (e), 219-a(2): (1) A joint fire district may establish a service award program for the volunteer firefighters of the joint fire district fire department, but the service award program may not provide prior service credit for activities performed under the auspices of a village fire department. (2) When a village that has established a service award program is included within a joint fire district, the village lacks authority to transfer its fiscal and administrative responsibilities for the program to the joint fire district.

This is in response to your request for our opinion with respect to several issues arising from the inclusion of a village within a proposed joint fire district.

You state that the village in question has established a service award program for the volunteer firefighters of the village fire department. You also state that if the village is included within the joint fire district, the village fire department would be dissolved. We assume that the members of the former village fire department would become members of the joint fire district fire department.

Under these circumstances, you ask whether the administration of the village's service award program may be transferred to the joint fire district. If not, you ask whether the joint fire district may establish its own service award program and provide up to five years of prior service credit to participants in the program who were volunteer firefighters of the former village fire department, but who did not acquire a nonforfeitable right to a service award under the village's service award program. Finally, if the joint fire district may provide such prior service credit to the volunteer firefighters of the former village fire department, you also ask whether the joint fire district may require participants in its service award program, who were not volunteer firefighters of the former village fire department, to earn five years of service credit as a condition precedent to obtaining a nonforfeitable right to a service award.

Article 11-A of the General Municipal Law (214 et seq.) governs the establishment and operation of service award programs for volunteer firefighters. Insofar as here relevant, section 216(1) of the General Municipal Law provides that upon the affirmative vote of at least sixty percent of the governing board of a "political subdivision" having "control of the fire departments and fire companies," there shall be a mandatory referendum of the eligible voters within such political subdivision to determine whether the governing board shall establish a service award program for the volunteer firefighters of the political subdivision. For this purpose, the term "political subdivision" is defined as including both a "village" and a "fire district" (General Municipal Law 215[7-a]). Since the board of trustees of a village has "control" over the village fire department and the fire companies of the village (see Village Law 10-1000, 10-1006, 10-1008; Not-For-Profit Corporation Law 1402[e][1]; see also 1990 Opns St Comp No. 90-19, p 42), we have previously concluded that a village may establish a service award program for the volunteer firefighters of the village fire department in accordance with the procedures set forth above (1994 Opns St Comp No. 94-32, p 57; 1990 Opns St Comp No. 90-57, p 131).

With respect to the authority of joint fire districts to establish service award programs, we note that the establishment and operation of joint fire districts is governed by article 11-A of the Town Law (189-a et seq.; compare L 1938, ch 595, repealed L 1988 ch 241). Pursuant to article 11-A of the Town Law, the property and affairs of a joint fire district are under the management of a board of commissioners (Town Law 189-e). Further, the provisions of article 11 of the Town Law relating to fire districts, including those pertaining to the powers and duties of a fire district board of commissioners, are applicable generally to the operation and management of a joint fire district (Town Law 189-a[2][d], [e], [3][d], [4][e], 189-f; see also Village Law 22-2212). Since, under the Town Law, the board of fire commissioners of a fire district exercises "control" over the fire district fire department and the companies constituting the department (see Town Law 176 [11], [21]; Not-For-Profit Corporation Law 1402[e][1]; see also Town Law 176[10], [11-a], [11-b], [16], [20], 176-a[1], 176-b[2], [5], [6], [8]), the board of commissioners of a joint fire district similarly has "control" over the joint fire district fire department and the companies constituting the department. Therefore, in our opinion, a joint fire district has authority to establish a service award program for the volunteer firefighters of the joint fire district's fire department.

Once a political subdivision establishes a service award program, section 219-a(2)(a) of the General Municipal Law requires the political subdivision to fund the program (see also General Municipal Law 219[d]; Opn No. 94-32, supra; Opn No. 90-57, supra). In addition, section 219-a(2)(b) of the General Municipal Law requires a service award program to be administered by the political subdivision which established the program. Based on the latter provision, in Opn No. 94-32, supra, we noted that that there is no authority for a village to transfer its responsibilities in connection with a service award program to an independent fire company. Moreover, there is nothing in either article 11-A of the General Municipal Law or article 11-A of the Town Law that suggests that a joint fire district assumes these responsibilities by operation of law when a village which has established a service award program is included within the joint fire district (cf. Town Law 189-b, 189-f). Accordingly, in the absence of general or special legislation specifically addressing this issue (see e.g. L 1999, ch 287, a special act authorizing the transfer of assets from a village service award program to a town service award program following the dissolution of the village fire department), it is our opinion that when a village that has established a service award program is included within a joint fire district, the village lacks authority to transfer its fiscal and administrative responsibilities for the program to the joint fire district1 .

As to a joint fire district providing prior service credit to volunteers of the former village fire department, we note that section 217(c) of the General Municipal Law provides that a "year of firefighting service" must be credited under a service award program for each calendar year "after the establishment of the program" in which an active volunteer firefighter accumulates at least 50 points (emphasis supplied). Points must be granted for the performance of certain designated activities, in accordance with a system established by the sponsor (id.). Therefore, a service award program established by a joint fire district, pursuant to section 217(c), may not provide service credit for activities performed prior to the establishment of the program.

Section 217(d) of the General Municipal Law authorizes a service award program to provide for the crediting of years of active firefighting service for periods prior to the establishment of the program to a maximum of five years of active firefighting service per participant, but only to the extent authorized pursuant to section 216 of the General Municipal Law2. In order to provide such prior service credit, section 217(e) of the General Municipal Law requires the sponsor of the program to review its prior membership rosters to determine the number of years of credit to which each participant is entitled using the point system established by the sponsor pursuant to section 217(c). Section 217(e) also provides that approval for such prior service credit requires certification by the president, secretary and chief of the volunteer fire company. In our view, however, these provisions do not authorize a service award program established by one political subdivision to provide prior service credit for the performance of activities under the auspices of the fire department of another political subdivision.

In this regard, we note that in Opn No. 94-32, supra, we indicated that the authority for a political subdivision to establish a service award program is intended to facilitate the recruitment and retention of volunteer firefighters by the political subdivision's fire department, through the payment of a form of deferred compensation funded by the political subdivision for the performance of certain activities under the auspices of the political subdivision's fire department. In view of this purpose, as well as the need to ensure that a political subdivision funds a benefit only for services rendered to or at the behest of that political subdivision, we believe that a service award program may provide prior service credit only for activities performed under the auspices of the fire department of the political subdivision establishing the program (cf. L 1999, ch 287, precluding actions taken pursuant thereto from affecting, altering or impairing, inter alia, the interests in a village service award program following the dissolution of the village fire department and the transfer of assets from the village service award program to a town service award program). Accordingly, in our opinion, when a village that has established a service award program is included within a joint fire district, the joint fire district lacks authority to establish a service award program which provides prior service credit for activities performed under the auspices of the former village fire department3.

November 10, 2000
Richard T. Haefeli, Esq., Village Attorney
Village of Westhampton Beach

David J. Gilmartin, Jr., Esq., Town Attorney
Town of Southampton

1  In view of this conclusion, we need not address the final question relating to the authority of a joint fire district to establish different requirements for obtaining a nonforfeitable right to a service award for different classes of volunteer firefighters.

2 As previously discussed, section 216(1) of the General Municipal Law requires a service award program to be established by the affirmative vote of at least sixty percent of the governing board of the political subdivision subject to mandatory referendum. Sections 216(2) and 216(3)(d) prescribe essentially the same procedure, respectively, for establishing a service award program for the volunteer firefighters of a fire company located in and under contract to provide protection to a fire protection district and for amending a service award program. Therefore, if a service award program is to provide prior service credit, this feature of the program must be disclosed in the proceedings to establish or amend the program.

3 In view of this conclusion, we need not address the final question relating to the authority of a joint fire district to establish different requirements for obtaining a nonforfeitable right to a service award for different classes of volunteer firefighters.