Opinion 2003 - 4
FIRE DISTRICTS -- Appropriations and Expenditures (holiday
decorations for public roads) -- Powers and Duties (authority to
purchase holiday decorations for public roads)
TOWN LAW §176(4-a), (9): A fire district is not authorized to purchase holiday decorations for public roads within the district. Further, since the board of fire commissioners, as a body, could not have authorized the purchase of such decorations in the first instance, the board may not ratify the purchase of the decorations made by a single fire commissioner and authorize payment therefor.
You ask whether a board of fire commissioners of a fire district may authorize payment of a claim arising from a purchase order issued by one fire commissioner for the purchase of "Holiday Decorations (electrical material, etc.) to be utilized for beautification on the public roads" within the fire district.1
Town Law §176(4-a) provides that the fire district board of fire commissioners shall "audit all claims against the fire district and shall, by resolution, order the payment thereof by the fire district treasurer in the amounts allowed". Generally, under section 176(4-a), no claim may be audited or ordered paid unless an itemized voucher therefor, in such form as the board shall prescribe, has been presented to the board for audit and allowance. The board may provide, by resolution, that no claim may be presented, audited or paid unless it is either verified under oath or certified, to be true and correct in a statement signed by or on behalf of the claimant (Town Law §176(4-a). As a rule, a claim must be in sufficient detail for the board, in performing its audit function, to determine whether the claim constitutes a proper charge against the fire district (17 Opns St Comp, 1961, p 315; see, also, e.g., In Re White, 51 App Div 175, 64 NYS 726).
Section 176(9) of the Town Law provides that the "board of fire commissioners" of a fire district "shall have the power to make any and all contracts herein authorized …". When a statute vests the power to contract in a board, the board may act only "as a body" and [i]ndividual members … are not, as such, vested with power to bind the [local government]" (Seif v City of Long Beach, 286 NY 382 at p 388).2 Further, it is also well established that when the Legislature prescribes that municipal contracts may be made only by specified officers or boards and in a specified manner, no implied contract to pay for the benefits received by a municipality may result, unless the prescribed procedure is complied with or unless the contract is properly ratified by the municipal officials (see, e.g., Seif v City of Long Beach, supra; 1990 Opns St Comp No. 90-25, p 58).
Under the doctrine of ratification, whatever acts public officials may do or authorize to be done in the first instance may be subsequently adopted or ratified by them with the same effect though properly done under prior authority (see, e.g., Seif v City of Long Beach, supra; Opn No. 90-25, supra). Therefore, a board of fire commissioners of a fire district may ratify a purchase authorized by a single fire commissioner without the prior approval of the board, and audit and approve a claim for such a purchase, but only if the board could have authorized the purchase in the first instance.
Fire districts are established for the purpose of providing fire protection and responding to certain other types of emergencies (see Town Law, §176, ; General Municipal Law, §§209, 209-b; Volunteer Firefighters' Benefit Law, §5; 2000 Opns St Comp No. 2000-20, p 53; 1992 Opns St Comp No. 92-41, p 105; 1986 Opns St Comp No. 86-34, p 55). In furtherance of these purposes, fire districts have only those powers expressly granted by statute or necessarily implied therefrom (Town Law, §176; Opn No. 2000-20, supra; 1993 Opns St Comp No 93-24, p 42; Opns Nos. 92-4, p 9 and 92-41, supra; see also 1982 Opns St Comp No. 82-242, p 302; 1981 Opns St Comp No. 81-196, p 209; 17 Opns St Comp, 1961, p 252; cf. Wells v Town of Salina, 119 NY 280).
We are not aware of any express statutory authority for a fire district to purchase holiday decorations for public roads within the district. Therefore, a fire district may not pay for such decorations unless it has implied authority to do so.
In Opn No. 92-41, supra, we concluded that a fire district lacks implied authority to repair "sidewalks" used for vehicular access to the properties within the district. We reached this conclusion for several reasons, including that the construction and repair of such thoroughfares provides a public benefit beyond the scope of the purposes for which a fire district is established, and that authority to perform such functions is vested in other types of local governments.
Similarly, here, it is not apparent how the purchase of holiday decorations for public roads within a fire district bears any relationship to the purposes for which the district was established, that is, providing fire protection and responding to certain other types of emergencies. By way of comparison, towns (within which fire districts generally are located) do have implied authority to expend monies for holiday decorations in their commercial and shopping areas (see, e.g. 19 Opns St Comp 1963, p 419; 16 Opns St Comp 1960, p 171; 10 Opns St Comp 1954, p 70, 358; 9 Opns St Comp 1953, p 450; see also 30 Opns St Comp 1974, p 152 [cities]; 22 Opns St Comp 1966, p 175 [villages]; 17 Opns St Comp 1961, p 119 [villages]). This implied authority has been inferred from towns' express authority to establish "publicity funds" for, among other purposes, "promot[ing] the general, commercial and industrial welfare" of the jurisdiction (Town Law §64[14[a]; see also County Law §224; General City Law §13?b; General Municipal Law §980-c[c] [business improvement districts]; Village Law §4?412; Municipal Home Rule Law §10; 1998 Opns St Comp No. 98-22, p 56). Fire districts, however, have no analogous authority to establish such a publicity fund (1969 Opns Atty Gen [Inf], p 100; compare 1996 Opns St Comp No. 96-7, p 18 [advertising campaign for recruiting volunteer firefighters]; Paden v Dix Hill, 12 AD2d 202, 210 NYS2d 7 [volunteer firefighter entitled to disability benefits arising from injury incurred while putting up Christmas lights at firehouse]; Town Law §176, ).
Accordingly, in our opinion, a fire district is not authorized to purchase holiday decorations for public roads within the district. Further, since the board of fire commissioners, as a body, could not have authorized the purchase of such decorations in the first instance, the board may not ratify the purchase of the decorations made by a single fire commissioner and authorize payment therefor.
June 5, 2003
1 We assume, for purposes of this opinion, that the holiday decorations in question are of a type for which public monies may be expended, if otherwise authorized, without violating the establishment or free exercise clauses of either the Federal or State Constitutions (see US Const, 1st amend; NY Const, art I, §3).
2 Although not at issue here, we note that chapter 670 of the Laws of 2002 added, inter alia, new sections 174(2-a) and 177-c to the Town Law. Section 174(2-a) authorizes fire district boards of commissioners to adopt resolutions establishing the office of director of purchasing, and to appoint a person to serve as director of purchasing for a term, not to exceed five years, to be fixed by the board. Section 177-c provides that the director of purchasing "shall make all purchases and all contracts for supplies, materials, and equipment of every nature for the fire district within budgetary appropriations therefor," after complying with such rules and regulations in relation thereto as may be established by resolution of the fire commissioners and such provisions of law as may be applicable thereto, including Article 5-A of the General Municipal Law (e.g., General Municipal Law §§103 [competitive bidding], 104-b [procurement policies and procedures when competitive bidding not required]). Section 174(2-a) provides that the duties of the office of the director of purchasing may be combined with the duties of any other fire district officer or employee "except members of the board of fire commissioners and the fire district treasurer." Therefore, an individual member of the board of fire commissioners may not be appointed as purchasing director.