Fire District Officers

• Author: Raymond S. DiRaddo
• Pages: 53-108

Chapter 1

Fire District Officers

1-2

New York Fire District Officers’ Guide

§1:10

§1:10 THE FIRE DISTRICT AS A POLITICAL SUBDIVISION

A fire district is a political subdivision of the State and a district corporation. The fire commissioners and

other officers and employees of the fire district are employees and officers of the fire district and not officers

and employees of the town or of any other political subdivision. Town Law §174 (7). The fire district is also an

independent corporate entity governed by a separate board of fire commissioners. This is not to be confused with

a fire protection district which is simply a geographic area, with no independent corporate status for which the

town board is responsible for providing fire protection. 1981 Opinion State Comptroller, #1.

§1:20 THE BOARD OF FIRE COMMISSIONERS

A board of five fire commissioners governs every fire district in New York State. These commissioners are

elected by the qualified voters of the fire district at the annual election held on the second Tuesday of December

of each year. Town Law §175 (1). Each commissioner is elected for a five-year term commencing on the 1st of

January following the election. One commissioner is elected each year so that there will always be experienced

commissioners on the board. Town Law §174 (2). Fire district commissioners receive no compensation. Town

Law §174 (3).

§1:20.1 TERM OF OFFICE

Every fire district commissioner, treasurer, deputy treasurer and secretary must at the time of his or her

election or appointment and throughout his or her term of office be a resident of such fire district. When the

position of fire district treasurer or fire district secretary is appointive, and if no qualified resident of the district

is willing to perform the duties of fire district treasurer or fire district secretary, a person who is a nonresident of

such fire district may be appointed as fire district treasurer or fire district secretary. Membership in a volunteer

fire company shall not disqualify any such fire district commissioner, treasurer, deputy treasurer or secretary.

Property ownership is not required.

The above notwithstanding, an elected town clerk may also be a member of a board of fire commissioners

of a fire district within that town. Opinion of the Attorney General No. 99-40. Care must be taken, however,

when the issue of residency surfaces. A temporary change of residence out of the fire district does not affect the

commissioner’s eligibility to continue to hold office, so long as the individual has no intent to change domicile.

Opinion of the Attorney General No. I 99-37.

§1:20.2 QUALIFICATIONS OF FIRE DISTRICT OFFICERS

A person may not hold the position of chief or assistant chief and fire commissioner at the same time. If a

chief is elected as a fire commissioner, he ceases to be chief; and if a commissioner is nominated for the office of

chief, he cannot vote as a commissioner upon such nomination; and, if such nomination is approved by the board

of fire commissioners and the nominee accepts the position of chief, he then ceases to be a fire commissioner

and his office becomes vacant and his position is filled as indicated previously. A person may not hold the office

of fire commissioner and town councilman or town supervisor concurrently. If a fire commissioner is elected to

either of these offices, he should resign as a fire commissioner.

Fire District Officers

1-3 §1:20.4

§1:20.3 RECUSAL AND INCOMPATIBLE POSITIONS

§1:20.3.1 INCOMPATIBLE POSITIONS

Generally, one person may hold two offices simultaneously unless a constitutional or statutory prohibition

bars concurrent holding of the positions, or unless the offices are incompatible. O’Malley v. Macejka, 44 N.Y.2d

530 (1978).

If one position is subordinate to the other, or if there is an inherent inconsistency between the two offices, the

positions are incompatible, and one person may not hold both offices. People ex rel. Ryan v. Green, 58 N.Y. 295

(1874), O’Malley, 44 N.Y.2d at 535 (1978).

An individual may, at the same time, hold the elected offices of commissioner of a water district and

commissioner of a fire district. However, in that situation, the individual must recuse himself or herself from

participating in any matters relating to a contract between the districts for installation and maintenance of fire

hydrants, sale of water, and testing of backflow devices. If these or other matters involving the two districts lead

to frequent or substantial conflicts, or would interfere with such person’s ability to substantially perform his or

her official duties of both positions, recusal would not be an appropriate remedy, and the individual may not hold

both positions.

The positions of superintendent of a town water district and fire district commissioner are incompatible

where the fire district enters into a contract with a town for rental of fire hydrants, and the town water district

superintendent was responsible for approving the contract specifications and the superintendent did not have

the option of recusing himself from approving the contract specifications. Opinion of the Attorney General No.

91-53 (inf.).

§1:20.3.2 RECUSAL FROM VOTING

Most of the powers and duties of fire district commissioners, which are set forth in Town Law §176, concern

fire district and board organizational and operational matters, and fire prevention. A member of the board of fire

commissioners may recuse himself from discussion and subsequently voting on a particular matter when he holds

two positions and those duties conflict.

However, if one person holds both positions, such person must recuse himself from participating in the

disposition of any of these matters. If conflicts of duties require frequent recusals, one person should not hold

both positions.

§1:20.4 OUSTER OF A FIRE COMMISSIONER BY ACTION BY THE NEW YORK STATE

ATTORNEY GENERAL TO OUST A FIRE COMMISSIONER

The attorney-general may maintain an action against a person who usurps, intrudes into, or unlawfully holds

or exercises the office of Fire District Commissioner or an office in a domestic corporation. This action is brought

when the office of commissioner was attained in an improper or illegal manner.

The attorney-general’s complaint must set forth the name of the person rightfully entitled to the office and

facts showing his right thereto.

If two or more persons claim entitlement to the same office of fire commissioner the attorney-general

may bring the action against both individuals in order to determine their respective rights to the office of fire

commissioner. Executive Law §63-b (1)