Fire District Officers

AuthorRaymond S. DiRaddo
Chapter 1
Fire District Officers
New York Fire District Officers’ Guide
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.
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).
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.
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
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.).
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.
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)

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