Fire District Officers

• Author: Raymond S. DiRaddo
• Pages: 51-100

Chapter 1

Fire District Officers

§1:10 New York Fire District Officers’ Guide 1-2

§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 disqual-

ify 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 eligi-

bility 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 commis-

sioner 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.

§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).

1-3 Fire District Officers §1:20.3.2

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

tions 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 commis-

sioner 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 posi-

tions, 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 com-

missioners 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)

If the fire commissioner is determined to be guilty of usurping or intruding into or unlawfully holding or exercis-

ing the office of fire commissioner, the final judgment shall be rendered, ousting and excluding that commissioner

from office. The final judgment may also require that the ousted commissioners pay to the state a fine not exceeding

two thousand dollars. Executive Law §63-b (3)

Also, if there is a final judgment in favor of the person entitled to hold the office of fire commissioner, that entitled

commissioner may recover damages which he has sustained in consequence of the ousted commissioner’s usurpation

of, intrusion into, unlawful holding of, or exercise of the office. Executive Law §63-b (4).

This action to oust should not be confused with the removal of a fire commissioner from a legitimately held office

for certain acts occurring during his term of office for misconduct, maladministration, malfeasance, malversation in

office, or dereliction of duty.