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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 COMPANY - Membership (eligibility to join second company)

TOWN LAW §176-b(10): An individual who is a member of a volunteer fire company may not join a second company unless he or she first terminates membership in the original company.

You ask whether a member of a volunteer fire company of a fire district fire department who seeks membership in a second volunteer company is automatically deemed to have vacated his or her membership in the first fire company upon joining the second fire company.

Town Law §176-b contains provisions relative to volunteer members of fire district fire companies. Subdivision 10 of section 176-b provides that a person "shall not be eligible" for volunteer membership in more than one fire company at one time (see also Village Law §10-1006[10]; General City Law §11-a[10]; Not-for-Profit-Corporation Law §1402[c]).

By its terms, subdivision 10 sets forth a threshold eligibility requirement for membership in a volunteer fire company. Since it provides that an individual is not "eligible" for a membership in more than one company at a time, it follows that an individual would not meet the necessary qualifications to join a second volunteer fire company unless membership in the first volunteer fire company is terminated (see 1987 Atty Gen Opn No. I87-40, p 1077). There is no indication in the statutory language that an individual who is a member of a fire company could join a second company and, by so doing, automatically forfeit membership in the first company (compare People ex rel. Ryan v Green, 58 NY 295, concerning the common law doctrine of incompatibility of offices).¹

Accordingly, it is our opinion that an individual who is a member of a volunteer fire company may not join a second company and thereby be deemed to have vacated his or her membership in the first fire company. Rather, such an individual may not join the second fire company unless he or she first terminates membership in the original company.

September 5, 2000
Tom Guerriere, Chief
Nesconset Fire District

¹ In 1985 Opns St Comp No. 85-31, p 44, we stated that when a member of a fire company "join[s] a second fire company, the individual would no longer be eligible for membership in the original fire company". This statement presumed that the individual, even though already a member of one fire company, was eligible to join the second company. To the extent this statement in Opn No. 85-31, supra is inconsistent with the instant opinion, Opn No. 85-31, supra is hereby superseded.