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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

VOLUNTEER FIREFIGHTERS - Eligibility (of out-of-state firefighter to volunteer on on-going basis)

GENERAL MUNICIPAL LAW §§209-i, 462: A volunteer firefighter from an out-of-state fire company may not volunteer to assist a fire district fire department within New York State on an on-going basis pursuant to General Municipal Law §209-i.

You ask whether a volunteer firefighter who resides in another state and is a member of an out-of-state volunteer fire department may volunteer his or her services on an on-going basis to a New York State fire district fire department.

General Municipal Law §209-i (1-a) provides in relevant part that a "volunteer firefighter"¹ who, because of his or her residence or usual occupation, is regularly in the area served by a volunteer fire company or department of which he or she is not a member, may volunteer his or her services on an on-going basis to the officer in command of the company or department to assist the company's or department's general or emergency ambulance services, or to assist at a fire or other emergency scene. The commanding officer of a fire district fire department, when authorized by the board of the fire commissioners, is empowered, in his or her discretion, to so accept the services of such a volunteer firefighter. Section 209-i(1-a) further provides that a volunteer firefighter whose services are accepted by the commanding officer of a fire district fire department under that section is entitled to all powers, rights, privileges and immunities granted by law to the volunteer members of the fire department during the time services are rendered, including benefits under the Volunteer Firefighters' Benefit Law ("VFBL"), in the same manner and to the same extent as if he or she were a member of the fire department.

For purposes of section 209-i, a volunteer firefighter means a "volunteer firefighter as such term is defined in section three of the volunteer firefighters' benefit law" (General Municipal Law §209-i [3]). VFBL §3(1) defines "volunteer firefighter" to mean an active volunteer member of a "fire company". "Fire company", in turn, is defined to mean: a fire company of a "county, city, town, village or fire district" fire department, whether or not incorporated under "general or special law"; certain fire corporations incorporated under or subject to the provisions of the "Not-For-Profit Corporation Law"; and certain fire corporations incorporated under or established pursuant to the provisions of any "general or special law" (VFBL §3[2]). In our opinion, the references to counties, towns, cities, villages and fire districts, and to New York State laws (see Municipal Home Rule Law §2[5], [12]) indicate that these definitions in VFBL §3(1) relate only to volunteer firefighters of fire departments and companies within the State of New York. Accordingly, we conclude that a volunteer firefighter from an out-of-state fire company may not volunteer to assist a fire district fire department within New York State on an on-going basis pursuant to General Municipal Law §209-i (cf. Volunteer Firefighters' Benefit Law §21[2], relative to calls for assistance by volunteer firefighters of fire departments and fire companies of other states and Canada who render service in New York State).

As an alternative, the fire district may wish to consider the provisions of article 14-G of the General Municipal Law (§460 et seq.). That article authorizes, inter alia, New York State fire districts to enter into interlocal agreements with any local governmental unit, subdivision or special district of another State, providing for the furnishing by one of the contracting entities to the other of personnel, facilities, equipment or any other property or resources for fire-fighting (General Municipal Law §§461[1], 462[1][a][1]). The interlocal agreement must be authorized by the board of fire commissioners of the fire district, is subject to a public hearing (General Municipal Law §463; Town Law §176[22]) and must contain provisions addressing certain specific matters (General Municipal Law §466). The agreement is subject to the approval of the New York State Attorney General (General Municipal Law §469) and the fire district must render a report concerning the transactions, operations and activities entered into, performed or conducted under the agreement to the State Comptroller (General Municipal Law §470). Pursuant to this authority, it may be possible that the fire district may enter into an agreement with the local governmental entity, subdivision or special district, if any, with which an out-of-state firefighter is affiliated, for the services of this firefighter, if such an agreement is permissible under the laws of the other state (see 1964 Atty Gen [Inf Opns] p 84). In view of the Attorney General's approval role under article 14-G, you may wish to contact the Attorney General concerning the applicability of these provisions.²

October 2, 2000
Daniel Doran, Esq., Counsel
New Castle Fire District No. 1

¹ Although section 209-i uses the term "volunteer fireman", this term is deemed to mean "volunteer firefighter" (see General Municipal Law §209-c[3]; Volunteer Firefighters' Benefit Law §§3[1], 1[b]).

² Questions concerning VFBL coverage for firefighters providing service under any such contracts as may be authorized under article 14-G should be addressed to the Workers' Compensation Board (see VFBL §43; 1987 Opns St Comp No. 87-57, p 87).