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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

FOREIGN FIRE INSURANCE TAXES -- Recipients (emergency rescue and first aid squads)

GENERAL MUNICIPAL LAW, §209-b(1); INSURANCE LAW, §§9104, 9105: An emergency rescue and first aid squad within a village fire department is not entitled to receive foreign fire insurance tax moneys unless authorized by a special law.

You ask whether an emergency rescue and first aid squad within a village fire department is entitled to receive foreign fire insurance tax moneys.

The distribution and use of foreign fire insurance tax moneys are governed generally by Insurance Law, §§9104 and 9105. These sections, as amended by chapter 293 of the Laws of 1988, provide that except as provided in a "special law", foreign fire insurance tax moneys must be paid to the treasurer or other fiscal officer of the fire department or, if the fire department does not have a treasurer or other fiscal officer, to the fiscal officer of the authorities having jurisdiction and control of the fire department (Insurance Law, §§9104[a][1]-[3], 9105[d][2][B]-[D]). In a multi-company fire department, the treasurer or fiscal officer receiving the foreign fire insurance tax moneys must, in turn, distribute the amount received to the companies constituting the fire department (Insurance Law, §§9104[a][4], 9105[d][2][E]). Each fire department or fire company which receives foreign fire insurance tax moneys must use them for the benefit of the department or company, as determined by the membership of the department or company (Insurance Law, §§9104[f][1], 9105[d][3]), but a fire company in a multi-company fire department is not precluded from paying all or a part of its foreign fire insurance tax moneys to the fire department of which it is part (see Insurance Law, §§9104[f][2], 9105[d][3][B]). The provisions of sections 9104 and 9105 may not be changed, modified or amended by any charter, local law, ordinance, resolution or regulation (see Insurance Law, §§9104[g], 9105[e]).

General Municipal Law, §209-b(1) authorizes the authorities having control of fire departments and fire companies to organize within such departments or companies emergency rescue and first aid squads composed of firemen who are members of such departments or companies. We have previously concluded that since section 209-b only authorizes emergency rescue and first aid squads to be organized "within" a fire company or fire department, an emergency rescue and first aid squad may be organized either within a fire company or as an independent squad within a fire department, but may not be organized as a separate company within a fire department(see 1981 Opns St Comp No. 81-25, p 24; 1977 Opns St Comp No. 77-91, unreported; 1971 Opns St Comp No. 71-754, unreported). Thus, although an emergency rescue and first aid squad may be a component of a fire company or a fire department, it is not a "fire company" or "fire department".

Therefore, based on the foregoing, we believe that an emergency rescue and first aid squad is not entitled to receive foreign fire insurance tax moneys pursuant to Insurance Law, §§9104 and 9105 because it is not a fire company or fire department. Further, since sections 9104 and 9105 preempt the adoption of inconsistent local legislation (see MacIsaac v City of Poughkeepsie, 158 AD2d 140, _____ NYS2d _____; 1990 Opns St Comp No. 90-20, p 48), we also believe that a village may not adopt a local law providing for an emergency rescue and first aid squad to receive foreign fire insurance tax moneys. Accordingly, in our opinion, an emergency rescue and first aid squad within a village fire department is not entitled to receive foreign fire insurance tax moneys unless authorized by a special law enacted by the State Legislature.

Finally, while emergency rescue and first aid squads are not generally entitled to receive foreign fire insurance tax moneys, Insurance Law, §§9104 and 9015, as noted, require foreign fire insurance tax moneys to be expended for the use and benefit of the fire department or company receiving the same, as determined by the members thereof. In this regard, we have previously concluded that foreign fire insurance tax moneys may be expended for any purpose which the membership determines to be for the use and benefit of the department or company, other than an illegal purpose or a purpose contrary to public policy (see Opn No. 90-20, supra; 1989 Opns St Comp No. 89-16, p 34). Thus, since General Municipal Law, §209-b(1) requires the members of an emergency rescue and first aid squad to be firefighters who are members of the fire department or company, the members of the squad may participate in determining the expenditures to be made with foreign fire insurance tax moneys. Further, it is also our opinion that foreign fire insurance tax moneys may be expended for purposes of an emergency rescue and first aid squad, if the membership of the department or company reasonably determines that the expenditure is for the use and benefit of the department or company.

September 12, 1990
Mike Altonberg, Treasurer
Honeoye Fire Department