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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Powers and Duties (retention of moneys derived from fund raising activities)

GENERAL MUNICIPAL LAW, §204-a: Moneys raised by a fire company through activities conducted under the authority of General Municipal Law, §204-a belong to the fire company to be used for the lawful purposes of the fire company.

You ask whether moneys raised by a volunteer fire company that is part of a village fire department is property of the village or the fire company.

General Municipal Law, §204-a authorizes "fire companies" to engage in certain "fund raising activities" (see also, Not-For-Profit Corporation Law, §1402[e][4]). For purposes of section 204-a, the term "fire company" is defined to include a volunteer fire company of a county, city, town, village or fire district fire department, whether or not the fire company is incorporated (General Municipal Law, §204-a[1][a][1]).

The term "fund raising activity" as used in section 204-a means "a method of raising funds to effectuate the lawful purposes of a fire company ..." (General Municipal Law, §204[1][b]; emphasis added). Further, section 204-a provides that the fund raising activity is conducted under the "exclusive auspices" of the fire company (General Municipal Law, §204-a[4]). Accordingly, we believe it is clearly the intent of section 204-a that moneys raised through activities conducted under the authorization in that section belong to the fire company to be used for lawful purposes of the fire company (1973 Opns St Comp No. 73-1137, unreported).

We note that a volunteer fire company of a village fire department, in accordance with General Municipal Law, §204-a(8)(a), is required to give written notification to the village board of its intent to conduct fund raising activities. The village board then has 30 days to take action to prohibit the fund raising activity (General Municipal Law, §204-a[6][a], [8][a]). The village board is also authorized to require the fire company, at the fire company's expense, to provide any insurance protection which the village board deems necessary to protect the village against claims and actions for damages by third parties arising out of or in connection with the fund raising activity (General Municipal Law, §204-a[6][b]).

This Office has expressed the opinion that, instead of totally prohibiting fund raising activities, the governing board may place reasonable conditions on the fire company's fund raising activities (1988 Opns St Comp No. 88-55, p 111; 1973 Opns St Comp No. 73-325, unreported; 22 Opns St Comp, 1966, p 491). These conditions may include requiring the submission of a financial report on the receipts and expenditures of the proceeds of such activities and the submission of books and records for audit. However, since section 204-a provides that these moneys may be expended for fire company purposes without approval of the municipality, we have stated that the conditions placed on the fund raising activity by the governing board may not prescribe particular uses of the moneys (Opn No. 73-325, supra). Of course, nothing would preclude the fire company, in its discretion, from offering a gift of the moneys raised to the village (see Not-For-Profit Corporation Law, §202; Village Law, §1-102).

April 17, 1991
James E. Spellman, Esq., Village Attorney
Village of Ilion