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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

PAID FIREFIGHTERS -- Disability Benefits (forfeiture upon becoming self-employed or performing uncompensated services)
WORDS AND PHRASES -- Employment (meaning for purposes of General Municipal Law, §207-a[6])

GENERAL MUNICIPAL LAW, §207-a(6): A disabled firefighter forfeits his or her entitlement to payments and benefits provided pursuant to General Municipal Law, §207-a upon becoming self-employed, but not upon engaging in uncompensated volunteer work.

You ask whether a disabled firefighter forfeits his or her entitlement to payments and benefits pursuant to General Municipal Law, §207-a upon becoming self-employed or performing uncompensated services such as volunteer work.

General Municipal Law, §207-a(1) requires a city (other than New York City), town, village or fire district to pay to a paid firefighter who is disabled as a result of injury or sickness incurred or resulting from the performance of duty the full amount of his or her regular salary or wages until the disability ceases. Section 207-a(1) also provides that the municipality or fire district is liable for all medical treatment and hospital care furnished during such disability.

General Municipal Law, §207-a(2) requires payment of the full amount of regular salary or wages to be discontinued with respect to any firefighter who is permanently disabled as a result of such injury or sickness if the firefighter is granted an accidental disability retirement allowance (see Retirement and Social Security Law, §363), a retirement for disability incurred in performance of duty allowance (see Retirement and Social Security Law, §363-c) or a similar accidental disability pension. In that case, however, section 207-a(2) requires the municipality or fire district which employs the firefighter to continue to pay the difference between the amount received under such allowance or pension and the amount of the firefighter's regular salary or wages until such time as the firefighter attains mandatory service retirement age or attains the age or performs the period of service specified by applicable law for the termination of his or her service (cf. General Municipal Law, §207-a[4], pertaining to firefighters' continuing entitlement to medical treatment and hospital care).

With certain exceptions not here relevant, General Municipal Law, §207-a(6) provides that any firefighter receiving payments or benefits pursuant to section 207-a, who engages in any "employment", shall forfeit his or her entitlement to such payments and benefits. Section 207-a(6) also provides that any such payment or benefit unlawfully received by a firefighter shall be refunded to, and may be recovered in a civil action by, the municipality or fire district employing the firefighter. Section 207-a, however, does not define the term "employment" as used in subdivision 6.

It is a general rule of statutory construction that, absent a showing of legislative intent to the contrary, "words of a statute will be interpreted in their ordinary acceptance and significance and the meaning commonly attributed to them" (Phaneuf v City of Plattsburgh, 84 Misc 2d 70, 74-75, 376 NYS2d 781, 785, affd 50 AD2d 614, 375 NYS2d 500, mot for lv to app dsmd 38 NY2d 1004, 384 NYS2d 441). The word "employment", however, is susceptible to more than one meaning (see Barnhardt v Hudson Valley District Council of Carpenters Benefit Funds, 114 AD2d 701, 494 NYS2d 667; see also General Accident Group v Frintzilas, 111 Misc 2d 306, 443 NYS2d 989; Southern v Sperling, 18 Misc 2d 100, 178 NYS2d 696; 30 C.J.S., p 682).

As most frequently used, the word "employment" refers to the activities of one performing services for another in an employer-employee relationship (see Barnhardt, supra). Consequently, the word "employment" can be construed as not including self-employment or the rendition of volunteer services because an employer-employee relationship ordinarily does not arise from either self-employment (see 1989 Opns St Comp No. 89-40, p 94) or from the gratuitous rendition of services (see Whelen v Warwick Valley Civic and Social Club, 47 NY2d 970, 419 NYS2d 959; Camphill Village U.S.A. Inc v Workmen's Compensation Board, 23 NY2d 202, 296 NYS2d 129). The word "employment", however, has also been construed for the purpose of determining eligibility for unemployment insurance benefits as including self-employment (see e.g. Matter of Emery [Corsi], 281 App Div 426, 120 NYS2d 142; see also Soroka v Catherwood, 24 AD2d 920, 264 NYS2d 682), as well as the performance of uncompensated services (see Matter of Kelley [Hartnett], 166 Ad2d 822, 563 NYS2d 169; Matter of Valvo [Ross], 57 NY2d 116, 454 NYS2d 695). Therefore, the meaning of the word "employment" depends on the context in which the word is used (see Southern, supra; 30 C.J.S., p 682, supra; see also Phaneuf, supra).

There is nothing on the face of section 207-a which suggests the proper meaning to be accorded the word "employment". Section 207-a(6), however, was added by chapter 965 of the Laws of 1977 as part of a broader effort to reduce the costs imposed by section 207-a on municipalities and fire districts (see 1977 NYS Legislative Annual, p 336). The legislative history indicates that section 207-a(6) was added to "prohibit a disabled firefighter collecting a salary from a municipality from engaging in outside employment" (id.; see also Klonowski v Department of Fire of City of Auburn, 58 NY2d 398, 461 NYS2d 756; Luisi v Department of Fire, 101 Misc 2d 529, 421 NYS2d 338), because the Legislature had information before it indicating that "the apparent inequity of permitting disabled men to work at jobs in the private sector while receiving full salary might depress the morale of able-bodied firefighters still in service" (Cook v City of Binghamton, 48 NY2d 323, 328, 422 NYS2d 919, 921). Therefore, the evident purpose of section 207-a(6) is to prohibit disabled firefighters already receiving full salary and wages from their public employer, from working and earning additional money in the private sector.

In view of the purpose of section 207-a(6), we believe that a disabled firefighter engages in "employment" within the meaning of section 207-a(6) if the firefighter provides personal services in the operation of a self-owned business for profit. For similar reasons, however, we also believe that a firefighter who performs uncompensated services such as volunteer work does not engage in "employment" within the meaning of section 207-a(6). Accordingly, in our opinion, a disabled firefighter would forfeit his or her entitlement to payments and benefits pursuant to section 207-a upon becoming self-employed, but not upon engaging in uncompensated volunteer work.

April 14, 1992
Anthony J. Izzo, Esq., Assistant City Attorney
City of Saratoga Springs