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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 COMMISSIONERS -- Powers and Duties (riding on fire vehicles during emergency calls)

TOWN LAW, §§176(11), 176-a: A board of fire commissioners may adopt regulations authorizing a fire commissioner, who is not a member of the fire department, to ride on fire vehicles during emergency calls, so long as the regulation does not have the effect of interfering with the duties of the chief or assistant chief. The chief or assistant chief, however, would have discretion to determine whether the commissioner's presence in any particular vehicle would hamper firefighting efforts. The point at which a fire commissioner's involvement interferes with the performance of duties of chief or assistant chief is a factual determination to be made based upon circumstances of each case. 16 Opns St Comp, 1960, p 404 is superseded to the extent inconsistent.

You ask whether the provisions of section 176(11) of the Town Law preclude a fire district commissioner who is not a member of the fire department from riding on fire vehicles on emergency calls.

Section 176(11) of the Town Law authorizes the board of fire commissioners of a fire district to adopt rules and regulations governing all fire companies and fire departments in the fire district and prescribing, among other things, the duties of the members. Section 176(11) further provides that "[s]uch rules and regulations shall not authorize any member of the board of fire commissioners to interfere with the duties of the chief or assistant chief at such times as the fire department or any company or squad thereof is on duty." Similarly, section 176-a(1) of the Town Law provides that "[w]hen the fire department or any company or squad thereof is on duty no member of the board of fire commissioners shall interfere with the duties of the chief or assistant chief."

The above-quoted provisions were added to the Town Law by chapter 220 of the Laws of 1960. The legislative history in the Governor's bill jacket of chapter 220 of the Laws of 1960 indicates that the bill was intended to clarify the chain of command at the time a fire department of a fire district is on duty and to prevent interference by fire district commissioners with the duties of the chief or assistant chief. It was asserted at that time that such interference causes confusion and results in impairment of service and a breakdown in fire department morale (see Memorandum to the Governor by the Association of Fire Districts of the State of New York). As to the particular nature of interference which the bill was intended to address, memoranda in the bill jacket describe situations in which fire commissioners attempted to countermand orders of fire chiefs at the scenes of fires, contended they had the right to assume command, or attempted to instruct the fire chief on how to fight a fire (see Memoranda to the Governor by the Department of Audit and Control, New York State Fire Chiefs Association, Firemen's Association of the State of New York).

Based on this legislative history, we believe that Town Law, §§176(11) and 176-a do not prohibit the board of fire commissioners from adopting a regulation authorizing a fire commissioner, who is not a member of the fire department, to ride on fire vehicles while on emergency calls, so long as the regulation does not have the effect of interfering with the duties of the chief or assistant chief (see 16 Opns St Comp, 1960, p 404, which also discusses whether a commissioner is entitled to benefits under the Volunteer Firefighters' Benefit Law if injured while riding the apparatus). In our opinion, the presence of the fire commissioner on a fire vehicle responding to an emergency call would not necessarily "interfere" with the performance of the duties of the chief or assistant chief within the meaning and intent of sections 176(11) and 176-a. Further, the fire commissioner's mere presence, in our opinion, would not necessarily interfere with the chain of command, cause confusion or impair department service or morale.

The commissioner would not, however, have the power to give orders to, or countermand orders given by, the chief or assistant fire chief to members of the department with regard to fire-fighting operations (see 1962 Atty Gen [Inf Opns] 273). Moreover, consistent with sections 176(11) and 176-a, the chief or assistant chief would have the discretion to determine whether the commissioner's presence in a particular vehicle would hamper firefighting efforts. Of course, the specific point at which involvement of a fire commissioner as an observer constitutes interference with the performance of duties of the fire chief or assistant chief, within the purview of the prohibitions in sections 176(11) and 176-a, is a question of fact requiring consideration of the particular circumstances of each situation.

16 Opns St Comp, 1960, p 404, supra, is superseded to the extent inconsistent herewith.

September 21, 1992
Joseph Frank, Esq., Attorney
Elmont Fire District