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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 PROTECTION DISTRICTS -- Fire Protection Contracts (article 5-G of the General Municipal Law does not provide authority for)

MUNICIPAL COOPERATION -- Fire Protection (article 5-G of the General Municipal Law does not provide authority for town fire protection contracts)

GENERAL MUNICIPAL LAW, §119-o; TOWN LAW, §184: A town may not enter into a municipal cooperation agreement pursuant to article 5-G of the General Municipal Law to receive fire protection services on behalf of a fire protection district. Town Law, §184 provides the exclusive authority for a town to contract for fire protection services on behalf of a fire protection district.

You ask whether a town and a village may enter into an agreement pursuant to article 5-G of the General Municipal Law under which the village would provide fire protection services to a fire protection district in the town.

Article 5-G of the General Municipal Law, (§119-m et seq) generally authorizes "municipal corporations", including towns and villages (see General Municipal Law, §119-n[a]), to enter into cooperative agreements. Subdivision one of section 119-o provides, in relevant part, that ". . . municipal corporations and districts shall have power to enter into, award, cancel and terminate agreements for the performance among themselves or one for the other of their respective functions, powers and duties on a cooperative or contract basis . . ." (emphasis supplied). Thus, in order for a town and a village to enter into a municipal cooperation agreement, each must have authority to perform separately the function which would be the subject of the agreement (see, NY Const. art IX, 1[c]; see also e.g., 1991 Opns St Comp No. 91-14, p 53).

Villages have the power to provide fire protection services (see Village Law, article 10). As a rule, however, towns do not have the power to provide fire protection services directly as a town function (see 1985 Opns St Comp No. 85-71, p 105; 1981 Opns St Comp No. 81-229, p 247).

A town's authority to provide fire protection is generally limited to establishing "fire districts", "fire alarm districts" and "fire protection districts" (see Town Law, §§170, 171). A "fire district" provides fire protection services as a "political subdivision" and "district corporation" separate and apart from the town (see Town Law, §174[7]). A "fire alarm district" or a "fire protection district", however, is a geographic area for which the town board is required to contract for fire protection services pursuant to Town Law, §§183 or 184, respectively (1981 Opns St Comp No. 81-1, p 1).

Thus, since towns generally do not have the power to provide actual firefighting services as a town function, we have previously concluded that a town may not enter into a municipal cooperation agreement to construct or acquire buildings or equipment needed for fire protection purposes (see 26 Opn St Comp 1970, pp 32, 245; 20 Opns St Comp 1964, p 382). For the same reason, it is our opinion that a town may not enter into a municipal cooperation agreement pursuant to article 5-G to receive fire protection services.

Town Law, §184 provides the exclusive authority for a town to contract for fire protection services on behalf of a fire protection district and the procedures set forth in that section must be complied with in connection with such a contract. Accordingly, in our opinion, a town and a village may not enter into an agreement pursuant to article 5-G of the General Municipal Law under which the village provides fire protection services to a fire protection district in the town.

In reaching the above conclusion, we are mindful that the Attorney General in Opn No. I 89-26 has concluded that a village may contract with a town, pursuant to article 5-G, for the village to provide fire protection services to the area of the town outside the village. For the reasons expressed above, however, we disagree with the Attorney General.

February 22, 1993
Cornelius F. Healy
Deputy State Comptroller