TOWN LAW §§176(11), 176-a, 176-a(1), 189-a(2)(d); EXECUTIVE LAW § 23

The positions of assistant fire chief of a joint fire district and county director of
emergency services are compatible.

                                        December 13, 2017


William N. Young, Jr.                                          Informal Opinion
Counsel                                                        No. 2017-2
Delhi Joint Fire District
1881 Western Avenue, Suite 140
Albany, New York 12203


Dear Mr. Young:

       You have requested an opinion regarding the compatibility of the positions of
assistant fire chief and director of emergency services of the county in which the joint
fire district is located. As explained below, we are of the opinion that the positions
are compatible as a matter of law.

       You have expressed concern that, in the event of a fire while the director of
emergency services is at work, he will choose to remain at work instead of responding
to the fire. But the inability to perform the duties of two positions simultaneously
does not itself render the positions incompatible.1 “[P]hysical impossibility is not the
incompatibility of the common law, which existing, one office is ipso facto vacated by
accepting another.”2 People ex rel. Ryan v. Green, 58 N.Y. 295, 304 (1874).

       Rather, incompatibility exists when the functions or the duties of the positions
are inconsistent; for example, if one position is subordinate to or subject to review by
the other. Id. at 304-05; see also O’Malley v. Macejka, 44 N.Y.2d 530, 535 (1978). And
because the positions you described—assistant fire chief and county director of
emergency services—both have duties to perform with respect to preparing for and
in an emergency, we must consider the areas where those duties overlap to determine
whether the positions are incompatible.


1 The board of fire commissioners is authorized to adopt rules and regulations that govern all of the
fire departments in the fire district and that prescribe the duties of the members of the fire
departments. Town Law § 176(11). The fire chief and assistant chiefs are nominated by the members
of a fire department and appointed by the board of fire commissioners. Id. § 176(11-a). A nominee
must be a member of the fire department. Id. The board of fire commissioners could address
requirements of the assistant fire chiefs with respect to responding to fires by rule or regulation.
2 “Incompatibility” is a term of art signifying an inherent conflict of interest. Physical impossibility

may be another obstacle to holding both positions but it is not “incompatibility.”
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          The fire chief is in charge of a fire district fire department, subject to the
   direction of the board of fire commissioners, which is the fire district’s governing body.
   Town Law § 176-a (1); see also id. § 189-a(2)(d) (operation of joint fire district
   governed by statutes governing fire districts). The fire chief has exclusive control of
   the members of the fire department of the fire district at all fires, inspections,
   reviews, and other occasions when the fire department is on duty or parade. Town
   Law § 176-a(1). He or she also is charged with the supervision of the engines, fire
   trucks, pumpers, hose wagons and other apparatus and of the equipment and other
   property used for the prevention or extinguishment of fire. Id. He or she is
   responsible for supervising all officers and employees of the fire department. Id. In
   the fire chief’s absence, the assistant fire chief performs the duties and exercises the
   powers of the fire chief. Id. If the assistant fire chief cannot perform the chief’s duties
   in the chief’s absence, the other assistant chiefs, in designated order, perform them.
   Id.

          According to the description you provided, the county director of emergency
   services is responsible for planning, organizing, implementing, and evaluating a
   countywide program for emergency services. This includes developing, maintaining,
   and administering emergency plans to provide for government continuity in the event
   of an emergency; preparing for the county board of supervisors both the county fire
   mutual aid plan and the countywide comprehensive plan for emergency services
   authorized by Executive Law § 23; administering a countywide communication
   system for emergency services; overseeing the development of inter- and intra-county
   mutual aid programs; liaising between state and local public safety and emergency
   departments, including fire departments; preparing incident reports determining the
   cause and origin of mutual aid fires as requested by jurisdictional fire chiefs;
   supervising, scheduling, maintaining, and upgrading fire training facilities and
   equipment; and participating in meetings, drills and exercises.

          We identify no inherent inconsistency between the positions. First, the
   assistant fire chief is not subordinate to the county director of emergency services.
   The assistant fire chief, a district employee, answers to the fire chief and the board
   of fire commissioners; the county director of emergency services supervises only
   county employees, and not district employees such as the assistant fire chief.

          Second, the powers and duties of the two positions are not inconsistent. The
   positions function within separate governments, the county and the fire district.
   Their functions potentially overlap if the fire department uses or participates in any
   programs or systems provided by the County—fire training, for example, or the
   countywide communication system for emergency services—or in the event of an
   emergency within the county. Under both of these circumstances, however, the duties
   of the positions—of the county director of emergency services to develop or maintain
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   the programs or systems and of the assistant fire chief to utilize or participate in
   them—are in fact complementary, with the individual, when serving in his capacity
   as assistant fire chief, experiencing for himself the programs and systems that he
   oversees as director of emergency services. In the unlikely event of a conflict arising
   between the duties of the positions, the individual can abstain from acting in one
   capacity with respect to the matter.

         In sum, we conclude that the positions of assistant fire chief and director of
   emergency services of the county in which the joint fire district is located are
   compatible as a matter of law. We offer no opinion as to whether having the same
   person perform both roles is prudent as a policy or operational matter.

          The Attorney General issues formal opinions only to officers and departments
   of state government. Thus, this is an informal opinion rendered to assist you in
   advising the municipality you represent.


                                          Very truly yours,


                                          KATHRYN SHEINGOLD
                                          Assistant Solicitor General
                                           in Charge of Opinions
