February 8, 1999
Village of Champlain
1104 Route 9 (Main Street)
Champlain, New York 12919
Dear Mayor McManus and Members of the Village of Champlain Board
of Trustees:
I have had an opponunty to review your fax of January 8, 1999 and
the twelve questions contained therein which are broken into three
general categories. The first general category deals with the transition
from a municipal fire department to an independent fire company.
The first question presented thereunder was whether or not the Village
of Champlaincan fulfill its obligation to provide fire protection
for its residents by forming a fire protection district and signing
a contract with an mdependent fire company for fire and ems protection.
Section 4-412-3.(9) of the Village Law provides in part that the
Board of Trustees of the Village may contract for the fiwnishing
of fire protecuon within the Village with the fire department in
THE Village or with an incorporated fire company having its headquarters
outside such village and maintaining adequate and suitable apparatus
and appliances for the furnishing of fire protection in such village.
A short answer, therefore, to the question is yes you can do that.
However, my question to you is why you would want to do that given
the fact that, it is my
understanding, the Village presently owns and operates all of the equipment
apparatus and supplies necessary for the providing of fire protection within
the Village. In other words, given the fact that you already have a village
fire department, why would you want to dissolve that entity only to have to
enter into a contract with another entity to provide the same protection.
The second question as to whether or not the Village can divest
itself of its fire department and allow the members of the hose company
tq create an independent fire company with the former assets and
debts of the municipal department, raises the same initial issue
of why you would want to do that. Assuming that you do have a reason
to do that, however, I think you have a problem in that a Village,
or any other municipality, cannot simply give away its properry even
where the person to whom it is giving the property accepts the indebtedness.
The property, which I assume includes the apparatus of the fire department,
has a real value which the Village residents have paid for through
their taxes. There is a provision in the Town Law, Article 11-A,
which deals with the creation of a joint fire district which does
provide in part that the Village may transfer to the newly created
joint fire district all of its property for or without compensation.
In response to the third question relative to what legal conditions/restrictions
would apply to the process, the same issue that I had in the secondquestion,
that being that there is no authority for a municipality to transfer
property to a not-for-profit organization without consideration.
Even if you were to transfer the property you are still in the same
situation of then having to negotiate a contract annually up to five
(5) year terms for the providing of fire protection and ems service
within the Village. That, to me, does not to appear to be a viable
alternative to your present situation.
Relative to the fourth question as to whether or not the independent
fire department can sign a contract with the Town of Champlain to
continue to provide protection is problematic as it was my understanding
from the background that the Village of Champlain currently owns
and operates the municipal fire department. If the Village owns the
apparatus and equipment of the fire department then it is only the
Village which, with the consent of the members of the fire company,
that can enter into the contract to provide fire protection outside
of the village. If what you are indicating is if we were to dissolve
the Village fire department and replace it with a new entity, that
being an independent fire department, could it contract with municipalities
outside of the village to provide fire protection the answer is yes,
they could.
The last question contained in the first segment of questions as
to whether or not the independent fire department could charge each
municipality based upon the assessed valuation, the answer is yes.
That to me appears to be the fairest and most equitable manner of
detertnining the cost of fire protection. I have seen departments
attempt to do it based upon number of calls or percentage of calls,
number of residents, populations, etc., all of which have their own
problems. I think, as I previously indicated, that the fairest and
most equitable manner of doing it would be based upon the assessed
valuation.
The second set of three questions deals with the Village fire district.
The first question is could the Village of Charnplain establish a
fire district with a Board of Corinnissioners for the Village only.
Section 2-254 of the Village Law would appear to preclude the existence
of a fire district wholly within a Village which if correct would
eliminate the need to respond to questions number 2 and 3 of Section
2 dealing with village fire districts.
The third and final section of your questions deal with a joint
fire district. The first question is if the Village of Champlain
and the Town of Champlain agree to form a joint fire district after
the initial appointments, could commissioners be appointed rather
than elected. The attorney general in an informal opinion 91-44 noted
that the detennination whether commissioners of a joint fire district
are to be elected or appointed must be made at the time of the establishment
of the district. The enabling legislation for the establishment of
joint fire districts includes a specific procedure for the determination
of whether commissioners are to be appointed or elected. It calls
for this determination to be made at the time of the establishment
of the district and the resolution is subject to permissive referenduin.
Provision is made for initial appointments and the staggering of
terms of elected commissioners. In the face of this specific procedure
the Attorney General found no authority for the reconsideration at
a later date of whether commissioners should be elected. They concluded
by finding that the determination whether commissioners of a joint
fire district are to be elected or appointed must be made at the
time of the establishment of the district.
The second question you pose is whether there are legal restrictions
as to how a village fire department assets are transferred to the
new district. The short and simple answer is yes. Section 179-b of
the Town Law provides that the Board of Trustees of a village or
the Commissioners of a fire district may, by Resolution, authorize
the sale or transfer of a fire house, fire apparatus and fire equipment
owned by such village or by such fire district to said joint fire
district, with or without consideration and, upon such terms and
conditions as to such Board of Trustees or Board of Commissioners
may deem fining and proper. The New York State Comptroller in Opinion
No.90-27 cited the very language from the statute and in effect endorsing
the concept of whatever the Village Board of Trustees and/or Board
of Fire Commissioners deemed to be fair, equitable and just will
prevail in the transfer of property from the village departtment/fire
district to the newly created joint fire district. I would caution
you, however, relative to the transfer of any funds as funds cannot
be readily identifiable as belonging to fire protection. In other
words, if the Village has established a capital reserve fund for
the purposes of acquiring or refurbishing a piece of apparatus those
funds, upon the creation of the joint fire district, do not necessarily
have to go to the joint fire district and in point of fact there
is serious issue as to whether or not it is even permissible.
The third question is whether or not the newly created joint fire
district created pursuant to Article 11-A of the Town Law could assume
the current debt of the volunteer fire department. The answer to
that would be yes, they could assume the debt especially if the debt
is for a particular piece of apparatus and/or building which is being
transferred to the newly created joint fire district. In other words
if you are transferring apparatus #2 to the newly created joint fire
district, and if there is an outstanding indebtedness for apparatus
#2 of $45,000.00, it would be appropriate to transfer the apparatus
and debt together. Consideration should be given, however, to discussing
the transfer of the debt with whomever it is to whom the debt is
owed. They may or may not be willing to accept a newly created joint
fire district in the place and stead of the current obligations of
the village.
Your last question is more of a general question that dealing with
any other considerations. Article 11-A was enacted in 1988 so as
to create the authority for villages and surrounding portions of
the town to join together in the formation of joint fire districts.
The creation of these new fire district entities now permits the
Board of Trustees to divorce themselves with the day to day operation
and running of the fire department. This now becomes the sole responsibility
and reason for being of a newly created Board of Fire Coinmissioners.
There are many advantages to the creation of a joint fire district
in that it allows now a specific group of people to focus on just
one aspect of governing, that is providing a fire protection. It
allows the Village Board of Trustees, therefore, to focus their full
time energies on other matters of governing of the village, such
as municipal water, police protection, highways, parks, etc. From
my somewhat biased point of view as the attorney for the Association
of Fire Districts, I see the creation of a joint fire district, pursuant
to Article 11-A of the Town Law as a good way of providing fire protection
in those areas of our state which are villages surrounded by areas
of a town not presently in a fire district.
I would be happy to discuss this matter at greater length after
you have had an opportunity to review my responses to the questions
above. After we have had an opportunity to look at these various
alternatives, I think what we need to do is to focus our energy and
time on one avenue of providing fire protection and then get into
that in greater detail.
Thank you for having afforded me an opportunity to review this very
important matter with you.
Very truly yours,
WILLIAM N. YOUNG, JR.
WNY:mm