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 am herewith enclosing material requested by you during our most
recent telephone conference of April 5, 1999 relative to the formation
of a joint fire district.
On that evening you posed three questions to me and I am herewith
enclosing material relative to those three questions. The first question
was whether or not a person could simultaneously hold the position
of member of a town board and fire district commissioner. The New
York State Attorney General, in April of 1992, rendered an informal
opinion, a copy of which I have herewith enclosed. At that time the
Assistant Attorney General in charge of legal opinions, James D.
Cole, responded that one person may not hold simultaneously the positions
of a member of a town board and fire district commissioner. The legal
reasoning and cases cited in said opinion would also appear to apply
in the situation of an individual who was a member of a village board
of trustees who simultaneously wished to hold the position of a commissioner
in a joint fire district.
The second question posed was relative to the charging for ambulance
service within a legal entity whether it be an ambulance district
or an emergency rescue squad existing as a part of a fire district
pursuant to Section 209-b of the General Municipal Law. The New York
State Comptroller, in 1998, rendered two opinions, copies of which
I have also herewith enclosed. The first opinion, 98-9, provided
that a town board which provides an emergency medical service, a
general ambulance service or a combination thereof, on a town wide
basis, or in an ambulance district, may fix a schedule of municipal
fees or charges to be paid by persons requesting the use of those
services. Absent action by the town board to fix such a schedule
of fees or charges for the services to be provided on a town wide
basis or within an ambulance district, persons within the town or
the ambulance district, must receive those services without a fee
or charge. In a subsequent opinion, 98-18, the comptroller noted
that a fire district continued to be subject to prohibition found
in Section 209-b of the General Municipal Law against an imposition
of fees and charges for either general or emergency ambulance service
provided by an emergency rescue and first aid squad.
I should note parenthetically that I am aware of some providers
of emergency ambulance services who are charging for their services,
although the two opinions that I have referred to make it quite clear
that this is not authorized unless the town has authorized a fee
schedule on a town wide basis. I have enclosed copies of both of
those opinions also for your review.
Lastly, the question that was put to me was whether or not restrictions
can be imposed relative to the residency of members of the board
of fire commissioners of the newly created joint fire district. In
other words, it is my understanding that you seek to require that
a certain number of individuals on the elected board of fire commissioners
come from the village and a certain number come from outside the
village. I have had occasion to discuss this issue with the Attorney
General's Office relative to your proposed joint fire district and
another joint fire district that I am working on. I have also had
occasion to discuss this issue with a number of other attorneys across
the state and we have all reached the unanimous conclusion that such
authority does not exist in Town Law and absent a provision in Town
Law for the authority to do that, one cannot impose any residency
requirements other than that which is already in the statute. The
statute only requires that the individual must be a resident of the
fire district or joint fire district. In other words, you cannot
require that a certain number of individuals come from certain areas
of the fire district. If the individual resides within the fire district
that is the only qualification that you can impose. There would also
be some issues relative to constitutionality if you did attempt to
impose such restrictions as it may be violative of the one man, one
vote requirements of the U.S. Constitution.
Thank you very much for having afforded me an opportunity to comment
relative to this matter, and I look forward to continuing to assist
you in the formation of your joint fire district.
Very yours,
WILLIAM N. YOUNG, JR.
WNW:mm