Does an Arkansas volunteer fire department have to fight fires outside its coverage area for a neighboring city?

Plain-English summary

State Representative Charlotte Vining Douglas asked the Attorney General about Butterfield District 5, a volunteer fire department serving part of Crawford County, and its obligations toward a neighboring city that had started its own fire department and did not want an automatic aid agreement. Attorney General Dustin McDaniel concluded that District 5 was not required to fight fires outside its coverage area without an agreement to do so, because no Arkansas law imposes that duty.

He also concluded that a department in District 5's position generally could not force the adjacent city to pay for firefighting done inside the city, though the two could sign a contract for payment, or in a given case a property owner might owe payment under the equitable remedy of quantum meruit. And he concluded that neither Act 833 funds nor county sales tax proceeds could be withheld from District 5 just because it lawfully refused to fight a fire outside its area. The AG read the questions as running both directions: a city fire department likewise need not fight fires beyond city limits absent an agreement, and the same funding and payment rules apply in reverse.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a volunteer fire department have to respond to fires outside its own district?
A: Not under the law as the AG read it in 2013. He found no Arkansas statute requiring a department like District 5 to fight fires outside its coverage area, and he pointed to A.C.A. § 20-22-901(a)(1)(A), which directs departments to respond to "all fires occurring within their respective districts," as implying the absence of a duty to respond outside the district.

Q: Could the department bill a neighboring city if it did help fight a fire there?
A: Generally no, the AG said, unless the two had a contract providing for payment. He noted that no law let a department recover money for services rendered outside its coverage area, though in a given case quantum meruit might support a claim, which would ordinarily lie against the property owner where the fire occurred rather than against the city itself.

Q: Could a county judge or the city cut off a department's funding for refusing an out-of-area fire?
A: No. The AG concluded that neither county sales tax proceeds appropriated to pay amounts due under a contract nor Act 833 funds could be withheld from a department solely for its lawful refusal to fight a fire outside its coverage area, because no law provided for that kind of withholding.

Q: Was there any way a fire department could be required to fight fires outside its area?
A: Yes, by agreement. The AG assumed the department's articles of incorporation and bylaws did not require outside firefighting, and noted that a city may by ordinance authorize its fire department to fight fires outside city limits under A.C.A. § 14-53-102. An automatic aid or mutual aid agreement can also create that obligation.

Q: What is Act 833, and how did it tie in?
A: Act 833 of 1991, codified at A.C.A. §§ 14-284-401 to -411, distributes insurance premium tax proceeds to fire departments. The AG noted one condition: under A.C.A. § 14-284-406(b)(1), a city cannot receive Act 833 funds "unless it is willing to provide fire protection through mutual aid agreements" for areas within five miles of the city limits. He stressed that being willing to enter such agreements is not the same as actually fighting every outside fire.

Background and statutory framework

Volunteer fire departments in Arkansas take various organizational forms. District 5 was a private nonprofit corporation that received membership dues, county sales tax proceeds, and Act 833 funds. The opinion assumed the county sales tax money came as consideration under a contract with Crawford County to provide fire protection under A.C.A. § 14-14-802(b)(2)(D)(iii), and flagged that donating local tax funds to a nonprofit fire department can raise a question under Ark. Const. art. 12, § 5.

For city departments, A.C.A. § 14-53-101(a) describes the department's mission as extinguishing fires and preserving "the property of the city and of the inhabitants," which the AG read as confining the mission to within the city. A separate statute, A.C.A. § 14-53-102, lets a city authorize extraterritorial firefighting by ordinance and directs a "reasonable effort" to obtain reimbursement from the property owner when a city department fights a fire outside its limits; if that effort fails, the county where the fire occurred may reimburse the municipality up to two hundred dollars.

Citations and references

Statutes:

• A.C.A. § 14-14-802(b)(2)(D)(iii) (Repl. 1998) (county may provide fire protection services)
• A.C.A. §§ 14-284-401 to -411 (Act 833 of 1991; distribution of insurance premium tax proceeds)
• A.C.A. § 20-22-901(a)(1)(A) (departments respond to all fires within their districts)
• A.C.A. § 20-22-901(b)(1)(A) (Supp. 2011) (recovery from a nonmember property owner)
• A.C.A. § 14-53-101(a) (Repl. 1998) (purpose of a city fire department)
• A.C.A. § 14-53-102 (Supp. 2011) (extraterritorial firefighting by ordinance; reimbursement)
• A.C.A. § 14-284-406(b)(1) (Supp. 2011) (mutual-aid willingness condition for Act 833 funds)
• Ark. Const. art. 12, § 5 (donation of public funds)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THe ATTORNEY GENERAL
DusTIN McDANIEL

Opinion No. 2013-063

October 11, 2013

The Honorable Charlotte Vining Douglas
State Representative

5315 Ridge Road

Alma, Arkansas 72921-8254

Dear Representative Douglas:

This is my opinion on your questions about a volunteer fire department’s rights
and obligations vis-d-vis an adjacent city.

Butterfield District 5 Volunteer Fire Department (“District 5’) serves part of
Crawford County and is organized as a private nonprofit corporation.’ It receives
membership ducs, county sales tax proceeds,” and Act 833 funds.’ It has an
automatic aid agreement’ with a fire department whose coverage area once
included a city adjacent to District 5’s coverage area but no longer does because

' See Op. Att’y Gen. 2004-294 and opinions cited therein regarding the various forms fire departments may
take.

? T assume for purposes of this opinion that District 5 receives county sales tax proceeds as consideration
under a contract with Crawford County to provide fire protection services within its coverage area. See
A.C.A. § 14-14-802(b)(2)(D)(iii) (Repl. 1998) (county may provide fire protection services); Op. Att’y
Gen. 2012-007 (county may contract with private nonprofit corporation to provide public service, but
donation of local tax funds to fire department organized as private nonprofit corporation may be subject to
challenge under Ark. Const. art. 12, § 5).

See Act 833 of 1991 (codified as amended at A.C.A. §§ 14-284-401 to -411 (Repl. 1998, Supp. 2011) and
A.C.A. § 26-57-614 (Repl. 2008)) (as further amended by Act 91 of 2013) (providing for distribution of
insurance premium tax proceeds to fire departments).

“It is my understanding that under an automatic aid agreement the combined firefighting resources of all
party fire departments are treated for dispatch purposes as a single department serving the parties’
combined coverage areas, and that under a mutual aid agreement a party fire department may call on
another party as needed to fight a given fire.

323 CENTER STREET, SUITE 200 * LITTLE Rock, ARKANSAS 72201
TELEPHONE (501) 682-2007 * Fax (501) 682-8084
INTERNET WEBSITE * http://www.ag.state.ar.us/

The Honorable Charlotte Vining Douglas
State Representative

Opinion No. 2013-063

Page 2

the city started its own fire department. You state that the city fire department
“does not intend to have a similar agreement” with District 5 but that you expect
the city to ask District 5 to respond to some city fires.”

Your questions are:

1. Is District 5 required to respond outside of its coverage area, where
   there is no agreement? Is it permissible for District 5 to refuse aid? If
   so, under what circumstances?

2. If District 5 is required to render aid or chooses to render aid, can the
   adjacent city be charged for services rendered by District 5 not in its
   service area? And if the adjacent city refuses to pay for services, what
   recourse does the department have?

3. Can a county judge withhold funds to District 5 where it legally refuses
   to render aid? Can Act 833 funds be withheld under these
   circumstances?

4, What are the legal ramifications, duties and responsibilities to District 5
in relation to the adjacent city’s fire department?

RESPONSE

Question 1: Is District 5 required to respond outside of its coverage area, where
there is no agreement? Is it permissible for District 5 to refuse aid? If so, under
what circumstances?

In my opinion, District 5 need not fight fires outside its coverage area absent an
agreement to do so.° No law expressly requires a department like District 5 to fight
fires outside its coverage area. Additionally, a statute requires departments like

° You state that “District 5 is better equip[ped] and will likely be called for cases where adjacent city is
inadequate.” In my view, however, the departments’ relative capabilities are not relevant to answering your
questions,

® Being a corporation, District 5 has articles of incorporation and presumably has bylaws. I assume for
purposes of this opinion that these documents do not provide that District 5 must fight fires outside its
coverage area.

The Honorable Charlotte Vining Douglas
State Representative

Opinion No. 2013-063

Page 3

District 5 to respond to “all fires occurring within their respective districts,”

implying the absence of a duty to respond outside the district.

Question 2: If District 5 is required to render aid or chooses to render aid, can
the adjacent city be charged for services rendered by District 5 not in its service
area? And if the adjacent city refuses to pay for services, what recourse does the
department have?

In my opinion, District 5 generally may not compel an adjacent city to pay for
firefighting services rendered within the city. No law expressly provides that a
department like District 5 may recover money for services rendered outside its
coverage area.* District 5 and the city might, of course, enter into a contract that
provides for payment. And in a given case the equitable remedy quantum meruit
might be invoked to support a claim for payment, though such a claim might
ordinarily be expected to lie against the owner of the property on which the fire
occurred rather than against the city itself.

Question 3: Can a county judge withhold funds to District 5 where it legally
refuses to render aid? Can Act 833 funds be withheld under these
circumstances?

In my opinion, neither county sales tax proceeds appropriated to pay amounts due
under a contract between the county and District 5° nor Act 833 funds may be
withheld from District 5 solely for its lawful refusal to fight a fire outside its
coverage area. No laws provide for such withholding.

Question 4: What are the legal ramifications, duties and responsibilities to
District 5 in relation to the adjacent city’s fire department?

I interpret this question as a request that I answer your first three questions as if
you had asked about a city fire department’s fighting fires within District 5.

7 A.C.A. § 20-22-901(a)(1)(A) (as amended by Act 1345 of 2013).

® A department like District 5 may recover from a nonmember property owner the reasonable value of its
services in responding to a fire within its coverage area. See A.C.A. § 20-22-901(b)(1)(A) (Supp. 2011).

” See note 2. I assume for purposes of this opinion that the contract itself does not require District 5 to fight
fires outside its coverage area.

The Honorable Charlotte Vining Douglas
State Representative

Opinion No. 2013-063

Page 4

In my opinion, a city fire department need not fight fires outside city limits absent
an agreement to do so. A statute provides that a city fire department is formed “to
extinguish fires and preserve the property of the city and of the inhabitants from
conflagration.”'® The language clearly indicates that such a department’s mission
is within the city.'' No state law expressly requires a city fire department to fight
fires outside city limits.

In my opinion, an adjacent city generally may not compel District 5 to pay for
firefighting services rendered within District 5.'* No law expressly provides that a
city fire department may recover from an adjacent fire department like District 5
money for services rendered outside city limits. The city and District 5 might, of
course, enter into a contract that provides for payment. And in a given case the
equitable remedy quantum meruit might be invoked to support a claim for
payment, though such a claim might ordinarily be expected to lie against the
owner of the property on which the fire occurred rather than against District 5
itself.

Finally, in my opinion, neither Act 833 funds nor county sales tax proceeds
distributed to a city'® and appropriated to its fire department may be withheld from
such a department solely for its lawful refusal to fight a fire outside city limits. No
laws expressly provide for such withholding, although a city may not receive Act
833 funds “unless it is willing to provide fire protection through mutual aid
agreements” in areas within five miles of the city limits.'* This provision does not

A.C.A, § 14-53-101(a) (Repl. 1998).

" But see A.C.A. § 14-53-102 (Supp. 2011 and as amended by Act 1345 of 2013) (providing that a city
may by ordinance authorize its fire department to fight fires outside city limits). I assume for purposes of
this opinion that the city in question has not enacted an ordinance that requires extraterritorial firefighting.

" When a city fire department fights a fire outside city limits, “a reasonable effort shall be made . . . to
obtain compensation or reimbursement . . . from the property owner involved.” A.C.A. § 14-53-
102(b)(1)(A) (as amended by Act 1345 of 2013) (emphasis added). If the effort is unsuccessful, the county
wherein the fire occurred “may reimburse the municipality . . . in an amount not to exceed two hundred
dollars ($200).” A.C.A. § 14-53-102(b)(1)(B) (as amended by Act 1345 of 2013).

8 See, e.g, A.C.A. § 26-74-214(b) (Supp. 2011) (generally requiring pro rata share of county sales tax
proceeds to be distributed to each municipality within county).

4 ACA. § 14-284-406(b)(1) (Supp. 2011).

The Honorable Charlotte Vining Douglas
State Representative

Opinion No. 2013-063

Page 5

mean that a city fire department may never receive Act 833 funds unless it actually
fights fires outside city limits. It may be that a city is willing to enter into mutual
aid agreements but that the fire departments serving the areas within five miles of
the city limits are not.

Assistant Attorney General J. M. Barker prepared this opinion, which I approve.
Sincerely, =
A f LL wy) poy
STIN McDANIEL
Attorney General

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