Can a NY county create a fire marshal position by resolution, or does it need a local law?

Subject

Fire marshal may be created by local law; marshal's vehicle qualifies as a fire vehicle

Plain-English summary

Ulster County asked whether its legislature could establish the position of fire marshal by resolution, and whether the new fire marshal would automatically have lights-and-siren rights for emergency response.

The AG found no state enabling statute for local fire marshals. The position has only scattered statutory mentions. Criminal Procedure Law § 2.10 grants peace officer powers to fire marshals of specific named municipalities. Vehicle and Traffic Law § 115-a treats a county or assistant county fire marshal's vehicle as a "fire vehicle." Otherwise, the position is locally established.

The AG concluded the county can create the position, but only through local law, not by resolution. The home-rule authority comes from two parts of Municipal Home Rule Law § 10: subsection (1)(ii)(a)(1), which lets a county enact local laws on the qualifications and duties of its officers, and subsection (1)(ii)(a)(12), the police-power grant, which lets a county legislate on government, protection, order, conduct, safety, health, and well-being. A charter county can also create the position through a charter law under § 33(3)(b). But a resolution is the wrong instrument because resolutions handle temporary matters; creating an office is a permanent legislative act that requires a local law.

Once the position is properly created, two consequences follow automatically. The marshal's vehicle becomes a "fire vehicle" under Vehicle and Traffic Law § 115-a, with the lights, sirens, and red-light rights that come with that status. The marshal does not, however, become a peace officer automatically. Peace officer status requires the Legislature to add that municipality's fire marshal to the list in Criminal Procedure Law § 2.10.

Currency note

This opinion was issued in 1995. 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

What's the difference between a local law and a resolution?

A local law is a formal legislative enactment that goes through public notice and hearing procedures, takes effect as written law of the locality, and continues until repealed. A resolution is typically a one-off administrative or procedural action: appointing someone, authorizing a contract, expressing a sentiment. Creating a permanent office of fire marshal is the kind of structural change that requires the local law route.

Why don't fire marshals get peace officer status automatically?

Because Criminal Procedure Law § 2.10 enumerates the categories of personnel that have peace officer powers, and the statute is jurisdiction-specific in many of its provisions. The Legislature has named specific municipalities' fire marshals as peace officers, but a newly created county fire marshal does not become a peace officer just by existing. The county would need to seek state legislation adding its marshal to § 2.10.

What can a fire marshal do if not a peace officer?

A fire marshal can still respond to fires with the lights-and-siren rights of a fire vehicle, investigate fire causes, enforce fire codes, issue notices of violation, and conduct inspections (depending on the duties set by the local law). What the marshal cannot do without peace officer status is exercise arrest powers, carry a firearm under § 2.10, or do other things peace officers may do.

Why was the AG so insistent on local law over resolution?

The form-of-action question matters in New York municipal law. Creating an office, defining duties, and conferring statutory benefits (like the lights-and-siren rights tied to § 115-a status) is a substantive legislative act. Doing it by resolution may invite challenges that the office was never properly created, which could undermine the marshal's authority and potentially expose the marshal personally to liability for acts taken without legal authority.

Does the same analysis apply to towns and villages?

Yes, in structure. Towns and villages also create local positions through local laws under their respective sections of the Municipal Home Rule Law. The substantive home-rule powers are similar; the procedural form is the same.

Statutory framework

Municipal Home Rule Law § 10(1)(ii)(a)(1) is the general grant for a county to legislate on the qualifications and duties of its officers and employees.

Municipal Home Rule Law § 10(1)(ii)(a)(12) is the police-power grant: counties may enact local laws on government, protection, order, conduct, safety, health, and well-being of persons or property within the county.

Municipal Home Rule Law § 33(3)(b) authorizes charter counties to use charter law to create the position.

Vehicle and Traffic Law § 115-a defines "fire vehicle" to include vehicles operated by a county or assistant county fire marshal. That definition is the gateway to the emergency vehicle rights in §§ 375(26), (41)(2) and 1104.

Criminal Procedure Law § 2.10 lists the categories of personnel who have peace officer powers. Adding a county fire marshal requires state legislation.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-23_pw.pdf

Original opinion text

CRIMINAL PROCEDURE LAW § 2.10; MUNICIPAL HOME RULE LAW
§§ 10(1)(ii)(a)(1), 10(1)(ii)(a)(12), 33(3)(b); VEHICLE AND
TRAFFIC LAW § 115-a.
The position of fire marshall may be created by local law.
Upon creation of that office, the fire marshall's vehicle would
be categorized as a fire vehicle under section 115-a of the
Vehicle and Traffic Law.
April 26, 1995

Francis T. Murray, Esq.
County Attorney
County of Ulster
P. O. Box 1800
Kingston, NY 12401

Informal Opinion
No. 95-23

Dear Mr. Murray:
You have asked whether a county legislature, by resolution,
may establish the position of fire marshall and, if it may,
whether the fire marshall would automatically have the rights and
privileges established by State law with respect to the operation
of vehicles.
We have not found any State enabling legislation for the
establishment of the position of fire marshall by local
governments. There are a few statutory references to that
office. See section 2.10 of the Criminal Procedure Law which
grants to fire marshalls of specific municipalities peace officer
powers and section 115-a of the Vehicle and Traffic Law which
lists a vehicle operated by a county or assistant county fire
marshall as a fire vehicle.
Thus, it appears that the position of fire marshall is
locally established.1 We believe, however, that the office and
its duties must be established by local law, rather than by
resolution, under the grant of powers to municipalities in the
Municipal Home Rule Law. Under that grant of authority, a county
is authorized to adopt and amend local laws establishing local
positions and their qualifications. Municipal Home Rule Law
§ 10(1)(ii)(a)(1). Additionally, counties are authorized to
adopt and amend local laws dealing with the government,
protection, order, conduct, safety, health and well-being of

1

We have confirmed that this is true in practice.

2
persons or property within its borders. Id., § 10(1)(ii)(a)(12).
This is the so-called grant of police power, which may be
utilized to establish the position of fire marshall and define
its duties. A charter county can also establish the position of
fire marshall and define its duties through the enactment of a
charter law. Id., § 33(3)(b). A resolution, which typically
deals with matters of a temporary nature, may not establish
legislation of this genre.
As indicated earlier, the establishment of the position of
fire marshall by a county would automatically create rights under
State law. Vehicle and Traffic Law § 115-a. The duties of the
position, many in the category of law enforcement, must be
established by local or charter law. A fire marshall of a
particular municipality, however, may be designated as a peace
officer only through action by the State Legislature adding that
fire marshall to the list of peace officers delineated in
section 2.10 of the Criminal Procedure Law.
As alluded to above, in response to your second question
once the position of fire marshall is properly created in your
county, that officer's vehicle would be designated as a fire
vehicle under section 115-a of the Vehicle and Traffic Law.
We conclude that the position of fire marshall may be
created by local law. Upon creation of that office, the fire
marshall's vehicle would be categorized as a fire vehicle under
section 115-a of the Vehicle and Traffic Law.
The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.
Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions