Can a paid city firefighter also serve as a commissioner of a fire district that contracts with the city for fire protection services?

Plain-English summary

The Oneonta Fire District contracted with the City of Oneonta for fire protection services. The district did not have its own fire company. The district board of commissioners' main jobs were to approve the annual contract with the city and to approve the district's budget, which largely reflected contract expenses. The contract with the district provided a significant share of the city's fire department revenue.

The board of fire commissioners asked whether a paid Oneonta city firefighter could also serve as a district commissioner.

The AG said no. The two roles created a conflict.

The analysis is the standard compatibility-of-office test from People ex rel. Ryan v Green. Two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the two. The subordination test is concrete ("you cannot be your own boss"). The inherent-inconsistency test is harder and requires looking at the duties of both positions.

Here the inherent inconsistency was clear. The district commissioner has a fiduciary interest in obtaining fire protection at a reasonable cost on behalf of district residents (whose taxes pay for the contract). The same person, as a paid city firefighter, has an interest in his employer's revenue and in fire fighter benefits and staffing that the contract influences. Cited authority (1986 Op Atty Gen (Inf) 112) recognizes the "subtle but powerful psychological pressures" placed on an employee who knows the importance of a particular revenue source to his or her employer. The pressures are real even if the individual does not consciously act on them.

Two corollaries: (1) compatibility doctrine applies equally to office-and-office, position-and-office, and position-and-position combinations; (2) even where two offices are compatible, conflicts may arise on specific matters, and the cure is to recuse on those matters. Here, the conflict is structural and pervasive: the district's main business is the contract, and the contract directly affects the firefighter's employer. Recusal cannot cure a conflict that pervades the office's central function.

The "subjective belief" point matters too. The opinion noted: "The person's belief that he or she can undertake both responsibilities impartially is irrelevant." Compatibility doctrine protects public confidence, and even an appearance of impropriety must be avoided. Two positions with conflicting duties cannot be held by the same person, no matter how honest or scrupulous.

The conclusion was definitive: a paid firefighter of a fire department under contract to provide fire protection to a fire district may not also serve as a commissioner of that district.

Currency note

This opinion was issued in 1998. 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 is the compatibility-of-office doctrine?

A New York common-law rule, traced to People ex rel. Ryan v Green (1874), that prohibits one person from simultaneously holding two offices if one is subordinate to the other (the "subordination" prong) or if the duties of the two offices are inherently inconsistent (the "inconsistency" prong). It is a separate analysis from statutory dual-officeholding bars (such as County Law § 411 or Village Law § 3-300).

What is the difference between conflict of interest and incompatibility of office?

A conflict of interest typically refers to a specific matter on which an official has a personal or competing-loyalty interest; the cure is usually recusal from that matter. Incompatibility of office is a structural barrier to holding two positions at all, even before any specific matter arises. The 1998 opinion treats the firefighter/commissioner situation as a structural incompatibility because the conflict pervades the office, not merely individual matters.

Doesn't the firefighter only have to recuse on the contract?

The opinion says recusal cannot cure this conflict because the district's central function is the contract. If the commissioner recuses on the contract and on the budget (which is largely contract expenses), there is little left for the commissioner to do. The functional emptying of the office is itself the structural problem.

What about a volunteer firefighter? Would the analysis change?

The opinion is specifically about a paid firefighter. The "subtle but powerful psychological pressures" rationale assumes economic dependency on the employer. A volunteer firefighter would not have that exact dynamic, though other compatibility issues (e.g., serving as fire district commissioner while also being a member of the volunteer fire company that the commissioners oversee) might still apply. Volunteer-fire scenarios get analyzed under different rules and have their own line of AG opinions.

What if the firefighter resigns from one position?

The conflict is between the two simultaneous roles. Resigning from one resolves the conflict for the future. The opinion does not address whether prior decisions made while holding both positions are voidable.

Could the city and district restructure the contract to remove the conflict?

In principle, a restructured arrangement might separate the firefighter's compensation from the district contract or otherwise weaken the financial connection. The opinion did not invite that workaround. The structural problem is that the same person is on both sides of an inherently negotiated relationship; restructuring the contract does not change that.

Background and statutory framework

The 1998 opinion is a routine application of People ex rel. Ryan v Green. The case is the foundation of New York compatibility-of-office doctrine and has been applied in dozens of AG opinions to evaluate whether one person can hold two specific positions. The fire-district-and-paid-firefighter combination is one of many that the AG has addressed; the outcome here is the standard outcome for inherently inconsistent duties tied to a contractual relationship between the two positions' employers.

The 1986 informal opinion (1986 Op Atty Gen (Inf) 112) is cited for the "subtle but powerful psychological pressures" formulation. That phrase appears in many AG opinions analyzing employment-and-office combinations where one role's compensation depends on the other role's decisions.

The fire district / fire department contract framework is governed by Town Law (for fire districts), Village Law and General City Law (for municipal fire departments), and various other statutory provisions. The opinion did not need to detail those because the compatibility analysis turned on the common-law doctrine, not on specific statutory authority.

Citations

• People ex rel. Ryan v Green, 58 NY 295 (1874) (leading case on compatibility of office).
• 1986 Op Atty Gen (Inf) 112 ("subtle but powerful psychological pressures" formulation).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-12_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Page 1 of 2

Opn. No. 98-12
A paid fire fighter of a fire department providing service by contract to a fire district may not also serve
as a commissioner of that district.
March 19, 1998
Informal Opinion
No. 98-12

James R. O'Day, Esq.
Oneonta Board of Fire Commissioners
515 East Main Street
Endicott, New York 13760
Dear Mr. O'Day:
You have asked whether a full or part-time paid fire fighter of a city may also serve as commissioner of
a fire district. You have explained that the Oneonta Fire District does not have its own fire company
with fire fighting capacity. The District annually contracts with the City of Oneonta for fire protection
services. The city has a paid fire department. The subject individual is a paid fire fighter of the City of
Oneonta. Your question is whether he or she may also serve as a commissioner of the Oneonta Fire
District.
You have indicated that the district has limited functions. The Board of Commissioners, on behalf of the
District, annually contracts with the City of Oneonta for fire protection and approves the budget for the
District. The budget primarily reflects contract expenses. You informed us that the contract provides a
significant part of the city's fire department budget.
In the absence of a constitutional or statutory prohibition against dual-officeholding, one person may
hold two offices simultaneously unless they are incompatible. The leading case on compatibility of
office is People ex rel. Ryan v Green, 58 NY 295 (1874). In that case the Court held that two offices are
incompatible if one is subordinate to the other or if there is an inherent inconsistency between the two
offices. The former can be characterized as "you cannot be your own boss", a status readily identifiable.
The latter is not easily characterized, for one must analyze the duties of the two offices to ascertain
whether there is an inconsistency. An obvious example is the inconsistency of holding both the office of
auditor and the office of director of finance.
There are two subsidiary aspects of compatibility. One is that the principle equally covers an office and
a position of employment or two positions of employment. Also, where positions are compatible, a
conflict of interests may arise out of the simultaneous holding of the positions. The conflict can be
avoided by declining to participate in the disposition of the particular matter.
The functions of the Board of Commissioners are limited to approval of the contract with the City of
Oneonta and approval of a budget which reflects primarily the cost of the contract. In our view a person
should not serve as a commissioner and as a paid fire fighter for the City of Oneonta. The duties of the
two positions are in conflict. As a commissioner, this individual has an interest in provision of fire
protection to District residents at a reasonable cost. This interest is based upon the commissioner's
position as an elected official representing residents of the District, whose taxes will be affected directly
by the cost of the contract. On the other hand, payments under the contract are a source of revenue for

OPINIONS OF THE ATTORNEY GENERAL

Page 2 of 2

this individual's employer, the City of Oneonta. There are "subtle but powerful psychological pressures"
placed on an employee who inevitably recognizes the importance of this source of revenue to his or her
employer. See, 1986 Op Atty Gen (Inf) 112. Also, consideration under the contract could affect fire
fighter benefits and staffing. Thus, dual holding of these positions creates at least an appearance that the
duties are in conflict.
The person's belief that he or she can undertake both responsibilities impartially is irrelevant. When a
person holds two positions whose duties are in conflict, he or she cannot objectively defend him or
herself against charges of improper conduct by members of the public. Even the appearance of
impropriety must be avoided in order to maintain public confidence in government. In our view the
duties of these positions are in conflict and, therefore, may not be held by the same person.
We conclude that a paid fire fighter of a fire department providing service by contract to a fire district
may not also serve as a commissioner of that district.
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