In New York, can the lawyer who represents a fire district also be a volunteer firefighter in that same department?

Plain-English summary

Mark Murray was retained as counsel to the West Sayville-Oakdale Fire District. He also served as a volunteer firefighter with the West Sayville Fire Department. He asked whether continuing both roles was permissible.

The AG concluded the positions are not per se incompatible. The analysis runs through the standard compatibility framework 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 them. The AG paired that doctrine with Town Law § 175(3), which by statute permits a volunteer firefighter to serve as a fire district commissioner. That legislative carve-out tells us that the Legislature does not view volunteer firefighter status as inherently inconsistent with serving on the governing body of the fire district.

The AG's logical bridge: if a firefighter can make policy as a commissioner (a step the Legislature has explicitly approved), then a firefighter can also serve as legal counsel rendering legal advice to that commission. Counsel's role is advisory rather than supervisory. The volunteer firefighter does not become his own boss by also being the lawyer; the commission is the client, and the lawyer provides advice on legal matters.

The opinion is careful to confine the holding. "Not per se incompatible" means the two roles can coexist as a general matter, not that every situation is conflict-free. Specific matters may create discrete conflicts, like disciplinary proceedings involving the lawyer himself or fact patterns where his firefighter knowledge becomes a witness-credibility issue. Those get handled case-by-case, by recusal from particular matters, not by disqualification from the office.

Currency note

This opinion was issued in 1999. 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 test?

Two offices are incompatible if one is subordinate to the other, or if there is an inherent inconsistency between the duties of the two offices. The Court of Appeals laid out the test in People ex rel. Ryan v Green in 1874, and it has stayed essentially intact since.

Why does Town Law § 175(3) matter to the lawyer question?

Because it is the strongest evidence that the Legislature does not regard volunteer firefighter status as conflicting with fire-district governance. If a firefighter can sit on the board that supervises the fire company, then serving as that board's lawyer is a smaller step.

When does the lawyer have to recuse?

Whenever a specific matter creates an actual conflict of interest. For example, a disciplinary case involving the lawyer himself as firefighter, a contract negotiation where the lawyer is personally interested, or a litigation matter where the lawyer is a witness from the firefighter side. The AG flagged these case-by-case conflicts as routine, not disqualifying.

Does the Rules of Professional Conduct add a layer?

Yes. Beyond AG compatibility doctrine, the lawyer's professional obligations apply. NY RPC 1.7 (conflicts), 1.9 (former clients), 1.13 (organization as client) all have relevance. The lawyer's dual role may require informed consent from the fire district, particularly if the firefighter role creates personal interests that might affect the lawyer's representation.

Could the same logic apply to other dual roles?

Yes, the AG often applies the same combination of statutory permission (where the Legislature has signaled approval of a particular pairing) plus common-law compatibility analysis to similar questions about local-government roles.

Background and statutory framework

The compatibility-of-office doctrine in New York rests on People ex rel. Ryan v Green and a long line of cases applying it. The doctrine has two prongs (subordination and inherent inconsistency) and a recusal backstop for compatible-but-conflicting situations.

Town Law § 175(3) sits in the fire-district governance article of the Town Law. It expressly permits volunteer firefighters to serve as fire district commissioners, a legislative override of what would otherwise have been a closer-call compatibility question.

Fire district counsel is not a statutorily defined office in the same way commissioner is; it is a service provider relationship, usually contractual. That makes the compatibility analysis a hybrid: legal counsel is in some sense an office, in some sense an employment, and the AG's compatibility doctrine applies to both per its "subsidiary aspects" formulation.

Citations

• Town Law § 175(3) (volunteer firefighter may serve as fire district commissioner).
• People ex rel. Ryan v Green, 58 NY 295 (1874) (leading case on compatibility of office; subordination and inherent inconsistency tests).
• Op Atty Gen (Inf) No. 94-39 (fire commissioner / firefighter combination as statutory exception to common-law rule).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_99-26_pw.pdf

Original opinion text

TOWN LAW § 175(3).
The positions of volunteer firefighter and counsel to a fire
district are not per se incompatible.

September 7, 1999

Mark A. Murray, Esq.
Counsel
West Sayville-Oakdale Fire District
300 Rabro Drive
Hauppauge, New York 11788

Informal Opinion
No. 99-26

Dear Mr. Murray:
You have been retained as counsel to the West Sayville-Oakdale Fire District and have asked whether you may continue to
serve as a volunteer firefighter with the West Sayville Fire
Department.
In the absence of a constitutional or statutory prohibition
against dual office holding, 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.
We conclude that the positions of volunteer firefighter and
counsel to the Fire District are not per se incompatible.
Provisions of the Town Law specifically deal with the holding of
various fire district positions. Significantly, Town Law

2
§ 175(3) permits a volunteer firefighter to serve as a fire
district commissioner. The Legislature thus has established an
exception to the common law rule of compatibility in permitting a
firefighter to serve on the board that supervises the activities
of the fire company. See, Op Atty Gen (Inf) No. 94-39. Service
of volunteers as fire district commissioners is very common. In
our view, it follows that if a firefighter may make policy as a
member of the governing body of the fire district, he or she may
render legal advice as counsel to the governing body. Specific
conflicts of interest which may arise out of the dual office
holding may be addressed on a case-by-case basis.
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,

SIOBHAN S. CRARY
Assistant Attorney General