Can a Dutchess County E-911 senior fire alarm dispatcher also serve on the county fire and safety advisory board and as a volunteer firefighter?

Plain-English summary

The Dutchess County Attorney's office asked whether a senior fire alarm dispatcher in the Department of Emergency Response could also serve on the Dutchess County Fire and Safety Advisory Board, and (in a follow-up question) whether the same dispatcher could serve as a volunteer firefighter. The AG concluded yes on both points.

The Board was established under County Law § 225-a. Its duties are (1) cooperating with the State Office of Fire Prevention and Control on training, fire service activities, and mutual aid; (2) advising the county legislature and county fire coordinator on county participation in those programs and on the operation of a county fire training school; and (3) other duties prescribed by the legislature in related areas. Board members are appointed by the county legislature, hold the status of county officers, and serve without compensation.

The AG framed the analysis with People ex rel. Ryan v. Green: in the absence of a constitutional or statutory bar, two positions can be held simultaneously unless they are incompatible (one subordinate to the other, or inherently inconsistent in their duties). Dupras and O'Malley confirmed the analysis applies to employment positions as well as offices.

The AG addressed the threshold statutory question first. County Law § 225-a(4) lists certain officials (members of the legislature, the county fire coordinator, deputy fire coordinators) who may be appointed to the board. The AG read § 225-a(4) as an exception-creator (avoiding common-law incompatibility for legislators appointing themselves) and not as an exhaustive list of eligible board members. Whether other county officers or employees could serve had to be analyzed position by position.

On the dispatcher question, neither position was subordinate to the other. The senior fire alarm dispatcher reports up through the Department of Emergency Response; the board reports to the legislature. The duties did not inherently conflict. The board's role is planning and advice on training programs and mutual aid. It does not set the dispatcher's compensation, allocate fire company budgets, set volunteer firefighter benefits, or audit dispatcher performance. The AG contrasted Op Atty Gen (Inf) No. 95-12 (city council member could not also be city firefighter, because the council sets the fire department budget), which illustrated the kind of structural conflict not present here.

The follow-up volunteer-firefighter question got a same-rationale answer: the board does not set volunteer firefighter benefits or budgets and does not review their work, so the positions are compatible.

Currency note

This opinion was issued in 2001. 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

Why does County Law § 225-a(4) matter even if it's not exhaustive?

The provision serves two functions historically. It overrides the public policy presumption against a governing body appointing one of its own members to public office (Wood v. Town of Whitehall, 120 Misc. 124 (1923)). And, per the Bill Jacket for L. 1957, ch. 348, it removed any residual doubt about the fire coordinator's eligibility. The AG read it as creating exceptions to incompatibility, not as a ceiling on who can serve.

Could a county fire investigator or other operational officer serve on the board?

The AG's logic was position-by-position. An officer whose work the board reviewed, or whose budget or compensation the board set, would face a structural conflict. The dispatcher's duties were operational and supervised through the Department of Emergency Response, untouched by the board's role.

What's a senior fire alarm dispatcher?

The opinion described the position as a shift supervisor overseeing on-duty fire alarm dispatchers, who dispatch fire, rescue, and EMS units in response to calls. The senior dispatcher supervises the dispatching function for paid and volunteer fire/rescue companies and ambulance corps in the county.

Does this opinion apply to other counties?

The reasoning would apply, but the conclusion depends on each county's setup. The opinion turned on the specific duties of the Dutchess County Fire and Safety Advisory Board (planning/advice, no budget or audit role over the dispatcher's work). Counties whose advisory boards have different responsibilities would need a fresh look.

Did the AG rely on Op Atty Gen (Inf) No. 95-12?

As a contrast case, yes. That opinion held a city council member could not serve as a city firefighter because the council sets the fire department budget, meaning the firefighter would help set his own pay. The AG used it to mark the structural-conflict pole opposite the present (no-conflict) facts.

Background and statutory framework

County Law § 225-a establishes the county fire safety advisory board. § 225-a(2) lists the three duty categories: cooperation with the State Office of Fire Prevention and Control; advisory work to the county legislature and fire coordinator; and other duties as the legislature may prescribe. § 225-a(4) allows specific officials (county legislators, the fire coordinator, deputies) to be appointed.

L. 1957, ch. 348 enacted § 225-a(4)'s exception-creating language. The Bill Jacket records (memoranda from AG Lefkowitz and from Charles W. Potter, Counsel to the New York State Joint Legislative Committee on Fire Laws) confirm the legislative intent to create exceptions, not exclusivity.

The common-law dual-office doctrine traces to People ex rel. Ryan v. Green (1874). O'Malley v. Macejka articulated the "built-in right to interfere" test as one expression of inherent inconsistency. Dupras extended the doctrine to non-office employment positions.

Public-officer law forbids a governing body from appointing one of its own members to a public office without statutory authorization (Wood v. Town of Whitehall). § 225-a(4) supplies that authorization in this narrow space.

Citations

• County Law § 225-a (county fire safety advisory board).
• County Law § 225-a(2) (duties of the board).
• County Law § 225-a(4) (members of legislature and fire coordinator eligible to serve).
• L. 1957, ch. 348 (enacting amendment; Bill Jacket).
• People ex rel. Ryan v. Green, 58 N.Y. 295 (1874) (common-law incompatibility test).
• O'Malley v. Macejka, 44 N.Y.2d 530 (1978) (built-in right to interfere as inherent inconsistency).
• Matter of Dupras v. County of Clinton, 213 A.D.2d 952 (3d Dep't 1995) (doctrine applies to employment positions).
• Wood v. Town of Whitehall, 120 Misc. 124 (Sup. Ct. Washington Co. 1923) (public policy against self-appointment).
• Op Atty Gen (Inf) No. 83-9 (board members are public officers subject to statutory requirements).
• Op Atty Gen (Inf) No. 97-4 (fire chief and house maintainer incompatible due to subordination).
• Op Atty Gen (Inf) No. 97-44 (master mechanic subordinate to fire district commissioner).
• Op Atty Gen (Inf) No. 98-44 (county fire investigator and building inspector incompatible because fire inspector reviews building inspector's work).
• 1977 Op Atty Gen (Inf) 249 (Dutchess county legislator incompatible with fire coordinator because legislature fixes the coordinator's compensation).
• Op Atty Gen (Inf) No. 95-12 (city council member and city firefighter incompatible because council sets fire department budget).
• 1955 Atty Gen (Inf) 181 (no incompatibility between fire coordinator and fire advisory board).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2001-5_pw.pdf

Original opinion text

COUNTY LAW § 225-a; L. 1957 CH. 348.
One person may hold the positions of dispatcher in the
County Department of Emergency Response as well as a member of
the Dutchess County Fire and Safety Advisory Board. A dispatcher
may also serve as a volunteer firefighter.
August 1, 2001
Carol A. Bogle, Esq.
Senior Assistant County Attorney
Dutchess County Attorney's Office
22 Market Street
Poughkeepsie, New York 12601

Informal Opinion
No. 2001-5

Dear Ms. Bogle:
You have asked whether an individual may hold the position
of E-911 dispatcher, a position within the Dutchess County
Department of Emergency Response, and also serve as a member of
the Dutchess County Fire and Safety Advisory Board ("Board").
Based on the information you have provided, we conclude that the
positions are compatible and may be held simultaneously by one
individual.
The Board was established pursuant to County Law § 225-a.
Under the statute, the duties of the Board are (1) "to cooperate
with the office of fire prevention and control in the department
of state in relation to . . . programs for fire training, fire
service-related activities and mutual aid"; (2) "to act as an
advisory body to the board of supervisors and to the county
fire coordinator, if any, in connection with the county's
participation in such programs for fire training, fire
service-related activities and mutual aid and in connection with
the county establishment and maintenance of a county fire
training school and mutual aid programs in cases of fire and
other emergencies in which the services of firemen would be
used"; and (3) "to perform such other duties as the board of
supervisors may prescribe in relation to fire training, fire
service-related activities and mutual aid in cases of fire and
other emergencies in which the services of firemen would be
used." See County Law § 225-a(2). Members of the Board are
appointed by the Dutchess County Legislature with the status of
county officers, and serve without compensation. Id.; see also
Op. Atty. Gen. (Inf.) No. 83-9 (members of the county fire safety
advisory board are public officers who must comply with statutory
requirements for holding public office).
You have informed this office that the E-911 dispatcher in
question is a senior fire alarm dispatcher. According to the
materials you provided, a senior fire alarm dispatcher is the
shift supervisor responsible for overseeing the work of all on-duty fire alarm dispatchers, who dispatch appropriate units and
their personnel in response to requests for fire, rescue or
emergency medical services. A senior fire alarm dispatcher
supervises and participates in the performance of the dispatching
functions for volunteer or paid fire and rescue companies and for
voluntary emergency medical services and ambulance corps within
the county.
Dual officeholding may be prohibited by the State
Constitution or by statute. In the absence of a constitutional
or statutory prohibition, one person may hold two offices or
positions simultaneously unless they are incompatible. Two
offices are incompatible if one is subordinate to the other or
there is an inherent inconsistency between the two offices. See
People ex rel. Ryan v. Green, 58 N.Y. 295, 304-305 (1874);
O'Malley v. Macejka, 44 N.Y.2d 530, 535 (1978); Matter of Dupras
v. County of Clinton, 213 A.D.2d 952, 953 (3rd Dep't 1995). For
example, the positions of fire chief and house maintainer of a
fire district are incompatible because the house maintainer is
subordinate to, and supervised by, the fire chief. See Op. Atty.
Gen. (Inf.) No. 97-4; see also Op. Atty. Gen. (Inf.) No. 97-44
(because master mechanic is subordinate to fire district
commissioner, a person may not simultaneously hold both
positions). Similarly, the position of county fire investigator
is inconsistent with the position of county building inspector,
because the fire inspector will review the work of the building
inspector in the course of investigating a fire. See Op. Atty.
Gen. (Inf.) No. 98-44.
We conclude that there is no constitutional or statutory
prohibition precluding the appointment to membership on the Board
of an E-911 dispatcher employed by the county. County Law
§ 225-a(4) provides that a member of the board of supervisors,
the county fire coordinator, or a deputy fire coordinator may be
appointed to the county fire advisory board. There is no
indication in the statute or the legislative history that this
provision was meant to set forth an exclusive list of the county
officials or employees who may be appointed to the Board.
Rather, the purpose of this provision is to establish an
exception to the common-law rule of incompatibility for the
appointment of members of the board of supervisors to the county
fire advisory board, and to remove any doubt as to the propriety
of appointing a county fire coordinator or his deputy to such a
board. The statute does not deal, either directly or by
implication, with other offices or positions. Therefore, whether
other county officials or employees may be appointed to the
county fire advisory board must be determined on a position-by-position basis, by examining the duties of the positions in
accordance with the principles described above.
Neither of the positions or offices in question is
subordinate to the other. The only question, therefore, is
whether there is an inherent inconsistency in holding both
positions or offices at the same time. We find none.
The function of the Board is primarily planning and advice,
and all of those functions relate to fire training programs, fire
service-related activities and mutual aid in cases of fire and
other emergencies in which the services of firefighters would be
used. The Board does not appear to have any role in determining
the compensation or other benefits of an E-911 dispatcher, or the
budget, supplies and equipment of local fire companies or the
benefits of volunteer firefighters. Accordingly, a Board member
would not participate in decisions involving the terms of
employment of an E-911 dispatcher or the allocation of funds of
volunteer fire companies, nor would a Board member audit or
evaluate the performance of duties by an E-911 dispatcher. Cf.
1977 Op. Atty. Gen. (Inf.) 249 (Dutchess County Legislator and
County (or Deputy) Fire Coordinator are incompatible offices
because the county legislature fixes the compensation of the
County and Deputy County Fire Coordinator); Op. Atty. Gen. (Inf.)
No. 95-12 (positions of city council member and city firefighter
are incompatible because city council adopts budget of fire
department, meaning that the councilperson would determine his
own salary and benefits and those of his co-workers in the fire
department).
Your letter mentions that the senior fire alarm dispatcher
in question is also a volunteer firefighter. Although you did
not request an opinion with respect to the compatibility of the
positions of volunteer firefighter and member of the Board, we
believe that these positions are compatible, essentially for the
same reasons set forth above.
The Attorney General renders formal opinions only to
officers and departments of the State government. This perforce
is an informal and unofficial expression of the views of this
office.
Very truly yours,
JAMES D. COLE
Assistant Solicitor General
In Charge of Opinions
By:_______
VICTOR PALADINO
Assistant Solicitor General