December 10, 1997

Ms. Carol J. Keller
Secretary, Scotia Fire Department
604 Riverside Ave.
Scotia, NY 12302

The staff of the Committee on Open Government is authorized to issue
advisory opinions. The ensuing staff advisory opinion is based solely upon the
information presented in your correspondence.

Dear Ms. Keller:

I have reviewed the materials delivered to this office on November 7
pertaining to the Scotia Fire Department, which you serve as Secretary. Your
question is whether meetings of the Department are subject to the Open
Meetings Law.

Based on the documentation that you provided, the Department is, in
my view, somewhat unique. Section 31-1 of the Village Code indicates that
the Department "shall consist of a full-time staff of paid firefighters and
associated volunteer firefighters." The combination of paid and volunteer
firefighters is, in my experience, rare in the area proximate to Scotia. As I
understand the situation, most unusual is the absence of a board of directors
or similarly designated governing body. Based on the Constitution of the
Scotia Fire Department, which was adopted in 1986 and revised in 1993, the
Department's governing body consists of its "active members", and the
Department has the authority to act at meetings of the active members.

In consideration of the relationship between the Village and the
Department and in conjunction with the following analysis, I believe that
Department meetings of its active members fall within the coverage of the
Open Meetings Law.

First, §29-2(A) of the Scotia Code states in part that:

"...the Board of Fire Commissioners shall have
full and complete operational and
administrative control over the Fire
Department and its volunteer and paid
members and officers, and all matters relating
thereto shall be dealt with solely and
exclusively by the Board of Fire

In addition, the Village Board of Trustees has certain responsibilities and
duties regarding the Department, for the same provision states in part that:

"There shall be consultation between the
Board of Fire Commissioners and Board of
Trustees upon the annual Fire Department
budget, the purchase of fire trucks or
equipment outside budget appropriations and
the erection and construction for Fire
Department use of buildings outside budget

and that:

"The employment of paid personnel of the Fire
Department shall be reserved to the Board of
Trustees, after solicitation and screening by the
Board of Fire Commissioners and the
submission of recommendations to the Board
of Trustees..."

In short, two clearly governmental entities, the Village Board of
Trustees and the Board of Fire of Commissioners, maintain essentially full
control over the operation of the Department.

Second, with specific respect to the Open Meetings Law, that statute
pertains to meetings of public bodies, and §102(2) defines the phrase "public
body" to mean:

"any entity for which a quorum is required in
order to conduct public business and which
consists of two or more members, performing
a governmental function for the state or for an
agency or department thereof, or for a public
corporation as defined in section sixty-six of
the general construction law, or committee or
subcommittee or other similar body of such
public body."

By reviewing the components in the definition, I believe that each
would be present in relation to meetings of the Department, specifically
meetings of its decision making body, the active members. The active
members, who collectively act by means of votes at Department meetings,
comprise more than two members. The Constitution indicates that business
must be conducted with the presence of a quorum. And finally, in view of the
Department's functions and duties, in my opinion, it clearly conducts public
business and performs a governmental function for one and perhaps two
public corporations, the Village and the Fire District. Since each of the
elements in the definition of "public body" can apparently be met, the meetings
that are the subject of your inquiry must in my view be held in accordance
with the Open Meetings Law.

Although perhaps tangential to the matter, I point out that the status
of volunteer fire companies had long been unclear. Those companies are
generally not-for-profit corporations that perform their duties by means of
contractual relationships with municipalities. As not-for-profit corporations,
it was difficult to determine whether or not they conducted public business
and performed a governmental function. Nevertheless, in Westchester-Rockland Newspapers v. Kimball [50 NY2d 575 (1980)], a case involving
access to records relating to a lottery conducted by a volunteer fire company,
the Court of Appeals, found that volunteer fire companies, despite their status
as not-for-profit corporations, are "agencies" subject to the Freedom of
Information Law. In so holding, the Court stated that:

"We begin by rejecting respondent's contention
that, in applying the Freedom of Information
Law, a distinction is to be made between a
volunteer organization on which a local
government relies for performance of an
essential public service, as is true of the fire
department here, and on the other hand, an
organic arm of government, when that is the
channel through which such services are
delivered. Key is the Legislature's own
unmistakably broad declaration that, '[a]s state
and local government services increase and
public problems become more sophisticated
and complex and therefore harder to solve,
and with the resultant increase in revenues and
expenditures, it is incumbent upon the state
and its localities to extend public
accountability wherever and whenever feasible'
(emphasis added; Public Officers Law, §84).

"True, the Legislature, in separately
delineating the powers and duties of volunteer
fire departments, for example, has nowhere
included an obligation comparable to that
spelled out in the Freedom of Information
statute (see Village Law, art 10; see, also, 39
NY Jur, Municipal Corporations, §§560-588).
But, absent a provision exempting volunteer
fire departments from the reach of article 6-and there is none-we attach no significance to
the fact that these or other particular agencies,
regular or volunteer, are not expressly
included. For the successful implementation of
the policies motivating the enactment of the
Freedom of Information Law centers on goals
as broad as the achievement of a more
informed electorate and a more responsible
and responsive officialdom. By their very
nature such objections cannot hope to be
attained unless the measures taken to bring
them about permeate the body politic to a
point where they become the rule rather than
the exception. The phrase 'public
accountability wherever and whenever feasible'
therefore merely punctuates with explicitness
what in any event is implicit" (id. at 579].

Moreover, although it was contended that documents concerning the lottery
were not subject to the Freedom of Information Law because they did not
pertain to the performance of the company's fire fighting duties, the Court
held that the documents constituted "records" subject to the Freedom of
Information Law [see §86(4)].

More recently, another decision confirmed in an expansive manner that
volunteer fire companies are required to be accountable. That decision, S.W.
Pitts Hose Company et al. v. Capital Newspapers (Supreme Court, Albany
County, January 25, 1988), dealt with the issue in terms of government
control over volunteer fire companies. In its analysis, the Court stated that:

"Section 1402 of the Not-for-Profit
Corporation Law is directly applicable to the
plaintiffs and pertains to how volunteer fire
companies are organized. Section 1402(e) provides:

'...a fire corporation, hereafter
incorporated under this section
shall be under the control of
the city, village, fire district or
town authorities having by law,
control over the prevention or
extinguishment of fires therein.
Such authorities may adopt
rules and regulations for the
government and control of
such corporations.'

"These fire companies are formed by consent
of the Colonie Town Board. The Town has
control over the membership of the companies,
as well as many other aspects of their
structure, organization and operation (section
1402). The plaintiffs' contention that their
relationship with the Town of Colonie is solely
contractual is a mischaracterization. The
municipality clearly has, by law, control over
these volunteer organizations which reprovide
a public function...

"This court recognizes the long, distinguished
history of volunteer fire companies in New
York State, and the vital services they provide
to many municipalities. But not to be ignored
is that their existence is inextricably linked to,
dependent on, and under the control of the
municipalities for which they provide an
essential public service."

In sum, based on the documentation that you provided and the judicial
decisions rendered under its statutory companion, I believe that Department
meetings are subject to the requirements of the Open Meetings Law.

I hope that I have been of assistance.


Robert J. Freeman
Executive Director


cc: Mayor Denny
Board of Trustees
Board of Fire Commissioners