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 Commissioners..."
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 appropriations"
"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
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
"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
cc: Mayor Denny
Board of Trustees
Board of Fire Commissioners