Opn. No. ( 1978 )

Garrison R. Corwin, Jr., Esq. Attorney for Fairview Fire District

We acknowledge receipt of your letter requesting a legal opinion whether, under the provisions of Town Law, § 176-b, volunteer firemen are "appointed" by the board of fire commissioners after their election or whether their election to membership is merely "approved" by the board of fire commissioners.

Town Law § 176-b, subd 1, provides, in part, that for a newly organized fire company the board of fire commissioners appoints volunteer members and thereafter those members of the fire company and their successors elect other eligible persons as volunteer members and the membership of such persons so elected becomes effective when approved by resolution of the board of fire commissioners, and if no resolution, either approving or disapproving, has been had within 40 days after the board receives notice of the election, then its approval shall be deemed to have been given.

The question has arisen because of a desire on the part of the board of fire commissioners to have the minutes of their meetings correctly state the legal effect of their actions in relation to newly made members of the various fire companies within the fire department.

In our opinion, only the first volunteer members of a newly organized fire company are "appointed" by the board of fire commissioners; thereafter, those members and their successors elect new members to the fire company, whose memberships do not become effective until the board of fire commissioners "approves" of their election, and board approval is deemed to have been given if the board takes no action within 40 days of being informed of the election. Although it would not seem to make a great deal of difference which terminology is used in the minutes of the meetings of the board of fire commissioners, we point out that Town Law § 176-b, subd 13, par (3), refers to volunteer members of a fire company, who become such prior to July 1, 1954, as having been "appointed," and Town Law § 176-b, subd 14, par (3), refers to volunteer members of a fire company, who become such after July 1, 1954, and prior to January 1, 1976, as having been "approved," which indicates a change on July 1, 1954, in terminology and intent of the statute.