Informal Opinion No.
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Jerome M. Kornfeld, Esq. Counsel, New York State Association of Fire Districts

I am writing in response to your request for an opinion as to the civil service status of a secretary to a fire district. Specifically, you have asked whether the position falls within the classified or unclassified service.

Section 35 of the Civil Service Law provides in relevant part, as follows:

"The unclassified service shall comprise the following:

* * *

(c) all officers and employees of the state legislature, and all officers and employees of any other legislative body whose principal functions and duties are directly related to the performance of the legislative functions of such body."*

Under this standard, if fire district boards of commissioners are considered legislative bodies, the fire district secretary, as a fire district officer whose principal duties relate closely to the commissioners' functions, would fall within the unclassified service. The question then becomes whether the board of fire commissioners is to be considered a legislative body for purposes of the Civil Service Law.

It is well established that the unclassified service is not limited to employees of the State Legislature, but includes employees of the legislative bodies of civil subdivisions of the State (Matter of Martin vScully, 56 App. Div. 302 [1st Dept, 1900]; 1939 Op Atty Gen [Inf] 158; see also Martin v Burke, 25 Misc.2d 1042 [Sup Ct, Oneida Co, 1960]). Fire districts are considered political subdivisions of the State (Town Law, § 174[6]; Hyde Park Fire and Water Dist. v Dutchess County,97 Misc.2d 104 [Sup Ct, Dutchess Co, 1978]). They fall under the category of "district corporation" which is defined in the following way:

"A `district corporation' includes any territorial division of the state, other than a municipal corporation, heretofore or hereafter established by law which possesses the power to contract indebtedness and levy taxes or benefit assessments upon real estate or to require the levy of such taxes or assessments, whether or not such territorial division is expressly declared to be a body corporate and politic by the statute creating or authorizing the creation of such territorial division." (General Construction Law, § 66.)

Fire district commissioners are elected by residents of the fire district pursuant to section 175 of the Town Law. The powers and duties of a fire district's fire commissioners are set forth in section 176 of the Town Law. Among these is the power to organize, operate, maintain and equip fire companies; to adopt rules governing all fire companies and fire departments throughout the district, and prescribing the duties of the members; to enforce discipline and provide for public drills, parades, funerals, inspections and reviews of the fire district fire department; and to audit all claims against the fire district (§ 176[4-a], [11]). Thus, the commissioners are the sole governing body of the fire district, responsible for the determination of fire department policy. They exercise their powers separately and discretely from the town board. In our opinion, these functions make the board of fire commissioners a legislative body for purposes of section 35 of the Civil Service Law.

The fire district secretary is appointed by the fire district commissioners (Town Law, § 176[2]). The duties of the office include the following:

"The fire district secretary shall have the custody of all the records, books and papers of the fire district. He shall attend all meetings of the board of fire commissioners, act as clerk thereof, and keep a complete and accurate record of the proceedings of each meeting and of all propositions, rules and regulations adopted pursuant to this article. The fire district secretary shall have such additional powers and perform such additional duties as the board of fire commissioners may determine, not inconsistent with law" (Town Law, § 178).

As this section indicates, the fire district secretary actively participates in the commissioner's legislative functions. In our opinion, the secretary's principal functions and duties relate to the legislative functions of the commissioners, placing the secretary in the unclassified service within the meaning of section 35 of the Civil Service Law.

Accordingly, we conclude that a fire district secretary is a member of the unclassified civil service.

* The classified service comprises all offices and positions not included in the unclassified service (Civil Service Law, §40).