capital area fire district association (CAFDA) logo
Not a Member? Join Now.

Background Checks – Fire Company and Fire District Responsibilities

Background Checks – Fire Company and Fire District Responsibilities

Greg Serio – CAFDA Legal Counsel

As with so much of the law pertaining to the volunteer fire service and fire districts, section 837-o of the state Executive Law (contained within Article 35 relating to the Division of Criminal Justice Services) is rather prescriptive governance over arson and sexual offense conviction (specifically requiring registration as a sex offender) searches for prospective firefighters.  Also with respect to the legal labyrinth that fire districts routinely navigate, some practices arising from these legal obligations have strayed from the clear prescriptive language of our statutes, including this provision of law.

Questions routinely arise in fire company meetings, fire district commissioners’ meetings and elsewhere about who is specifically responsible for assuring that such searches are done, and when they are to be done.  Oftentimes, a candidate is presented to a fire district prior to a background check being done.  Other times, a member of a fire company is accepted prior to a search even being conducted.  A review of section 837-o is helpful for clarifying the division of labor between fire companies and fire districts, and when exactly such background checks should be completed.

A parsing of the statute provides a convenient and complete process for satisfying the statutory requirement for arson and sexual offense conviction searches to be done.  First, the law requires that a prospective member of a fire company, upon application, to acquiesce to a background check.  That authorization, and the notice that a search is to be made, comes in the form of an application for a search provided by the DCJS.  Within ten days of receiving the authorization to the search, the fire chief is to send the search request form to the local sheriff or the Office of Fire Prevention and Control.  The sheriff and OFPC has ten days to direct the search request to the DCJS.

The chief then is to receive a written response from the sheriff or OFPC within ten days of their receipt of search results back from the DCJS.  The response will only say if the applicant has been convicted of either an arson or sex crime, and the response is to remain confidential.

So, up to this point in time of the process, a few things are apparent: an application for membership has been made, but not acted upon pending the background check, the sheriff or OFPC works with the DCJS to get the background information, and the result is sent back to the chief.  Up to this point, the applicant should not have been accepted for membership; they may have been denied, for other reasons.  If the report is clean, and no conviction is found, then the applicant can be presented for a vote of the fire company for membership. 

Oftentimes, fire companies accept someone for probationary membership and then submit the name for the search.  I would argue that that process is not in keeping with section 837-o.  What happens to a membership that has been granted prior to a search?  Fire companies are then in the uncomfortable position of having to unwind a membership application acceptance.  Importantly, subsection (c) of section 837-o specifically anticipates this sequence by speaking about an “ineligibility for membership” if the search comes back with a conviction found.  It is consistent with the statute to not confer any notion of membership until the search is completed.

If a search does come back with a conviction on the applicant’s record, the company has a duty to the applicant to inform them of “rights to challenge and appeal the information contained in the record of conviction….The applicant shall continue to be barred from membership until all administrative and judicial challenges…are ultimately resolved in his or her favor….”

For fire districts, therefore, there should be no entertaining of any notification that the company has accepted a new member for active duty in the fire department and, therefore, under the responsibility of the fire district both as the final arbiter of membership, per section 176-b of the Town Law as well as their employer, unless that member has in fact been cleared of their background check.  Fire chiefs, under the law, are directed to order searches on prospective company members as the head of the fire company and not necessarily as a subordinated officer of the board of fire commissioners.  Just as we are looking to clean up practices between company and district concerning membership, like making certain that notification of new members is communicated from the company secretary to the district secretary (also provided for in section 176-b), in writing, hopefully this note will help improve practices concerning consideration of prospective members as intended in section 837-o.