Greg Serio, Legal Counsel CAFDA
As a fire district counsel and as a long-time fire chief I have witnessed just about every possible manifestation of the relationship between a board of fire commissioners and its chiefs. From tug of wars for control over the firehouse, to perfect examples of collaborative cooperation and mutual respect, to everything in between, boards and chiefs’ relationships take on unique characteristics depending largely upon the personalities involved. They can be models of what the law intended, or they can be bare knuckle fistfights, euphemistically speaking at least.
What, then, serves as the arbiter of these relationships so that full blown chaos does not erupt (not always an avoidable fate)? If it is not a mutual interest in serving the public—though, many different opinions can develop around that objective no matter how mutual the interest may be—then it may well come down to the law that governs commissioners, chiefs and their interactions. When chiefs act as independent agents or the voice of the membership of a fire company serving a district, they forget that they are subordinated officers of the fire district reporting to the board. When fire commissioners try to dictate running orders, hose selection and drill schedules, they are operating far outside of their lane which is largely about tending to the business affairs of the district. That being said, the chiefs do work for the district, and they are appointed by the district and not by the fire company. To be sure, as the head of the department, they know the tone and tenor of the fire company and should relate concerns to the board if there are concerns that such company issues could become matters of importance to the board.
The organizational meeting is an excellent venue for boards of fire commissioners to get on the same page as their chiefs, or, rather, for the chiefs to get on the same page as the board. It starts with the process of acting upon the nomination by the company of the proposed chiefs for appointment to their positions for the coming year whether they are so appointed in January or April. The process set up by the Legislature in the Town Law both states and infers that the board is the entity responsible for the selection of chiefs no matter how much the company believes it is in their province to do so. The difference between nomination and appointment is vast: the nomination is the suggestion and endorsement of the company body but is not binding upon the board; the board can simply reject, without reason, any of the nominations and send it back to the company to come up with another nominee. This process continues until the district is satisfied that it has the candidates it believes are best to lead the fire department.
Section 176-a of the New York Town Law clearly establishes the role and responsibilities of the fire chief. It says:
“(1)The chief shall, under the direction of the board of fire commissioners, have exclusive control of the members of the fire department of the fire district at all fires, inspections, reviews and other occasions when the fire department is on duty or parade; he shall also have supervision of the engines, fire trucks, pumpers, hose wagons and other apparatus and of the equipment and other property used for the prevention or extinguishment of fire and of all officers and employees of the fire department. He shall see that the rules and regulations of the board of fire commissioners are observed and that the orders of the board of fire commissioners are duly executed. He shall, whenever required by the board of fire commissioners, report to said board the condition of the property of said fire district and such other information as may be required of him. He shall hold the members, officers and employees of the fire department strictly to account for neglect of duty and may suspend them for improper conduct, subject to the action of the board of fire commissioners at its next meeting. In case of the disability or absence of the chief, the first assistant chief, and in the case of the disability or absence of both the chief and first assistant chief, the other assistants, in numerical order, shall perform the duties and exercise the powers of the chief. When the fire department or any company or squad thereof is on duty no member of the board of fire commissioners shall interfere with the duties of the chief or assistant chief. “
The lanes in which the board and the chiefs are to travel are specific and unequivocal, and the hierarchical nature of the relationship between them is well established. The law is as instructive to the board as it is to chief officers.
So, how does a district do this exactly? As commissioners, you can ask yourself a few questions: does the district have any standards for chief? (The company by-laws may have conditions for being considered for nomination, but they are not binding upon the district; only the fact that they must choose from nominees proffered by the company limits the district’s authority when not speaking of a paid chief appointment); does the board interview the chief candidates in any formal way before moving on the nominations; does the district review the personnel or training jackets of the chief nominees to determine their backgrounds and qualifications for the position? In other words, do boards do any level of due diligence on the people the company sends up to them? The organizational meeting and the days leading up to it are the perfect time in which to review the nominees, speak with them and consider them before they appear before the board for evaluation and final consideration. The board not only has the right to do so, but I could argue both as an attorney and a former chief officer that it has a duty to do so.
The organizational meeting should include a discussion of what is expected of the chiefs over the course of the term to which they are being appointed. Chiefs should also know and be able to acknowledge that they serve at the pleasure of the board and are expected to fulfill their duties in a manner consistent with the mission of the district. The chiefs need to understand and illustrate the understanding that they are not independent operators free of the district once they are confirmed, and that they are most certainly not representing the interests of the fire company, especially when those interests’ conflict with those of the board. Some chiefs are excellent fireground commanders; that does not mean that they are always so good at reporting to a higher authority. For chiefs, they need to take that into account before throwing their hat in the ring for the position.
Chief officer candidates and the fire company itself may take exception to any perceived scrutiny of nominees by the board, especially if the exercise of due diligence is a departure from past practices. The board, in such instances, should take the time to explain the realities of what they are undertaking, that it is done not just to protect the district but to protect the firefighters are about to be entrusted to these chief officers. Despite any pushback, including one notion I heard not too long ago that the board should act in accordance with “the will of the people,” that is, the will of the company. If that was the case, the law would have been designed very differently. The board would have been given no discretion; the board certainly would not have been given the right to reject candidates without explanation. The simple truth is, as stated above, is that chief officers are officers of the district, commissioned to run the fire department that is acting on behalf of the fire district, on behalf of the board of fire commissioners, who is acting on behalf of the taxpayers.
I have had the benefit of working for some excellent boards, both as an attorney and as a chief. I have also seen a board operate so badly that I chose to resign my position rather than take direction from a board that clearly did not understand its part of the pact contained in section 176-a. The key for all sides is to make sure, from the outset, that everyone around the table knows what their respective roles are and commits to maintain their respective responsibilities through the course of the year. Doing so from day one can provide great promise for a productive, constructive, and non-confrontational year.