James C. Ripton, Esq. Attorney for the Roosevelt Fire District
You request our opinion on the following questions:
"1. When the office of Chief (Chief Engineer) of a Fire Department becomes vacant, does the Board of Fire Commissioners have the authority to appoint a Chief until the next Departmental election held to fill that office or must a Departmental election be [held] pursuant to Section 176(11-a) of the Town Law?
"2. Does the Board of Fire Commissioners have the authority to direct the Fire Department to hold a special election to nominate a Chief Engineer instead of waiting for the regular annual Departmental election held in April as provided in Section 176(11-a)?"
We assume that the fire district is governed by Town Law Article 11 (§§ 170-189).
There is no statutory authority for the board of fire commissioners to appoint someone to fill a vacancy in the fire department position of chief engineer. The only way a chief engineer can be selected is through the procedure prescribed in Town Law § 176 subd 11-a, which is for the members to nominate a candidate followed by the nominee's appointment by the fire district commissioners. If the commissioners refuse to appoint a nominee, the members of the department must be called together again to nominate a different candidate (1963 Op Atty Gen 80, copy enclosed).
Town Law § 176 subd 11-a specifies the time for holding a meeting of the members of a fire district fire department for the purpose of nominating a chief engineer and submitting the nomination to the board of fire commissioners for them to appoint the nominee as chief engineer. We construe those provisions as to time to be directory and not mandatory and that in the event of a vacancy in the position of chief engineer, this procedure may be instituted at any time.
In our opinion:
1. When the position of chief engineer of a fire department governed by Town Law Article 11 becomes vacant, the board of fire commissioners has no authority to fill the vacancy by appointment until the next annual meeting of the members of the department at which time they would nominate a candidate to be appointed chief engineer. The only way a new chief engineer can be appointed is following a nomination by the members of the department.
2. The board of fire commissioners may call a special meeting of the members of the department to nominate a chief engineer to be appointed by the board of fire commissioners to the position of fire chief.