MR. DONALD COSGRO Chairman, Board of Fire Commissioners Plattsburgh
We acknowledge receipt of your letter stating that your board of fire commissioners created two positions of "Fire Marshal" whose duties "include investigation of fires within the district as well as inspections of industrial, commercial, business, mercantile, storage, institutional and miscellaneous groups." You state that you understand the title of "Fire Marshal" exists only in certain cities and you inquire what your board of fire commissioners must do "to have these positions recognized by the State of New York."
We assume that your fire district was established pursuant to the provisions of Town Law Article 11 (§§ 170 — 189).
Fire district commissioners may do only those acts specifically authorized by statute or necessarily implied therefrom and have not been granted home rule power.
We suggest that you examine the following statutory references. They do not constitute an exhaustive recital of statutes dealing with this subject-matter but are representative of how it is treated: Town Law §§ 176(25), and 189, 138, 30(3-a, 5, 8, 15 and 16), 36, 27(12); Education Law §§ 807-a and 807-b; Multiple Residence Law §§ 3(1) and 303; Environmental Conservation Law §§9-1109 and 71-0705. You will note from these provisions that fire district commissioners have no power to investigate, scant authority to inspect and a lack of the enforcement functions. These matters have been placed elsewhere by statute.
The only general law which we find in which the term "Fire Marshal" is used is Criminal Procedure Law § 1.20, which contains definitions; subdivision 34, which defines "police officer"; and paragraph (i), which reads:
"(i) The chief and deputy fire marshals, the supervising fire marshals and the fire marshals of the bureau of fire investigation of the New York City fire department;"
Some special acts of the Legislature constituting charters of some cities in the State also use the term "Fire Marshal" in referring to a person designated to perform stated functions in the fire service of particular cities.
In our opinion, the fire district commissioners of fire districts created under Town Law Article 11 have no authority to designate a person to perform functions which State statutes place elsewhere and may not use a position title which appears in a general law and several special laws applicable to specific positions in the fire service of particular cities.
In specific response to your question how to have the position of "Fire Marshal" of a fire district recognized by the State of New York, it is our opinion that this may only be accomplished by State legislation.