John M. Sipos, Esq. County Attorney, Seneca County
I am writing in response to your request for an opinion concerning the coverage of volunteer firefighters under Seneca County's self-insurance plan. The county operates a self-insurance plan as provided in Article 5 of the Workers' Compensation Law (§§ 60 — 75-a). Specifically, you have asked whether sixteen year olds may join a volunteer fire department, and whether a county can exclude these minors from coverage under the self-insurance plan.
We have held in the past that minors sixteen years and older may serve as volunteer firefighters, and that if they do so, they are considered firefighters for purposes of the Volunteer Firefighter's Benefit Law (VFBL) (1977 Op Atty Gen [Inf] 149; 1970 Op Atty Gen [Inf] 69; 1969 Op Atty Gen [Inf] 53). As active firefighters, they are entitled to all the benefits derived under the VFBL (VFBL, § 3[1]).
Towns may elect to participate in a county self-insurance plan (Worker's Compensation Law, § 62). The county then assumes the participating town's liability as provided for in section 63. As mentioned in our telephone conversation, most of the towns within the county participate in the county's self-insurance plan. Volunteer firefighters in participating towns are entitled to coverage under the plan by virtue of section 63(3) of the Workers' Compensation Law:
"Where a town participates in a plan, in addition to payments with respect to the liability of the town, the county shall make payments with respect to that portion of the liability of all villages, fire districts, fire protection districts and fire alarm districts within such town and all territory within such town outside cities, villages, fire districts, fire protection districts and fire alarm districts arising out of the death or injury to volunteer firemen * * *."
The county, however, may choose to exclude volunteer firefighters from the self-insurance plan (Workers' Compensation Law, §§ 61[3], 62). This must be done by local law, and effectively removes all firefighters as a class from coverage (ibid.). Furthermore, towns within the county can elect not to participate in the plan at all, or can elect to limit their participation to some of their officers or employees (id., § 63[7]; Matter of Gordon v County of Erie, 30 A.D.2d 1022 [3d Dept, 1968]). In the immediate case neither the county nor any of the towns have excluded volunteer firefighters from coverage under the plan. There is no provision in the Workers' Compensation Law or the VFBL giving the county power to review the qualifications for membership in a volunteer fire department. That power is held by the board of fire commissioners, which has the authority to set membership standards and approve individual members (Town Law, § 176[11]).
We conclude that a county that administers a county self-insurance plan under Article 5 of the Workers' Compensation Law may not decline to cover an individual volunteer firefighter who has been duly approved for membership in a fire department.