TOWN LAW §§176(11), 176-a, 176-a(1), 189-a(2)(d); EXECUTIVE LAW § 23 

The positions of assistant fire chief of a joint fire district and county director of 

emergency services are compatible. 

December 13, 2017 

William N. Young, Jr. Informal Opinion 

Counsel No. 2017-2 

Delhi Joint Fire District 

1881 Western Avenue, Suite 140 

Albany, New York 12203 

Dear Mr. Young: 

You have requested an opinion regarding the compatibility of the positions of 

assistant fire chief and director of emergency services of the county in which the joint 

fire district is located. As explained below, we are of the opinion that the positions 

are compatible as a matter of law. 

You have expressed concern that, in the event of a fire while the director of 

emergency services is at work, he will choose to remain at work instead of responding 

to the fire. But the inability to perform the duties of two positions simultaneously 

does not itself render the positions incompatible.1 “[P]hysical impossibility is not the 

incompatibility of the common law, which existing, one office is ipso facto vacated by 

accepting another.”2 People ex rel. Ryan v. Green, 58 N.Y. 295, 304 (1874). 

Rather, incompatibility exists when the functions or the duties of the positions 

are inconsistent; for example, if one position is subordinate to or subject to review by 

the other. Id. at 304-05; see also O’Malley v. Macejka, 44 N.Y.2d 530, 535 (1978). And 

because the positions you described—assistant fire chief and county director of 

emergency services—both have duties to perform with respect to preparing for and 

in an emergency, we must consider the areas where those duties overlap to determine 

whether the positions are incompatible. 

 

1 The board of fire commissioners is authorized to adopt rules and regulations that govern all of the 

fire departments in the fire district and that prescribe the duties of the members of the fire 

departments. Town Law § 176(11). The fire chief and assistant chiefs are nominated by the members 

of a fire department and appointed by the board of fire commissioners. Id. § 176(11-a). A nominee 

must be a member of the fire department. Id. The board of fire commissioners could address 

requirements of the assistant fire chiefs with respect to responding to fires by rule or regulation. 2 “Incompatibility” is a term of art signifying an inherent conflict of interest. Physical impossibility 

may be another obstacle to holding both positions but it is not “incompatibility.” 
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The fire chief is in charge of a fire district fire department, subject to the 

direction of the board of fire commissioners, which is the fire district’s governing body. 

Town Law § 176-a (1); see also id. § 189-a(2)(d) (operation of joint fire district 

governed by statutes governing fire districts). The fire chief has 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. Town 

Law § 176-a(1). He or she also is charged with the 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. Id. He or she is 

responsible for supervising all officers and employees of the fire department. Id. In 

the fire chief’s absence, the assistant fire chief performs the duties and exercises the 

powers of the fire chief. Id. If the assistant fire chief cannot perform the chief’s duties 

in the chief’s absence, the other assistant chiefs, in designated order, perform them. 

Id. 

According to the description you provided, the county director of emergency 

services is responsible for planning, organizing, implementing, and evaluating a 

countywide program for emergency services. This includes developing, maintaining, 

and administering emergency plans to provide for government continuity in the event 

of an emergency; preparing for the county board of supervisors both the county fire 

mutual aid plan and the countywide comprehensive plan for emergency services 

authorized by Executive Law § 23; administering a countywide communication 

system for emergency services; overseeing the development of inter- and intra-county 

mutual aid programs; liaising between state and local public safety and emergency 

departments, including fire departments; preparing incident reports determining the 

cause and origin of mutual aid fires as requested by jurisdictional fire chiefs; 

supervising, scheduling, maintaining, and upgrading fire training facilities and 

equipment; and participating in meetings, drills and exercises. 

We identify no inherent inconsistency between the positions. First, the 

assistant fire chief is not subordinate to the county director of emergency services. 

The assistant fire chief, a district employee, answers to the fire chief and the board 

of fire commissioners; the county director of emergency services supervises only 

county employees, and not district employees such as the assistant fire chief. 

Second, the powers and duties of the two positions are not inconsistent. The 

positions function within separate governments, the county and the fire district. 

Their functions potentially overlap if the fire department uses or participates in any 

programs or systems provided by the County—fire training, for example, or the 

countywide communication system for emergency services—or in the event of an 

emergency within the county. Under both of these circumstances, however, the duties 

of the positions—of the county director of emergency services to develop or maintain 
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the programs or systems and of the assistant fire chief to utilize or participate in 

them—are in fact complementary, with the individual, when serving in his capacity 

as assistant fire chief, experiencing for himself the programs and systems that he 

oversees as director of emergency services. In the unlikely event of a conflict arising 

between the duties of the positions, the individual can abstain from acting in one 

capacity with respect to the matter. 

In sum, we conclude that the positions of assistant fire chief and director of 

emergency services of the county in which the joint fire district is located are 

compatible as a matter of law. We offer no opinion as to whether having the same 

person perform both roles is prudent as a policy or operational matter. 

The Attorney General issues formal opinions only to officers and departments 

of state government. Thus, this is an informal opinion rendered to assist you in 

advising the municipality you represent. 

Very truly yours, 

KATHRYN SHEINGOLD 

Assistant Solicitor General 

in Charge of Opinions