Do Your Bylaws Comply with New York State’s Not for Profit Corporation Law?

Any member of a fire protection or EMS corporation faced with the daunting task of reviewing or amending the corporations bylaws has no doubt wondered where to start. Since almost all fire departments and many ambulance companies in New York are not for profit companies, the starting point must be the New York State Not For Profit Corporation Law. If you are unsure of whether or not your corporation is for profit or not for profit, you may consult another article entitled “Is your corporation not for profit?” You may also consult the section of the EMSFIRELAW.COM website entitled “About your corporation” for this information.

The Not For Profit Corporation Law provides numerous provisions which either must be in the bylaws, or that in lieu of a provision addressing a certain issue, will be the “default” rule. The law is long and in many cases complicated, but must be consulted when reviewing and amending the bylaws.

For example, every day tasks such as sending notices to regular meetings and special meetings of the board of directors or the general membership are regulated. Failing to comply with many requirements may make a vote illegal or unenforceable. Other topics regulated include, but are not limited to:

quorums, notices of meetings, proxies, amending bylaws, dues and fines, annual meetings, reports of directors, providing loans, conflicts of interests of directors and officers, and indemnification of officers and directors.

In short, almost every facet of running your corporation is dictated by New York Law. Bradley M. Pinsky, Esq. assists his clients with avoiding the numerous pitfalls of New York’s Not For Profit Corporation Law and with drafting bylaws that comply with this law.

Are a Patient’s Communications with an EMT Admissible in Court?

The law is far from settled on whether communications between EMTs and their patients are privileged and thus prohibited from being introduced against the patient at a trial.

The courts have now added one more legal opinion to the mix of cases. That case is The People vs. Mirque (738 NYS2d 471, decided February 2003). The facts of the criminal case against the defendant Mirque are as follows.

Just before 4 a.m. on April 21, 2001, Charles Mirque, was involved in a serious motor vehicle accident. Mirque was driving a jeep that collided with another vehicle. Mirque’s jeep then collided with a pillar supporting an elevated train track. Mirque’s nephew, a passenger in the jeep, was rendered unconscious and trapped inside the jeep. The Fire Department extricated the victims.

Mirque only suffered an avulsed forehead and other minor injuries. An EMT with the fire department transported Mirque to a local hospital fully immobilized. While loading Mirque into the ambulance, the EMT noticed a strong odor of alcohol on Mirque’s breath. The EMT asked the Mirque if he had consumed alcohol, and the defendant stated that he had. The EMT added this information to the Pre-hospital Care Report (PCR).

Mirque was charged with Driving While Intoxicated, Reckless Driving, and Reckless Endangerment. The issue in the criminal case against him was whether Mirque’s statements to the EMT in the ambulance were admissible into evidence. The defendant’s attorney argued that the statements made to the EMT were privileged pursuant to New York State’s civil practice procedure laws, section 4504 (CPLR 4504).

CPLR 4504 states as follows:

“Confidential information privileged. Unless the patient waives the privilege, a person authorized to practice medicine…shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity and which was necessary to enable him to act in that capacity.”

The court noted that this statute, often referred to as the “physician/patient privilege”, is designed to encourage candor between patient and physician so that proper care can be given, to make it unnecessary for a physician to choose between the duty to honor a patient’s confidences and the duty to give evidence in court, and to protect patients’ privacy. CPLR 4504 does not include EMTs or paramedics in the list of health professionals covered by the privilege. Moreover, the statute does not extend the privilege to people who work with health care professionals.

The court noted that the statute has been interpreted by other courts to extend to people acting on behalf of the physician. For example, the privilege has been extended to a dental hygienist whoworks for a dentist. Another court also extended the privilege to all those “acting in concert with covered medical personnel”.

On the other hand, a number of courts have specifically stated that a patient’s conversation with an EMT is not privileged. One court, discussing whether the EMT is an extension of the physician and would thus be covered by the privilege, held that:

“The physician and emergency medical technician serve complementary but completely different functions…In the absence of acting as an agent for a physician, not the case here, the emergency medical technician is not charged with the responsibility for gathering information for diagnosis and/or treatment, but only with the job of preventing further illness or injury through welllearned sophisticated and thoughtful first aid.”

The Mirque court admitted that the issue is a close one that might be decided either way. The court also admitted that the small body of prior case law concerning statements to an EMT does not establish any clear rule.

The Mirque court acknowledged that an EMT is not hired by a physician and is not truly acting for the physician. However, the court stated that “the EMT is nevertheless acting as an agent for and assistant to the hospital’s medical staff when interviewing the patient and reporting the results of that interview to the hospital. The court stated that one of the EMT’s most important roles is to interview the patient and relay that information to the hospital, especially in situations where the patient loses consciousness after speaking with the EMT.

The court states that “A patient faced with a life-and-death emergency should not need to concern himself with the precise nature of the employment relationship between the EMT who has come to the patient’s rescue and a particular physician or registered nurse. The patient should rather be encouraged, to the degree reasonably possible, to simply speak the truth to the EMT-while there is still time to speak-without worrying about such legal niceties The concerns and calculations of a litigious world have already intruded too far into the sphere of medicine. A patient bound for the hospital by ambulance should not be required to master the rules of agency before speaking freely”.

The Mirque court thus ruled that “where, as here, an EMT speaks to a patient and obtains medical information and then reports that information to the hospital’s medical staff, the statutory privilege of CPLR Section 4504 applies.”

A few cautions should be provided before relying too heavily on this court’s decision. First, the court is a lower court. Thus, the opinion is not binding upon any other court throughout the state. Another trial court could refuse to follow this court’s decision, just as this court refused to follow another trial court decision.

Second, look at the language carefully from the court. Although the judge initially states that all statements made to an EMT should be privileged, he then appears to limit the privilege to only apply to that information relayed by the EMT to the hospital. It is unclear whether the judgeintended to extend the privilege to all information obtained by the EMT, regardless of whether it was for the purpose of treatment, and regardless of whether or not it was relayed to a hospital.

What might not be privileged is information obtained by the EMT that neither the patient nor the EMT intended to be for the purpose of treating the patient, or for relaying to the hospital. For example, if the EMT asks the patient if he ran a stop sign, and the patient admits that he had, a court might have to determine whether or not the use of that statement was obtained for treatment purposes.


Whether or not statements are privileged which are obtained by an EMT for the purpose of treating a patient is still far from clear. One thing is for sure. No EMT should ever promise a patient that such statements are privileged.

EMT’s Statements at Peer Review Process Might Be Admissible in Court

Many ambulance services and emergency medical technicians are under the false impression that statements made by an E.M.T. at a peer review or quality review process of an incident are confidential. Persons asked to testify before a review board should be very cautious of giving testimony or in what they state if they have any reason to believe that their actions will be the subject of a lawsuit. Ambulance services should also be wary, as they are liable for the actions or omissions of their employees and volunteers.

The law does not protect and keep confidential the statements made by a person testifying if that person later becomes a defendant in a lawsuit involving the incident before the review committee.

Public Health Law 3006 provides, in part, that “every ambulance service and advanced life support, first response service shall establish or participate in a quality improvement program, which shall be an ongoing system to monitor and evaluate the quality and appropriateness of the medical care provided by the ambulance service or advanced life support first response service, and which shall pursue opportunities to improve patient care and to resolve identified problems.”

The review committee has the power to “to review the care rendered by the service, as documented in pre-hospital care reports and other materials”.

Many persons believe that the information and testimony provided to the committee is confidential, because state statute provides that “The information required to be collected and maintained, including information from the pre-hospital care reporting system which identifies an individual, shall be kept confidential…”

The law further provides that “none of the records, documentation, or committee actions or records required pursuant to this section shall be subject to disclosure under article six of the public officers law or article thirty-one of the civil practice law and rules…”

However, persons that were the subject of the review should use extreme caution when testifying before the peer review committee. Public Health Law 3006(4) provides, “The prohibition related to disclosure of testimony shall not apply to the statements made by any person in attendance at such a meeting who is a party to an action or proceeding the subject of which was reviewed at the meeting.”

A careful review of this exception to the rule of confidentiality is important.

An almost exact provision is present in the laws regarding a physician’s testimony before a peer review process. This state’s highest court has held, with regard to the exception, as follows:

“The exception is narrow and limited to statements given at an otherwise privileged peer review meeting by a party to a lawsuit which involves the same underlying conduct that is the topic of discussion at the meeting. The evident purpose of this provision is to permit discovery of statements given by a physician or other health care professional in the course of a hospital’s review of the facts and circumstances of an earlier incident which had given rise to a malpractice action.”

Logue v. Valez, 92 NY2d 13 (1998).

The courts have held that the statute was not intended to provide protection to persons who are the subject of the review. Courts permit the discovery and admission into court of any statements made by individual party defendants regarding the subject of the action before the peer review board.

Therefore, statements of persons who testify about an incident who later become a defendant to a malpractice or negligence action are discoverable and admissible! Even written statements given to a peer review committee, in lieu of an appearance are admissible.

Ambulance services should also realize that they will be liable for their employees’ and volunteers’ actions. Thus, the testimony of those persons will be admissible and could be detrimental to an ambulance service in defending a lawsuit.

Plaintiff attorneys are likely to subpoena a list of all persons in attendance at the peer review committee to testify as to what the subject of the review stated at the hearing.

Ambulance services should also be cautious about instituting a policy which requires participation of an E.M.T. to such a proceeding.

What should the E.M.T. and the ambulance service do about participating in the peer review process? Although the law does not require an E.M.T. to give testimony at a peer review hearing, it does require the ambulance service to participate in a general peer review process. What transpires at that hearing and who participates is best left up to the ambulance service and the service’s attorney.

Therefore, should any E.M.T. or ambulance service believe that certain actions or omissions may become the subject of a lawsuit, the E.M.T. and the service should both consult with their attorney prior to participating in or conducting peer review.

Your Corporation Must File Tax Returns

You might be thinking, isn’t my fire department or ambulance company tax exempt? After all, we are not-for-profit. You might be thinking that your corporation has never filed a tax return before, so why start now?

Let us start by instilling a bit of fear in you. The directors and officers of a corporation that does not file tax returns could be subject to penalties and fines for this failure. In fact, the penalty could be $5,000.00. The corporation itself could be liable for up to $10,000, though corporations grossing revenue of over one million dollars could be liable for up to $50,000.

Almost every tax exempt corporation operating as a fire department or ambulance must file a tax return. The form utilized is number 990. It generally indicates how much money came into the corporation, and how much went out. The federal government wants to ensure that corporations that are raising funds without paying taxes are spending those funds on the corporation’s tax exempt purpose (such as fire fighting or providing EMS).

We should take a moment to mention that it is our experience that many leaders in fire departments and ambulance companies believe that the corporation is tax exempt, when in fact, it really is not. Having an employer identification number (”EIN”) is not a sign of being tax exempt. In fact, there is no number that indicates tax exempt status with the federal government (However, New York State provides an ”EX” number for sales tax exempt entities, but this is no indication of federal tax exempt status).

You can determine if your corporation is tax exempt by checking the IRS website, through a link with our website ( You should also check “” which also monitors exempt organizations. If your corporation is not recognized as being tax exempt, you best start the process of obtaining tax exempt status! Directors and officers of a corporation might find themselves liable for failing to pay the taxes of the corporation, if any taxes are due. And if your corporation is not recognized as tax exempt, the taxes may have been due for some time.

If you are tax exempt, the form 990 must be filed once per year. It must be filed by the fifteenth day of the fifth month after the annual accounting period ends. This is different for each corporation. If your corporation ends its financial year on December 31, the tax return is due on May 15.

If the entity receives more than $50,000 of TOTAL income (not just “profits”) you must file the full form 990, and if the entity receives under that amount, a 990-N may be filed.

Are Texas Hold-Em Events Legal

Many fire departments and not-for-profit ambulance services are considering running “Texas Hold-Em” nights. Unfortunately, the law does not permit this type of charitable gaming. The New York State Constitution permits gaming to be conducted only pursuant to the laws of the New York State. The legislature has authorized certain games of chance. None of these games involve wagering of money by one player against another. Moreover, the approved list of permissible charitable games does not include Texas Hold-Em. Poker is included as a permitted game, but the description of poker does not include the rules of Texas Hold-Em.

Charities will not be granted a license to run such a tournament, even if the proceeds are donated to the fire department, not-for-profit ambulance or another charity.

Conducting such tournaments could subject the sponsor to criminal charges, since Article 225 of the New York State Penal Law prohibits the promotion of gambling.

Some charities attempt to avoid the appearance of gambling for money by requiring an entrance fee to a dinner at which the game is played, and then by offering some of the proceeds of the dinner as the reward for winning. Others have attempted to qualify the entrance fee to the poker game as something else, such as the purchase of a raffle ticket or a straight donation to the charity. Those who wish to attempt these types of events should consult their attorneys prior to conducting the event, as they may still be illegal.

Fire departments and not-for-profit ambulance services are strongly encouraged to avoid Texas Hold-Em poker tournaments as a means of fundraising and should consult their attorney prior to running such an event.

City That Does Not Have Written Contract With Fire Company May Still Be Liable For V.F.B.L. Benefits

In December 2005, the Appellate Division decided its second case holding that a city is liable for providing V.F.B.L. benefits for members of a fire company located in the city when the city accepts fire protection services from the member’s fire company (Seminerio v. West Hamilton Beach Volunteers, Inc. — N.Y.S.2d —-, 2005 WL 3312764 [3rd Dept. 2005]). In July, 2005, a similar case was also decided by the same court (Pache v. Aviation Volunteer Fire Co., 20 A.D.3d 731, 800 N.Y.S.2d 228 [3 Dept., 2005]). The facts of the cases are strikingly similar. The main issue in the case was that the city did not have a written contract with the volunteer fire company. The court held that a written contract was not required where a “contract in-fact” existed.

The two cases arose in New York City where F.D.N.Y. provides fire protection for the city. In both cases, a member of a volunteer fire company was injured. The fire companies were both located in the city and provided fire protection in the city, but not pursuant to a written contract for fire protection.

Section 30(2) of the Volunteer Firefighters’ Benefit Law provides, in pertinent part: “If at the time of injury the volunteer fire[fighter] was a member of [an incorporated] fire company … and located in a city, … protected under a contract by the fire department or fire company of which the volunteer fire [fighter] was a member, any benefit under this chapter shall be a city … charge.”

The court recognized that there was no written contract between the city and the fire company. However, the court held that there was a “contract in-fact” under the two circumstances. In the first instance, the court stated that:

“Aviation had been in existence since 1923, and that it worked ‘hand in hand’ with the local FDNY company to fight fires. There was evidence that the local fire company occasionally called Aviation to request its assistance. A representative of the City provided evidence that the City was aware of Aviation, and knew that it fought fires in conjunction with the FDNY. If Aviation arrived at the scene of a fire before the local FDNY company, Aviation would be in charge of a fire scene until the FDNY company arrived and would thereafter continue working under its supervision. There was no evidence that City officials or the local fire company ever objected to or rejected the services of Aviation.”

Based on these facts, the court thus held that a “contract in-fact” existed between the city and the fire company in which the member was a volunteer. Thus, the city was liable for the V.F.B.L. benefits of the volunteer.

Approximately five months later, the court in Seminero, referring to the facts of Pache, held:

“We are confronted with strikingly similar proof in the instant matter. There was testimony before the Board that [the fire company] which has been in existence for over three quarters of a century–and FDNY cooperate in fighting fires in the West Hamilton Beach area and that [the fire company] has occasionally fought local fires alone with remote FDNY assistance. [Fire company] members and FDNY firefighters have trained together in order to become familiar with each other’s equipment, FDNY has supplied [fire company members] with its fire alert systems and other apparatus and [the fire company] is included in the daily FDNY role call.”

Based upon these facts, the court again held that the city of New York was party to a contract in-fact with the volunteer fire company and was therefore liable for the firefighter’s V.F.B.L. benefits.

Therefore, a written contract need not exist between a municipality and a volunteer fire company in order for the municipality to be liable for V.F.B.L. benefits. Instead, a “contract in-fact” satisfies the contract requirement. A contract in-fact may be established by the city’s acceptance of the volunteer fire company’s fire protection services on a regular basis.


Declaration of policy and purpose

The proper operation of the Department requires that Department directors, officers and members be impartial and responsible to their members and the public. They must not have interests that would be incompatible with the proper discharge of their responsibilities or tend to impair their independence of judgment or action in the performance of their official duties and responsibilities. Decisions and policies must be made in the proper channels of Department structure and free from undue influence. Positions with the Department must not be improperly used for personal gain. Directors, officers and members must strive to avoid even the appearance of impropriety. Each of these ideals is to ensure that the public has confidence in the integrity of this Department. The purpose of this Code of Ethics is to maintain and enhance a tradition of responsible and effective public service by setting forth standards of ethical conduct to guide members, directors and officers in the conduct of their responsibilities.


“Confidential Information” means any information, however transmitted or maintained, that is obtained, possessed or controlled by such Department member, director or officer by reason of his position with the Department, and by its nature is such that it is not known to the general public or is not a matter of public record.

A prohibited gift, as addressed by this policy, shall include a gift of more than $75.00 in value. Such a gift includes, but is not limited to, entertainment, food, beverage, travel and lodging to the extent that the gift value exceeds $75.00 for any one occasion and $150.00 total in any one year from the same person or business entity. A gift also includes a loan that is not commercially reasonable. Prohibited gifts do not include the following:

  • A loan made on terms that is commercially reasonable and not more favorable than loans made in the ordinary course of business.
  • Any gift regardless of value from a family member.
  • Certificates, plaques or other ceremonial awards costing less than $75.00, except for any award given by a municipality or fire district, not-for profit corporation, another fire department or ambulance service or this Department for service as a Department member, director or officer.
  • Honorary degrees.
  • A meal, ticket, beverages, and lodging costing less than or equal to $75.00, but only if the total of all such gifts from a particular person or business does not exceed $150.00 in one year.

“Financial benefits” include promotions, commissions, rewards, raises and direct compensation. An “interest” shall include a direct or indirect, pecuniary or material benefit accruing to such person as the result of a contract with the Department.

Prohibited interests shall not include a contract or business advantage where no direct or indirect financial gain may be obtained, such as where a person is merely an employee that will not receive any financial benefit from the result of a decision of the Department.

“Officers” shall include executive/civil and line officers.

“Members” shall include all active members and other types of members, except for Honorary Members when such members have no vote or voice before the membership.

Principles of the Department

The principles which must guide the conduct of Department members, directors and officers include, but are not limited to, the following:

a. Department members, directors and officers shall endeavor to pursue a course which shall not raise suspicion among the public that they are likely to be engaged in acts that are in violation of their trust as Department members, directors or officers;
b. No Department member, director or officer shall engage in, accept employment or render services when the employment or services: (1) are incompatible with the proper discharge of the official duties of such person; or (2) would tend to impair independence of judgment or action by such person in the performance of that person’s official duty.
c. Department members, directors and officers shall not disclose confidential information acquired in the course of their duties as a Department member, director or officer, nor use such information to further their own personal, family or present or known future business interests. This shall not prohibit revealing information known to the public at large;
d. Department members, directors and officers shall not use or attempt to use their positions or influence to secure unwarranted privileges or exemptions for themselves or others, either before the Department or otherwise;
e. Department members, directors and officers shall not engage in any transaction as a representative of the Department or municipality which contracts with the Department or with any business entity in which they have a direct or indirect financial interest that might reasonably tend to conflict with the proper discharge of their duties as a Department member, director or officer;
f. Department members, directors and officers shall not accept a gift, as defined above, from any person or business which has any pending business transactions or has an interest in a decision of the Department, including but not limited to decisions involving purchases, provisions of supplies, construction, hiring and legislation. Department members shall not accept privileges unavailable to the general public which are offered in order to gain favor from such individual regarding a decision of the Department.
g. Department members shall comply with the Department’s “Prohibition of Financial Interests” policy.


Application of Policy

This policy shall regulate the conduct of members, directors and executive and officers. It shall apply to such person’s financial and business interests.

Persons regulated by this policy shall be deemed to have an interest in a contract or business of:

  • his or her spouse, minor children and dependents;
  • a firm, partnership or association of which such individual is a partner, member or employee;
  • a corporation of which such individual is an officer, director or employee; and
  • a corporation, any stock of which is owned or controlled directly or indirectly by such individual, except that a prohibited interest shall not include an investment interest in a business in which such person owns or controls less than five (5%) percent of the business or outstanding shares.

This policy shall not apply to a contract in which a member, director or officer has an interest if the total consideration payable under that contract, when added to the aggregate amount of all consideration payable under contracts in which such person had an interest during the fiscal year, does not exceed the sum of seven hundred fifty ($750.00) dollars.


No interested member, director or officer of the Department may:

  • vote or speak on any matter in which he has any interest, financial or otherwise, direct or indirect;
  • vote to do business with any entity in which he has a prohibited interest;
  • attempt to implement, prevent or change any legislation before the controlling municipality (including a fire district), which is in substantial conflict with the proper discharge of his duties
  • as a Department member, director or officer or would obtain a financial advantage or himself, family, or business; or
  • represent a client before the Department or appear before the Department on behalf of a client;
  • Express an opinion on any matter in which such person has a prohibited or conflict of interest.

Required conduct upon conflict arising

Prior to any vote, any duality of interest or possible conflict of interest on the part of any member, director or officer shall be disclosed to the other persons voting on the matter and shall be noted in the minutes.

Such interested person may be counted in determining the quorum for the meeting. The minutes of the meeting shall reflect that a disclosure was made, the abstention from voting and the quorum situation.

No member, director or executive or line officer having a duality of interest or conflict of interest on any matter shall vote or use his personal influence on the matter.

No conflict may be waived, even by vote of the members, directors or officers. A person accused of having an interest but disagreeing with the accusation may vote by secret ballot. Such person’s vote shall be sealed. Should the vote of such person affect the outcome of the matter, the Department may seek an opinion from the Comptroller, the Attorney General, the Department’s attorney or the Code of Ethics Committee, or from any other trusted and non-interested source as to whether a conflict exists.

Every new member of the Department or board of directors, or a new executive officer or line officer must be advised of this policy upon entering on the duties of his office. Forms acknowledging this policy must be executed by every new member, director or officer. This policy shall be reviewed at least annually with every member, director and officer.

Members, directors and officers shall be required to disclose annually, in writing, all financial interests in which they or family members may have before the Department, and any other information as required by the Department.

Members, directors and officers must exercise their duties and responsibilities in the public interest of the inhabitants of the municipality(s) served.

A sample (brief) form is as follows:

Date of acknowledgement:_______________ for the calendar year of _______.
Position held: [ ] member [ ] director [ ] executive officer [ ] line officer
List all potential businesses with which the Department presently does business in which any personal, family or business interest exists, as defined by the code of ethics policy.________________________________________________________
Do you now or in the next year expect to represent any person or business entity before the Department? __Yes ___No
Do you now or in the next year expect to solicit any business from the Department? ___yes ___ no. If yes, state in full such disclosure.

I acknowledge that I have read the Department’s conflict of interest policy and code of ethics and I agree to abide by such policies at all times. I have made a full disclosure of all interests and shall make an additional written disclosure should such a conflict arise.

Paid staff on your volunteer board?

Should your corporation permit paid employees to serve on the board of directors? There are different views on this issue. On the one hand, permitting the paid staff to serve on the board of the corporation is a bad idea because the board hires and fires the paid staff. Thus, the paid staff would have a vote regarding their own employment, including salary, benefits, and whether or not they should be promoted, or even fired. Even though the board could simply excuse the paid staff from these decisions, think about another problem. The role of the board of directors is to make purchases. The more purchases a corporation makes, the less money the corporation has to pay staff. Thus, the paid staff may have a vested interest in ensuring that the corporation does not spend money that could end up in their pockets. Be aware that very few not for profit corporations permit the paid staff to serve on the board of directors. Most corporations recognize that it is simply a bad idea.

Another problem with having paid staff on the board is that the corporation might have to pay them for their time for serving on the board. There is a solution to this problem if a corporation desires to have staff on the board. The corporation can create a new type of membership and provide for this membership in the bylaws. The bylaws would permit paid persons to hold this membership and permit these members to serve on the board. Make sure that these special members cannot do anything a paid person can do (such as take shifts or respond to emergencies), so that there will be no question that the paid employee should not be paid for his time while acting as this new type of member. The corporation can even restrict this type of membership to paid personnel only, so that other persons cannot apply.

There are scenarios when permitting paid members to serve on the board can be positive. Consider certain village fire departments. If the village actually employs the paid employees, and not the corporation, the corporation may benefit from the experience of the paid employee. However, in this case the corporation does not pay the staff and there is no conflict; as the paid employee cannot benefit regardless of the financial decisions made by the board.

Finally, remember that the corporation may permit ex-officio directors and thus permit paid employees to have a voice, but not a vote in the management of the corporation. However, if paid employees are permitted to attend board meetings, make sure the corporation takes steps to prevent them from making a claim that they should have been paid for their attendance. This can be done by clearly defining their duties and restrictions in a job description, and by creating a class of membership that permits them to attend board meetings as a volunteer member.

Court Determines that Fire Chief Has the Ability to Designate Its Power to Regulate Traffic in a Village Fire Department

One word of caution to readers before they read this case review and determine that fire police are not necessary. This case dealt with a village fire department. The author of this article believes that the court’s holding would also apply to a fire district’s fire department. However, it is questionable whether the ability of a fire chief to designate its power to regulate traffic may be designated in a “town controlled” or “independent” fire department.

This decision was handed down on April 28, 2005 (People v. Loren, 4 N.Y.3d 411, 796 N.Y.S.2d 26).

The facts are as follows. Two firefighters were instructed by their chief to control traffic on an emergency scene. The firefighters were not trained or certified as fire police. One firefighter had an orange flag and another wore a safety vest. They utilized a person vehicle and flares to shut down the road.

A driver approached a roadblock and ignored the firefighters’ order to stop. Instead, he swerved into a lane which was not closed by the firefighters, and continued to drive. Other drivers attempted to follow the driver around the roadblock. The two firefighters ran after the car, shouting, waving their arms and a flag. The driver stopped his car briefly, and the firefighter opened the driver’s passenger door in an attempt to identify him. The driver refused to give his name, and, with the firefighter wedged between the door and the passenger compartment, attempted to drive off. The driver then stopped his car and informed the firefighter that he was driving home. The firefighter replied that he was going to call the State Police. Undeterred, the driver left the scene. A State Police officer later called on the driver at his residence and issued him a ticket for violating Vehicle and Traffic Law § 1102. That section provides that “[n]o person shall fail to or refuse to comply with any lawful order or direction of any police officer or flagperson or other person duly empowered to regulate traffic.”

The court held that even though the two volunteer firefighters were not fire police, they were “duly empowered to regulate traffic” under Vehicle and Traffic Law § 1102 because they were acting under instructions from the department’s fire chief, who enjoys independent statutory authority to direct traffic at the scene of an accident, fire or other emergency. This power derives from Vehicle and Traffic Law § 1602–the “Emergency rule.”

Section 1602(b) provides that:

“[i]n the event of a fire or other emergency or to expedite traffic or to safeguard pedestrians or property … [a] person empowered to regulate traffic at the scene may, to the extent authorized by local law, ordinance, order, rule, regulation or administrative code *414 provision adopted by local authorities with respect to highways within their corporate boundaries, direct traffic as conditions may require notwithstanding the provisions of this chapter or of local laws, ordinances, orders, rules, regulations, administrative code or sanitary code provisions regulating traffic” (emphasis added).

The court held that it could easily conclude that the “emergency rule” authorized a fire chief to direct traffic at the scene of an accident or a fire. A fire chief’s responsibility to coordinate a department’s response to an emergency necessarily includes the power both to keep the public out of harm’s way and to keep people from obstructing firefighters’ all-important mission of protecting life and limb.

The court also held that village fire chiefs may delegate their Vehicle and Traffic Law § 1602 authority to regulate traffic to their subordinates. Village Law § 10-1018 specifies that the village’s fire chief shall “have exclusive control of the members [of the department] at all fires”. The court interpreted this statute to permit the fire chief to direct firefighters toundertake tasks critical to public safety, such as diverting traffic away from the scene of a fire or dangerous accident.

Village Law Section 10-1018 controls village fire departments. A similar statute is found with regard to fire chiefs of fire districts, at Town Law 176-a. However, there is not a similar statute for town controlled or “independent” departments that ia not part of a village or fire district, fire department. Thus, while all fire chiefs have the power to control traffic, whether this power can be designated in every type of fire department is unclear.

Court Orders Fire Department to Reinstate Member

In Bell v. Village of Delhi (February 2004), the Appellate Division ordered a rehearing of a fire department’s decision to terminate a member. In February 2001, a volunteer firefighter/EMT was notified by the Delhi Fire Department that a complaint had been made about him. The complaint alleged that the member breached a patient’s right to confidentiality and that the member engaged in unprofessional conduct by suggesting that he received sexual gratification while treating a patient

A hearing ensued and the fire department removed the member effective March 2001.

The member appealed to a trial court and requested that the court order the member reinstated into the fire department. The court agreed with the member’s arguments and ordered that the fire department conduct a new hearing.

The appellate court stated that a fire department has rights under its bylaws to discipline a member. The court cited the bylaws of the fire department and made important mention that the bylaws provide the member with a right to notice of charges, a hearing on the charges, and many other rights to permit a defense. The court also noted that General Municipal Law 209-l does not prevent punishment under the fire department’s bylaws.

The appellate court held that the member was not provided all of the rights under the bylaws, and specifically that the notice of the charges did not contain a listing of all of the rights stated in the bylaws. The bylaws did require that the notice contain a listing of these rights.

Although the court did agree that the charges, if proven true, would support an expulsion, the court emphasized the importance of the strict adherence to the rights provided all members in the bylaws. The court even stated that it was unimportant whether the member knew of the rights afforded by the bylaws, because the bylaws require that those rights be put in writing to the member.

The court thus ordered a new hearing.

This decision is in line with prior court decisions. All courts will examine whether proper due process was provided to members. Due process involves providing the member with a list of his rights, including the right to be advised of the charges, the right to a hearing, the right to have counsel present at the hearing, and the right to ask questions and present witnesses. If these rights are not provided, the common remedy is to order a new hearing. Note that the court does not prevent a new hearing.

If the member is ultimately provided a new hearing and the member is found guilty of the charges, then the only question that can go back to a court is if the crime justified the punishment. In this case, the court noted that expulsion would be in line with thecharges. The court probably did this to discourage the member from appealing the decision of the fire department after the new hearing.

Fire departments and not for profit ambulance services should make sure that they afford every member due process rights before imposing punishments, and that the punishment fits the crime. The bylaws should be carefully drafted to provide a precise listing of the due process rights that must be afforded a member. Disciplinary hearings should carefully document all of the rights afforded to a member, so that the court can evaluate the action of the agency.