I will be making some brief remarks at the next meeting of the Monroe County Fire District Officers Association on September 20, 2018, and I wanted to make a resource page available with links to additional information on the following topics:

Guidance for Public-Sector Employers and Employees in New York.  Earlier this year, the Supreme Court issued a decision in Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018).  In Janus, the Court held that unions did not have a right to receive fair share agency fees from public-sector employees who decline union membership.  The New York State Department of Labor recently issued two short publications providing guidance to New York Public-Sector Employers and Employees:  Guidance for Public-Sector Employers and Employees in New York State; and Guidance for Public-Sector Employers and Employees in New York State–Frequently Asked Questions.

Sexual Harassment Prevention.  The 2018-2019 New York State Budget contained several provisions affecting sexual harassment prevention policies, training and settlements.  The Legislation also required the creation of a state-mandated model policy and model training.  You can read more about these requirements in an article I wrote on our firm’s website here.  The model policies were recently published in draft form, along with a model complaint form, and all of these draft documents are available here.

Volunteer Firefighter Enhanced Cancer Disability Benefits Program.  Over the summer, the State published proposed regulations implementing this new program.  The proposed regulations are available here.

UPDATE:  Budget Question.  Last night, there was a question about amendments to the budget after the budget hearing.  Town Law section 181(b) provides in part that “After the public hearing, the board of fire commissioners may adopt changes, alterations and revisions to the proposed budget subject to the requirements of paragraph (a) of subdivision two of this section, except that the board of fire commissioners shall not add or increase an appropriation to a capital reserve fund.” (emphasis added).

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Here are some other posts you may enjoy:

• Fire District Posts on Rochester Law Review
• Schrödinger’s Fire Engine: The $20,000 Paradox
• New Law Removes Red Tape For Fire Districts Selling Surplus Apparatus

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This is a question that has come up quite a bit recently, and I’ve decided to explain the reasoning behind my answer here.  Fire apparatus can be very expensive, ranging from several hundred thousand dollars to as much as a million dollars or more for the most sophisticated aerial ladder trucks.  With the tax cap as low as it is, it is easy to see why it may be tempting to take advantage of the savings offered by a vendor who offers a pre-payment option.  Sometimes the savings can be as much as 10% of the cost of the apparatus.  Should you take advantage of this?

It is well settled that “[f]ire districts are established for the purpose of providing fire protection and responding to certain other types of emergencies . . . and have only those powers expressly granted by statute and necessarily implied therefrom.” 1992 Opn. St. Comp. No. 92-41.  Is there a statute that expressly permits a fire district to make pre-payments?

Section 176(4-a) of the Town Law outlines the procedure for fire district commissioners to audit and authorize payment of claims.  Although originally not permitted, payments in advance are now permitted in limited circumstances:

The board of fire commissioners may, further, by resolution authorize the payment in advance of audit of claims for light, telephone, postage, freight and express charges. All such claims shall be presented at the next regular meeting for audit, and the claimant and the officer incurring or approving the same shall be jointly and severally liable for any amount disallowed by the board of fire commissioners.

[N.Y. Town Law section 176(4-a)].

In 1996, fire district commissioners became authorized to make progress payments in connection with the purchase of motor vehicles used for fire-fighting purposes.  But even this authorization was limited.  Section 176(23-a) of the Town Law provides in pertinent part:

In any case of a purchase from a manufacturer of a motor vehicle used for fighting fires, whether or not including apparatus used in connection with such motor vehicle, having a period of probable usefulness of ten years as determined by section 11.00 of the local finance law, advertisement for sealed bids may be made and the purchase contract may be awarded for such motor vehicle and apparatus with the provision, if the board of fire commissioners shall so specify, that progress payments be made to the manufacturer as the motor vehicle or apparatus or both progresses, provided that evidence satisfactory to the board of fire commissioners as to the progress of such work be produced with each request by the manufacturer for a progress payment, and further provided that such progress payments shall not exceed four in number and that at least twenty-five per cent of the contract price of the motor vehicle or apparatus or both be withheld by the board of fire commissioners until such motor vehicle or apparatus or both are delivered to and accepted by the board of fire commissioners, and further provided that every such contract providing for progress payments shall be accompanied by a surety bond of a property/casualty insurance company, as defined in section one hundred seven of the insurance law, for the completion of the work, specified in the contract, within the amount stipulated therein, which bond shall be filed with the board of fire commissioners.

[N.Y. Town Law section 176(23-a)].  In other words, a fire district may use progress payments to purchase apparatus, provided the following requirements are met:

1. The specifications for the purchase must include an option to make progress payments;
2. There shall be no more than four payments;
3. Each request for payment must include evidence satisfactory to the board of fire commissioners as to the progress of the work;
4. At least 25% must be withheld by the board of fire commissioners (i.e., the last payment) until such motor vehicle or apparatus or both are delivered to and accepted by the board of fire commissioners; and
5. The contract providing for progress payments shall be accompanied by a surety bond.

These requirements do not permit advance payments or any other type of pre-payment.  However, if the foregoing criteria are met, progress payments are permitted.  While the savings offered by vendors will not be as great as the pre-payment option, many vendors also offer progress payment options, and these options should be considered.  At the very least, the bid specifications should include a request that the vendors include options for progress payments (and the specifications should also explain how the lowest responsible bidder will be determined if such options are requested).

Although it would seem to be in the best interest of the taxpayers to obtain the discount offered by the pre-payment option, taking advantage of this option would run counter to the public policy of the State of New York.  This is similar to the rules that prohibit fire districts and other municipalities from investing their funds in something other than insured certificates of deposit or United States obligations.  In a recent fire district audit involving the failure of a fire district to invest funds properly, the Comptroller explained that “[t]he law emphasizes safety, security and liquidity over yield, because improper investments could result in a risk of market fluctuation and the loss of principal.”  [Orient Fire District Audit at 6 (March 2016)].

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This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.