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November 20, 2020

A volunteer firefighter cannot be terminated for incompetence or misconduct "except for absenteeism at fires or meetings," absent notice and an administrative hearing

When the Board of Wardens [Board] of a volunteer fire department [Department] expelled a volunteer firefighter [Volunteer] from the fire department based on its finding that Volunteer had violated the Department's bylaws and "the Firefighter's Oath," Volunteer initiated a CPRL Article 78 action challenging the Board's action. Supreme Court denied Volunteer's petition and dismissed the Article 78 proceeding. Volunteer appealed.

The Appellate Division reversed the Supreme Court's judgment "on the law, with costs," indicating that §209-l of the General Municipal Law provides that a volunteer firefighter may not be removed from office or membership for incompetence or misconduct, except for absenteeism at fires or meetings, "unless [the volunteer is] afforded a hearing."* 

The court's decision indicates that at a meeting of the Board, which Volunteer had attended, the Board determined that Volunteer he had violated the Department's bylaws by donating department property in contravention of an order from the chief of the department.

Noting that the provision of the bylaws relied upon by the Board with respect to its expelling Volunteer authorized the chief of the department "to suspend members of the department for insubordination, refusal to follow orders, and for conduct unbecoming or detrimental to the department, and required the Board of Wardens to review such suspensions," the Appellate Division opined that the bylaw relied upon by the Board did not empower the Board to dismiss a member based on a violation of that bylaw.

Concluding that Volunteer was entitled to a hearing upon due notice and upon stated charges pursuant to General Municipal Law §209-l but had not been afforded one, the Appellate Division annulled the Board's determination and remitted the matter to the Board for a hearing and a new determination "by an impartial finder of fact."

* Citing Matter of Ferrara v Magee Volunteer Fire Dept., 191 AD2d 967, the Appellate Division noted that §209-l "by its own terms, does not affect the right of members of any fire company to remove a volunteer officer or voluntary member of such company for failure to comply with the constitution and by-laws of such company".

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06793.htm

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