Advisory from FASNY General Counsel regarding fire company elections in villages and the impact of COVID-19

Executive Orders Affecting Statutorily Required Elections In Villages

Governor Cuomo continues to issue executive orders modifying or temporarily suspending laws applicable to elections in villages (and other district corporations) and to village-based fire service entities. As relevant here, those Executive Orders are as follows:

Executive Order 202.4, dated March 16, 2020, postponed all village elections
scheduled for March 17 and 18, and directed that any elected village official in
office is to remain in office until elections are held.

  • Executive Order 202.4, dated March 16, 2020, postponed all village elections scheduled for March 17 and 18, and directed that any elected village official in office is to remain in office until elections are held.
  • Executive Order 202.10, dated March 23, 2020, prohibits non-essential gatherings of any size (i.e. social events).
  • Executive Order 202.26, dated May 1, 2020, provides that village elections (and fire district special elections, water, sewer, and library district elections) are rescheduled postponed until Tuesday September 15, 2020. This Order also establishes June 9, 2020 as the school district statewide uniform voting day.

1. Summary Recommendation

First steps: Consult the fire company or department’s attorney if it has one
and review the company and/or department bylaws to determine if there is any provision in place that addresses circumstances when elections cannot be held as scheduled or provided by statute. (NOTE: It would be very unusual if such a provision existed, but it should not be taken for granted that none exists). Always start with the bylaws and competent local counsel for guidance.

The Village Law sections cited below permit a village board of trustees, a board of fire commissioners (where one exists), and a fire council (where no board of fire commissioners exists) to adopt rules and regulations governing village fire companies and village fire departments. While traditionally these powers did not necessarily involve the conduct of fire company elections, it is reasonable to infer that under the current circumstances, a village board of trustees, board of fire commissioners, or fire council could enact a rule or regulation providing for an alternative date or an alternative means for conducting fire company and fire department elections.

See specific recommended options in 3. Recommended Action, below.

2. Statutory Authority for Recommendation

The relevant statutory authority contained in the Village Law is as follows:

§10-1010 Election of company officers and delegates
With the exception of the Village of Fishkill, the members of village fire
companies shall hold an annual meeting on the first Tuesday in April (April 7, 2020). At such meeting the members of each company shall elect by ballot from their own number a captain, lieutenant, warden, a delegate to the general convention of the fire department and such other officers as may be provided by the bylaws of the company.

§10-1012 Chief and assistant chiefs.
1. …The delegates elected to the general convention of the fire department shall meet at the council room thereof on the Thursday following the first Tuesday in April (April 9, 2020),…and nominate a person for each of such offices; but the fire commissioners of any village may adopt a rule requiring all such nominations to be made on the day of the meeting by a vote of the duly qualified members of the department, in which case the meeting of the delegates in general convention, as provided for in this section, shall be dispensed with.

§10-1000(6) General powers of the board of fire commissioners
The board of fire commissioners of a village subject to the approval of the village board of trustees:
May adopt rules and regulations governing fire companies and fire departments….

§10-1014
In a village in which separate fire commissioners are not appointed, the chief, the assistant, and the fire wardens of the several companies constitute the council of the fire department….The council shall meet on the third Tuesday in April in each year…and choose from its own number a secretary, a treasurer and a collector of the fire department, who shall hold their respective offices for one year unless sooner removed by the council. …
Such council shall have all the powers and be subject to all the liabilities and perform all the duties of a separate board of fire commissioners
, as prescribed in section 10-1000 of this article, except subdivisions two, three, four and eight and the fixing of compensation under subdivisions five and seven of such section, and as to the provisions of such subdivisions such council shall only recommend to the board of trustees of the village.

(NOTE: the powers given to commissioners under §10-1000 (6) are conferred upon the fire council in the absence of commissioners.)

In pre-Covid-19 times, village elections were conducted approximately one month before village fire department elections. In 2020, unless a superseding order is issued, village elections will be held on September 15. However, the Governor is apparently confident that school district elections will be able to proceed in a safe manner statewide on June 9, 2020. This would seem to suggest one of three possibilities: 1. that the state has a plan in place for how to safely conduct school district elections under current social distancing restrictions; 2. current social distancing rules will be “relaxed” by that date or; 3. school district elections will be exempted from current social distancing restrictions.

3. Recommended Action

Primary Options: Have the Board of Commissioners or Fire Council adopt a resolution to:

  • A. Continue to postpone the company elections to a yet-to-be determined date in the future, estimating that elections will be conducted at some point in late summer or early fall when it is safe to conduct the elections. Determining what conditions need to be present (or absent) for it to be “safe” to conduct an election will need to be determined sufficiently in advance of the election. Measures will have to be developed to ensure compliance with whatever social distancing mandates are in place on the date of the election. It is expected that social distancing restrictions will begin to be lifted in some locales in the near future and the potential exists that department elections could be conducted in a safe and distancing-compliant manner in some areas of the State before September 15, 2020; OR
  • B. Postpone the company elections until September 15, 2020, the same date the Governor has determined that statewide village elections may be held; OR
  • C. Conduct the elections using a procedure that does not require a personal appearance at a polling site that safely and fairly allows for the participation of the membership. For example, paper ballots could be mailed to members eligible to vote and return mail envelopes provided for return of the ballots. The return envelopes could be numbered or coded as a means of security to make certain only legitimate ballots are counted when received. The envelopes could be opened and the ballots kept concealed so as to avoid compromising the secrecy of the vote. All of the ballots could then be mixed together, and the results tabulated thereafter (canvassed).

We discourage having any type of voting procedure that might cause members to congregate at the polling place. In those locations where a fire station remains in “lockdown”, we discourage opening the station solely for conducting elections absent giving serious consideration to alternative polling sites.

Secondary Option: Let The Membership Decide

  • A. Conduct a video meeting of the membership using Zoom or other platform to allow the membership to conduct a meeting to vote on a preferred procedure for conducting or postponing elections. Admittedly, this option may be too cumbersome to roll out on an expedited basis, and may inadvertently disenfranchise certain members. This option must also be considered in consultation with the Fire Company or Fire Department bylaws and competent local counsel.

Questions regarding this FASNY Membership Advisory may be directed to FASNY General Counsel Tim Hannigan (tim@hannigan.law) at 518-869-9911, or by e-mail.

The information contained herein is intended for FASNY Members and does not establish an attorney-client relationship between the author and the reader. Matters addressed are for information purposes only and the reader should seek advice from competent local counsel in regard to taking action on any matters addressed herein.