Opn. No. 1979-206

Hon. Daniel A. Rybak

Attorney General of New York — Opinion
Dated: August 15, 1979

VOLUNTEER FIREMEN’S BENEFIT LAW, §§ 5 (1) (m), 3 (15); GENERALMUNICIPAL LAW, § 204-a (1), (4)

A fund raising activity conducted by a volunteer fire company must be under the “exclusive auspices” of such fire company to be a covered activity such as is contemplated in the Volunteer Firemen’s Benefit Law and the General Municipal Law.

Hon. Daniel A. Rybak Stakel, Suttell, Found Rybak Town Attorneys, Town of Bethany

This is in response to your letter inquiring whether the Town of Bethany may pay the Bethany Volunteer Fire Company any profits received from the sale of waste for recycling purposes if the volunteer fire company collects the waste from the town compactor site and delivers it to the disposal firm and whether or not this activity is a covered fund raising activity pursuant to the Volunteer Firemen’s Benefit Law.

According to your letter, the Town of Bethany intends to enter into a contract with a disposal firm for the purpose of selling certain waste and would then enter into a services contract with the Bethany Volunteer Fire Company whereby the said fire company will collect the waste from the town compactor site and deliver it to the disposal firm.

The Volunteer Firemen’s Benefit Law, § 5, makes provision for the inclusion of fund raising activities as one of the covered activities for which benefits may be paid.

A definition of “fund raising activity” is found in Volunteer Firemen’s Benefit Law, § 3 (15), which in turn refers to General Municipal Law, § 204-a (1) (b), which provides, in pertinent part:

“`Fund raising activity’ means a method of raising funds to effectuate the lawful purposes of a fire company * * *.”

However, General Municipal Law, § 204-a (4), provides, in pertinent part:

“A fund raising activity must be conducted within the state of New York. It shall be under the exclusive auspices of a fire company and shall not be conducted in partnership with any other person, organization, firm or corporation * * *.” (Emphasis supplied)

The important language is “exclusive auspices.” In this instance, we do not believe that the activity contemplated by the volunteer fire company would meet the requirement of the above-cited section. The town appears to have more control over the fire company than was intended for a fund raising activity.

Accordingly, it is our opinion that the above-described activity is not a covered fund raising activity pursuant to Volunteer Firemen’s Benefit Law, § 5 (1) (m) because it is not conducted under the “exclusive auspices” of the volunteer fire company as is required in General Municipal Law, § 204-a (4), but rather is carried out under the supervision of the Town of Bethany.