Acker v. Board of Fire Com'rs, Kings Park Fire Dist.
| Decision Date | 18 April 1966 |
| Citation | 25 A.D.2d 282,269 N.Y.S.2d 628 |
| Parties | In the Matter of Edward ACKER, Petitioner-Appellant, v. BOARD OF FIRE COMMISSIONERS, KINGS PARK FIRE DISTRICT, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Cordes, Purcell, Jewell & Ingrao, Mineola (Kenneth J. Jewell, Mineola, of counsel), for petitioner-appellant.
Meyer & Wexler, Smithtown (Bernard K. Meyer, Smithtown, of counsel), for respondent.
Before UGHETTA, Acting P.J., and CHRIST, HILL, RABIN and BENJAMIN, JJ.
Petitioner's removal as a volunteer fireman by the respondent Board of Fire Commissioners was based on findings of the Board that he was guilty of gross misconduct prejudicial to the best interests of the Kings Park Fire Department and District and of specific charges which Inter alia were: (1) although he was host to two persons in the fire house in the early hours of the morning of May 7, 1964, he failed to enter their names and his own name in the guest book, as required, and (2) he permitted his guests, who were a man and an intoxicated woman, to engage in immoral acts in the fire house.
Before this matter was brought before the Board, the members of the Fire Department, at a duly constituted meeting, considered the petitioner's transgressions and by vote of 44 to 31 voted to expel him. There is no question that this was beyond the power of the Department since its by-laws, which previously had been approved by the Board, limited the penalty which the Department could impose to a maximum $2 fine for a first offense of unbecoming conduct and a $1 fine for a first offense of failing to register guests. Expulsion was prescribed for second offenses, as a permissible penalty (Constitution and By-Laws, art. XI, § 4, subd. (a); art. XVI, § 1, subd. (c)).
The petitioner appealed to the Board; and, although the Board reduced the penalty thus imposed by the Department, from expulsion to a $1 fine, it proceeded to try the issues De novo, upon new but substantially the same charges. After a full hearing, the petitioner was found guilty and removed.
The gravamen of the present appeal is that the Board delegated its authority to discipline firemen to the Fire Department and that, since the Department had already acted, the Board was without power to make new charges and to hold a new hearing. The petitioner's contention is that the Board could review on appeal only what had been done by the Department and, having reduced the penalty from expulsion to a $1 fine on that appeal, the power of the Board was exhausted.
This is a misconception of the effect of the Board's action in approving the disciplinary provisions of the Department's constitution and by-laws.
Section 209--l of the General Municipal Law grants to a Board of Fire Commissioners the power to remove a volunteer fireman for 'incompetence or misconduct,' after a hearing held upon written charges. The Board may not divest itself of this responsibility; and, as the section provides, the retained general removal power does not affect the right of members of a fire company to remove a fireman for failure to comply with the constitution and by-laws of the company. The power of the Board obtains at all times to pass upon the fitness of firemen after written charges and a hearing. The delegation made in the by-laws to the Fire Department to impose limited discipline is the grant of a concurrent authority and does not deprive the Board of Commissioners of the responsibility which the statute squarely has placed upon it to control the conduct of those to whom the Fire District entrusts the care of its real property and its equipment and of the obligation of providing adequate fire protection.
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Ratajack v. Brewster Fire Dep't, Inc. of the Brewster-Southeast Joint Fire Dist.
...to the [fire] [d]epartment, this is considered a ‘grant of concurrent authority’ ”) (quoting Acker v. Bd. of Fire Comm'rs, Kings Park Fire Dist. , 25 A.D.2d 282, 269 N.Y.S.2d 628, 630 (1966) ). This logic supplies the missing ingredient in Yeager and Mark , suggesting that the instant case ......
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Hunt v. Board of Fire Com'rs of Massapequa Fire Dist.
...the Department and that, therefore, the last sentence of GML § 209--l has no bearing on this case, see Matter of Acker v. Board of Fire Commissioners, 25 A.D.2d 282, 269 N.Y.S.2d 628; Matter of Schenck v. Fire Council, 35 Misc.2d 685, 231 N.Y.S.2d 511. The predicate for the Board's argument......
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Reed v. Medford Fire Dep't, Inc.
...or in part to the Department, this is considered a “grant of concurrent authority”. See Acker v. Bd. of Fire Comm'rs, Kings Park Fire Dist., 25 A.D.2d 282, 284, 269 N.Y.S.2d 628, 630 (2d Dep't 1966). The Medford Defendants admit as much, stating that “[t]he decision to terminate the plainti......
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Sommers v. Board of Fire Com'rs of Mastic Beach Fire Dist.
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