NYCL AGO 95-23.

• Case Date: April 26, 1995
• Court: New York

New York Attorney General Opinions 1995. AGO 95-23. April 26, 1995Informal Opinion No. 95-23Francis T. Murray, Esq. County Attorney County of Ulster P. O. Box 1800 Kingston, NY 12401CRIMINAL PROCEDURE LAW § 2.10; MUNICIPAL HOME RULE LAW §§ 10 (1) (ii) (a) (1), 10(1) (ii) (a)(12), 33 (3) (b); VEHICLE AND TRAFFIC LAW § 115-a.The position of fire marshall may be created by local law. Upon creation of that office, the fire marshall's vehicle would be categorized as a fire vehicle under section 115-a of the Vehicle and Traffic Law.Dear Mr. Murray: You have asked whether a county legislature, by resolution, may establish the position of fire marshall and, if it may, whether the fire marshall would automatically have the rights and privileges established by State law with respect to the operation of vehicles. We have not found any State enabling legislation for the establishment of the position of fire marshall by local governments. There are a few statutory references to that office. See section 2.10 of the Criminal Procedure Law which grants to fire marshalls of specific municipalities peace officer powers and section 115-a of the Vehicle and Traffic Law which lists a vehicle operated by a county or assistant county fire marshall as a fire vehicle. Thus, it appears that the position of fire marshall is locally established.(fn1) We believe, however, that the office and its duties must be established by local law, rather than by resolution, under the grant of powers to municipalities in the Municipal Home Rule Law. Under that grant of authority, a county is authorized to adopt and amend local laws establishing local positions and their qualifications. Municipal Home Rule Law § 10(1)(ii)(a)(1). Additionally, counties are authorized to adopt and amend local laws dealing with the government, protection, order, conduct, safety, health and well-being of persons or property within its borders. Id., § 10(1)(ii)(a)(12). This is the so-called grant...