The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6740

November 24, 1992

FIREMEN AND FIRE DEPARTMENTS:

Application of Michigan's fire fighter training and testing standards to out-of-state fire fighters utilized under a mutual aid agreement

Fire fighters appointed or employed by an Ohio village fire department are not required to meet the training and testing standards specified in section 9 of Michigan's Fire Fighters Training Council Act of 1966 in order to cross into Michigan to provide fire fighting assistance to a Michigan township pursuant to a mutual aid agreement between the Michigan township and the Ohio village.

Honorable Michael E. Nye

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on a question that may be stated as follows:

Must fire fighters appointed or employed by an Ohio village fire department meet the training and testing standards specified in section 9 of Michigan's Fire Fighters Training Council Act of 1966 in order to cross into Michigan to provide fire fighting assistance to a Michigan township pursuant to a mutual aid agreement between the Michigan township and the Ohio village?

The Fire Fighters Training Council Act of 1966 (FFTCA), MCL 29.361 et seq; MSA 4.560(1) et seq, created the Fire Fighters Training Council, MCL 29.363; MSA 4.560(3), and empowered the Council to set advisory training standards for fire fighters of local fire agencies. MCL 29.369; MSA 4.560(9). With funds to be appropriated by the Legislature, the Council was authorized to reimburse local units of government for a portion of the salary paid to each regular fire fighter meeting the recruitment standards of the Council and participating in prescribed training. The Council was also authorized to provide reimbursement for certain living expenses incurred by the fire fighter and for a portion of lost wages of volunteer fire fighters who meet recruitment and training standards of the Council. MCL 29.374; MSA 4.560(14).

In 1987, the Legislature enacted 1987 PA 196 to amend the FFTCA, in part, to turn an essentially voluntary program of standards for recruitment and training of local fire fighters with financial incentives into a mandatory program by rewriting MCL 29.369; MSA 4.560(9), to provide, in pertinent part, as follows:

(5) Within 12 months after a person's hiring date as a full-time fire fighter, the person must pass both part 1 and part 2 of the examination to be eligible for continued or permanent full-time employment as a fire fighter.

(6) Within 24 months after a person's appointment date as a volunteer or paid on-call fire fighter, a person must pass part 1 of the examination to be eligible for continued volunteer or paid on-call service as a fire fighter.

A fire fighter employed or appointed on October 1, 1988, is exempted from the examination requirement unless the fire fighter subsequently changes his or her status from a volunteer or paid on-call fire fighter to that of a full-time fire fighter. MCL 29.369(7); MSA 4.560(9)(7). By virtue of these provisions, "[a] full-time fire fighter would have to pass both parts of the test within 12 months of his or her hiring to be eligible for continued or permanent full-time employment. A volunteer or paid on-call firefighter would have to pass part one of the exam within 24 months of his or her employment to be eligible for continued service." House Legislative Analysis, HB 4704, October 27, 1987.

Significantly, however, the Legislature did not make these mandatory training and testing provisions applicable to all fire fighters employed or utilized in the State of Michigan. The term "fire fighter" as used in the FFTCA is defined, in pertinent part, as follows:

(c) "Fire fighter" means a member, including volunteer members and members paid on call, of a fire department or other organization of a city, county, township, or village.... [Emphasis added.]

FFTCA, section 2(c); MCL 29.362(c); MSA 4.560(2)(c).

Thus, the training and testing requirements mandated by FFTCA, section 9, are imposed only upon fire fighters who are "members" (whether as volunteers or as full- or part-time employees) of fire departments or fire organizations operated by local units of government in Michigan. The Legislature has not extended these standards to fire fighters employed by other entities such as private corporations nor to fire fighters employed by agencies of the federal government or of neighboring states who may on occasion assist in fighting fires in Michigan.

The Legislature has authorized Michigan townships to contract for fire fighting services with the legislative body of another township, city, or village that maintains a fire department. MCL 41.806(2); MSA 5.2640(6)(2). By means of MCL 124.504; MSA 5.4088(4), the Legislature has further authorized Michigan townships to enter into interlocal agreements with other local units of government, both within and outside the state, for the joint exercise of any power each unit is authorized to exercise separately.

The relationship established by a mutual aid agreement is contractual in nature; while the agreement commits one governmental unit to provide fire fighting assistance to another, the assisting fire department or organization in question plainly remains solely a creature of the governmental unit which created it. Thus, in the circumstances described in your question, the existence of a mutual aid agreement for the provision of fire fighting services does not convert the fire department of the Ohio village into a "fire department or other organization of a ... township" in Michigan within the meaning of the FFTCA, section 2(c), supra. The training standards set forth in section 9 of the FFTCA are inapplicable to the employees or members of that Ohio village fire department even when they may be engaged in the provision of fire fighting assistance in Michigan pursuant to an intergovernmental agreement. These Ohio fire fighters would, of course, continue to be subject to any training or certification standards that may be imposed by the laws of their own state.

It is my opinion, therefore, that fire fighters appointed or employed by an Ohio village fire department are not required to meet the training and testing standards specified in section 9 of Michigan's Fire Fighters Training Council Act of 1966 in order to cross into Michigan to provide fire fighting assistance to a Michigan township pursuant to a mutual aid agreement between the Michigan township and the Ohio village.

Frank J. Kelley

Attorney General