County attorney says Sullivan cannot pave fire department parking lot

J. H. Osborne • Jun 24, 2008 at 12:00 AM

BLOUNTVILLE — County Attorney Dan Street has again told the Sullivan County Commission that state law forbids the county highway department from doing paving work for a non-government entity — and that local volunteer fire departments are not government entities.

This time Street’s message was in writing, something requested by the commission last week after Street spoke about the issue.

He had offered the same advice to a group of commissioners the prior week.

The commission is considering a request for the county’s highway department to pave a parking lot for the Bloomingdale Volunteer Fire Department — which would reimburse the county $9,000.

Street mailed a five-page letter outlining his advice to county commissioners and other county officials on June 18.

The Times-News later requested and received a copy of the letter — a public document — from Street’s office.

The Sullivan County Commission “should not pass (the resolution) authorizing the paving of the parking lot of Bloomingdale Volunteer Fire Department,” Street wrote in the letter.

State law “makes it very clear that it is illegal ... for the highway commissioner to allow highway equipment, trucks, and/or supplies to be used for private purposes,” Street wrote, going on to define “private” as meaning any form of ownership other than government, “thus, private includes individuals, nonprofit corporations, for-profit corporations, partnerships, associations, etc.”

State law does include an exception that allows the County Commission to authorize the highway department to perform work for other governmental entities, Street wrote — but a volunteer fire department is not a governmental entity.

“Generally, a governmental entity is created by a constitution or by a governing body/legislature,” Street wrote. “The mere fact that an organization serves the public and is nonprofit does not make it a governmental entity. There are numerous nonprofit entities that serve the public, for example churches, volunteer rescue squads, and the Red Cross, but they are not governmental entities.

“Thus the exception in the (law) allowing the Sullivan County Commission to authorize the county road department to perform work for other governmental entities would not apply to a volunteer fire department.”

Street went on to counter an argument he said has been made in favor of allowing the county highway department to do the paving.

“The mere fact that Sullivan County provides a large percentage of the annual budget of Bloomingdale Volunteer Fire Department does not make it a part of Sullivan County,” and “it is not owned, governed or controlled by Sullivan County,” Street wrote, noting that the county and Bloomingdale VFD are separate legal entities, a fact that protects the county from liability.

The county exercises no control over the actions or activities of the Bloomingdale VFD, which through its own charter and bylaws has its own form of governance, according to Street’s letter.

“Since Bloomingdale Volunteer Fire Department is not a government entity, the only way to legally justify such passage would be for Sullivan County to take the position that Bloomingdale Volunteer Fire Department is, somehow, a part of Sullivan County. By doing so, it would obviously be hard, if not impossible, to thereafter argue otherwise should it later be claimed in a court of law that Sullivan County is liable for the acts of Bloomingdale Volunteer Fire Department.”

Street’s letter also recommends that “from now on Sullivan County require each volunteer fire department and rescue squad, and probably all nonprofit organizations for that matter, that receive financial donations from Sullivan County, to sign a document of understanding wherein the recipient acknowledges that it is not in any way a part of Sullivan County government and that it agrees to hold Sullivan County harmless from any liability for any of the actions or inactions of the nonprofit entity.”

The issue is likely to be discussed by each of the commission’s three primary committees in the coming weeks, leading up to a potential vote on the proposal by the full commission on July 21.

Scheduled committee meetings include: Executive Committee, 6 p.m., June 2; Administrative Committee, 6 p.m., June 7; and Budget Committee, 7 p.m., June 10. All committees listed meet on the second floor of the historic Sullivan County Courthouse.

Recommended for You