Request By:
Mr. John E. Nall
Secretary, Board of Directors
Valley Creek Area Volunteer
Fire Department
Route 7, Box 452A
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning a volunteer fire department. Hardin County is served by several volunteer fire departments. These fire departments are not fire districts as defined by the Kentucky Revised Statutes. They are funded by the county government, by various grants and by public donations.
You state there may be instances where arson is suspected but the Kentucky State Police Arson Investigator, due to the hour of the fire or prior duties, cannot get to the scene of the fire for several hours. To preserve the scene and to prevent possible destruction of evidence it would be necessary that no one enter the fire area. Your specific question is as follows:
"If acting as a volunteer fire department, a department responds to a fire, and subsequently discovers it to be of suspicious origin, and the State Police Arson Investigator is notified to inspect the scene, does the fire department officer in charge at the fire scene have the power to protect the fire scene by preventing access to the scene to anyone, including owner and/or occupant, until the arson investigator arrives? "
You have specifically stated that the fire units involved have not been organized as fire districts. Thus the provisions of KRS Chapter 75 dealing with fire protection or volunteer fire protection districts are not applicable. Note, however, the duties and powers conferred upon the chief of a fire department in a fire protection district, which are set forth in KRS 75.180(1):
"The chief, assistant chief, or highest officer present at fires answered by his department shall investigate their causes. He may examine witnesses, comple the testimony of witnesses, administer oaths, compel production of evidence and make arrests as provided in KRS 75.160. He may enter any building at all reasonable times for the purpose of examining the building if, in his opinion the building is in danger of fire. . . ."
The volunteer fire departments to which you refer may be non profit corporations or more informally organized groups of persons whose objective is to put out fires in the county. Except for partial funding by the county government they are apparently disassociated from the county government. There are no statutory provisions dealing with such organizations and their cheifs, unlike those of fire protection districts, have not been granted investigatory or peace officer type powers. If such volunteer fire departments, in the course of extinguishing a fire, discover evidence indicating that arson may be involved, they can and should contact the arson investigators who have been designated by the Bureau of State Police to investigate and enforce the provisions against arson and arson related offenses. See KRS 227.275.
In view of the lack of a grant of any specific statutory authority to these volunteer fire units, they would probably possess only the implied power to extinguish the fire in a manner consistent with accepted fire fighting practices. If police type services are needed, such as the securing or sealing off of an area, the volunteer fire unit should contact the nearest state police post, the county sheriff's office or the county police department and request the services of a peace officer.
The volunteer fire department chief probably could secure an area where arson was suspected for a reasonable time (at least several hours) if he has been appointed as a deputy fire marshal. KRS 227.210 states that any power, duty or function vested in or imposed upon the state fire marshal may be exercised by any deputy of the state fire marshal's office acting in the fire marshal's name and by his delegated authority. KRS 227.220 provides in part that the state fire marshal shall enforce or aid in the enforcement of all laws concerning arson and arson related offenses. He is authorized to investigate the cause, origin and circumstances of fires.
Under KRS 227.230 the chief of each fire department and the sheriff of each county shall be deemed deputies when ordered by the state fire marshal to act as such for their respective jurisdictions. KRS 227.240 states that the chief of each fire department, sheriff or local deputy marshal ordered under KRS 227.230 shall immediately investigate the origin and circumstances of a fire in his area and determine the cause of the fire so far as practicable. If the fire is of suspicious origin the shall notify the state fire marshal and the Commissioner of the State Police. The jurisdiction of the state fire marshal is set forth in KRS 227.270.
Because of the lack of a grant of any specific statutory authority to volunteer fire departments concerning investigatory or peace officer type powers, it is our opinion that a volunteer fire department is basically limited to extinguishing fires. If arson is suspected the volunteer fire department should notify the arson investigators of the Bureau of State Police. If police type services are needed, such as the securing or sealing off of an area until the arson investigators arrive, the volunteer fire department should contact the nearest state police post, the sheriff's office or the county police department and request that a peace officer be dispatched to perform such services. A volunteer fire department chief could probably secure an area where arson was suspected, for a reasonable time, if he has been appointed as a deputy fire marshal.