Department of Law
Attorney General Opinion
Fire Protection Duties
AG Alpha No. LO LG GRAIK
Issued July 23, 2001
This opinion is issued at the request of the Colorado Department
of Local Affairs (the "Department"). It answers two questions
about the powers and duties of Colorado's fire protection districts,
and the interaction of the fire fighting duties of fire protection
districts and sheriffs.
QUESTIONS PRESENTED AND CONCLUSIONS
Question: Must a fire protection
district fight fires within the boundaries of the district?
Answer: A fire protection district must fight fires
within the district only under certain circumstances. The duty
to fight fires arises when the district acquires fire fighting
equipment, and only applies to fires on private property.
A fire protection district is under no legal obligation to
acquire fire fighting equipment. Even the fact that a fire protection
district collects taxes on property and structures within the
district does not create a duty requiring the district to obtain
equipment and fight fires.
When a fire ignites on private property within a fire protection
district, the fire chief must respond if the district has fire
fighting equipment. If the fire protection district does not
have fire fighting equipment, it is the sheriff's responsibility
to fight the fire. If a fire ignites within a district on property
that is not private, the sheriff has primary fire response responsibilities.
The sheriff may request assistance from other fire protection
Question: May a fire district
transfer its fire fighting responsibility by contract to another
fire protection service provider?
Answer: Yes. A fire protection district may contract
with a third party to provide fire protection services.
The questions addressed in this opinion require interpretation
of the network of statutory provisions that address the fire
protection duties of the sheriffs and the state's fire protection
districts. Certain settled legal approaches govern that statutory
interpretation. For example, the words and phrases of a statute
must be given their plain and ordinary meaning. Town of Telluride
v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30, 35 (Colo.
2000); Common Sense Alliance v. Davidson, 995 P.2d 748
(Colo. 2000). If doing so leads to absurd results, the inquiry
proceeds further. State v. Nieto, 993 P.2d 493, 501 (Colo.
2000); Lagal v. Lackener, 969 P.2d 224 (Colo. 1998).
When interpreting statutes one must harmonize their meanings
and interpret their words in a consistent manner. General
Electric Co. v. Niemet, 866 P.2d 1361, 1366 (Colo. 1994).
These principles are used in the opinion that follows.
II. Do fire districts that collect taxes on property and
structures have a duty to fight fires in their own districts?
A. Overview of Fire Protection Responsibilities of Sheriffs
and Fire Protection Districts.
Both sheriffs and the chiefs of fire protection districts have
statutory responsibilities to fight fires. Unfortunately, however,
the statutes that govern these responsibilities are not clear.
In addition to their common law duties and powers, sheriffs
may have duties and powers prescribed or modified by state constitutional
or statutory provisions, or by court rule. In Colorado, certain
statutory fire fighting duties are delineated in the statutes,
though others are not. For example, the sheriff is the fire
warden of the county in the case of prairie or forest fires.1§ 30-10-512 and § 30-10-513, C.R.S. (2000). The sheriff
may take charge of efforts to control or extinguish such fires
or may assist other governmental authorities to do so. § 30-10-513,
In appropriate circumstances, a sheriff may request the assistance
of a fire protection district to fight a fire on private property:2
The sheriff of any county may request assistance from
a fire protection district or municipality in controlling
or extinguishing a fire occurring on private property
if, in the judgment of such sheriff, the fire constitutes
a danger to the health and safety of the public or a risk
of serious damage to property. Except as provided in subsection
(3) . . . , any fire protection district or municipality assisting
in controlling or extinguishing such fire is entitled to reimbursement
from the property owner on whose property the fire occurred
or from the party responsible for the occurrence of such fire
. . . .
§ 30-10-513.5 (1)(a), C.R.S. (2000) (emphasis added).
Specific statutory provisions also outline powers and duties
of fire protection districts. See § 32-1-1001 et seq.,
C.R.S. (2000). Traditionally, fire protection districts have
served a necessary function with regard to fire protection by
providing educational, inspection and other services. See
e.g., § 32-1-1002 (3)(b)(II)(B), C.R.S. (2000) (districts
have "the authority to enter into all structures and upon all
premises within their respective jurisdictions at reasonable
times . . . to conduct an inspection"); § 32-1-1002(1)(c), C.R.S.
(2000)(districts are allowed to provide ambulance services);
§ 9-3-103, C.R.S. (2000)(granting sheriffs, the fire chiefs
of every town, city, fire protection district, and safety inspectors
full and concurrent jurisdiction to investigate safety issues
related to industrial and commercial buildings and equipment).
Some districts have few capabilities beyond a limited subset
of what districts are allowed to undertake. Other districts
have voluntarily undertaken expanded duties. In either case,
districts are established to provide services in specific geographical
areas established under Article 1 of Title 32. Within a district's
boundaries, the chief of the fire department supervises fire
fighting. § 32-1-1002 (3)(a), C.R.S. (2000). He or she can enter
private property and buildings, and no one can interfere with
the chief's inspections. § 32-1-1002 (3)(b)(II)(b) C.R.S. (2000).
There is an important legal difference between the ability
of fire protection districts to exercise powers in their discretion,
on the one hand, and the duties fire protection districts must
carry out, on the other hand. See City of Denver v. Capelli,
, 4 Colo. 25, 27 (Colo. 1877) (recognizing that as long as the
city authorities failed or refused to exercise their discretionary
powers, no liability attaches; but if that power is exercised,
the city is bound for any failure and cannot escape liability);
see also Chase v. Board of Com'rs of Boulder County,
37 Colo. 268, 279, 86 P. 1011,1015 (1906) (noting that county
assessor and the county treasurer had both power and duty to
discover omitted assessable property and tax the same). A district
has the discretion to choose whether to assume fire protection
duties on private property, a choice that follows from its decision
whether to purchase or otherwise acquire fire protection equipment.
Compare § 32-1-1002(1) and (3), C.R.S. (2000)
(powers of districts and duties of districts).
The board of any fire protection district has the following
(a) To acquire, dispose of, or encumber fire stations,
fire protection and fire fighting equipment, and any interest
therein, including leases and easements;
* * *
(c) To undertake and to operate as a part of the duties
of the fire protection district an ambulance service, an
emergency medical service, a rescue unit, and a diving and
§ 32-1-1002, C.R.S. (2000).3 And, by statute, the fire district chief has the following
The chief of the fire department in each fire protection
. . . shall have authority over the supervision of all fires
within the district, except as otherwise provided by law[.]
§ 32-1-1002, C.R.S. (2000). I conclude from these statutory
provisions that a fire protection district will take an active
role fighting fires within its district if the district has
chosen to exercise its powers to acquire equipment.
Harmonizing all of these statutes leads to my conclusion that
the legislature intended to give the fire chiefs authority over
fires occurring on private property within their districts.
General Electric Co., 866 P.2d at 1366. This interpretation
is consistent with powers granted to districts. See e.g.,
§ 32-1-1002(1)(a) and (2), C.R.S. (2000)(purchase equipment
and hire and fire employees).4 It would not make sense to give districts these powers
without giving them authority to supervise fires within their
While fire protection districts are empowered to purchase fire
protection equipment and to provide fire protection services
for private properties within the district, they do not have
a duty to do so. No affirmative duty is created by statute.
See § 32-1-1002(3), C.R.S. (2000) (duties of fire districts).5 If the district, in its discretion, decides that it cannot
or will not buy necessary equipment, it has no corresponding
duty to provide fire protection on private property. Indeed,
some districts in Colorado have no resources to carry out fire
In the absence of a fire protection district with a duty to
fight fires on private property, this function becomes the responsibility
of the sheriff. Moreover, the sheriff always has fire response
duties in the first instance for public areas. The sheriff can
attempt to recruit other agencies, including a fire protection
district, to assist with the fire.6 The fact that fire fighting funds are provided to the
districts does not alter the analysis.
B. Funding for Fire Protection Duties
Section 30-10-513 of the Colorado Revised Statutes addresses
how funds may be secured to assist the various fire protection
entities with their fire protection duties:
. . . The board of county commissioners is authorized
to levy a special tax . . . for the purpose of creating a
fund that shall be appropriated, after consultation with
representatives of fire departments, fire protection districts,
and fire authorities in the county, to prevent, control,
or extinguish such fires anywhere in the county and to
fix the rate of levy[.] . . .
§ 30-10-513, C.R.S. (2000)(emphasis added); see also § 32-1-1101(1)(a),
C.R.S. (2000) (a board of directors of a special district may,
on behalf of a special district, "levy and collect ad valorem
taxes on and against all taxable property within the special
district").7 This statute does not direct whether or how fire protection
funds will be distributed. Id. Rather, the statute merely
The board of county commissioners of any county may allow
the sheriff, . . ., municipal or county fire departments,
fire protection districts, fire authorities, and [others]
. . . such compensation and other expenses necessarily
incurred as it may deem just.
Id. (emphasis added). Thus, a board of county commissioners
exercises wide discretion when it reimburses each entity's fire
fighting expenses. Id.
The board of county commissioners' ability to impose a mill
levy does not alter this analysis. If a fire protection district
reduces the service it provides, a corresponding reduction in
the allocation of funds by the board of county commissioners
for fire protection services might follow. At a minimum, of
course, the voters may not support a tax if corresponding services
are not made available.
III. May fire districts transfer their responsibility to
fight a fire, if any, by contracting such services to another
fire protection service provider?
A. Contracting Fire Protection Services
Section 29-1-203 of the Colorado Revised Statutes provides,
in pertinent part, that:
Governments may cooperate or contract with one another to
provide any function, service, or facility lawfully authorized
to each of the cooperating or contracting units, including
the sharing of costs, the imposition of taxes, or the incurring
of debt, only if such cooperation or contracts are authorized
by each party thereto with the approval of its legislative
body . . .
§ 29-1-203, C.R.S. (2000)(emphasis supplied). The term "government"
is defined as:
any political subdivision of the state, any agency
or department of the state government or of the United States,
a federally recognized tribal entity. . .
§ 29-1-202(1), C.R.S. (2000)(emphasis added). In turn, a "political
a county, city and county, city, town, service authority,
school district, local improvement district, law enforcement
authority, city or county housing authority, or water, sanitation,
fire protection, metropolitan, irrigation, drainage, or
other special district . . .
§ 29-1-202(2), C.R.S. (2000)(emphasis added).
Thus, it is entirely proper for counties or districts to
form an "authority" and to delegate fire protection duties
to that authority. An "authority" is a separate legal entity
created by intergovernmental agreement between a city and
a special district, or between two or more special districts.
The Attorney General addressed a question regarding the delegation
of fire protection duties in 1990. See Op. Atty. No.
OLS9003661.ARU, 1990 WL 514708 (Nov. 14, 1990). This opinion
declares that a fire authority is authorized to adopt and enforce
its own fire code. This conclusion was based on the fact that
a fire protection authority established by the Lakewood and
Bancroft fire protection districts would be a separate legal
entity possessing the powers of the districts. Because each
district independently had the power to enforce its own ordinances,
the fire authority would have the same enforcement power possessed
by the districts. Id.; see also Durango Trans., Inc.
v. City of Durango, 824 P.2d 48 (Colo. Ct. App. 1991); Op.
Atty. Gen. No. 79 LO LG AGBCY, 1979 WL 34491 (April 27, 1979)(concluding
that eight fire protection entities could be consolidated into
a countywide district).
Although the day to day fire protection activities can certainly
be delegated, a district should retain ultimate supervision
over the third-party (particularly if a matter involves a policy-making
call). Big Sandy School District v. Carroll, 164 Colo.
173, 433 P.2d 325 (1967) (matters involving considerable judgment
and discretion may not be delegated without the express authorization
of the General Assembly); Department of Human Services v.
May, 1 P.3d 159, 171 (Colo. 2000) (programming at juvenile
corrections facility was not an unauthorized delegation to another
state agency of the Department of Human Services' duty to control
its educational programs, where the Department retained significant
authority and ultimate accountability for the program's success
or failure). The entity to whom a duty has been delegated may
be entitled to protections similar to those available to the
entity engaging in the delegation. See e.g., Op. Atty.
Gen. No. OLS9003661.ARU (Nov. 14, 1990)(concluding that the
fire authority and its employees would be covered by the Colorado
Governmental Immunity Act).
The fact that a fire district collects a tax on property and
structures within that district does not create a duty for that
district to fight fires. A fire protection district is responsible
for fire fighting when it has undertaken to provide fire protection
services by purchasing necessary fire protection equipment.
Where there has been no such undertaking by a district, the
sheriff is principally responsible for fire response duties
for private property fires and public property fires.
Fire districts are statutorily authorized to transfer their
fire protection responsibilities. They may contract for such
services with another fire service provider.
Issued this 23rd day of July, 2001.
Deputy Attorney General
Assistant Attorney General
Public Officials Unit, State Services Section
1525 Sherman Street, 5th Floor
Denver, Colorado 80203
Footnote 1: Section
30-10-513 of the Colorado Revised Statutes sets forth
the fire protection duties of the sheriff of each county:
It is the duty of the sheriff . . . , in case of any
forest or prairie fire, to assume charge thereof or
to assist other governmental authorities in such emergencies
for controlling or extinguishing such fires, and, for
assisting in so doing, they may call to their aid such
persons as they may deem necessary. The state forester
may assume the duty with concurrence of the sheriff.
. . .
§ 30-10-513, C.R.S. (2000)(emphasis supplied); see also
§ 30-10-512, C.R.S. (2000)(providing that the "sheriff
of every county, in addition to other duties, shall act
as fire warden of his respective county in case of prairie
or forest fires"). Section 30-10-513 was amended effective
May 25, 2000 and no attempt was made to change the duties
of the sheriff with regard to forest or prairie fires.
In fact, the 2000 amendments were quite minor. See H.B.
Footnote 2: A "fire occurring on private property" means a fire that is not
located within a fire protection district or municipality
that provides fire protection services. See § 30-10-513.5
(1)(b)(I), C.R.S. (2000).
Footnote 3: Note, also that the board of county commissioners, is authorized
by statute to:
[E]rect firehouses, and provide fire equipment for the
extinguishment of fires and to provide for the use and
management of the same; to determine the powers and duties
of the members of the fire department in taking charge
of property to the extent necessary to bring under control
and extinguish any fire and to preserve and protect property
not destroyed by fire . . . .
§ 30-35-201, C.R.S. (2000).
Footnote 4: The question
of who is hired and what type of equipment is used is
integrally related to the supervision over fires occurring
within the district.
Footnote 5: The prescribed
duties are principally inspection and investigation duties.
§ 32-1-1002(3), C.R.S. (2000).
Footnote 6: The responsibility
of the sheriff for forest fires, even where that fire
occurs within a fire protection district, is further supported
by the following statutory provision:
In connection with its powers and duties concerning the
protection of the forest lands of the state from fire,
the [State Board of Agriculture] may cooperate with the
United States forest service, the state board of land
commissioners, and the counties for such protection and
may advise and aid in preventing forest fires on state
and private lands in the national forests in the state;
but nothing contained in this section shall be construed
as transferring to the board the duties or responsibilities
of the sheriffs of the various counties with respect to
forest fire control laws.
§ 23-30-203, C.R.S. (2000)(emphasis added). With regard
to private property, the sheriff is authorized to ask
for assistance from a fire protection district or municipality
to control a fire that is a danger to the health and safety
of the public or poses a severe risk of property damage.
§ 30-10-513.5, C.R.S. (2000). The fire protection district
or municipality may then look to the private property
owner for reimbursements of its expenses. Id.
Footnote 7: The mill
levies are, of course, subject to the Taxpayers Bill of
Rights (TABOR) Amendment.