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1994 Ops. St. Comp. 1 (1994)

handle is hein.nyscompop/nyscomo1994 and id is 1 raw text is: Opinion 94 - 1

Opinion 94- 1
This opinion represents the views of the Office of the State Comptroller at the time it was
rendered. The opinion may no longer represent those views if, among other things, there have
been subsequent court cases or statutory amendments that bear on the issues discussed in
the opinion.
COUNTIES -- Powers and Duties (authority to chargeback salaries to sewer district)
LOCAL LAWS -- Improvement Districts (authority of county to chargeback salaries to district)
SEWER DISTRICTS -- Operation and Maintenance (authority of county to chargeback salaries to
district)
COUNTY LAW, §267; MUNICIPAL HOME RULE LAW, §10(1): A county is not authorized to
chargeback to a county sewer district a portion of the salaries of county employees attributable to the
administration and operation of the sewer district.
You ask whether a portion of the salaries of county employees who perform services for the
administration and operation of a county sewer district may be allocated and charged back to the
sewer district.
Article 5-A of the County Law (§250 et seq.) contains provisions governing the establishment,
operation and maintenance of county special districts. These provisions are generally parallel to those
contained in articles 12 and 12-A of Town Law (§190 et seq.) relative to town special districts.
Pursuant to section 202(1) of the Town Law, town boards are expressly authorized to apportion
against and charge to the cost of establishing a district an allowance for services rendered by salaried
town employees when such services are necessary to or occasioned by reason of making the
particular improvement. Further, Town Law, §202-a(7) expressly authorizes towns to apportion and
charge to the expense of maintaining a district an allowance for services rendered by any town officer
or employee when the services are necessary to or occasioned by reason of maintenance of the
district. The County Law, like Town Law, §202(1), expressly authorizes counties to apportion against
and charge to a special district an allowance for services rendered by salaried county officers and
employees which are necessary to or occasioned by the establishment of a district (County Law,
§267). However, it contains no provision analogous to Town Law, §202-a(7) authorizing the
chargeback of an allowance for the cost of services rendered by officers and employees in connection
with operation and maintenance of a district. In view of the specific authorizations for chargebacks in
County Law, §267 and Town Law, §202 and §202- a(7) and the lack of evidence that the failure to
authorize a chargeback of an allowance for salaries of employees in connection with operation and
maintenance of a county district was inadvertent, we conclude that a county is not authorized under
the County Law to chargeback such costs (see 28 Opns St Comp, 1972, p 32; McKinney's Statutes,
§§74, 240; see also In re Village of Monticello, 123 Misc 556, 205 NYS 839 affd 211 App Div 826, 206
NYS 970).
Further, it is our opinion that a county may not, by the enactment of a local law, provide for such
chargeback of the cost of services of county employees. A county is generally authorized to adopt
local laws, not inconsistent with the Constitution or a general law, relating to its property, affairs or
government or those matters specifically enumerated in section 10 of the Municipal Home Rule Law
(Municipal Home Rule Law, §10[1][i],[ii]), including the compensation of its officers (Municipal Home
Rule Law, §10[11][ii][a][1]). Also, article 4 of the Municipal Home Rule Law authorizes charter counties
to adopt charter laws pertaining to the structure of county government and the manner in which it is to
function. Charter laws need not be consistent with general or special laws except as provided in
Municipal Home Rule Law, §34 (Heimbach v Mills, 67 AD2d 731, 412 NYS2d 668). It is well settled,
however, that a local government may not exercise home rule powers in situations where the State
Legislature has demonstrated a desire or design to pre-empt the subject matter of the proposed local
law (Albany Area Builders Association v Town of Guilderland, 74 NY2d 372, 547 NYS2d 627; Jancyn
Manufacturing Corp. v County of Suffolk, 71 NY2d 91, 524 NYS2d 8; Con Ed v Town of Red Hook, 60
NY2d 99, 468 NYS2d 596). The intent to pre-empt need not be express, but may be implied from a
declaration of State policy by the Legislature or from the fact that the Legislature has enacted a

Opinion 94 - 1

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