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![handle is hein.nyscompop/nyscomo2011 and id is 1 raw text is: Opinion 2011 - 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 The opinion may no
longer represent those views if, among other things, there have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.
INDUSTRIAL DEVELOPMENT AGENCIES -- Officers and Employees (serving
as staff of not-for-profit corporations) -- Powers and Duties (hiring
employees to serve as staff of not-for-profit corporations)
GENERAL MUNICIPAL LAW § 858 (7), (9), (17): An industrial development
agency lacks authority to hire employees and assign them to serve as
the staff of not-for-profit corporations.
This is in reply to your request for our opinion as to whether an industrial
development agency (IDA) may hire individuals as IDA employees and
assign them to serve as the staff of several not-for-profit local
development corporations and similar entities (individually, a
development corporation or corporation). The issue arises in
connection with questions concerning the individuals' status, by virtue of
such employment, as being eligible for membership in the New York State
and Local Employees' Retirement System. For the reasons set forth
below, we conclude that an IDA may not assign its employees to serve
as the staff of a development corporation.
Facts
Each of the development corporations was incorporated under the Not-
For-Profit Corporation Law. In general, the corporations were established
for purposes that include relieving and reducing unemployment, promoting
and providing for additional and maximum employment, bettering and
maintaining job opportunities, and encouraging the development or
retention of industry. The corporations' certificates of incorporation and
by-laws do not appear to vest control in the IDA.
The IDA has entered into variously titled services agreements with each
of the development corporations. Pursuant to these agreements, the IDA
assigns a total of seven fulltime employees and two part-time
employee[s] to perform certain functions for the corporations. Four of
these individuals appear to be responsible for the day-to-day activities or
operations of the corporations for which they serve; another two are
responsible for maintaining financial records and performing other
administrative duties; and the remaining three individuals are responsible
for providing maintenance services in connection with a specific
commercial development or property.
Each of the services agreements provides expressly that the individuals
assigned to the development corporations shall be and shall at all times
remain employees of the [IDA], subject to its direction and control, but
in exercising such direction and control, the IDA shall give due
consideration to the recommendations of and seek assistance from the
corporations' boards of directors. Similarly, each of the agreements
provides for the IDA to be responsible for recruiting, hiring, assigning,](ViewImageLocal?handle=hein.nyscompop/nyscomo2011&div=1&collection=&method=preview&ext=.png&size=3)