Opinion 88-40


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


MUNICIPAL COOPERATION - Municipal Funds (allocation of moneys held for joint service); (audit of claims for joint service) -- Youth Programs (delegation of control and supervision of joint service)

VILLAGES -- Fiscal Year (change in fiscal years)

GENERAL MUNICIPAL LAW, §119-o(2)(a), (c),(h): (1) The respective governing boards of municipalities engaged in a joint service need not be directly responsible for the immediate control and supervision of a joint service, but rather, the municipal cooperation agreement may provide for delegation of that responsibility to other officers. (2) If a municipal cooperation agreement provides that moneys available for a joint service are held in the custody of the fiscal officer of one of the participants, the agreement may also provide that claims for the expenses of a joint service will be audited by the auditing body of the municipal corperation whose fiscal officer is to have custody of the moneys of the joint service. (3) A municipal cooperation agreement may provide how to allocate moneys remaining at the conclusion of each year which are to be returned to each municipality.

VILLAGE LAW, §5-510: A village which has elected to retain a March 1 fiscal year under former Village Law, §117 may change to a June 1 fiscal year by village board resolution. A certified copy of the resolution must be filed with the Office of State Comptroller within ten days of its adoption.

This is in reply to your letter concerning a joint youth summer program conducted by a village and a town pursuant to a municipal cooperation agreement entered into pursuant to General Municipal Law, Article 5-G (§§119-m, et seq.). Under the agreement, a committee has been established and is responsible for annually preparing a budget for the joint program. After reviewing the budget, the town and village governing boards agree to a total funding figure for the project and each municipality contributes one-half of the total cost. You have asked whether the joint youth committee established by the agreement must be composed of members of the town board and village board of trustees. You have also asked whether bills for expenses of the joint youth program must be audited by both governing boards and whether moneys remaining at the conclusion of each year which are returned to the municipalities must be equally divided. Finally, in reference to an unrelated matter, you ask the proper procedure for changing the fiscal year of the village from March 1st to June 1st.

General Municipal Law, §119-o(1) authorizes municipal corporations to enter into agreements for the performance among themselves, or one for the other, of their respective functions, powers and duties on a cooperative or contract basis, or for the provision of a joint service. The term "joint service" as used in section 119-o is defined to mean the joint provision of any municipal facility, service, activity, project or undertaking, or the joint performance or exercise of any function or power which each municipal corporation has the power to provide, perform or exercise separately (General Municipal Law, §119-n[c]). Both towns and villages are authorized to provide summer youth programs (General Municipal Law, §95), and, therefore, may provide such a program on a joint basis.

Subdivision 2 of section 119-o of Article 5-G sets forth a number of provisions which participating municipalities may include in a municipal cooperation agreement. Paragraph c of subdivision 2 provides that an agreement may contain provisions relating to the operation and maintenance of the joint service, including "the officers responsible for the immediate supervision and control of" the joint service. Section 119-o(2) does not require that a joint service be directly administered by the governing bodies of the participating municipalities. Therefore, the joint youth committee established by the municipal cooperation agreement for the joint youth summer program need not be composed of members of the town board and village board of trustees but, rather, may be composed of other town or village officers. In this regard, we note that the agreement may provide for the manner of compensating these officers and for making contributions for retirement, social security, health insurance, workers' compensation and other similar benefits (General Municipal Law, §119-o[2][b]). The parties may also agree that the officers of the joint service shall be deemed to be those of a particular participating municipality for specific purposes (id.). As a practical matter, we believe that the employees should be deemed employees of one of the participants for certain purposes, such as retirement, social security and health insurance, to avoid problems associated with joint employment (1988 Opns St Comp No. 88-12, p 20).

With respect to the audit of claims for expenses, section 119-(2)(h) provides that a municipal cooperation agreement may contain provisions relating to:

"h. Custody by the fiscal officer of one participant of any or all moneys made available for expenditure for the joint service...and authorization to such fiscal officer to make payments on audit of the auditing official or body of the participating corporation or district of which he is the fiscal officer."

From the quoted provisions of section 119-(2)(h), it is clear that, if a municipal cooperation agreement provides for the fiscal officer of one of the participants to have custody of moneys available for a joint service, the agreement may also provide that claims for the expenses of a joint service will be audited by the auditing body or official of the municipal corporation whose fiscal officer has custody of those moneys. In the circumstances here, the municipal cooperation agreement provides that the clerk-treasurer of the village shall have custody of the funds of the joint service. Accordingly, the parties may provide in the contract that the audit of claims will be performed by the village board of trustees.

In addition, section 119-o(2)(a) provides that a municipal cooperation agreement may contain provisions for the equitable allocation of revenues and costs. It is our opinion that, pursuant to that authority, participant municipal corporations may include provisions in a municipal cooperation agreement as to how to divide moneys appropriated for the joint service and remaining at the conclusion of the year. Since the agreement provides that each municipality is to contribute one-half of the costs of the joint program, it would seem to be equitable for the moneys remaining at the close of each year also to be distributed on that basis. However, the initial determination of how to allocate equally the remaining moneys is a matter within the discretion of the parties to the agreement, taking into account their respective rights and obligations under the agreement.

As to the procedure for changing the village's fiscal year, subdivision (2) of section 5-510 of the Village Law states:

"2. The board of trustees of a village which has elected, pursuant to section one hundred seventeen of the Village Law as enacted by section fourteen of chapter eight hundred nine of the laws of nineteen hundred fifty-four, to retain its fiscal year or which has adopted or hereafter adopts, pursuant to this section, a fiscal year commencing on the first day of August, may, at any time determine, by resolution, to change to a fiscal year commencing on the first day of June."

We assume that the village has a fiscal year commencing on March 1st by virtue of the adoption of a resolution to retain that fiscal year as was authorized by section 117 of the former Village Law. Accordingly, the village is authorized by section 5-510(2) to change to a fiscal year commencing on June 1st by the adoption of a resolution therefor by the board of trustees. Subdivision (4) of section 5-510 requires that, within ten days of the adoption of such a resolution, a certified copy of the resolution must be filed with this Office.

September 9, 1988
Kimberly LaMarche, Clerk-Treasurer
Village of Hammondsport