Opinion 88-41


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


FIRE PROTECTION AND PREVENTION -- Towns (authority to conduct fire prevention programs)

TOWN BOARD -- Powers and Duties (authority to contract for the presentation of fire prevention programs)

PERSONAL PROPERTY -- Municipal Equipment (use by private organization under contract)

TOWN LAW, §§64(6), 130(5), 138: Fire prevention programs are a proper town function. The town board may acquire property for use in conducting such programs and contract with a private organization for the presentation of such programs with town property.

This is in response to your letter concerning the expenditure of town funds for fire prevention purposes. Specifically, you inquire whether the town may purchase instructional equipment to be used by a private, non-profit organization in presenting fire prevention programs to town residents. You also inquire as to the proper procedure for making an appropriation for this purpose during a fiscal year.

Initially, we note that this Office has expressed the opinion that a town may establish and expend moneys to support a fire prevention program administered by the town building inspector's office or by an office of fire prevention established by a town pursuant to a local law (1983 Opns St Comp No. 83-167, p 210, copy enclosed; Town Law, §§130[5], 138). Expenses for such a program are charged to the area of the town outside of any villages (id.).

Having concluded that fire protection programs are a proper part-town function if authorized by local law and that a town may acquire property to support such programs, the question becomes whether a town fire protection program may be conducted by a private organization. Section 64(6) of the Town Law provides that a town board may "...award contracts for any of the purposes authorized by law...." It is well settled that, absent express statutory authority, municipal officials may not contract away to third parties their legislative, judicial or discretionary functions (Hartford Insurance Group v Town of North Hempstead, 118 AD2d 542, 499 NYS2d 161; 1986 Opns St Comp No. 86-75, p 119; see also 2 McQuillin, Municipal Corporations, §10.39). However, it is also well settled that, subject to applicable civil service requirements, a municipality may contract with third parties for the performance of those functions which are purely ministerial innature (Local 589 v City of Newburgh, 116 AD2d 396, 501 NYS2d 369; 1986 Opns St Comp No. 86-75, supra; see also 2 McQuillin, Municipal Corporations, §10.41). While the decision to conduct a fire prevention program is certainly a legislative matter which lies within the discretion of the town board, it would appear that the actual conduct of the program is a ministerial function which may be undertaken by a private organization pursuant to a contract with the town.

With respect to the use of town-owned property by the private organization conducting the town program, it is a well-established general proposition that property held for public use may not be used by or on behalf of a private organization in furtherance of purely private purposes (see, e.g., 1985 Opns St Comp No. 85-37, p 51; 1983 Opns St Comp No. 83-103, p 127; 1982 Opns St Comp No. 82-262, p 329; see also Town Law, §64 authorizing towns to acquire personal property as the purposes of the town may require). Further, even if the purpose of a use of property is public in nature, it may not be accomplished in violation of article VIII, §1 of the State Constitution which prohibits municipalities from making gifts or loans of public money or property to or in aid of private individuals, corporations, associations or undertakings. This provision was intended to curb raids on the public purse for the benefit of favored individuals or enterprises furnishing no corresponding benefit or consideration to the municipality (Teachers Association, Central High School District No. 3 v Board of Education, Central High School District No. 3 Nassau, 34 AD2d 351, 312 NYS2d 252 [1970]) and, generally, requires that there be a contractual or statutory obligation by the municipality before funds can be paid to or expended on behalf of, private individuals (Piro v Bowen, 76 AD2d 392, 430 NYS2d 847 [1980]). Article VIII, §1 is applicable even if the private activity is not undertaken for profit and serves a laudable purpose (see, e.g., 1978 Opns St Comp Nos. 78-914 and 78-225, both unreported). Accordingly, there is no violation of article VIII, §1 if town property is used by a private entity in furtherance of a proper town purpose pursuant to a duly authorized contractual arrangement under which the town receives fair and adequate consideration (see, e.g., Antonopoulou v Beame, 32 NY2d 126, 343 NYS2d 346; 1984 Opns St Comp No. 84-31, p 38; Opn Nos. 78-914 and 78-225, supra).

Based on the foregoing, it is our opinion that the contract with the private organization to conduct the town's fire prevention program could provide for use of town-owned equipment by the private organization in connection with the conduct of the program. In this regard, however, we note that the program and town property used in connection therewith must remain under the supervision and control of the town (1978 Opns St Comp No. 78-1017, unreported; 23 Opns St Comp, 1967, p 451). To this end, the contract with the private organization should, at a minimum, describe the program and the manner in which it is to be conducted, and set forth the private organization's responsibility for loss or damage to town property. We also suggest that appropriate State or local civil service agencies be contacted to assure that no civil service requirements would be contravened by engaging an independent contractor to conduct this town program. Also, the town may wish to contact its insurance carrier to determine any impact on coverage during the time that town property is being used by the independent contractor for the fire prevention program.

With regard to the procedure for appropriating moneys for a fire prevention program during a fiscal year, we note that Town Law, §112(1) provides as follows:

"The town board, during a fiscal year, by resolution, may make additional appropriations or increase existing appropriations and shall provide for the financing thereof. Moneys therefor may be provided from the unexpended balance of an appropriation, from the appropriation for contingencies, from unappropriated cash surplus or unanticipated revenues within a fund or by borrowing pursuant to the local finance law. For the purposes of this subdivision, unappropriated cash surplus or unanticipated revenues shall be utilized only to the extent that the total of all revenues of such fund, together with cash surplus, exceeds the total of all revenues and appropriated cash surplus as estimated in the budget."

Any appropriation of part-town moneys made for the purpose of purchasing equipment for the program during the fiscal year must comply with the provisions of section 112 of the Town Law. It should be noted, however, that moneys in the highway fund raised from the part-town area may not be transferred to the general fund (Highway Law, §285-a).

Finally, we note that the materials submitted with your inquiry indicate that the purchase of the instructional equipment will involve an expenditure in excess of $5,000. General Municipal Law, §103 provides that, except as otherwise provided by act of the Legislature or by local law adopted prior to September 1, 1953, all purchase contracts involving an expenditure of more than $5,000 shall be awarded to the lowest responsible bidder after public advertisement for sealed bids in the manner provided by section 103. Unless the purchase of the equipment falls within one of the exceptions to competitive bidding requirements, it will be subject to the provisions of section 103 (see, e.g. 1986 Opns St Comp No. 86-25, p 41).

September 6, 1988
James J. Kelleher, Esq., Town Attorney
Town of West Seneca