Opinion 88-63


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

POLICEMEN AND POLICE PROTECTION -- Auxiliary Police (use of moneys received as gift for unit established for village)

MCKINNEY'S UNCONSOLIDATED LAWS, §9134; COUNTY LAW, §§215(3), 550(2): Moneys received as gift to defray the costs of operating an auxiliary police unit established to serve a village are held by the county treasurer.

You ask about the custody and disbursement of certain moneys necessary for the operation of the civil defense auxiliary police within the county. You indicate that moneys received as donations for the auxiliary police unit of a village within the county have been held by the county and used to pay the expenses of the unit. You ask whether the county's practice is proper or whether the moneys should be held and administered by the village for which the auxiliary police unit was established.

The New York State Defense Emergency Act (L 1951, ch 784, as amended, McKinney's Unconsolidated Laws, §§9101, et seq.) requires that the chief executive office of every city and county, except those counties contained in New York City, create an office of civil defense (McKinney's Unconsolidated Laws, §9122[2]). Further, counties and cities are required, among other things, to recruit, equip and train auxiliary police in sufficient number to perform such police and emergency civil defense functions as may be required during and subsequent to an attack by an enemy or foreign nation (McKinney's Unconsolidated Laws, §9123[22]). Civil defense forces may also be utilized to perform certain duties for the purpose of protecting life or property in case of a disaster (Executive Law, §29-b). Although towns and villages are not authorized to establish auxiliary police units, it appears that counties, under their authority to recruit, equip and train auxiliary police, may establish auxiliary police units on behalf of towns or villages (see 1987 Atty Gen [Inf Opns] No. 87-8).

Under the Defense Emergency Act, all civil defense expenditures of a county are, with certain exceptions not here applicable, general county charges (McKinney's Unconsolidated, §9134[1]). As noted, the responsibility to organize, equip and train auxiliary police rests with the county. Therefore, all expenses associated with these activities are general county charges (McKinney's Unconsolidated Laws §9134[1]; 1980 Opns St Comp No. 80-432, p 124).

County governing boards are authorized to accept gifts of real and personal property for lawful county purposes (County Law, §215[3]) and, therefore, may accept gifts made to defray the costs of the auxiliary police unit created on behalf of a village (see 17 Opns St Comp, 1961, p 366). The moneys, when accepted by the county governing board, are county moneys which would be held in the custody of the county treasurer (see County Law, §550[2]).

December 29, 1988
Robert Kingsley Hull, Treasurer
County of Yates