Opinion 88-64


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

PUBLIC HOUSING AUTHORITIES -- Officers and Employees (employee health and dental benefits)

PUBLIC OFFICERS AND EMPLOYEES -- Compensation (health and dental benefits for housing authority employees)

MUNICIPAL COOPERATION -- Insurance (joint agreement between municipality and public housing authority to provide employee health and dental benefits)

INSURANCE -- Health Insurance (authority to provide for housing authority employees)

PUBLIC HOUSING LAW, §§32(1), 37(1)(aa), 99; GENERAL MUNICIPAL LAW, §119-o: A municipal housing authority may provide its employees with health and dental benefits, but may not do so jointly with the municipality for which the authority was established.

You ask whether either General Municipal Law, Article 5-G (§119-m et seq.) or Public Housing Law, §99 authorizes a municipal housing authority to provide health and dental benefits to its employees by participating in a self-insured plan operated jointly by the city for which the authority was established and the county in which the city is located. The question arises because of the potential savings to the housing authority by virtue of such an arrangement.

Municipal housing authorities are public corporations established by the State Legislature and have such powers and duties as may be conferred, expressly or by necessary implication, by the State Legislature (see Public Housing Law, §§2, 3; Bass v City of New York, 38 AD2d 407, 330 NYS2d 569, affd 32 NY2d 894, 346 NYS2d 814; Borek v Golder, 190 Misc 366, 74 NYS2d 675; also see, e.g., Public Housing Law, §413). Inasmuch as no provision of the Public Housing Law specifically authorizes a municipal housing authority to provide its employees with health and dental benefits, we consider first the authority for a municipal housing authority to provide these benefits to its employees.

A municipal housing authority is a "public authority" and a "public benefit corporation" (see General Construction Law, §§65[a], 66[4]; Valente v New York City Housing Authority, 201 Misc 24, 109 NYS2d 883; Bass, supra; Ciulla v State, 191 Misc 528, 77 NYS2d 545). As such, a municipal housing authority is authorized to provide its employees with health benefits by participating in the State health insurance plan (see Civil Service Law, §163[4]; cf. General Municipal Law, §92-a, authorizing "public corporations," which as defined in that section does not include public benefit corporations, to contract to provide health insurance for their officers and employees). Moreover, as a public authority and a public benefit corporation, a municipal housing authority is a "public employer" for collective bargaining purposes (Civil Service Law, §201[6][a][v]) and may provide its employees with health and dental insurance pursuant to a collective bargaining agreement (see Teachers Association, Central H.S. District No. 3 v Board of Education, Central H.S. District No. 3, 34 AD2d 351, 312 NYS2d 252).

In addition to providing its employees with health insurance as a participant in the State health insurance plan or pursuant to a collective bargaining agreement, we note that Public Housing Law, §32(1) provides that a municipal housing authority may:

"... employ, subject to the provisions of the civil service law applicable to the municipality in which it is established, a general manager, a secretary, technical experts and such other officers, agents and employees as it may require, and determine their qualifications, duties and, subject to the approval of the local legislative body, fix their compensation * * *"

The term "compensation" is not defined in the Public Housing Law. However, it is a general rule of statutory construction that, in the absence of a showing of legislative intent to the contrary, words of a statute will be given their ordinary and commonly understood meaning (see, e.g., Regan v Heimback, 91 AD2d 71, 458 NYS2d 286, app den 58 NY2d 610, 462 NYS2d 1027, rearg den 59 NY2d 969, 466 NYS2d 1029; Bright Homes, Inc. v Wright, 8 NY2d 157, 203 NYS2d 67; see gen. McKinney's Statutes, §94). In this regard, we note that this Office has stated that, for municipal law purposes, the term "compensation" generally connotes the total consideration paid to a municipal officer or employee for services performed, and includes both salary and fringe benefits (1987 Opns St Comp, No. 87-33, p 52; 1987 Opns St Comp, No. 87-8, p 14; 1985 Opns St Comp, No. 85-13, p 15; 1984 Opns St Comp, No. 84-4, p 4; 1979 Opns St Comp, No. 79-266-A, p 48).

There is nothing in Public Housing Law, §32(1) which suggests an intent to limit the term "compensation" to salary or wages. In fact, just the opposite seems to be true since Public Housing Law, §32(4) specifically refers to claims against a housing authority by an officer, agent or employee for "wages, salary or other compensation" (emphasis supplied). Accordingly, we believe that Public Housing Law, §32(1) is sufficiently broad to authorize certain fringe benefits which are common in the public sector, such as health insurance.

We also believe that a municipal housing authority may self-insure to provide its employees with these benefits. In our opinion, the power to insure implies the power to self-insure (1982 Opns St Comp, No. 82-197, p 250).

Because health and dental benefits constitute part of employees' "compensation" package, the provision of these benefits is subject to the approval of the governing body of the municipality as provided in Public Housing Law, §32(1) (see Kelly v Cohoes Housing Authority 27 AD2d 463, 280 NYS2d 139, affd 23 NY2d 692, 296 NYS2d 139, 243, N.E.2d 746). Therefore, subject to the approval of the governing body of the municipality, a municipal housing authority may provide its employees with health benefits as a participant in the State health insurance plan, pursuant to a collective bargaining agreement or pursuant to Public Housing Law, §32(1).

As to whether a municipal housing authority may join with a city, a county, or both, to purchase insurance or self-insure in order to provide health and dental benefits to their respective employees, we note that General Municipal Law, Article 5-G (§119-m, et seq.) authorizes "municipal corporations" and "districts" to engage in certain forms of municipal cooperation, including, in our opinion, the provision of employee health care on a joint or cooperative basis (see General Municipal Law, §119-o; Opn No. 82-197, supra). For this purpose, a city and a county (outside of the City of New York) are "municipal corporations" (General Municipal Law, §119-n[a]). However, a municipal housing authorityis neither a "municipal corporation", nor a "district" for purposes of article 5-G (id.; GML, §119-n[b]). Therefore, article 5-G does not generally authorize a city, a county, or both, to enter into a cooperative agreement with a municipal housing authority.

We note in this regard that section 119-o(2)(m) of article 5-G of the General Municipal Law specifically provides that "[a] municipality may contract with another municipality or with a municipal housing authority of another municipality, for the construction, maintenance, operation or management of a public housing project". Similarly, Public Housing Law, §37(1)(aa) authorizes a municipal housing authority to "at no cost or expense to it, enter into agreements of cooperation with a municipality which need not be within the territorial jurisdiction of such authority... or with an authority of such municipality, to assist such municipality or authority in the construction, maintenance, operation or management of a project".

Both General Municipal Law, §119-o(2)(m) and Public Housing Law, §37(1)(aa) were enacted by chapter 235 of the Laws of 1974. The purpose of this legislation was to:

"... make more economic the complicated processes of design, construction and management of low income housing by permitting a pooling of resources and expertise. This legislation would also aid those authorities which lack the experience or breadth of operation to develop and apply cost-savings techniques. It would encourage smaller communities to purchase services from existing housing authorities in nearby municipalities to assist in the design, construction, maintenance, operation and management of projects, thereby effecting cost savings and avoiding unnecessary duplication." (Memorandum in support of Assembly Bill No. A9875, enacted as L 1974, ch 236)

Thus, the language and legislative history of General Municipal Law, §119-o(2)(m) and Public Housing Law, §37(1)(aa) suggest that these provisions were intended to permit cooperation across municipal boundaries in relation to the operation and management of housing projects, in order to reduce costs and avoid unnecessary duplication. Neither provision, however, appears to authorize a cooperative agreement between a municipality and its own housing authority. Therefore, we need not address whether these provisions authorize a cooperation agreement for the provision of health care benefits.

Although we conclude that a municipality may not enter into a cooperation agreement with its own housing authority, under article 5-G of the General Municipal Law or Public Housing Law, §37(1)(aa) , we note that Public Housing Law, Article 5 authorizes a municipality to provide various types of aid to its housing authority. In particular, Public Housing Law, §99 authorizes municipalities to provide "services" to municipal housing authorities by providing, in relevant part, that:

"In connection with projects located within its respective territorial boundaries, a municipality may, upon such terms, with or without consideration, as the local legislative body of such municipality may deem advisable, render or contract to render services to an authority, housing company or a government, or provide and maintain parks, sewerage, or other facilities adjacent to or in connection with a project. ..."

A "project" is defined as a specific work or improvement, including land, improvements and buildings, to provide low income housing and such other commercial, social, recreational or communal facilities deemed to be incidental to the project (see Public Housing Law, §3[14]).

In Borek v Golder, supra, the court held that Public Housing Law, §99 authorizes a city to provide to the city housing authority, in connection with a project, "city services such as fire, police, and health protection, educational and recreational facilities, light, water, sewage, et cetera" (74 NYS2d at 701). Similarly, in Newfeld v O'Dwyer, 192 Misc 538, 79 NYS2d 53, the court held that section 99 authorizes a city to donate "sewage, drainage, sanitation and other facilities and services as well as the beds of streets to be closed as part of a project" (79 NYS2d at 60). These cases suggest that the services which a municipality may provide to a municipal housing authority pursuant to section 99 are municipal services in connection with one or more specific projects. We are not aware of any authority construing section 99 more broadly. Therefore, we do not believe that Public Housing Law, §99 may be relied upon as authority for a municipality and a municipal housing authority to join together to provide health and dental benefits to their respective employees.

Accordingly, in our opinion, a municipal housing authority may provide its employees with health and dental benefits. However, based on the foregoing, we are constrained to conclude that a housing authority may not provide health and dental benefits jointly with the municipality for which the authority was established.

January 4, 1989
John J. Ryan, Esq., City Attorney
City of Elmira