Opinion 91-3


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


SUPERINTENDENT OF HIGHWAYS -- Powers and Duties (control of highway equipment)
TOWN BOARD -- Powers and Duties (management, custody and control of town property)

HIGHWAY LAW, §142(2); TOWN LAW, §§32(1), 64(3): The town board may require all town vehicles, including those used by a superintendent of highways, to display a decal identifying the vehicle as town property.

You ask whether a town board may require all town vehicles, including those used by the town superintendent of highways, to display a town decal and identification number. You state that the superintendent of highways has objected to the proposal, claiming that he has complete and exclusive authority over the vehicles used by the highway department.

Both the town board and the highway superintendent have statutory powers and duties with respect to the use of town highway vehicles. Town Law, §§64(1) and (3), respectively, vest in the town board "the general management and control of the finances of the town" and "the management, custody and control of all ... property of the town ..." (emphasis added). Further, Town Law, §32(1) authorizes a town board to assign duties to the highway superintendent, not inconsistent with law, so long as the duties do not interfere with, diminish or impair the superintendent's statutory powers and duties (see, e.g., 1982 Opns St Comp No. 82-294, p 373). Highway Law, §142(2), however, provides that all highway equipment "shall be under the control of the [highway] superintendent ...", and thatsuch equipment "shall be used by the town superintendent in such manner and in such places in such towns [sic] as he shall deem best ...".

In reconciling these provisions, we have stated that, since Highway Law, §142(2) is a more specific statute with respect to highway equipment, the highway superintendent controls how, when and where highway equipment is to be used so long as the equipment is being used for lawful town highway purposes (1983 Opns St Comp No. 83-240, p 317; 1980 Opns St Comp No. 80-806, p 223; cf. 1979 Opns St Comp No. 79-134, p 25, regarding the liability of a highway superintendent for his personal use of highway equipment). The board, however, exercises a degree of general oversight and control over town highway equipment sufficient to ensure the proper use of town moneys and property (see 1989 Opns St Comp No. 89-34, p 79; Myruski v Town of Goshen, 87 Misc 2d 1063, 386 NYS2d 984). Thus, in Opn No. 89-34, supra, we concluded that a town board has implied authority to investigate allegations of misuse of town highway equipment. Further, we have previously concluded that, pursuant to Town Law, §32(1), a town board may assign duties to the highway superintendent to ensure that town highway functions are not performed negligently, arbitrarily or wastefully (see 1979 Opns St Comp No. 79-904, p 213; 1968 Opns St Comp No. 68-835, unreported), such as the duty to maintain detailed records covering the maintenance, repair, fuel consumption and mileage of highway vehicles (see Opn No. 79-904, supra).

Based on the foregoing, therefore, although the highway superintendent exercises "control" over the use of highway equipment in the sense of directing how, when and where it is used, the town board concurrently exercises a degree of "control" sufficient to ensure the proper use of the equipment. Consistent with that responsibility, the board may impose duties on the highway superintendent which do not interfere with, diminish or impair the performance of the superintendent's statutory functions.

We believe the town board's general management and control of town property and town finances necessarily implies the authority to purchase and require the display of items of identification on all town property (see 1987 Opns St Comp No. 87-59, p 90; 23 Opns St Comp, 1967, p 531). We understand that such a requirement is intended to, among other things, help deter improper use of town equipment and property, such as use for private purposes. Further, a requirement that the town highway vehicles display a town decal and identification number would not, in our opinion, impair the performance of the superintendent's statutory functions. Accordingly, in our opinion, a town board may require all town vehicles, including one used by the town highway superintendent, to display a town decal and identification number.

February 11, 1991
Ira J. Cohen, Esq., Town Attorney
Town of Mamakating