Opinion 91-45


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


STREETS AND HIGHWAYS -- Improvements (performance pursuant to agreement between the town board and highway superintendent) -- Repairs (performance pursuant to agreement between town board and highway superintendent)
SUPERINTENDENT OF HIGHWAYS -- Powers and Duties (scope of duties); (assignment of additional duties - drainage improvements); (highway repairs and improvements subject to agreement with town board) -- Relations With Town Board (remedies available to town board to enforce agreement for highway repairs and improvements)
TOWN BOARD -- Power and Duties (authority to assign additional duties to highway superintendent); (remedies to enforce agreement with highway superintendent for repair and improvement of town highways)

HIGHWAY LAW, §§140, 284; TOWN LAW, §32(1): The only functions that a highway superintendent may perform are those expressly or by implication authorized or required by law, including those duties lawfully prescribed by the town board. The highway superintendent may only make repairs and improvements to town highways in the manner provided in the superintendent's agreement with the town board. The town board may use its auditing powers to monitor compliance with the agreement.

You ask whether the activities of a town highway superintendent are limited to those directly related to town highways or whether a superintendent, in his discretion, may also perform town drainage improvements and refuse collection services not related to town highways. In addition, you ask what remedies are available if a highway superintendent does not comply with the terms and conditions of the agreement required by Highway Law, §284.

It is a well-established general rule that municipal officers have only those powers "as are expressly granted by statute or by sovereign authority or those which are necessarily implied from those granted [citation omitted]" (Blumberg v Town of North Hempstead, 114 Misc 2d 8 at 12, 450 NYS2d 698 at 701, 702; see also 3 McQuillin, Municipal Corporations, §12.126). Town Law, §32(1) provides that:

[t]he town superintendent of highways shall have such powers and shall perform such duties as are or hereafter may be conferred or imposed upon him by law, and such further duties as the town board may determine not inconsistent with law.

Therefore, the only functions that a highway superintendent may perform are those expressly or by implication authorized or required by law, including those duties lawfully prescribed by the town board pursuant to section 32(1).

The general powers and duties of the town highway superintendent are set forth in Highway Law, §140 et seq. In addition, based on section 32(1), we have previously concluded that a town board may impose additional duties on the superintendent which are reasonably related to his usual and normal duties and which do not interfere with his ordinary duties such as by requiring so much time that other duties imposed by law will be neglected (24 Opns St Comp, 1968, p 146; 21 Opns St Comp, 1965, p 503).

We have stated that pursuant to section 32(1), a town board may require a highway superintendent to collect non-highway related refuse so long as that additional duty does not interfere with the performance of the superintendent's regular statutory responsibilities (1982 Opns St Comp No. 82-238, p 299; 1976 Opns St Comp No. 76-19, unreported; 29 Opns St Comp, 1973, p 42). Similarly, since a highway superintendent may construct storm sewers, drains and the like for highway drainage purposes (see e.g., 12 Opns St Comp, 1956, pps 281, 295; Highway Law, §2[4], 140[5], 149, 218; cf. Highway Law, §147; 1970 Opns St Comp No. 70-449, unreported, pertaining to maintenance of drainage ditches on private property), the performance of similar town drainage work for other than highway purposes appears to be reasonably related to the superintendent's normal responsibilities. Therefore, it is our opinion that a town board may require the superintendent to undertake such additional work if it does not interfere with the performance of the superintendent's other statutory duties (see 1984 Opns St Comp No. 84-60, p 76, in which we concluded that where the town highway superintendent performs work for the benefit of the town unrelated to the highway system, the costs of such work must be charged against the appropriate item in the general fund, rather than the highway fund). In the absence of a town board determination to impose these additional duties on the highway superintendent, however, there is no authority for the superintendent independently to undertake these activities (cf. Town Law, §§64[11-a], 221, authorizing the town board to provide for drainage facilities and refuse collection, respectively).

Your second question asks what remedies are available to the town if the superintendent fails to comply with the agreement required by section 284. Highway Law, §284 provides, in part, that the moneys levied and collected for the repair and improvement of highways shall be expended:

... at such places and in such manner as may be agreed upon by the town board and the town superintendent of highways, and subject to the approval of the county superintendent of highways. Such agreement shall be written and signed in duplicate by a majority of the members of the town board, and by the town superintendent, and shall be approved by the county superintendent of highways, before the same shall take effect. * * * Such moneys shall be paid out by the supervisor on vouchers approved by the town superintendent in accordance with such written agreement.

The agreement required by section 284 may be amended from time to time in the same manner as originally entered into (6 Opns St Comp, 1950, p 420).

It has been held that the town supervisor may not make any payment for highway repairs and improvements in the absence of the section 284 agreement nor may repairs and improvements be made in a manner other than that set forth in the agreement (Myruski v Town Board of Town of Goshen, 87 Misc 2d 1063, 386 NYS2d 984; see Hiscox v Holmes, 237 App Div 240, 260 NYS 667; Carlisle v Burke, 82 Misc 282, 144 NYS 163). Similarly, the highway superintendent may not divert to other highway projects moneys appropriated for expenditures called for by such agreement (see Myruski, supra; Carlisle, supra). It has also been held that a highway superintendent's overspending an appropriation may result in personal liability (see Myruski, supra) and that his knowing failure to comply with the terms of the section 284 agreement may constitute malfeasance in office and grounds for removal (Carlisle, supra; see Public Officers Law, §36). A removal action, however, must be brought by a "citizen resident" and may not be brought by a town board (Public Officers Law, §36; see Matter of Citizens Council, 55 AD2d 911, 390 NYS2d 438; cf. former Highway Law, §160, repealed by L 1981, ch 183, which provided that a town superintendent could be removed by the Department of Transportation upon written charges preferred by the town board or county superintendent for malfeasance or misfeasance in office).

With respect to the courses of action available to a town board, we note that a town board may use its auditing powers to monitor compliance with the agreement. With certain exceptions not here relevant, in a town in which there is no comptroller, no claim against a town may be paid unless audited and allowed by the town board (see Town Law, §§118, 119 as amended by L 1963, ch 705). In auditing a claim that may relate to highway repairs and improvements, the town board, among other things, may take evidence and examine witness, to determine that the expense is consistent with the section 284 agreement (Town Law, §118; see 6 Opns St Comp 1950, p 214). Further, Town Law, §123 authorizes a town board at any time to require any town official to submit to the board or to a public accountant for examination his books, dockets, records, receipts, warrants, vouchers and cancelled checks (see also 1989 Opns St Comp No. 89-34, p 79). We are aware, however, of no administrative remedy available to enforce compliance with the section 284 agreement. Further, while it is possible that a town board may have certain potential judicial remedies (see Civil Practice Law and Rules, §§7801 et seq., 3001; Murer v Butterfield, 122 Misc 2d 969, 472 NYS2d 539), the appropriateness and availability of these remedies can only be determined by the town board after consultation with legal counsel.

October 22, 1991
Jan S. Kublick, Esq., Town Attorney
Town of Cicero