Opinion 92-26


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


ELECTIONS -- Board of Elections (liability for expenses of)

COUNTY LAW, §361-a; ELECTION LAW, §§4-136(1), (2), (3), 4-138: All expenses of a board of elections of a county outside the City of New York must be raised in the first instance as a county charge, and only those expenses that are specifically chargeable to individual jurisdictions within the county may be subsequently charged back to those jurisdictions. In general, the amounts charged back need not appear in a city, town or village budget, but must be added to the next succeeding city, town or village property tax levy. 1987 Opns St Comp No. 87-45, p 68 and 1981 Opns St Comp No. 81-207, p 221 superseded to the extent inconsistent.

You ask for clarification of the procedures by which the expenses of a board of elections of a county outside the City of New York are charged back to the cities, towns and other political subdivisions within the county.

In 1987 Opns St Comp No. 87-45, p 68, we concluded that subdivision three of section 4-136 of the Election Law requires "all" expenses incurred by a board of elections of a county outside the City of New York, other than those expenses specifically enumerated in subdivisions one and two of section 4-136, to be apportioned among, and charged back to, the cities and towns in the county on the basis of the taxable real property therein (see also 1981 Opns St Comp No. 81-207, p 221). Subdivision one of section 4-136 provides that certain expenses relating to providing polling places and the compensation of election officers in each election district are city, town or village charges, and subdivision two provides that the costs of any election not held at the same time as a general or primary election, other than a special election called by the governor, and the costs of village elections, are a charge upon the city, town, village or other political subdivision or district to which they pertain. Opn No. 87-45, supra, further concluded that the apportionment required by subdivision three of section 4-136 must be accomplished in accordance with the procedures set forth in sections 4-138 of the Election Law and 361-a of the County Law.

For the reasons set forth below, we now conclude that Election Law, §§4-136(3) and 4-138, and County Law, §361-a require "all" expenses of a board of election to be raised in the first instance as a county charge and authorize the subsequent charge back of only those expenses incurred by a board of elections that are specifically chargeable to individual cities and towns pursuant to a provision of law, including Election Law, §4-136(1) and (2). As a practical matter, our change in view will have few consequences for taxpayers since the general expenses of the board of elections will continue to be borne by taxpayers on essentially the same basis; that is, the expenses will be apportioned among the towns and cities in the county on the basis of the full value of taxable real property. Thus, from a taxpayer's perspective, the only consequence is whether he or she is required to the pay the amount as part of his or her county, town or city taxes.

On the other hand, the views expressed in Opn No. 87-45, supra, caused the peculiar result that moneys to pay the expenses of the board of election would be raised by the county in one year and thereafter relevied on essentially the same basis against the very same taxpayers in the subsequent year so that town and cities can reimburse the county for those expenses. Upon further reflection, we do not believe that Election Law, §§4-136(3) and 4-138, and County Law, §361-a should be construed in this manner unless clearly required by the language or legislative history of these provisions.

Election Law, §4-136(3) provides, in part, that "[a]ll expenses incurred under this chapter by the board of elections of a county outside of the city of New York shall be a charge against the county . . . " (cf. Election Law, §§3-500 through 3-506, containing special provisions for Monroe, Nassau, Suffolk and certain other counties). By defining all expenses of a board of elections incurred under the Election Law as a county charge, section 4-136(3) implies that these expenses are to be raised in the same manner as other county charges. County charges are generally raised in the first instance by inclusion in the county's annual budget (see County Law, §§350-360) and, to the extent that other estimated revenues are insufficient, the imposition of the county property tax which is apportioned among the cities and towns on the basis of the full valuation of the real property therein (see County Law, §360[3]; Real Property Tax Law, §900[1]; see also Real Property Tax Law, §§804[1], 844[1]).

In addition to providing that "all" expenses of a board of elections are a county charge, section 4-136(3) also provides that "[t]he expenses incurred by the board of elections of a county outside the city of New York shall be apportioned among the cities and towns therein". Thus, although section 4-136(3) requires the apportionment of "the" expenses incurred by a board of elections, it does not expressly require the apportionment of "all" expenses incurred by the board. Further, it does not establish a method of apportioning the expenses to which it refers.

Election Law, §4-138 and County Law, §361-a, both titled "Expenses of boards of elections outside New York City; apportionment of", provide, in part, that:

[t]he board of elections in each county, outside the city of New York, on or before the fifteenth day of December and not earlier than the first day of October, in each fiscal year, shall certify to the clerk of the legislative body of the county, the total amount of the expenses of such board of elections, including salaries for the preceding year, and if the legislative body of any county shall so direct, shall certify to such clerk the portions of such expenses which under provisions of law are to be borne by any city or cities in said county and the portion thereof which is to be borne by the rest of such county.

Section 361-a then goes on to provide, in part, that:

[s]uch clerk shall thereupon notify the proper local official or officials, who, in spreading upon the assessment-rolls the taxes to be levied upon the taxable property in the city or any such cities, and in the rest of the county, shall include in the amount so spread the amounts certified by the board of elections to be borne by such city or cities, respectively, and in the amount spread upon the assessment-rolls of the taxable property in the several towns or other political subdivisions of the rest of the county the amount so certified by said board of elections to be borne by such towns or political subdivisions respectively.

Thus, these provisions of sections 4-138 and 361-a establish a permissive procedure for expenses incurred by a county board of elections to be charged back to jurisdictions within the county. These provisions, however, do not specify which expenses are chargeable to jurisdictions within the county. Further, despite the use of the word "apportionment" in the titles of sections 4-138 and 361-a, they do not establish a method for such expenses to be apportioned among jurisdictions within the county (cf., e.g., Education Law, §6304[1][c]; Real Property Tax Law, §§804[1], 844[1], 900[1], 1314[1], 1402[3][d]; Town Law, §181[1]). Therefore, read literally, sections 4-136(3), 4-138 and 361-a do not authorize or require "all" of the expenses of a board of elections to be charged back to the cities and towns. Moreover, these provisions do not require the expenses to which they refer to be apportioned on the basis of the taxable real property therein.

The legislative history indicates that section 4-136 was added as part of the 1976 recodification of the Election Law (L 1976, ch 233), and was derived from former section 93 of the 1949 Election Law (L 1949, ch 100), former section 93 of the 1922 Election Law (L 1922, ch 588) and former section 318 of the 1909 Election Law (L 1909 ch 22). Former section 318 of the 1909 Election Law, titled "Apportionment of Election Expenses", was enacted prior to the time that counties outside the City of New York were generally required to establish boards of elections (see L 1911, ch 649, 740). Section 318 generally provided that certain expenses in relation to providing polling places and the compensation of election officers in each election district were city, town or village charges. It also provided that the expense of printing and delivering official ballots and certain other items were: (1) a charge upon individual cities, towns or villages in the case of a local election not held at the same time as a general election; (2) a charge upon the county in the case of any other election if a local election was not held at the same time; and (3) to be apportioned among the county, and the cities, towns and villages therein in the case of any other election held at the same time as a local election, "...in the proportion of the number of candidates for town, city or village officers on such ballots, respectively, to the whole number of candidates thereon ...". Section 318 also provided that whenever voting machines were used in any election by a city, town or village, only the expenses caused by the use of the machines and such other expenses as were necessary for the proper conduct of the election could be charged to the city, town or village.

The basic scheme of section 318 was preserved in former section 93 of the 1922 Election Law. Section 93(1) and (2) generally provided that certain expenses in relation to providing a polling place for any election, the compensation of election officers in each election district, and expenses relating to a local election held at a different time from the general election, were city, town or village charges. Section 93(3), taking account of the establishment of boards of election by counties outside the City of New York (L 1911 ch 649, 740), provided that:

[a]ll expenses incurred under this chapter by the board of elections of a county outside of the city of New York shall be a charge against the county, except that if a town meeting, city or village election be held at the same time as a general election, the expense of printing and delivering the official ballots, sample ballots and tally sheet and return blanks shall be apportioned by the board of elections between such town, city or village and the county, in the proportion of the number of candidates for town, city or village offices on such ballots, respectively, to the whole number of candidates thereon, and the amount of such expenses so apportioned to each such municipality shall be a charge thereon. Whenever voting machines are used in any election by any town, city or village, only such expenses as are caused by the use of such machines and such as are necessary for the proper conduct of the election shall be charged to such town, city or village. (Emphasis supplied).

Subsequently, these provisions of section 93 of the 1922 Election Law were reenacted verbatim as section 93 of the 1949 Election Law and remained unchanged until repealed in connection with the 1976 recodification of the Election Law. Thus, immediately prior to the enactment of section 4-136, there was a long-standing division of fiscal responsibilities in the Election Law under which "all" expenses incurred by a board of elections were a county charge, but only certain expenses could be apportioned among, and charged to, the towns, cities and villages within the county (see also former section 361 of the 1949 Election Law, added L 1954, ch 531 and amended L 1963, ch 836, providing for the apportionment and charge back of the cost of certain items furnished by the board of elections in connection with local registration proceedings).

With certain changes, the provisions of former section 93 were carried forward into section 4-136. In this regard, we note that the provisions of former section 93(3) defining "all" expenses of a board of elections to be a county charge were included in section 4-136(3) without change. The provisions of former section 93(3) relating to the apportionment of certain printing and delivery costs and the charge back of certain expenses caused by the use of voting machines, however, were omitted and replaced by the present language of section 4-136(3) requiring the expenses of a board of elections to be apportioned among the cities and towns therein. The memorandum in support of the 1976 recodification describes the purpose of this change as follows:

Section [4-136] omits provision that towns, cities and villages shall be charged by the board of elections for part of costs for preparing ballots, tally sheets etc. for town, city or village elections held at the time of the general election in the proportion that the number of town, city or village candidates on the ballot at such election bear to the total number of candidates on the ballot. There are no more separate town or city elections and village elections are never conducted by the board of elections. (Old §93)

Thus, the change was intended to eliminate what was perceived as obsolete authority to apportion and charge back certain types of expenses. There is no evidence of any intent to alter substantially the prior division of fiscal responsibilities under the Election Law by providing additional authority to counties to apportion and charge back "all" the expenses of the board of elections. Therefore, the legislative history of section 4-136 suggests that the apportionment requirement of section 4-136(3) relates to raising the expenses of a board of elections in the first instance through the county property tax and does not require "all" expenses incurred by a board of elections to be subsequently apportioned and charged back to the cities and towns within the county.

The above quoted provisions of sections 4-138 and 361-a were also added as part of the 1976 recodification of the Election Law (L 1976, ch 233, 234) and were derived, virtually without change, from former section 94 of the 1949 Election Law (L 1949, ch 100, §94; see also former section 361, added L 1954, ch 531 and amended L 1963, ch 836), former section 94 of the 1922 Election Law (L 1922, ch 588, §94) and former section 200 of the 1909 Election Law (added L 1911, ch 649). Although it is not entirely clear, it appears that by requiring the board of elections to certify the total amount of its expenses for the preceding year, section 200 enabled the expenses of the board to be raised in a similar manner as other county charges were raised prior to the requirement that counties prepare annual budgets before the start of the fiscal year (see former County Law, §242, added L 1909 ch 16, §242; cf. County Law, §§350-360, added L 1950 ch 691). The additional authority in section 200 to require the board to certify the portions of its expenses which "under provisions of law" are to be borne by jurisdictions within the county and the remaining provisions of the section appear to have established a procedure for a county to charge back those expenses of the board that were city, town or village charges pursuant to former section 318 and other provisions of law. Thus, the legislative history of sections 4-138 and 361-a suggests that instead of providing a procedure for charging back "all" the expenses of a county board of elections, these provisions provide a procedure for charging back only those expenses of the board that are a specific charge upon a jurisdiction within the county pursuant to some provision of law.

Accordingly, reading the literal language of sections 4-136(3), 4-138 and 361-a in conjunction with their legislative history, we now believe that these statutes do not require the charge back of "all" expenses incurred by a board of elections. Instead, it is our opinion that these provisions authorizes the charge back of only those expenses that are specifically chargeable to individual cities or towns pursuant to a provision of law, such as Election Law, §4-136(1) and (2). We hereby supersede Opn No. 87-45, supra, and Opn No. 81-207, supra, to the extent inconsistent with the views set forth herein. 

As noted above, Election Law, §4-136(1) and (2) generally provide that certain expenses in relation to providing polling places and special elections held at times other than a primary or general election are city, town or village charges. To the extent that a county board of elections incurs the expenses enumerated in these provisions on behalf of a city, town or village, and the county legislature so directs, the expenses may be charged back in accordance with the procedure set forth in sections 4-138 and 361-a. Although the language of sections 4-138 and 361-a is ambiguous, we believe that the charge back must be added to the city, town or village property tax levy because County Law, §233-a(3)(e) excludes the charge back from the computation of the county's tax limit and, in so doing, provides that "[a] tax so levied shall be treated as a purpose of and a charge against such city, town or village, as the case may be" (cf. County Law, §233-a [3][s], pertaining to amounts specified in annual town budgets). Thus, following notification by the county, the amount of the charge back should be added to the amount of the next succeeding city, town or village property tax levy. There is no requirement that the charge back appear in a city, town or village budget.

Sections 4-138 and 361-a also establish alternative procedures for a county to charge back any additional expenses either for salaries or supplies in addition to the regular county-wide primary and election expenses incurred by a board of elections incidental to any election in any city, town or village. In the case of these expenses, the county may either levy the amount on the city, town or village, or certify the amount for inclusion in the jurisdiction's next budget and tax levy and subsequent payment to the county.

September 23, 1992
Donald E. Freed, Director of Finance/Comptroller
City of Binghamton

Arthur J. Shafer, Chairman
Broome County Legislature