Opinion 92-55


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 OFFICERS AND EMPLOYEES -- Powers and Duties (performing work for private water system)
VILLAGES -- Powers and Duties (services for private water systems)

VILLAGE LAW, §§1-102(2), 11-1120, 11-1122: A village may not contract to provide, at the expense of the private owners, a village employee to perform testing of water within a private water system for purposes of maintaining the private system and to oversee repairs of the system. A village may accept dedication of private water lines of an outside consumer if it is determined that the lines are needed to further a proper village purpose.

This is in reply to your letter concerning a privately-owned water system located within a portion of a town outside of any water district. You state that the village supplies this private system with water pursuant to Village Law, §11-1120. You ask whether the village may enter into a contract to provide, at the expense of the private owners, a village employee to perform testing of the water within the private water system for the purpose of maintaining the private system, and to oversee repairs of the system. You also ask whether the village may accept dedication of the private water system and thereafter charge the users of the formerly private system a water rate which is higher than the rate charged users within the village to cover the cost of operating and maintaining the lines acquired from the private owners.

Village Law, §11-1120 provides, in part, that a village board of water commissioners may sell to a corporation, individual or water district outside the village the right to make connections with the mains of such village for the purpose of drawing water therefrom. We have previously expressed the opinion that section 11-1120 does not authorize a village to repair and maintain the private water lines of an outside consumer of the village water system (see 1980 Opns St Comp No. 80-553, unreported). Further, we have stated that, generally, since municipal employees are hired to perform duties in furtherance of proper municipal purposes, the municipality may not contract out their services for private purposes (1983 Opns St Comp No. 83-79, p 93; 27 Opns St Comp, 1971, p 110; cf. General Municipal Law, §119-o, authorizing cooperation agreements among municipal corporations). Therefore, it is our opinion that the village may not provide a village employee to perform the proposed services for the private system, even if the private owners pay for the services.

In our opinion, however, a village may accept dedication of private water lines of an outside consumer of the village water system which are located outside the village if the village determines that the lines are needed to further a proper village purpose (see Village Law, §§1-102[2], 11-1120, 11-1122; 34 Opns St Comp, 1978, p 181). After acquiring the water lines, the village would be responsible for their operation and maintenance, although the village may consider such costs when setting water rates for the outside consumers (see 34 Opns St Comp, 1978, p 181, supra; 1970 Opns St Comp No. 70-1013, unreported). To assure proper access for purposes of operating, maintaining, repairing and improving the lines, the dedication should also include grants of appropriate easements to the village. It also may be possible for the village, as part of its contract pursuant to section 11-1120, to lease the private water lines so that it can assume the responsibilities described in your inquiry.

March 6, 1992
Joseph Hamilton, Mayor
Village of Union Springs