Opinion 93-13
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 The opinion may no
longer represent those views if, among other things, there have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. |
COUNTIES -- Powers and Duties (authority to charge-back to
municipalities within county the cost of sheriff's road
patrols); (providing sheriff's road patrols on a part-county
basis)
LOCAL LAWS -- Taxes and Assessments (authority of county to
charge-back to municipalities within county the cost of
sheriff's road patrol) - Pre-emption (formation of special
district for the provision of sheriff's road patrol services)
COUNTY LAW, §650(1); STATE CONSTITUTION, ART IX, §§1, 2(d);
MUNICIPAL HOME RULE LAW, §§10(5), 34(3)(b): There is no
statutory authority for a county to charge-back the cost of
sheriff's road patrol to particular municipalities within that
county, or for a county to provide such road patrols on a part-county basis. Further, a county may not authorize, by local
law, the imposition of such a charge-back, nor may it by local
law create a special district within the county for the purpose
of charging road patrol services only to that area.
You ask whether a county containing several towns and one
city may charge-back to the individual towns within the county
the cost of the sheriff's department road patrol. You have
indicated that the reason for the proposed charge-back system
is that the sheriff patrols only in the area of the county
outside of the city.
County Law, §650(1) states that "[t]he sheriff shall
perform the duties prescribed by law as an officer of the court
and conservator of the peace within the county. He shall
perform such additional and related duties as may be prescribed
by law and directed by the board of supervisors or the county
legislature." The Attorney General has stated that the
"sheriff is required by law to provide services based on the
need for police protection throughout the county, taking into
consideration the availability of resources" (1988 Atty Gen Opn
No. I88-38; see also 1981 Opns St Comp No. 81-301, p 326).
This Office has stated that the cost of operating and
maintaining the sheriff's department is a county-wide charge
(1978 Opns St Comp No. 78-603, unreported). Further, there is
no statutory authority for a county to charge-back the cost of
sheriff road patrol services to particular municipalities
within the county, even if the concentration of services is greater in those municipalities (cf., e.g., Education Law,
§6304[1][c], authorizing counties to charge back to cities and
towns a proportionate share for expenditures for community
colleges; 1992 Opns St Comp No. 92-26, p 64, discussing the
charging-back of certain election expenses; 1981 Atty Gen [Inf
Opns] 193, concerning the authority of a county to provide
local patrol services only in municipalities within the county
which contract for such services).
As to whether a county, by local law, may authorize the
charge-back, we note that it is well-settled that the power to
assess and collect taxes is vested exclusively in the State
Legislature and that a municipal corporation may exercise
authority in this area only if it has been expressly delegated
to the municipal corporation by the Legislature (NY Const, art
IX, §1; Sonmax v City of New York, 45 NY2d 253, 401 NYS2d 173).
Also, with certain exceptions not applicable here, a local
government may not adopt a local law which impairs the powers
of any other public corporation (NY Const, art IX, §2[d];
Municipal Home Rule Law, §§10[5], 34[3][b]). A charge-back
would be in the nature of a county expense passed on to the
towns within the county. Although the county would not be
directly taxing the towns, its action would be tantamount to
requiring the towns to impose and collect additional town taxes
without Legislative authority. Further, it is our opinion that
such a local law on the part of the county necessarily would
impair the powers of the towns by infringing on the towns'
ability to raise revenues through real property taxes for their
own local purposes. Accordingly, it is our opinion that a
county may not, by local law, authorize the charge-back.
It is also our opinion that a county may not establish a
special district encompassing the area outside of the city for
the purpose of charging the road patrol services only to that
area. There is no State statute which authorizes a county to
establish a special district for the provision of sheriff's
road patrol services (Opn No. 78-603, supra). In addition, it
is our opinion that a county may not, by local law, authorize
the creation of such a district. Article 5-A of the County law
(§250 et seq.) enumerates the types of districts which may be
formed in a county and sets forth detailed procedures for the
establishment, financing and operation of these districts. In
our opinion, these provisions create a comprehensive
legislative scheme for county districts and evince an intent
that counties may not adopt local laws establishing districts
for other types of improvements or services (see 1986 Opns St
Comp No. 86-53, p 84; Coconoto v Town of Esopus, 152 AD2d 39,
547 NYS2d 953 lv den 76 NY2d 701, 558 NYS2d 891; see also NY
Const, art IX, §1[g]).
Finally, the above discussion should be distinguished from
prior opinions of this Office in which we concluded that a
county is authorized to contract with a village or town to
provide additional police protection other than that usually
and normally supplied by the sheriff (see, e.g., Opn No. 81-301, supra; Opn No. 78-603, supra). In those instances, there
would be a negotiated agreement for the additional services,
not a county-imposed charge-back.
March 15, 1993
Kelli P. McCoski, Esq., County Attorney
County of Montgomery
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