Opinion 93-20

LOCAL LAWS -- Taxes and Assessments (requiring countersignature on checks issued by receiver); Referendum Requirements (requiring countersignature on checks issued by receiver)

RECEIVER OF TAXES AND ASSESSMENTS -- Powers and Duties (necessity of countersignature)

TOWN LAW, §37(1); MUNICIPAL HOME RULE LAW, §§10, 23(2)(f): A town, by local law, may require that checks issued by a receiver of taxes be countersigned by another town officer. Such a local law would be subject to mandatory referendum in the case of an elective receiver.

You ask whether a town, by resolution, may require a countersignature by a designated town officer on checks transferring moneys from the receiver of taxes' account to another account.

Pursuant to Town Law, §37(1), a town receiver of taxes, within 24 hours after receipt, must "deposit and secure all sums of money received and collected by him to the credit of the supervisor in or with a bank or trust company designated by the town board ...". Section 37(1) further provides that all school district moneys collected by the receiver must be deposited in designated bank(s) to the credit of the school district. After payment to the supervisor of the full amount of the tax warrant, the residue must be deposited in designated banks or trust companies to the credit of the receiver and paid to the county treasurer not later than the 15th day of each month following the receipt thereof. In lieu of the immediate deposit of school district moneys to the credit of the school district, the receiver may deposit school district moneys to his own credit so long as the receiver distributes the moneys to the credit of the school district within five days (Town Law, §37[1]). In addition, the town board, by resolution, may direct the receiver to deposit and secure, within 24 hours of receipt, in the name of the receiver all moneys collected by the receiver which are due the supervisor (id.). All moneys so deposited shall be paid to the supervisor at such times as may be specified in the board resolution, but not later than the 15th day of each month following receipt.

Neither Town Law, §37 nor any other provision of which we are aware authorizes the town board to require a countersignature in order for the receiver to transfer moneys deposited to his or her credit (cf. Town Law, §29[3], which authorizes the town board to require countersignatures of checks issued by the town supervisor). Pursuant to Municipal Home Rule Law, §10, however, towns may adopt and amend local laws, not inconsistent with the Constitution or any general law, relating to, among other things, their property, affairs or government (Municipal Home Rule Law, §10[1][i]) and the transaction of their business (Municipal Home Rule Law, §10[1][ii][a][3]). Further, Municipal Home Rule Law, §10(1)(ii)(d)(3) provides that a town, with certain exceptions, may amend or supersede in its application to it, provisions of the Town Law relating to property, affairs and government or other matters in relation to which and to the extent to which it is authorized to adopt local laws.

Pursuant to this authority, it is our opinion that a town, by local law, may require that checks issued by a receiver of taxes be countersigned by another town officer. Since the local law would be curtailing the receiver's power to unilaterally disburse moneys, it is our opinion that, in the case of an elective receiver, the local law would be subject to mandatory referendum (Municipal Home Rule Law, §23[2][f]). With respect to those checks payable to the town supervisor, it may be advisable that an officer other than the supervisor, such as the town clerk, be the officer authorized to countersign.

April 21, 1993
Linda Riley, Esq., Town Attorney
Town of Southampton