Opinion 93-5


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

TOWNS -- Budget (effect of late publication of notice of hearing)

TOWN LAW, §108; COUNTY LAW, §227: Where a town budget is finally adopted before the date specified in Town Law, §109, the fact that the public hearing on the preliminary budget is held, on proper notice, later than the dated specified in Town Law, §108 would not, by itself, invalidate the budget.

You state that, although a town's budget was finally adopted before the date specified in Town Law, §109, the public hearing on the preliminary budget was held, pursuant to proper notice, later than the date specified in Town Law, §108. You ask whether the town should petition the county legislative board to validate the town's failure to hold a timely budget hearing.

Town Law, §108 provides that the town board "shall hold" a public hearing on the preliminary budget on or before the Thursday immediately following the general election, except that in towns in Westchester County, the hearing "shall be held" on or before the tenth day of December. Section 108 further provides that the hearing may be adjourned from day to day "but not beyond the fifteenth day of November, except that in towns in Westchester county the hearing may be so adjourned up to and including the fifteenth day of December". The preliminary budget as submitted or amended "shall be finally adopted" by resolution of the town board not later than the twentieth day of November or, in towns in Westchester County, not later than the twentieth day of December (Town Law, §109[2]). In the event the town board fails to adopt a budget as of the twentieth day of November or December, as the case may be, the preliminary budget, with such changes, alterations and revisions, if any, as shall have been made by the board, "shall constitute" the budget for the ensuing fiscal year (Town Law, §109[3]).

Pursuant to County Law, §227, the county legislative board may legalize and validate certain acts taken in connection with a lawful municipal purpose by the governing board of a municipality wholly within the county. One defect which may be validated pursuant to section 227 is the failure to perform an act within the time prescribed by law (County Law, §227[1][a]).

Generally, in the absence of prejudice, statutory provisions which direct an officer to perform an act on or by a certain date in order to instruct or guide officials and secure regularity and uniformity of
procedure are held to be directory, and not mandatory, unless accompanied by negative or restricting words indicating that the act may not be performed at any other time (Lancaster Sea Beach Improvement Co. v City of New York, 214 NY 1; Metcalf v City of New York, 49 Hun 607, 1 NYS 873; Consolidated Edison Company of New York v State Board of Equalization and Assessment, 60 AD2d 356, 401 NYS2d 87; Draper Division of North American Rockwell Corporation v Board of Assessors of the Town of Piercefield, 37 AD2d 1038, 326 NYS2d 56; Rose v Elliott, 218 App Div 287, 218 NYS 185; Lincoln Plaza Associates South, S & P v Commissioner of Finance of the City of New York, 116 Misc 2d 357, 455 NYS2d 317; Wood v LaRose, 67 Misc 2d 597, 603 324 NYS2d 788, 797, reversed on other grnds 39 AD2d 469, 336 NYS2d 795, affd 35 NY2d 266, 360 NYS2d 814; Application of Iver Johnson Sporting Goods Co., 7 Misc 2d 337, 163 NYS2d 458; see gen., McKinney's Statutes, §172). In such instances, delay in performance will not invalidate an act or proceeding under the statute (id.). It appears that the rule is especially followed in cases where the act to be taken is for the benefit of the public (see Looney v Hughes, 26 NY 514; McKinney's Statutes, §172).

Based on these general principles, this Office has previously expressed the opinion that the time limit for holding the public hearing in section 108 is intended to ensure the orderly preparation of the budget and the timely adoption and submission thereof for the levy of taxes (21 Opns St Comp, 1965, p 664). We stated that, where the public was properly notified of the late public hearing and the hearing was subsequently held pursuant to such notice, the fundamental purpose of this statutory requirement - to give the public an opportunity to express their views and make inquiry regarding budgetary matters before final adoption of the budget - was satisfied. Thus, we concluded that the failure to hold the hearing on the preliminary budget until after the date specified in Town Law, §108, by itself, would not invalidate the town budget so long as the delay does not disrupt the orderly preparation of the budget or prevent the submission of the budget in time for the levy of taxes. We further concluded that, under those circumstances, the town need not seek a legalizing act of the county board. This opinion still represents the views of this Office.

Accordingly, since the failure to hold the public hearing until after the date specified in section 108, in the instant case, still afforded the public an opportunity, on proper notice, to express its views on the budget prior to its final adoption and did not prevent the timely submission or orderly preparation of the budget, it is our opinion that the town need not seek validation by the county board.

February 11, 1993
Roland A. Baroni, Jr., Esq., Town Attorney
Town of North Salem