Opinion 94 - 1


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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

LOCAL LAWS -- Improvement Districts (authority of county to chargeback salaries to district)

SEWER DISTRICTS -- Operation and Maintenance (authority of county to chargeback salaries to district)

COUNTY LAW, 267; MUNICIPAL HOME RULE LAW, 10(1): A county is not authorized to chargeback to a county sewer district a portion of the salaries of county employees attributable to the administration and operation of the sewer district.

You ask whether a portion of the salaries of county employees who perform services for the administration and operation of a county sewer district may be allocated and charged back to the sewer district.

Article 5-A of the County Law (250 et seq.) contains provisions governing the establishment, operation and maintenance of county special districts. These provisions are generally parallel to those contained in articles 12 and 12-A of Town Law (190 et seq.) relative to town special districts.

Pursuant to section 202(1) of the Town Law, town boards are expressly authorized to apportion against and charge to the cost of establishing a district an allowance for services rendered by salaried town employees when such services are necessary to or occasioned by reason of making the particular improvement. Further, Town Law, 202-a(7) expressly authorizes towns to apportion and charge to the expense of maintaining a district an allowance for services rendered by any town officer or employee when the services are necessary to or occasioned by reason of maintenance of the district. The County Law, like Town Law, 202(1), expressly authorizes counties to apportion against and charge to a special district an allowance for services rendered by salaried county officers and employees which are necessary to or occasioned by the establishment of a district (County Law, 267). However, it contains no provision analogous to Town Law, 202-a(7) authorizing the chargeback of an allowance for the cost of services rendered by officers and employees in connection with operation and maintenance of a district. In view of the specific authorizations for chargebacks in County Law, 267 and Town Law, 202 and 202- a(7) and the lack of evidence that the failure to authorize a chargeback of an allowance for salaries of employees in connection with operation and maintenance of a county district was inadvertent, we conclude that a county is not authorized under the County Law to chargeback such costs (see 28 Opns St Comp, 1972, p 32; McKinney's Statutes, 74, 240; see also In re Village of Monticello, 123 Misc 556, 205 NYS 839 affd 211 App Div 826, 206 NYS 970).

Further, it is our opinion that a county may not, by the enactment of a local law, provide for such chargeback of the cost of services of county employees. A county is generally authorized to adopt local laws, not inconsistent with the Constitution or a general law, relating to its property, affairs or government or those matters specifically enumerated in section 10 of the Municipal Home Rule Law (Municipal Home Rule Law, 10[1][i],[ii]), including the compensation of its officers (Municipal Home Rule Law, 10[1][ii][a][1]). Also, article 4 of the Municipal Home Rule Law authorizes charter counties to adopt charter laws pertaining to the structure of county government and the manner in which it is to function. Charter laws need not be consistent with general or special laws except as provided in Municipal Home Rule Law, 34 (Heimbach v Mills, 67 AD2d 731, 412 NYS2d 668). It is well settled, however, that a local government may not exercise home rule powers in situations where the State Legislature has demonstrated a desire or design to pre-empt the subject matter of the proposed local law (Albany Area Builders Association v Town of Guilderland, 74 NY2d 372, 547 NYS2d 627; Jancyn Manufacturing Corp. v County of Suffolk, 71 NY2d 91, 524 NYS2d 8; Con Ed v Town of Red Hook, 60 NY2d 99, 468 NYS2d 596). The intent to pre-empt need not be express, but may be implied from a declaration of State policy by the Legislature or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area (Albany Area Builders Association, supra; Jancyn, supra; Con Ed, supra; see also 1990 Opns St Comp No. 90-39, p 88; 1987 Opns St Comp No. 87-55, p 83).

In Coconato v Town of Esopus, 152 AD2d 39, 547 NYS2d 953, lv den 76 NY2d 701, 558 NYS2d 891, it was held that provisions of articles 12 and 12-A of the Town Law for the financing of town water districts manifested the Legislature's intent to pre-empt the area of financing improvements in such districts. In our view, article 5-A of the County Law similarly establishes a comprehensive scheme for financing the cost of establishment and operation of county improvement districts and evidences an intent to pre-empt local regulation in this area. Consequently, in our opinion, a county may not adopt a local law providing for the chargeback of the costs of services of county employees relating to the operation of a county sewer district treatment plant.

In light of the foregoing, it is our opinion that a portion of the salaries of county employees attributable to the administration and operation of a county sewer district may not be charged back to the sewer district, in the absence of State legislation authorizing such a chargeback.

February 3, 1994
Thomas J. Cione, Esq., Assistant County Attorney
County of Orange