Opinion 94 - 10

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

MUNICIPAL FUNDS -- Town Charges (human rights commission)

TOWNS -- Powers and Duties (part-town human rights commission)

MUNICIPAL COOPERATION -- Human Rights (establishment of joint townwide-village commission)

GENERAL MUNICIPAL LAW, 119-o, 239-o: A town human rights commission must be established and operated on a townwide basis. A town and one or more villages may establish a joint townwide-village human rights commission.

You ask whether a town may establish a joint human rights commission for the portion of the town located outside a village, and one or more villages within the town.

Article 12-D of the General Municipal Law (239-o et seq.) governs the establishment and operation of local commissions on human rights. Section 239-o of the General Municipal Law authorizes the governing board of any county, city, village or town to create a commission on human rights. Sections 239-q and 239-r prescribe the general duties, powers and obligations of such a commission.

Section 239-o expressly states that the establishment of a local commission on human rights at one level of local government does not preclude establishment of a commission at other levels of local government. Thus, the establishment of a local commission by a town does not preclude the establishment of a commission by a village located within the town. It is a general rule, however, that unless authorized or required by State statute, all town functions are performed and financed on a townwide basis (1989 Opns St Comp No. 89-61, p 135; 1980 Opns St Comp No. 80-334, p 98; see Village of Ardsley v Town of Greenburgh, 79 AD2d 628, 433 NYS2d 626 mod 55 NY2d 915, 449 NYS2d 27). Since neither article 12-D nor any other State statute provides for the establishment and operation of a part-town human rights commission (compare General Municipal Law, 240 which, with respect to municipal recreation programs, defines municipality as including a town "or that part of a town not included within the boundaries of a village"), it is our opinion that a town commission must be established and operated on a townwide basis.

As to the establishment of a joint commission, although article 12-D is silent in this regard, it must be read together with article 5-G of the General Municipal Law (119-m et seq.). General Municipal Law, 119-o provides, in pertinent part, that, in addition to any other general or special powers vested in municipal corporations, they shall have the power to enter into agreements for the performance of their "respective" powers and duties on a cooperative or contract basis, or for the provision of a joint service. Thus, in order for a town to enter into a municipal cooperation agreement, it must have the authority to perform separately the function which would be the subject of the agreement (1993 Opns St Comp No. 93-6, p 10). Since towns can only establish human rights commissions on a townwide basis, it is our opinion that they cannot, by municipal cooperation agreement, establish a joint commission for the portion of the town outside a village and one or more villages. It is our opinion, however, that, pursuant to section 119-o, a town and one or more villages within or outside the town could agree to form a joint townwide-village commission on human rights. Among other things, the joint agreement could provide for a method of equitably allocating the operating costs of the joint commission and for the custody of moneys for the joint commission by the chief fiscal officer of one of the participating municipalities (General Municipal Law, 119-o[2][a],[h]). The joint commission would then have all the powers, duties and obligations of a commission under article 12-D.

August 29, 1994
Steven M. Silverberg, Esq., Town Attorney
Town of Mamaroneck