Opinion 94 - 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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Powers and Duties (publication in newsletter of articles by individual board members)

TOWN BOARD -- Powers and Duties (publication in newsletter of articles by individual board members)

TOWN LAW, 116(13): The report authorized by Town Law, 116(13) may not contain articles by board members which set forth the individual positions or opinions of particular town board members.


You ask whether the report of a town, authorized by Town Law, 116(13), may include articles written by individual town board members in which the board member discusses various issues facing the town board.

Town Law, 116(13) authorizes towns to publish and distribute a report relative to the fiscal affairs and official acts, programs and meetings of "boards, commissions, departments or other agencies, of a town". Since section 116(13) expressly limits the contents of the town's report to the affairs of boards, commissions, departments and agencies of the town, it does not, in our view, provide authority for the publication of articles by individual members of a board which state the views, opinions or positions of such individuals on matters involving the board on which they serve. Moreover, in certain instances, such articles could also contravene the general principle that public moneys may not be expended to convey favoritism, partiality, partisanship approval or disapproval concerning an issue (see Phillips v Maurer, 67 NY2d 672, 499 NYS2d 675; Schulz v State, 148 Misc 2d 677, 561 NYS2d 377 app dsmd 175 AD2d 356, 572 NYS2d 434, lv den 78 NY2d 862, 578 NYS2d 877; Stern v Kramarsky, 84 Misc 2d 447, 375 NYS2d 235).

In our opinion, the purpose of the report under section 116(13) must be to inform and educate residents as to the activities, programs and other official affairs of the town board, commission, department or agency as a body. While the report may include information such as a reproduction of the minutes of board meetings and a listing of the votes of individual board members on particular matters, it may not, in our view, include articles by individual board members which set forth the individual positions and opinions of particular board members. Further, we note that section 116(13) may not be superseded by local law to expand the scope of the contents of the report (Municipal Home Rule Law, 10[1][ii][d][3][4]; see 1992 Opns St Comp No. 92-56, p 134).

The conclusion that section 116(13) authorizes reports only on the affairs of boards, commissions, departments or agencies as bodies is supported by the legislative history of chapter 161 of the Laws of 1982, which last amended that provision. In 1980, a bill which would have authorized the publication, at town expense, of a bulletin relating to official acts, programs and meetings of "town officers, employees, boards, commissions, departments and other agencies" (emphasis added) was vetoed by the Governor because it contained "language so broad in application that it could easily give rise to abuse at the expense of town taxpayers" (1980 Veto Message No. 93). The 1982 amendment, which eliminated the reference to town officers and employees, was intended to address those concerns and to authorize a report to disseminate information on "activities and programs of the town board and other town agencies..." (Sponsor's Memorandum to L 1982, ch 161).

Accordingly, it is our opinion that the report authorized by Town Law, 116(13) may not contain articles by board members which set forth the individual positions or opinions of particular town board members. Whether any specific article states individual positions or opinions of a board member, rather than inform and educate as to activities of the board as a whole, is a question of fact to be determined in the first instance, by the town board.

March 22, 1994
Anthony M. Sortino, Esq., Town Attorney
Town of Irondequoit