Opinion 2002 - 12


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 COOPERATION -- Sewers (combining two village sewer departments) -- Streets and Highways (combining two village street departments) -- Water (combining two village water departments)
SEWERS AND SEWER SYSTEMS -- Contracts (cooperation agreement to combine two village sewer departments)
STREETS AND HIGHWAYS -- Highway Department (cooperation agreement to combine two village street departments)
VILLAGES -- Powers and Duties (municipal cooperation agreement to combine sewer, water and street departments of the two villages)
WATER SUPPLY AND DISTRIBUTION -- Contracts (cooperation agreement to combine two village water departments)

GENERAL MUNICIPAL LAW 119-o: Pursuant to a municipal cooperation agreement, two villages may combine their water, sewer and street departments under the supervision of a single superintendent of public works. All officers and employees performing services for the combined department, including the superintendent, may be designated as officers and employees of one of the villages.

You ask whether a village may combine its sewer, water and street departments with the sewer, water and street departments of another village. The three combined departments would be supervised by a single superintendent of public works. All officers and employees providing services for the combined departments, including the superintendent, would be considered officers or employees of only one of the villages.

General Municipal Law 119-o(1) provides that municipal corporations, including villages (see General Municipal Law 119-n[a]), may enter into, amend, cancel and terminate agreements for the performance among themselves or "one for the other" of their "respective" functions, powers and duties on a cooperative or contract basis, or for the provision of a joint service. The term "joint service" is defined as the joint provision of any municipal facility, service, activity, project or undertaking, or the joint performance or exercise of any function or power which each of the municipal corporations "has the power by any other general or special law to provide, perform or exercise, separately ... " (General Municipal Law 119-n[c]). To effectuate the purposes of article 5-G, the definition of "joint service" includes the extension of appropriate territorial jurisdiction necessary therefor (id.).

Any agreement under section 119-o must be approved by a majority of the voting strength of the governing body of each participant (General Municipal Law 119-o[1]). If the authority of a municipal corporation to provide or perform, by itself, any facility, service, activity, project or undertaking is subject to public hearing, referendum, approval or other requirements applicable to the making of contracts, then its right to participate in the cooperative agreement is similarly conditioned (id.).

A municipal cooperation agreement may contain, among other things, provisions relating to the responsibility for the operation and maintenance of a joint service, and the officers responsible for the immediate supervision and control thereof (General Municipal Law 119-o[2][c]). It may also provide for: the manner of employing, engaging, compensating, transferring or discharging necessary personnel, subject to applicable civil service provisions; the making of employer contributions for retirement, social security, health insurance, workers' compensation and other similar benefits; the bonding of designated officers and employees; and the filing of oaths of office (General Municipal Law 119-o[2][b]). Further, a cooperation agreement may provide that, for specific purposes, designated officers and employees of a joint service will be deemed those of a specified participating municipal corporation, and that personnel assigned to the joint service shall possess the same powers and duties, privileges and immunities they would ordinarily possess (1) if they performed their duties only in the municipal corporation by which they are employed or (2) if they were employed by the municipal corporation in which they are required to perform their duties (id.).

In addition, the agreement may provide for a method or formula for equitably allocating costs (General Municipal Law 119-o[2][a]), as well as the manner of responding for any liabilities that might be incurred in the operation of a joint service (General Municipal Law 119-o[2][i]). The agreement may be for a maximum term of five years, subject to renewal (General Municipal Law 119-o[2][j]), and may contain provisions relating to such other matters "as are reasonably necessary and proper to effectuate and progress the joint service" (General Municipal Law 119-o[2][l]).

As indicated above, a threshold requirement in order for municipal corporations to enter into a municipal cooperation agreement is that each municipal corporation must have the authority to perform separately the function that would be the subject of the agreement (see, e.g., 1996 Opns St Comp No. 96-7, p 18; NY Const, art VIII, 1, art IX, 1[c]; General Municipal Law 119-o[1]). Clearly, each village has the power to maintain and repair its streets, and operate and maintain its sewer system and water system (see Village Law, arts. 6, 11 and 14) and, subject to applicable civil service requirements, may hire employees to perform services in connection therewith (see Village Law 4-400[1][c][i]).

As to whether each village may establish the position of superintendent of public works to oversee its water, sewer and street departments, we note initially that there is no statute specifically providing for the establishment of the position of village superintendent of public works having supervision over the sewer, water and street departments (cf. Village Law 3-301[1],[2], 308; compare Village Law 6-632[7] and 14-1414, referring to a village superintendent of public works; Village Law 6-618 and 14-1414, referring to village street commissioners; Village Law 11-1106, authorizing appointment of a superintendent of water; former Village Law 4-406[2][b],[d], repealed L 1972, ch 892, providing for the establishment of the offices of superintendent of public works and street commissioner; Town Law 20 and 32[1], and Highway Law 140, relative to town superintendents of highways; Town Law 64[21-a], providing for the establishment of a department of public works in certain towns). Nonetheless, it is our opinion that a village board of trustees, by resolution, may create such a position (see Village Law 3-301[2][c], 4-412[1], 5-506[1][f]; Enos v Village of Seneca Falls, 288 AD2d 853, 732 NYS2d 924; Fairgrieve v Village of Mineola, 238 AD2d 466, 656 NYS2d 643) and delegate to the position so much of its powers, duties and functions relative to superintending the water, sewer and street departments as it deems necessary to effectuate or administer the board's duties and functions (see Village Law 4-412[1]; 1990 Opns St Comp No. 90-53, p 120; see Fairgrieve, supra).

Therefore, since each village may appoint a superintendent of public works to oversee its sewer, water and street departments, and may hire employees to staff those departments, the villages may undertake those functions as a joint service pursuant to a cooperation agreement in accordance with General Municipal Law 119-o (compare 31 Opns St Comp, 1975, p 20, noting that a cooperation agreement for joint care of town and village streets and highways may not abrogate or diminish statutory powers and duties of a town highway superintendent). Pursuant to the agreement, the villages may combine their water, sewer and street departments under the supervision of a single superintendent of public works (General Municipal Law 119-o[2][c]). All officers and employees performing services for the combined department, including the superintendent, may be designated as officers and employees of one of the villages (General Municipal Law 119-o[2][b]).

October 28, 2002

John K. Plumb, Esq., Village Attorney
Village of Randolph

Howard VanRenssealer, Mayor
Village of East Randolph