Opinion 2005 - 4


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

SCHOOL DISTRICTS -- BOCES (procedures for permissive referendum)
REFERENDUM -- Permissive (procedures for when a BOCES transfers money into an employee benefit accrued liability reserve fund)
MUNICIPAL FUNDS -- Unemployment Insurance Reserve Funds (referendum requirement for transfer to employee benefit accrued liability reserve fund) -- Employee Benefit Accrued Liability Reserve Funds (referendum requirement for transfer from unemployment insurance reserve fund)

GENERAL MUNICIPAL LAW §§6-m, 6-p; EDUCATION LAW §§1804(6)(c), 1951: A BOCES is subject to the permissive referendum requirements of General Municipal Law §6-p for the transfer of monies from an unemployment insurance payment reserve fund into an employee benefit accrued liability reserve fund. To comply with the permissive referendum requirements, a BOCES should apply the petition procedures outlined in section 1804 of the Education Law and the voter approval requirements provided by section 1951 of the Education Law.

You ask whether a board of cooperative educational services (“BOCES”) is subject to the permissive referendum requirements of General Municipal Law §6-p for the transfer of monies from an unemployment insurance payment reserve fund into an employee benefit accrued liability reserve fund, and if so, what permissive referendum procedures should be used.

Article 2 of the General Municipal Law (§6-c, et seq.) contains provisions authorizing local governments to establish certain reserve funds. General Municipal Law §6-p, added by chapter 518 of the Laws of 1996, authorizes “municipal corporations”, which is defined to include BOCES (General Municipal Law §6-p[1][a]), to establish employee benefit accrued liability reserve funds. Monies from the fund may be used to pay certain accrued “employee benefits” due an employee upon termination of the employee’s service (General Municipal Law §6-p[1][b],[2][a]). Paragraph b of subdivision 3 of section 6-p provides that there may be paid into the fund “amounts from any other fund authorized by this chapter by resolution subject to permissive referendum” (emphasis added)1

One of the other types of reserve funds authorized by the General Municipal Law is an unemployment insurance payment reserve fund (General Municipal Law §6-m, added by chapter 616 of the Laws of 1977). BOCES, among other entities, may establish such reserve funds and use the monies therein to pay into the Unemployment Insurance Fund an amount equivalent to the benefits paid to claimants and charged to the employer’s account in accordance with Labor Law §581(e) (General Municipal Law §6-m[4]). Section 6-m itself authorizes annual transfers of surplus monies to any other reserve fund authorized by article 2 of the General Municipal Law, which would include an employee benefit accrued liability reserve fund.

Unlike the provision in section 6-p relating to payments from other reserve funds, section 6-m does not provide for a referendum for the transfer of excess monies to another reserve fund. In reconciling these two apparently conflicting provisions, we believe that the transfer of monies from a 6-m fund to a 6-p fund is subject to the referendum requirement of section 6-p.

It is well-settled general principle of statutory construction that a statute of general import or applicability must yield to a statute of specific import relating to the same subject matter, when there is a conflict, ambiguity or inconsistency between the two (see, e.g., Nassau County v Town of Hempstead, 84 AD2d 557, 443 NYS2d 274 app dsmd 55 NY2d 921, 449 NYS2d 30 mot to dismiss granted 56 NY2d 1031; People v Mann, 113 Misc 2d 980, 450 NYS2d 275; 1987 Opns St Comp No. 87-65, p 98; 1987 Opns St Comp No. 87-90, p 132). Additionally, as a rule, the explicit language of a later statute controls the general words of an earlier enactment (see, e.g., People v Doe, 117 Misc 2d 35, 457 NYS2d 399, citing Bush v Salerno, 51 NY2d 95, 432 NYS2d 679; 2000 Opn St Comp No. 2000-10, p 27; McKinney's Statutes §397).

Applying these principles of statutory construction here, in our view, section 6-m, as it applies to the transfer of monies to other reserve funds, is an earlier statute of more general import, which is restricted, as to the specific transfer into an employee benefit accrued liability reserve fund, by the later enactment of section 6-p. While section 6-m generally authorizes the transfer of excess unemployment reserve fund monies to any other reserve fund in article 2, section 6-p specifically details how the transfer of such monies into the employee benefit accrued liability reserve funds is to proceed. Given that section 6-p was enacted after section 6-m and explicitly requires a referendum prior to the receipt of excess fund monies, we believe that it controls the general transfer provision of section 6-m. We believe that reconciling these statutes in this manner is particularly appropriate here, when a contrary conclusion would result in the disenfranchisement of voters. Therefore, pursuant to section 6-p(3)(b), monies from an unemployment insurance payment reserve fund may be paid into an employee benefit accrued liability reserve fund “subject to permissive referendum”.

Section 6-p does not prescribe any particular permissive referendum procedures (compare, e.g., General Municipal Law §§6-c [4], 6-g[4]). Moreover, while for most municipal corporations, general permissive referendum procedures are expressly set forth by statute (see e.g., Town Law §90 et seq.; Village Law §9-900 et seq.; County Law §100 et seq.; see also Municipal Home Rule Law §24), in the case of BOCES, there are no such explicit general statutory guidelines for permissive referenda. Nonetheless, it is a fundamental general principle that, in construing a statute, it must be assumed that every provision was intended for some useful purpose, to avoid a construction that would render the statute ineffective (see, e.g., Wilson v Board of Education, 39 AD2d 965, 333 NYS2d 868 mod on other grnds 32 NY2d 636, 342 NYS2d 659; McKinney's Statutes §144; 1989 Opns St Comp No. 89-41, p 98; 1986 Opns St Comp No. 86-13, p 22). Had the legislature wished to exclude BOCES from the permissive referendum requirement, it could have expressly done so. Thus, in the absence of statutory direction for permissive referendum procedures in the case of a BOCES, we believe such direction must be implied in order to give effect to the legislative intent of section 6-p.

Education Law §1951(2) contains a procedure for the conduct of a referendum by a BOCES in connection with the purchase of real property by a BOCES (see Education Law §§1950[4][t]; 1951). In the absence of any more specific direction as to the conduct of the referendum required by section 6-p, we believe it appropriate to look to the provisions in section 1951(2). To submit a proposition for voter approval under section 1951, the BOCES calls a voter meeting and submits the proposition to the qualified voters of BOCES (see Education Law §1951[2][a]). Public notice of the time and place of the meeting must be provided once a week for the four weeks prior to the meeting (see id.). The first publication must be at least twenty-five days before the meeting, in two newspapers or in one newspaper, if there is just one, having general circulation within BOCES (id.). If there is no newspaper of general circulation, the notice must be posted in at least twenty-five of the most public places in BOCES twenty-five days before the meeting (id.). The notice shall contain a statement of the proposition(s) to be submitted at the meeting (id.). The proposition vote at the meeting is by ballot (id. at §1951[2][f]) or if the board so determines, by voting machine (id. at §1951[2][g]).

Under section 1951, to be eligible to vote at a BOCES meeting, an individual must be (1) a citizen of the United States, (2) eighteen years old, and (3) a resident within BOCES for a period of thirty days prior to the meeting (Education Law §1951[2][c]). Section 1951 further provides that the voter meeting shall be conducted in the same manner as a meeting of the voters of a union free school district (id. at §1951[2][p]).2

Although section 1951(2) prescribes a procedure for the conduct of the referendum, there is no similar procedure, specifically applicable to BOCES, for a petition process to demand the referendum, as anticipated by section 6-p. Because BOCES perform educational functions analogous to, and in support of, those of a school district3, we believe that, in the absence of any process for the submission of a petition for referendum applicable to BOCES, the petition process for a BOCES should be conducted in a manner similar to that provided for with respect to the school districts.

Section 1804(6)(c) of the Education Law governs the procedure for a petition for a referendum on the sale of real property by a central school district after a period of at least seven years of centralization (see, e.g., Botwin v Board of Education, 114 Misc 2d 291, 451 NYS2d 577), and appears to be the most analogous provision. Under section 1804(6)(c), the sale of real property may be made without voter approval unless a petition is submitted requiring that the question of the sale be submitted to a vote by the qualified voters of the district. The petition must be subscribed and acknowledged by at least ten percent of the qualified voters of the district and filed with clerk of the board of education within thirty days of the adoption of the resolution.

Applying those petition procedures here, once the BOCES board has passed a resolution to transfer funds into a section 6-p fund, qualified voters of the BOCES may then submit a petition requiring that the resolution be submitted to a vote4. The petition would have to be subscribed and acknowledged by at least ten percent of the qualified voters of the BOCES and filed with the clerk of the BOCES board within thirty days after the resolution was adopted. If a proper petition is not filed within thirty days after the resolution was adopted, the resolution will become effective at the end of the thirty day period. If a proper petition is filed thirty days after the resolution is adopted, then the resolution will become effective only if there is an affirmative vote of a majority of the qualified voters, using the procedures in section 1951(2).

Accordingly, a BOCES is subject to the permissive referendum requirements of General Municipal Law §6-p for the transfer of monies from an unemployment insurance payment reserve fund into an employee benefit accrued liability reserve fund. To comply with the permissive referendum requirements mandated by section 6-p of the General Municipal Law with respect to transfers into an employee benefit accrued liability reserve fund, a BOCES should apply the petition procedures outlined in section 1804 of the Education Law and the voter approval requirements provided by section 1951 of the Education Law.

July 19, 2005

Charles I. Schachter, Esq., Counsel
Genesee Valley Board of Cooperative Educational Services

 

1 A permissive referendum, also referred to as a referendum on petition (see 50 NY Jur 2d §720), may be generally described as a referendum held after submission of a proper petition (see, e.g., O’Flynn v Village of East Rochester, 292 NY 156).

2 The BOCES board, by resolution, may divide the BOCES into election districts so long as there are at least 700 qualified voters in each district (Education Law §1951[2][q]). The number of election districts is determined by the board (id.). If election districts have been created, voter meetings are held in the districts and the BOCES board designates the place within each district where the meetings will be held (id.). At each meeting, a chairperson is appointed along with clerks, assistant clerks and inspectors of the election (id.) The inspectors make a written report of election results (id.).

3 BOCES are established by order of the Commissioner of Education to provide shared educational services for component school districts (see Education Law §§1950[1], [6]). BOCES derive most of their powers and duties from the Education Law and provide services in accordance with a budget funded, in part, by school district funds (id. at §1950[4][b]). At the request of a component school district and with approval of the Commissioner of Education, a BOCES has the duty to provide certain services on a cooperative basis (Education Law §1950[4][d]).

4 The BOCES should provide reasonable public notice that the resolution is subject to permissive referendum (see, e.g., O’Flynn, supra; cf., e.g., Town Law §90; Village Law §9-900[2]); County Law §100[1]).