Opinion 2005 - 6


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

CONSTITUTIONAL LAW -- Payment in aid or maintenance of parochial schools (funding a town program conducted at a parochial school) -- Gifts and Loans (gift of town money for private program); (contract for provision of services by private organization)
MUNICIPAL FUNDS -- Youth Programs (authority of town to provide a program on the prevention of teen “bullying”)
POLICE AND POLICE PROTECTION -- Crime Prevention (authority of town to provide a program on the prevention of teen “bullying”)
TOWNS -- Powers and Duties (authority to conduct a town program at a parochial school on the prevention of teen “bullying”)

STATE CONSTITUTION, ARTICLE VIII, §1, ARTICLE XI, §3; GENERAL MUNICIPAL LAW §95; TOWN LAW §130: A town may not make a gratuitous payment to fund a symposium on the prevention of teen “bullying” conducted and hosted by a parochial school in its auditorium. However, a town may contract with a parochial school for the conduct at the parochial school auditorium of a town program for town residents on that subject, so long as the town retains ultimate supervision and control of the program.

You ask whether a town may donate monies to sponsor a symposium on violence by teens in the community to be conducted and hosted by a parochial school. You indicate that the program, which would take place in the auditorium of the parochial school, is entirely secular in nature, and that the speakers are secular educational experts who would discuss the topic of how to prevent “bullying”.

Article VIII, §1 of the State Constitution prohibits municipalities from making gifts or loans of public money or property to or in aid of private individuals, corporations, associations or undertakings. Article VIII, §1 is applicable even if the private activity is not undertaken for profit and serves a laudable purpose (see, e.g., 2002 Opns St Comp No. 2002-16, p 35; 1986 Opns St Comp No. 86-70, p 109; 1986 Opns St Comp No. 86-44, p 72 ). Therefore, the town may not simply donate town monies to assist in the sponsorship of the symposium. Article VIII, §1, however, does not prohibit the payment of monies by a municipality to a private entity pursuant to either a statutory obligation or a duly authorized contractual arrangement under which the municipality receives fair and adequate consideration, even though there may be an incidental benefit accruing to the private entity (see, e.g., Antonopoulou v Beame, 32 NY2d 126, 343 NYS2d 346; Schulz v Warren County, 179 AD2d 118, 581 NYS2d 885 lv den 80 NY2d 754, 587 NYS2d 906; Murphy v Erie County, 28 NY2d 80, 320 NYS2d 29; Opn No. 86-70, supra).

In this instance, as an incident to the town’s authority to preserve the public peace, good order and safety in the town (see, e.g., Town Law §§130[11]; 150) and to provide youth programs (General Municipal Law §95; see 1980 Opns St Comp No. 80-777, unreported; 1977 Opns St Comp No. 77-1001, unreported), it is our opinion that providing the type of program proposed for the benefit of town residents would constitute a proper town purpose for which town funds may be expended. The town may contract with a private organization for operation of the town’s program, or for services in connection therewith, so long as the town retains ultimate supervision and control thereof (see, e.g., Opn No. 80-77, supra; Opn No. 77-1001, supra; 1977 Opns St Comp No. 77-268, unreported; 25 Opns St Comp, 1969, p 240; 24 Opns St Comp, 1968, p 598; 19 Opns St Comp, 1963, p 214).1 Such a contract for the receipt of services in furtherance of a town program, commensurate in value to the monies paid, would not contravene the constitutional gift and loan prohibition (id.).

When the private organization with which the town is contracting is a parochial school, consideration also needs to be given to article XI, §3 of the State Constitution.2 Article XI, §3 expressly prohibits the use of public money, either directly or indirectly, in aid or maintenance of any school or institution of learning wholly or partly under the direction of any religious denomination, or in which any denominational tenet or doctrine is taught. The purpose of this constitutional provision is to prohibit public financial support from being given directly or indirectly to aid religiously-affiliated institutions (see, e.g., Board of Education v Allen, 20 NY2d 109, 281 NYS2d 799 affd 392 US 236, 88 S Ct 1923; 1980 Opns St Comp No. 80-645, p 177). It was not intended, however, to proscribe every State or municipal action which might entail some ultimate benefit to such institutions (id.).

In Allen, supra, a statute that required schools to loan textbooks to all children in grades seven through twelve, including parochial school students, was challenged as violating article XI, §3. In concluding that there was no violation of the State Constitution, the court stated that the statute did not intend to assist parochial schools but, rather, “was meant to bestow a public benefit upon all school children, regardless of their school affiliations” (20 NY2d at 116, 281 NYS2d at 804). As such, the court determined that any benefit that the parochial schools received as a result of the statute was a “collateral effect” and did not constitute the giving of aid directly or indirectly.

Similarly, we believe that merely contracting with a parochial school for the payment to the school of fair and adequate consideration commensurate with the value of the services furnished by the parochial school for operation of the program and use of the school auditorium would not constitute a payment in aid or maintenance of the school in contravention of article XI, §3 (see, e.g., Opn No. 80-645, supra; 1983 Opns St Comp No. 83-237, p 312; 22 Opns St Comp, 1966, p 931; see also 1957 Opns Atty Gen 145; 1950 Opns Atty Gen 210). In that instance, there would be no intention to assist parochial schools as such and any benefit accruing to those schools would be a collateral effect of the authorization for the town to provide the program (see Allen, supra, 20 NY2d at116, 281 NYS2d at 804). 3

Accordingly, it is our opinion that a town may not make a gratuitous payment to fund a symposium on the prevention of teen “bullying” conducted and hosted by a parochial school in its auditorium. However, a town may contract with a parochial school for the conduct at the parochial school auditorium of a town program for town residents on that subject, so long as the town retains ultimate supervision and control of the program.

November 7, 2005

Stacey M. Romeo, Esq., Attorney for the Town
Town of Irondequoit

11 For example, if there are certain restrictions in a program initially developed by the private organization that do not further proper town purposes, the town should not go forward unless appropriate changes are made to the program (see, e.g., 1982 Opns St Comp No. 82-225, p 284).

2 As noted, we are informed that the program would be entirely secular in nature. Nonetheless, since our advisory legal opinions address issues arising under State law, we make no comment as to whether contracting with a parochial school for operation of a town youth program, or use of parochial school facilities for a town youth program, would constitute a violation of the Establishment Clause of the United States Constitution (US Const, 1 st amend; cf. Board of Education v Allen, 392 US 236, 88 S Ct 1923, affg 20 NY2d 109, 281 NYS2d 799, upholding a state textbook statute under the Establishment Clause).

3 Note that 1950 Atty Gen 210, supra, distinguished between use of “non-instructional” faculties of a parochial school, such as an auditorium, gymnasium or outdoor playground, from of a parochial school classroom. Inasmuch as the proposed use in the instant case is of an auditorium, the issue of whether this distinction is still appropriate need not be addressed herein.