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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Snow and Ice Removal and Road Repair Reserve Fund (transfer of moneys from the highway fund to) -- Highway Fund (transfer of moneys from to a snow and ice removal and road repair reserve fund)
GENERAL MUNICIPAL LAW §6-f: HIGHWAY LAW §141: Surplus moneys originally raised and appropriated by a town for town highway snow and ice removal may not be paid into a snow and ice removal and road repair reserve fund established pursuant to General Municipal Law §6-f.
You ask whether surplus moneys originally raised and appropriated by a town for town highway snow and ice removal may be paid into a snow and ice removal and road repair reserve fund established pursuant to General Municipal Law §6-f.
General Municipal Law §6-f authorizes municipal corporations to establish snow and ice removal and road repair reserve funds. Moneys in the fund may be appropriated only:
a. For the removal of snow and ice from the public thoroughfares and public places of such municipal corporation, which removal is of a type not likely to recur annually or at shorter intervals.
b. For repairing and maintaining roadways to the extent damage to such roadways was caused by the removal of snow and ice, including but not limited to repairing potholes and other road surface maintenance, which repairs and maintenance are of a type not likely to recur annually or at shorter intervals.
c. To a capital reserve fund established pursuant to section six-c, to a repair reserve fund established pursuant to section six-d or to a tax stabilization reserve fund established pursuant to section six-e of [article 2 of the General Municipal Law].1
Section 6-f(1) provides that there may be paid into the fund amounts as may be provided therefor by budgetary appropriation and "such revenues as are not required by law to be paid into any other fund or account."
Highway Law §141 contains requirements with respect to the town highway superintendent's estimate of expenditures for highways and bridges. Section 141 provides that the estimate of expenditures for highways and bridges, to be submitted by the town highway superintendent as required by Town Law §104, must specify the following: (1) the amount of money necessary to be levied and collected for the repair and improvement of highways; (2) the amount of money necessary to be levied and collected for the repair and construction of bridges having a span of five feet or more; (3) the amount of money necessary to be levied and collected for the purchase, repair and custody of certain equipment, tools and implements; and (4) the amount of money necessary to be levied and collected for the removal of obstructions caused by snow and for other miscellaneous purposes (see also Highway Law §271).2
Section 113 of the Town Law authorizes a town to supplement the moneys in the section 141 accounts by transfers from the town-wide general fund and the part-town (i.e. town outside village) general fund to a section 141 account having the same tax base. Section 285-a authorizes transfers of moneys between section 141 highway accounts having the same tax bases. There is no general authority, however, to transfer moneys from section 141 accounts into any other fund or account (see, e.g., 1984 Opns St Comp No. 84-60, p 76; 24 Opns St Comp, 1968, p 726). Accordingly, based on this statutory scheme which restricts the use and transfer of highway account moneys, it is our opinion that surplus moneys raised and appropriated for snow and ice removal constitute revenues that are required by law to be "paid into [another] fund or account" for purposes of General Municipal Law §6-f(1) and, therefore, may not be transferred into a snow and ice removal and road repair reserve fund (see Office of the State Comptroller, Ten-Day Bill Memorandum to Counsel to the Governor for L 1997, ch 548, September 11, 1997).
By way of contrast, we note that General Municipal Law §6-c, relative to capital reserve funds, contains language similar to that in section 6-f(1), to the effect that "revenues as are not required by law to be paid into any other fund or account ..." may be paid into a capital reserve fund (General Municipal Law §6-c[5][b]). Section 6-c(5)(b) further provides, however, as follows:
This provision shall not prevent the use of town highway moneys for the establishment of a capital reserve fund, provided that such moneys are expended therefrom for the purpose for which they were levied or received, that the consent of the town superintendent of highways and town board, together with the approval of the county superintendent of highways, is given to the establishment thereof, and that such moneys are only expended therefrom on order of the town superintendent of highways upon audit and with the consent of the town board.
Clearly, this express authorization for the use of highway moneys to fund a capital reserve fund overcomes the general lack of authority for transfer of these moneys out of the section 141 accounts. The absence of similar authorizing language in section 6-f supports the conclusion that surplus money raised and appropriated for snow and ice removal may not be used to fund a snow and ice removal and road repair reserve fund.
Finally, we note that, were we to conclude otherwise, moneys originally raised for section 141 highway purposes ultimately could be expended for non-highway purposes at the discretion of the town board. This could occur because section 6-f(3)(c), without any express restriction, authorizes the moneys in a snow and ice removal and road repair reserve fund to be transferred by the board to a capital reserve fund, a repair reserve fund established, or a "tax stabilization reserve fund." Such a result would be inconsistent with the statutory scheme discussed above for ensuring the use of the moneys in the highway accounts for highway purposes and the highway superintendent's involvement in the expenditure of those moneys (see, e.g., Highway Law §§142, 284; General Municipal Law §6-c[5][b]).
Accordingly, it is our opinion that surplus moneys originally raised and appropriated by a town for town highway snow and ice removal may not be paid into a snow and ice removal and road repair reserve fund established pursuant to General Municipal Law §6-f.
March 30, 2000
Paul T. Kellar, Esq., Town Attorney
Town of Gardiner
1 General Municipal Law §6-e authorizes the establishment of "contingency and tax stabilization reserve funds."
2 In towns with one or more villages, section 277 of the Highway Law requires taxes for highway repairs and improvements (Highway Law §141[1]) to be raised in the area of the town outside of villages. Section 277 further requires taxes for snow removal (Highway Law §141[4]) to be raised from the entire area of the town, unless the town exempts villages from taxes levied for this purpose. Thus, in towns with one or more villages, road repairs and snow removal may be financed from different tax bases.