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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.
INDEPENDENT CONTRACTORS -- Consultants (authority to contract out functions of village assessor); (authority to contract out functions of village building inspector); (authority to contract out functions of village road commissioner) -- Permissible Functions (discretionary versus ministerial responsibilities)
VILLAGE BOARD -- Powers and Duties (authority to contract out discretionary as opposed to ministerial functions)
REAL PROPERTY TAXES AND ASSESSMENTS -- Assessment Procedures (authority to retain assessor on contractual basis)
BUILDING INSPECTOR -- Independent Contractor (authority to contract out functions of village building inspector)
STREETS AND HIGHWAYS -- Independent Contractor (authority to contract out functions of village road commissioner)
FEES -- Retention of (by independent contractor)
PUBLIC OFFICERS AND EMPLOYEES -- Powers and Duties (delegation of to independent contractor)
VILLAGE LAW, §§1-102; 3-301(2); 4-408(a): (1) In the absence of express statutory authorization, the governing body of a municipal corporation may contract with private parties for the performance of only those of its functions which may properly be characterized as ministerial. A municipal corporation may not contract with a private party for services involving the performance of its police powers or other discretionary functions. Thus, a village may not contract with a private party to perform the function of assessing real property for the village or, to the extent they involve the performance of police powers or discretionary functions, to perform the functions of a building inspector or deputy road commissioner. A village may, however, contract with a private party to provide advice and assistance relative to zoning matters so long as the appropriate village officials retain ultimate responsibility for the performance of their police powers and discretionary functions. (2) An independent contractor may not be compensated for services rendered by the retention of municipal fees.
You ask whether a village may contract with a private corporation to exercise the powers and perform the duties of the positions of assessor, building inspector and deputy road commissioner, and to perform services as a zoning consultant. For rendering these services, the corporation would be paid a fixed annual amount, plus 85% of all fees collected for the issuance of building permits and certificates of occupancy in excess of $50,000 per year. It is unclear, however, whether the corporation remits all amounts collected to the village.
It is a well-settled principle of municipal law that, absent express statutory authority, discretionary duties and responsibilities of public officers, conferred upon them by statute, may not be discharged by contracting with private parties (see, e.g., Hartford Insurance Group v Town of North Hempstead, 118 AD2d 542, 499 NYS2d 161; 1987 Opns St Comp No. 87-13, p 23; 1985 Opns St Comp No. 85-16, p 20; 2 McQuillin, Municipal Corporations, §10.38). Further, when authority to exercise police power is granted to a municipality, the authority is inalienable and cannot be contracted away or otherwise delegated, diminished, divided or limited by the municipality, unless and until such authority is withdrawn by the Legislature (Atlantic-Inland v Town of Union, 126 Misc 2d 509, 483 NYS2d 612; 6 McQuillin, Municipal Corporations, §§24.07, 24.41; see also Fox v Mohawk and Hudson River Humane Society, 165 NY 517). A municipality, however, may retain consultants to advise and assist municipal officers and employees in the performance of their duties (see Village Law, §1-102; Opn No. 87-13, supra; Opn No. 85-16, supra; 1980 Opns St Comp No. 80-540, p 154), and may also contract with private entities for the performance of those functions which are purely ministerial in nature (1986 Opns St Comp No. 86-75, p 119; cf. 1985 Opns St Comp No. 85-70, p 104, pertaining to the use of independent contractors to evade civil service requirements).
The difference between discretionary and ministerial functions has been explained as follows:
Discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result. (Tango by Tango v Tulevech, 61 NY2d 34, at 41, 471 NYS2d 73, at 77).
Therefore, in the absence of statutory authorization, whether a municipal corporation may contract with private entities for the performance of a municipal function depends on the nature of the function. Only those functions which may properly be characterized as ministerial may be delegated.
Village Law, §3-301(2)(b), with one exception not here relevant, authorizes any village to have an "assessor or assessors", but the board of trustees may determine, by local law or resolution, that the board of trustees shall act as the board of assessors or may appoint such board from their members. The village assessors are responsible for the preparation of an assessment roll of the real property within the village (Real Property Tax Law, §1402). The preparation of the assessment roll requires, inter alia, determining the valuation of real property (see Real Property Tax Law, §§102, 502) which clearly involves the exercise of judgment (see Real Property Tax Law, §505; see also People ex rel Hilton v Fahrenkopf, 279 NY 49). Further, although Real Property Tax Law, §572 authorizes the governing body of a municipality to engage experts "to appraise the value of real property therein for the assistance of the assessors in the assessment of real property", the courts have made it clear that the primary responsibility for any assessment remains with the assessor, and that "[i]t is the obligation of the assessor to make the final determination after verification and independent evaluation of the expert's figures" (Samuels v Town of Clarkson, 91 AD2d 837, 458 NYS2d 393, at 394 [emphasis added]; see also, Lessen v Stevens, 30 AD2d 740, 291 NYS2d 202). Therefore, in our opinion, a village may not contract with a private party to perform the function of assessing real property for the village (1979 Opns St Comp No. 79-701, p 140; see also, 9 Opns Counsel SBEA No. 30).
With respect to whether a village may contract for the services of a building inspector, we note initially that State law does not provide for the position of village building inspector (see Village Law, §3-301,[a],[b]; cf. Town Law, §138, providing for town building inspectors and prescribing powers and duties). Nevertheless, we believe that the board of trustees, by resolution, may create the position of building inspector (see Village Law, §§3-301[c], 4-412, 5-506[f]), and delegate to the position so much of its powers, duties and functions as it deems necessary for effectuating or administering the board's duties and functions (see Village Law, §4-412). Generally, the duties of a village building inspector would be analogous to those prescribed in Town Law, §138 for a town building inspector and would include the administration and enforcement of building codes, through the issuance of building permits and certificates of occupancy, and zoning regulations (see Village Law, §§7-700, 7-714).
It is well-settled that the decision of local officials whether to enforce a zoning or building code in a given instance is discretionary in nature (see, e.g., Spitz v Loeffler, _____ AD2d _____, 555 NYS2d 381; Manuli v Hildenbrandt, 144 AD2d 789, 534 NYS2d 763; Stromberg v Town of Oyster Bay, 140 Misc 2d 295, 530 NY2d 476). Further, a building inspector's failure to issue a building permit has been held to be a discretionary act to which the governmental immunity from tort liability applies (see Rottkamp v Young, 21 AD2d 373, 249 NYS2d 330, affd 15 NY2d 831, 257 NYS2d 944). It has also been held to be an improper delegation of municipal police powers to surrender to an independent contractor the exercise of discretion to approve or disapprove electrical installations as to compliance with a municipal ordinance (Atlantic-Inland, supra).
We note, however, that for the purpose of applying the State Environmental Quality Review Act (see Environmental Conservation Law, Article 8), while the issuance of a building permit has been held to be discretionary when the function involves the power to vary or request modifications in the qualifying criteria (see Pius v Bletsch, 70 NY2d 920, 524 NYS2d 395), the function has been held to be ministerial when it only requires adherence to definite standards without any "latitude of choice" (see Filmways Communications of Syracuse Inc. v Douglas, 106 AD2d 185, 186, 484 NYS2d 738, 739, affd 65 NY2d 878, 493 NYS2d 309; see also 1988 Opns St Comp No. 88-46, p 89). Thus, although the functions of a building inspector generally involve the exercise of police powers and the performance of discretionary functions, it appears that a building inspector may also act in a ministerial capacity when performing a function which only requires adherence to a pre-determined definite standard (see also, e.g., San Marco Construction Corp. v Aetna Casualty and Surety Co., _____ AD2d _____, 556 NYS2d 714). To the extent, however, that the services in question of the building inspector involve the performance of police powers or otherwise involve the performance of discretionary functions, the board of trustees has no authority to contract with a private party for the performance of these functions (see also 19 NYCRR 444.4[b]).
With respect to a village's power to contract for the performance of the powers and duties of a "deputy road commissioner", we note that State law does not provide for a village "road commissioner" (cf. former Village Law, §4-406[d], repealed L 1972 ch 892, providing for a village street commissioner). We believe, however, that a village board of trustees, by resolution, may establish the position of "road commissioner" (see Village Law, §§3-301[c]; 4-412; 6-602), and delegate functions to the position (see Village Law, §4-412), including "control" of the streets and public grounds of the village (see Village Law, §6-602). In this regard, we believe that "control" of the streets and public grounds of the village necessarily implies an element of discretion (see Lynch v Town of Rhinebeck, 210 NY 101, 107).
We also believe that the board, by resolution, may establish the position of "deputy road commissioner" (see Village Law, §§3-301[c]; 4-412; 6-602) and, unless otherwise provided, the deputy road commissioner would perform the powers and duties of the road commissioner whenever the latter is absent or unable to act or the office of road commissioner is vacant (see Public Officers Law, §9). Thus, during the absence, inability to act, or vacancy in office of the road commissioner, the deputy road commissioner would exercise "control" of village streets and public grounds and, therefore, perform a discretionary function. Accordingly, as in the case of the building inspector, to the extent that the services of a deputy road commissioner involve the performance of discretionary functions, the village lacks statutory authority to contract with a private entity or individual for the performance of those functions.
With respect to the position of zoning consultant, this Office, as noted, has expressed the opinion that a local government possesses implied authority to hire consultants to advise and assist its officers and employees in order to enable them to perform their public duties with the benefit of the expertise of the consultant (Village Law, §1-102; Opn No. 87-13, supra; Opn No. 85-16, supra; Opn No. 80-540, supra). Therefore, we believe that a village is authorized to contract with a private party to provide advice and assistance relative to zoning matters so long as the appropriate village officials retain ultimate responsibility for the performance of their police powers and discretionary functions.
Finally, with respect to the possibility that a private corporation is retaining municipal fees, such as those established to defray the cost of issuing building permits and certificates of occupancy, as compensation for services rendered, we note that an independent contractor is employed by the village to perform various services for an agreed upon compensation (see 1990 Opns St Comp No. 90-14, p 32). Thus, the contractor must be paid directly by the village in accordance with statutory requirements for audit and approval of itemized vouchers detailing the services performed for the village under the contract (see Village Law, §5-524). Retention of fees directly by the contractor would circumvent the audit of claims procedure. Further, since fees imposed by the board of trustees to defray the cost of a regulatory program are village moneys, the fees must be held in the custody of the village treasurer and may not be collected by a private corporation (Village Law, §4-408[a]; Atlantic-Inland, supra; see also Opn No. 90-14, supra; 1985 Opns St Comp No. 85-67, p 99). Therefore, it is our opinion that a private contractor, even if properly performing only ministerial functions by contract, may not collect and retain municipal fees as compensation.
December 31, 1990
Cornelius F. Healy
Deputy State Comptroller