Opinion 89-19

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

FEES -- Court Fees (filing fees on appeals to Appellate Divisions and Court of Appeals)

CIVIL PRACTICE LAW AND RULES, §§8017(a), 8022; SOCIAL SERVICES LAW, §61: A county department of social services is subject to pay the appellate filing fee in CPLR 8022, and is not an agency of the State for purposes of the exemption in CPLR 8017(a).

You ask whether a county department of social services is subject to the fees prescribed by section 8022 of Civil Practice Law and Rules (CPLR) in connection with the filing of a record on a civil appeal.

Section 8022 of the CPLR provides:

The clerks of the appellate divisions of the supreme court and the clerk of the court of appeals are entitled, upon the filing of a record on a civil appeal or a statement in lieu of record on a civil appeal, as required by rule 5530 of this chapter, to a fee of two hundred dollars, payable in advance.

Section 8017(a) provides an exemption for the State and counties from certain fees, by providing:

Notwithstanding any other provision of this article or any other general, special or local law relating to fees of clerks, no clerk shall charge or collect a fee from the state, or an agency or officer thereof, for any service rendered in an action in which any of them is involved, nor shall any clerk charge or collect a fee for filing, recording or indexing any paper, document, map or proceeding filed, recorded or indexed for the county, or an agency or officer thereof acting in an official capacity, nor for furnishing a transcript, certification or copy of any paper, document, map or proceeding to be used for official purposes.

This Office believes that counties and other municipalities are not exempt from the fees imposed by section 8022. Although section 8017(a) of the CPLR does grant an exemption to the State, its agencies and counties from certain filing fees, it is our opinion that the exemption granted by this section with respect to counties applies only to those fees paid by a county to the clerk of that county and not the fees paid to the clerks of the Appellate Divisions and the Court of Appeals (1988 Opns St Comp No. 88-38, p 75).

You suggest, however, that the commissioner of the local department of social services should be considered an agent of the State in administering the social services program. Your position is based on the Court of Appeal's decision in Beaudoin v Toia, 45 NY2d 343, 408 NYS2d 417 [1978] which stated in part:

In New York State, the social services program is a State program, administered through the 58 local social services districts under the general supervision of the State Department of Social Services and the State Commissioner of Social Services (N.Y. Const, art XVII, §1; Social Services Law, §§17, 20, 34). The county commissioners are denominated by statute 'agents' of the State department (Social Services Law, §65 subd 3). In the administration of public assistance funds, whether they come from Federal, State or local sources, the authority and responsibility is that of the county commissioners of social services, not the counties; the local commissioners act on behalf of and as agents for the State. Each is a part of and the local arm of the single State administrative agency. Determinative of the present question is the status and function of the local commissioners as agents of the State and not of their respective counties.1

You ask, therefore, whether as an agent of the State, a county commissioner of social services would qualify for the exemption from the filing fees granted to the State by CPLR, §8017(a) where the county commissioner appeals to the Appellate Division or the Court of Appeals.

In Beaudoin, supra, the issue was whether a local social services department had standing to challenge a ruling of the Commissioner of the State Department of Social Services (DSS) in an Article 78 proceeding. The Court held that since the local commissioners were agents of the State and were under the supervision of the State Commissioner, such standing did not exist. Normally, an agent is not in a position to challenge the principal's decision, unless the decision is illegal (Leonard Smith, Inc. v Merrill Lynch, 107 AD2d 902, 483 NYS2d 847 [1985]; 3 NY Jur 2d, Agency, §189, p 11).

Not considered in Beaudoin, supra, was an amendment to Social Services Law, §22(9)(b) providing local social services departments specific authority to seek review of decisions rendered by the State Commissioner of DSS pursuant to Article 78 of the CPLR, unless otherwise precluded by Federal law (see L 1978 ch 473, §2, eff July 11, 1978; Romano v Perales, 110 AD2d 1028, 488 NYS2d 316, affd 67 NY2d 848, 501 NYS2d 659, 492 NE2d 787 [1985]). The Legislature's action, in providing limited standing for local commissioners to challenge administrative rulings of the State Commissioner suggests that the concept that local social services commissioners are agents of the State is not to be applied in all instances.

In a federal case involving the application of the Eleventh Amendment, the Court of Appeals, Second Circuit, held in Holly v Lavine, 464 F Supp 718, affd 605 F2d 638 [1979], that the Monroe County social services department would not be considered an agency of the State. The court noted that the Legislature saw fit to create local social service districts (Social Services Law, §61) which are required by law to provide for the assistance and care of any person who is in need thereof which he is unable to provide for himself (Social Services Law, §62[1]). Moreover, it is the duty of the board of supervisors of a county, (and prior to chapter 28 of the Laws of 1972, the town board of a town) to make adequate appropriations and to take such action as may be necessary to provide the public assistance and care required by the Social Services Law (Social Services Law, §88).

The court in Holly, supra, also noted several other factors which caused it to conclude that a county should not be considered an agency of the State. Specifically, it noted that a county has its own taxing authority (NY Const, art VIII, §10; County Law, §§233, 233-a[1], [4]), is an independent political entity (County Law, §3), appoints the commissioner of the county social services department (County Law, §400[4][b]; Social Services Law, §116) and bears the ultimate responsibility for public assistance payments (Toia v Regan, 54 AD2d 46, 387 NYS2d 309, affd 40 NY2d 837, 387 NYS2d 832 app dismd 429 US 1082, 97 S Ct 1087 [1976]). Finally, the court found that a county's duty to provide assistance was not dependent upon the receipt of equivalent money from the State (Jones v Berman, 37 NY2d 42, 371 NYS2d 422 [1975]). Based on the foregoing analysis, the Second Circuit Court of Appeals concluded that the county should not be treated as an arm of the State for Eleventh Amendment purposes.

Although the Court of Appeals in Beaudoin, supra, held that a county commissioner of social services could not challenge a decision rendered by the DSS because the county commissioner is an agent of the State, we believe that the holding of this case should be limited to the circumstances before the Court. Further, in view of the legislative action providing local commissioners express authority to seek review of the State Commissioner's action (Social Services Law, §22[a][b]), the Legislature apparently did not believe that a local social services department constituted an agent of the State to the extent that it should be precluded in all instances from challenging the decisions of the State Commissioner.

Based on the Legislature's action and the analysis by the court in Holly, supra, it is our opinion that when a county department of social services files a record in a civil appeal, it is not acting as an agency of the State. Accordingly, a county is not entitled to an exemption from fees provided to the State by CPLR §8017(a) and must pay the fees imposed by section 8022 of the CPLR when it appeals a matter involving a public assistance program.

June 9, 1989
Edward A. Parker, Esq., Bureau Chief
County of Suffolk Social Services Bureau

Section 65(3) of the Social Services Law, cited by the Court of Appeals, provides that the county commissioners shall act as agents of the State Department of Social Services (DSS) in matters relating to assistance and care administered and authorized by town public welfare officials. It appears this is the only provision in the Social Services Law denominating a county commissioner as an agent of the State DSS. Chapter 28 of the Laws 1972 abolished town social services districts. Therefore, the agency-principal relationship for purposes of this statute no longer exists, as town functions have been consolidated and merged into the responsibilities that counties have for providing assistance and care.