Opinion 89-34

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

TOWN BOARD -- Powers and Duties (authority to investigate misuse of highway equipment and discipline highway department employees); (authority to direct rescission of highway superintendent's appointment of deputy highway superintendent)
SUPERINTENDENT OF HIGHWAYS -- Powers and Duties (authority to discipline highway department employees)

TOWN LAW, §§64(1), (3), 119; HIGHWAY LAW, §140(4): A town board has authority to make inquiry into allegations of misuse of town highway equipment by highway department laborers and the participation in such acts by the deputy highway superintendent. Following such inquiry, where appropriate, the town board may recommend to the highway superintendent that disciplinary action be taken against the highway department employees and that the superintendent reconsider his appointment of the deputy.

You ask whether a town board is authorized to make inquiry into the activities of town highway department laborers suspected of using town vehicles for private purposes and, after such inquiry, recommend to the highway superintendent that he censure the employees for such actions. You also ask whether the board may recommend to the town highway superintendent that he rescind his appointment of a deputy highway superintendent due to the deputy's alleged participation in these acts.

The town highway superintendent has express statutory responsibilities with respect to town highway personnel and the use of town highway equipment. With respect to highway department personnel, the superintendent is authorized, within the limits of town board budgetary appropriations, to hire highway laborers for the maintenance and repair highways and bridges and the removal of snow, and to provide for the supervision of such persons (Highway Law, §140[4]; Hiscox v Holmes, 237 AD 240, 260 NYS 667; Clarke v Town of Russia, 257 AD 703, 15 NYS2d 415, revd on other grnds 283 NY 272; 1980 Opns St Comp No. 80-141, unreported). Further, while Town Law, §64(3) gives the town board the "general management, custody and control" of all town property, Highway Law, §142(2) specifically provides that the superintendent shall have the authority to control highway equipment and determine the manner and places in which it may be used. Therefore, we have stated that the town board may not impose restrictions on the highway superintendent as to where highway equipment is to be used so long as it is being used for town highway purposes (1983 Opns St Comp No. 83-240, p 317).

The town board, however, also has powers and duties relating to the town highway department personnel and equipment. We note first that TownLaw, §64(1) provides the town board with "general management and control of the finances of the town" (see Myruski v Town Board of the Town of Goshen, 87 Misc 2d 1063, 386 NYS2d 984). Further, as already noted, the town board has general management and control of town property (Town Law, §64[3]). The town board also, at any time, may require any town officer or employee to submit to the board or to a public accountant for examination his books, dockets, records, receipts, warrants, vouchers and cancelled checks (Town Law, §123).

More specifically, with respect to town highway employees and equipment, although the highway superintendent chooses the people to fill highway laborer positions, the town board has the power to fix the compensation of these employees and, through its power to fix the budgetary appropriation for the department, determine the number of employees in the highway department (31 Opns St Comp, 1975, p 31). Moreover, the town board is empowered to assign additional duties to the superintendent, not inconsistent with law, so long as these duties do not interfere with, diminish or impair the superintendent's statutory powers and duties (Town Law, §32; see, e.g., 1982 Opns St Comp No. 82-294, p 373). Based on this statutory authority, this Office has expressed the opinion that the board may impose certain administrative duties in connection with maintaining work records of highway employees (24 Opns St Comp, 1968, p 392). Also, since the superintendent's independent authority and discretion must be exercised in accordance with the interests of the town and not arbitrarily, wastefully or negligently (see Gardner v Town of Cameron, 155 AD 750, 140 NYS 634, affd 215 NY 682), we have expressed the opinion that a town board, pursuant to section 32, may require the superintendent to maintain detailed maintenance, repair, fuel consumption and mileage records for highway vehicles (1979 Opns St Comp No. 79-904, p 212). Further, pursuant to Highway Law, §142(3), the superintendent is required annually to submit to the board a written inventory of all machinery, tools, implements and equipment.

We also note that the town board of a town in which there is no town comptroller is required to audit claims against the town (Town Law, §118). In considering a claim, the board is expressly authorized to take evidence, examine witnesses, issue subpoenas and require the person presenting the claim to be sworn before the board relative to the justness and accuracy of the claim (Town Law, §119). Therefore, the board has express investigatory powers in the context of determining whether a claim represents a lawful town charge.

We believe it is clear from the statutory scheme discussed above that the town board exercises a degree of general oversight and control over highway department personnel and highway equipment. Therefore, although town boards are not expressly vested with general statutory investigatory powers (cf. Town Law, §51[4], relative to suburban towns; General City Law, §20[21]; County Law, §209), it is our opinion that, as a necessary incident to its oversight and control responsibilities, where the town board is presented with credible allegations of misuse of town highway equipment by highway employees, the town board has authority to make reasonable inquiry into the matter to assure the proper use of town moneys and property (1979 Opns St Comp, No. 79-134, p 25; 1969 Opns St Comp, No. 69-235, unreported; 1968 Opns St Comp, No. 68-835, unreported). Such an inquiry may include, but need not be necessarily limited to, an examination of the books and records of the superintendent, the deputy superintendent and the employees involved as authorized by Town Law, §123 discussed above. We note also that, depending on the facts, a town may have a claim for reimbursement against town officers or employees who have committed waste or misuse of town property (see Opn No. 79-134, supra).

Further, although Highway Law, §140(4) requires the highway superintendent to "provide for the supervision" of persons hired by the superintendent, it is our opinion that, as a necessary incident to the board's authority to make an inquiry into the situation, it may recommend a course of disciplinary action against the employees if it is determined that misuse actually occurred. Any such disciplinary action, of course, must be consistent with any applicable civil service requirements (see e.g. Civil Service Law, §75) and any applicable collective bargaining agreement provisions. It would appear, however, that the highway superintendent would be generally responsible for implementation of the disciplinary action (see Highway Law, §140[4], Civil Service Law, §75[2]).

With respect to whether a town board may direct the highway superintendent to rescind the appointment of a deputy highway superintendent, we note that Town Law, §32(2) provides that:

The town board of any town may at any time establish the office of deputy town superintendent of highways. The deputy town superintendent of highways shall be appointed by and serve at the pleasure of the superintendent of highways. If the town superintendent of highways shall fail to appoint such deputy within five days after the establishment of the office of deputy or within five days after a vacancy occurs in the office of deputy, the town board shall have power to appoint such deputy town superintendent of highways. * * *

Thus, where the deputy highway superintendent is appointed by the highway superintendent, the deputy superintendent serves at the pleasure of the highway superintendent (see 1978 Opns St Comp No. 78-388, unreported). Therefore, although a town board may recommend rescission of the deputy superintendent's appointment, we believe that the town board may not direct the highway superintendent to rescind his appointment of a deputy superintendent.

August 30, 1989
Leland Norton, Superintendent of Highways
Town of Big Flats