Opinion 89-35

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

LOCAL LAWS -- Procedural Requirements (mandatory referendum - transfer of powers of town supervisor)
MUNICIPAL FUNDS -- Deposits and Investments (authority to make temporary investments)
TOWN BOARD -- Powers and Duties (authority over temporary investments)
TOWN COMPTROLLER -- Powers and Duties (extent to which comptroller may be authorized to exercise the powers of the supervisor); (designation of chief fiscal officer)
TOWN SUPERVISOR -- Powers and Duties (transfer to town comptroller)

TOWN LAW, §§20(3)(b), 29, 34, 124, 125; MUNICIPAL HOME RULE LAW, §§10(1)(ii)(a)(1), 10(1)(ii)(d)(3), 23(2)(f); LOCAL FINANCE LAW, §2.00(5)(c): Powers of the town supervisor as treasurer under the Town Law may be transferred to the town comptroller by local law subject to a mandatory referendum. Whether it is proper to designate the town comptroller as chief fiscal officer must be made on a case-by-case basis depending on the particular function to be performed.
TOWN LAW, §64(1); GENERAL MUNICIPAL LAW, §11: The town board manages and controls the finances of the town, but may authorize its chief fiscal officer or officer having custody of town moneys to temporarily invest moneys not needed for immediate expenditure.

This is in reply to your inquiry concerning the powers and duties of a town supervisor under the Town Law and asking the extent to which those powers and duties may be delegated to a town comptroller. You also ask whether the town comptroller may be designated as the "chief fiscal officer" of the town and whether the town comptroller may be authorized to invest moneys pursuant to section 11 of the General Municipal Law. Finally, you ask whether the town board itself may retain the power to invest moneys pursuant section 11 of the General Municipal Law.

You indicate that the town board has adopted a resolution establishing the office of town comptroller. The town comptroller has been designated as the accounting officer of the town. In addition, the town board has conferred upon the town comptroller the duties authorized by section 34(2) of the Town Law.

Under section 20(3)(b) of the Town Law, the town board, by resolution, may establish the office of the town comptroller. The comptroller, by virtue of the establishment of his office, is authorized to perform the functions of auditing claims against the town and auditing the accounts and receipts of town officers (Town Law, §34[1]). The town board, by resolution, may also require that the comptroller countersign all checks required to be signed by the supervisor (Town Law, §34[1]). Further, certain of the powers and duties prescribed for the town supervisor under section 125 of the Town Law may be transferred to the comptroller by ordinance (Town Law, §34[2]). These include the keeping of separate appropriation accounts, preventing funds or appropriation accounts from being overdrawn and, with the counter-signature of the supervisor, the drawing of funds or appropriations (Town Law, §34[2][a][b]). Finally, the town board, by resolution, may designate the comptroller as the accounting officer of the town and thereby transfer all of the accounting duties of the supervisor to the comptroller (Town Law, §124).

While, as noted above, the town board, by resolution or ordinance, may transfer certain powers and duties from the supervisor to the comptroller, section 124 of the Town Law provides that:

Nothing in this section shall be construed to relieve the town supervisor of his duties as treasurer of the town pursuant to subdivisions one, two, three and four of section twenty-nine of this chapter.

The supervisor's duties as treasurer under section 29 include collecting, receiving and having the care and custody of moneys belonging to or due the town (Town Law, §29[1]) and depositing all such moneys in designated banks or trust companies within 10 days of receipt (Town Law, §29[2]).

Although Town Law, §124 precludes a town from transferring the supervisor's section 29 powers as treasurer to the comptroller by resolution, it is necessary to determine whether the town may accomplish such a transfer pursuant to its home rule powers. Municipal Home Rule Law, §10(1)(ii)(a)(1) provides that a local government may adopt local laws, not inconsistent with the Constitution or general laws, relating to, among other things, the powers and duties of its officers and employees. In addition, section 10(1)(ii)(d)(3) authorizes towns to supersede any provision of the Town Law, with certain exceptions, relating to its property, affairs or government or other matters of the town to the extent to which it is authorized to adopt local laws (1987 Opns St Comp No. 87-43, p 66; 1985 Opns St Comp No. 85-46, p 62). One of the exceptions stated in section 10(1)(ii)(d)(3) prohibits a town from superseding the provisions of Article 8 of the Town Law relating to town finances. Article 8 includes section 124, which, as noted above, states that the supervisor's duties as treasurer may not be transferred to a town comptroller. It is further provided in section 10(1)(ii)(d)(3), however, that nothing in that provision shall preclude the adoption of a local law transferring or assigning the functions, powers, and duties of one town officer to another.

Therefore, based on the home rule authority granted by the Municipal Home Rule Law, in our opinion, a town, having established the office of town comptroller, may, by local law, transfer the powers and duties of the supervisor as treasurer prescribed in section 29 of the Town Law to the town comptroller (see Opn No. 85-46, supra). It must be emphasized, however, that a local law which transfers any of the powers of the supervisor to another official would be subject to a mandatory referendum (Municipal Home Rule Law, §23[2][f]).

With respect to whether the town comptroller may be designated as the "chief fiscal officer" of the town, we note initially that, although many statutes provide for particular functions to be performed by the town's chief fiscal officer (see, e.g., Town Law, §30; General Municipal Law, §11), there is no provision in the Town Law or any other statute which, for all purposes, designates a particular town officer as the "chief fiscal officer" of the town (cf. Local Finance Law, §2.00[5][c] defining "chief fiscal officer" in a town to mean the town supervisor for purposes of the Local Finance Law). Consistent with the provisions of the Town Law which confer powers on and prescribe duties to the supervisor in fiscal matters, however, the courts in this State have generally referred to the supervisor as the "fiscal officer" or "chief fiscal officer" of the town (see, e.g., Knapp v Fasbender, 1 NY2d 212, 151 NYS2d 668; Luce v Beiter, 239 App Div 23, 265 NYS 61, dissenting opinion). However, if a town were to transfer a significant number of these powers and duties to the town comptroller, it may be appropriate to generally refer to the town comptroller as the "chief fiscal officer" of the town.

Although local enactments may make it appropriate to generally refer to the comptroller as "chief fiscal officer", this informal designation would not necessarily permit the comptroller to perform those functions or duties which are specifically assigned to the town supervisor under certain other provisions of law. For example, Local Finance Law, §2.00(5)(c) defines "chief fiscal officer" in the case of a town to mean the town supervisor. It is well settled that a local government may not exercise home rule powers in situations where the state has demonstrated a desire or design to pre-empt the subject matter of the proposed local law (Con Ed v Town of Red Hook, 60 NY2d 99, 468 NYS2d 596; Belle v Town of Onondaga, 61 AD2d 352, 402 NYS2d 677; see also, 1987 Opns St Comp No. 87-55, p 83; 1986 Opns St Comp No. 86-53, p 84). Section 176.00 of the Local Finance Law states that:

Except as otherwise provided in this article, all statutes, local laws, ordinances, rules and regulations, insofar as they relate to the matters herein contained, are hereby superseded, it being the legislative intent that this chapter shall constitute the exclusive law on such matters.

In our view, section 176.00 evidences an intent on the part of the State that the Local Finance Law is the exclusive law governing the manner in which a municipality may incur debt. Therefore, it is our opinion that a town may not adopt a local law superseding Local Finance Law, §2.00(5)(c) to designate the town comptroller, instead of the town supervisor, as chief fiscal officer for purposes of the Local Finance Law (but see Local Finance Law, §61.00 providing that certain duties of the town supervisor as chief fiscal officer under the Local Finance Law may be delegated to other officers).

Further, we note that Highway Law, §283 provides that moneys available for highway, bridge and miscellaneous highway purposes shall be paid to the town supervisor who shall be custodian thereof (see also Highway Law, §289). Since section 283 appears to be a general law (see Municipal Home Rule Law, §2[5]), it would appear that it may not be superseded by an inconsistent local law which transfers the power and duty of the supervisor as custodian of highway moneys to another town official. Consequently, while the supervisor's powers and duties as custodian of town moneys generally under Town Law, §29 may be transferred by local law to the town comptroller, it appears that the supervisor must remain the custodian of highway moneys.

On the other hand, General Municipal Law, §30 requires the "chief fiscal officer of each municipal corporation" to annually make a report of its financial condition to the State Comptroller. While the report is generally to be prepared by the town supervisor, if the town board has designated the town comptroller as the accounting officer of the town, Town Law, §124 expressly states that the report shall be prepared by the town comptroller. Accordingly, it would be appropriate to refer to the town comptroller as the chief fiscal officer for this purpose.

As appears from the foregoing examples, the authority of town to transfer the fiscal functions of the town supervisor to the town comptroller under a local law adopted pursuant to Municipal Home Rule, §10(1)(ii) is not without limitation. Therefore, each statute which provides for particular functions to performed by the town's "chief fiscal officer" or the town supervisor must be examined to determine which town official is to perform the function prescribed by that statute and, if it is the town supervisor, whether the function may be transferred to the town comptroller by local law, ordinance or resolution.

We caution, however, that even though it may be legally permissible to transfer particular fiscal functions from the supervisor to the comptroller by local law subject to mandatory referendum, the town, by so doing, may be eliminating certain important internal controls provided under the present statutory scheme. For example, the fiscal check of having the comptroller prepare an abstract of audited claims, directed to the supervisor, authorizing and directing the supervisor to pay the claimant the amount allowed on his claim (Town Law, §119[1]) would be eliminated if the comptroller were also the town treasurer. We also note that some practical difficulties may arise if particular fiscal responsibilities are transferred from the supervisor to the comptroller while others are retained by the supervisor (e.g., transferring the treasurer's function to the comptroller, while the supervisor remains custodian of highway moneys). The town board, therefore, should carefully consider the increased risks resulting from such a loss of internal control, as well as the practicality of dividing particular fiscal responsibilities between two officers, when determining the appropriateness of transferring fiscal functions to the comptroller by local law.

Your second and third questions relate to the temporary investment of town moneys under section 11 of the General Municipal Law. Section 11 provides that the town board may authorize the "chief fiscal officer or officer having custody of moneys" of the town to invest moneys not required for immediate expenditure in special time deposit accounts in, or certificates of deposit issued by, a bank or trust company located in and authorized to do business in New York. You ask whether the town comptroller may be authorized to temporarily invest moneys under section 11.

The General Municipal Law does not define "chief fiscal officer", but, based on the supervisor's fiscal powers and duties under the Town Law, including his powers and duties as treasurer, this Office has consistently stated that the town supervisor is chief fiscal officer for purposes of section 11 (see, e.g., 23 Opns St Comp, 1967, p 350). If, however, the function of having custody of town moneys under Town Law, §29 is, by local law, transferred to the town comptroller, then, since section 11 authorizes the board to authorize the chief fiscal officer or an officer having custody of moneys to invest, section 11 would provide authority for the town board to authorize the town comptroller to invest moneys within his custody.

Finally, you ask whether the town board may retain the authority to temporarily invest town moneys under section 11 of the General Municipal Law. Since it is evident that only an official having custody of moneys may be authorized to invest, the town board cannot itself actually perform the act of investing town moneys. However, the town board has "the general management and control of the finances of the town" (Town Law, §64[1]) and has the ultimate responsibility to determine the investment policy of the town. Therefore, the board could delegate the investment function, subject to standards and guidelines prescribed by the board (23 Opns St Comp, 1967, supra; 21 Opns St Comp, 1965, p 778). In this regard, we note that in the Financial Management Guide for Local Governments published by this Office, we state that management policies, operating procedures and audit procedures are essential to a sound investment program and set forth in detail what those policies and procedures should contain. Our management guide recommends that there be a written investment policy which, among other things, sets forth the types of permissible investments, the procedures to be adhered to for each type of investment, an approved list of trading partners with investment limits and a requirement that all investments be made in accordance with applicable statutory provisions and policy directives of the board.

September 25, 1989
James J. Kelleher, Esq., Town Attorney
Town of West Seneca