Opinion 92-36

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

COUNTIES -- Powers and Duties (imposition of surcharge to finance E911 system); (implementation of E911 system on a part-county basis)

COUNTY LAW, §300 et seq.: A county is not authorized by article 6 of the County Law to impose a surcharge on a part-county basis in order to finance the implementation of an enhanced 911 emergency telephone system in an area encompassing less than the entire county.

You ask whether article 6 of County Law (§300 et seq.) authorizes a county to institute an enhanced 911 (E911) system pilot project to be installed only within the geographical confines of a police district within that county and to collect a surcharge only on customers serviced within the district. You state that the police district encompasses more than 90% of the county's populace. You further state that the police department of the police district plans to petition the county legislature for authorization to install the E911 system for residents of the district.

You suggest that the language of County Law, §304(2) supports the conclusion that a county may implement an E911 system in less than the entire county. That section states that "(a)ny such surcharge shall have uniform application and shall be imposed throughout the entire municipality to the greatest extent possible in conformance with the availability of such E911 system within the municipality" (emphasis added). You state that, because section 304(2) expressly provides that the surcharge may only be imposed on those areas of the county in which the system is available, it is reasonable to infer that "... where there are a multitude of independent public safety agencies operating autonomously ... only those customers who are policed by an agency whose municipal fathers have spent the money to upgrade their 911 service area should pay the surcharge".

County Law, §303(1) provides as follows:

Notwithstanding the provisions of any law to the contrary, any municipality of this state, acting through its board, is hereby authorized and empowered to adopt, amend or repeal local laws to impose a surcharge in an amount not to exceed thirty-five cents per access line per month on the customers of every service supplier within such municipality to pay for the costs associated with obtaining and maintaining the telecommunication equipment and telephone services needed to provide an enhanced 911 emergency telephone system to serve such municipality. (emphasis added)

"Municipality" is defined for this purpose as "... any county except a county wholly contained within a city and any city having a population of one million or more persons." (County Law, §301[1]). A "service supplier" is defined as "... a telephone corporation which provides local exchange access service within a 911 service area". "911 service area" means "...the area within the geographic boundaries of a county which has established an E911 system" (County Law, §§301[4],[7]).

Based on these definitions, we believe that the authority given to counties envisions a county-wide surcharge to offset the costs associated with establishing and maintaining a county-wide E911 system. Specifically, we interpret the definition of "911 service area" to mean the entire geographic area of a county which has established an E911 system. Such an interpretation is bolstered by the language of section 303(1) which limits the use of the surcharge collected by service suppliers in the E911 service area to "...pay for the costs associated with obtaining and maintaining the telecommunication equipment and telephone services needed to provide an enhanced 911 emergency telephone system to serve such municipality" (emphasis added). As noted, the meaning of "municipality" for this purpose is the county (cf. General Municipal Law, §207-c[1], relating to payment of salary or wages to members of a police force of "any county ... or of any district ... thereof" injured in the performance of duties [emphasis added]).

We further note that personnel costs associated with operation of an E911 system, and other costs not included within the definition of "system costs", are expressly made an expense of the "municipality"; that is, a county-wide expense (County Law, §308[4]; see 1990 Opns St Comp No. 90-51, p 116). Since it would be inconsistent to authorize the establishment of an E911 system in less than the entire county while authorizing the entire county to pay many of the costs for the service, we believe this provision is additional evidence of the intent to permit only county-wide systems.

We do not believe that the language of section 304(2) requires a contrary conclusion. The reference to imposition of the surcharge in conformance with "availability" of the system in section 302(2) must be read together with the rest of that clause which provides that the surcharge is to "be imposed throughout the entire [county] to the greatest extent possible..." We interpret this quoted phrase as further evidence of the legislative intent that an E911 system funded through article 6 extend county-wide. The county does not have discretion to impose the surcharge on a part-county basis, but rather must impose it county-wide except where the service is unavailable. Availability, we believe, relates to technological ability to implement the service and not to a geographical boundary determined by the county.

Further, the suggested interpretation of section 304(2) implies that implementation of the surcharge only could follow action taken by individual local governments within the county to upgrade 911 service areas. The statute, however, clearly evinces the intent that the funding mechanism provided for by article 6 is to help finance an E911 service to coordinate public safety agencies throughout the county, rather than to aid individual municipalities within the county in upgrading 911 service areas. Indeed, one of the problems anticipated to be remedied by an E911 service, as referenced in the Legislative findings and declaration of intent, is confusion arising from the existence of numerous telephone numbers for emergency services (see County Law, §300). Moreover, article 6 does not require that system upgrade take place before the surcharge can be implemented. The Legislature, in enacting article 6, recognized that a major impediment to the establishment of an E911 system in various counties is the cost of the equipment and services needed. The intent of the legislation, then, is to provide counties with a "...funding mechanism to assist in the payment of the costs associated with establishing and maintaining an E911 system..." (emphasis added) (County Law, §300).

It is our opinion, therefore, that article 6 authorizes imposition of a surcharge for an E911 service county-wide. We do not believe article 6 authorizes a county to impose this surcharge and implement an E911 system on a part-county basis.

December 9, 1992
Robert Kearon, Assistant Deputy Commissioner
Suffolk County Police Department