Opinion 93-13

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 (authority to charge-back to municipalities within county the cost of sheriff's road patrols); (providing sheriff's road patrols on a part-county basis)

LOCAL LAWS -- Taxes and Assessments (authority of county to charge-back to municipalities within county the cost of sheriff's road patrol) - Pre-emption (formation of special district for the provision of sheriff's road patrol services)

COUNTY LAW, §650(1); STATE CONSTITUTION, ART IX, §§1, 2(d); MUNICIPAL HOME RULE LAW, §§10(5), 34(3)(b): There is no statutory authority for a county to charge-back the cost of sheriff's road patrol to particular municipalities within that county, or for a county to provide such road patrols on a part-county basis. Further, a county may not authorize, by local law, the imposition of such a charge-back, nor may it by local law create a special district within the county for the purpose of charging road patrol services only to that area.

You ask whether a county containing several towns and one city may charge-back to the individual towns within the county the cost of the sheriff's department road patrol. You have indicated that the reason for the proposed charge-back system is that the sheriff patrols only in the area of the county outside of the city.

County Law, §650(1) states that "[t]he sheriff shall perform the duties prescribed by law as an officer of the court and conservator of the peace within the county. He shall perform such additional and related duties as may be prescribed by law and directed by the board of supervisors or the county legislature." The Attorney General has stated that the "sheriff is required by law to provide services based on the need for police protection throughout the county, taking into consideration the availability of resources" (1988 Atty Gen Opn No. I88-38; see also 1981 Opns St Comp No. 81-301, p 326).

This Office has stated that the cost of operating and maintaining the sheriff's department is a county-wide charge (1978 Opns St Comp No. 78-603, unreported). Further, there is no statutory authority for a county to charge-back the cost of sheriff road patrol services to particular municipalities within the county, even if the concentration of services is greater in those municipalities (cf., e.g., Education Law, §6304[1][c], authorizing counties to charge back to cities and towns a proportionate share for expenditures for community colleges; 1992 Opns St Comp No. 92-26, p 64, discussing the charging-back of certain election expenses; 1981 Atty Gen [Inf Opns] 193, concerning the authority of a county to provide local patrol services only in municipalities within the county which contract for such services).

As to whether a county, by local law, may authorize the charge-back, we note that it is well-settled that the power to assess and collect taxes is vested exclusively in the State Legislature and that a municipal corporation may exercise authority in this area only if it has been expressly delegated to the municipal corporation by the Legislature (NY Const, art IX, §1; Sonmax v City of New York, 45 NY2d 253, 401 NYS2d 173). Also, with certain exceptions not applicable here, a local government may not adopt a local law which impairs the powers of any other public corporation (NY Const, art IX, §2[d]; Municipal Home Rule Law, §§10[5], 34[3][b]). A charge-back would be in the nature of a county expense passed on to the towns within the county. Although the county would not be directly taxing the towns, its action would be tantamount to requiring the towns to impose and collect additional town taxes without Legislative authority. Further, it is our opinion that such a local law on the part of the county necessarily would impair the powers of the towns by infringing on the towns' ability to raise revenues through real property taxes for their own local purposes. Accordingly, it is our opinion that a county may not, by local law, authorize the charge-back.

It is also our opinion that a county may not establish a special district encompassing the area outside of the city for the purpose of charging the road patrol services only to that area. There is no State statute which authorizes a county to establish a special district for the provision of sheriff's road patrol services (Opn No. 78-603, supra). In addition, it is our opinion that a county may not, by local law, authorize the creation of such a district. Article 5-A of the County law (§250 et seq.) enumerates the types of districts which may be formed in a county and sets forth detailed procedures for the establishment, financing and operation of these districts. In our opinion, these provisions create a comprehensive legislative scheme for county districts and evince an intent that counties may not adopt local laws establishing districts for other types of improvements or services (see 1986 Opns St Comp No. 86-53, p 84; Coconoto v Town of Esopus, 152 AD2d 39, 547 NYS2d 953 lv den 76 NY2d 701, 558 NYS2d 891; see also NY Const, art IX, §1[g]).

Finally, the above discussion should be distinguished from prior opinions of this Office in which we concluded that a county is authorized to contract with a village or town to provide additional police protection other than that usually and normally supplied by the sheriff (see, e.g., Opn No. 81-301, supra; Opn No. 78-603, supra). In those instances, there would be a negotiated agreement for the additional services, not a county-imposed charge-back.

March 15, 1993
Kelli P. McCoski, Esq., County Attorney
County of Montgomery