Opinion 98 - 22

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 (amendment of only by another local law) -- Publicity Fund (establishment of in village); (providing for, increasing or eliminating cap on in village)

MUNICIPAL FUNDS -- Publicity Funds (procedure to establish in village); (providing for, increasing or eliminating cap on in village)

VILLAGES -- Powers and Duties (establishment of, increase or elimination of cap for publicity fund)

VILLAGE LAW, §4-412(1); MUNICIPAL HOME RULE LAW, §10(1)(i): A village, by local law, may establish a publicity fund and may provide for a limitation on the amount of the fund. Such a limitation provided for by local law may be increased or eliminated only by the adoption of another local law.

This is in response to your letter in which you indicate that a village, by local law, created a publicity fund "in an amount not exceeding $5,000 in a fiscal year". The village board is considering increasing that amount and you ask whether this must be done by local law or instead may be done by resolution.

The Village Law contains no specific authorization to establish a publicity fund (compare former Village Law, §89[28][a]; Town Law, §64[14]). Section 4-412(1) of the Village Law, however, provides that the village board of trustees may "take all measures and do all acts, by local law, not inconsistent with the provisions of the constitution, and not inconsistent with general law except as authorized by the Municipal Home Rule Law, which shall be deemed expedient or desirable for the good government of the village, its management and business ....[and] the benefit of trade...." Pursuant to this grant of authority, we have expressed the opinion that a village may establish a publicity fund by local law (see, e.g. 1981 Opns St Comp No. 81-244, p 259; 31 Opns St Comp, 1975, p 53; 30 Opns St Comp, 1974, p 82; compare 30 Opns St Comp, 1974, p 22, discussing village board actions which may be taken by resolution).

There is no State statute limiting the amount which a village may appropriate into a publicity fund (1974 Opns St Comp, p 82, supra; compare Town Law, §64[14]; General City Law, §13-b; former Village Law, §89[28]). In the absence of such a statute, it is our opinion that the village, in the local law establishing the publicity fund, may provide for a limitation on the amount of the fund.

With respect to increasing such a cap provided for in a local law, we note that the doctrine of legislative equivalency requires that existing local legislation be amended or repealed only by legislation of equal dignity (see, e.g. Torre v County of Nassau, 86 NY2d 421, 633 NYS2d 465; Naftal v Town of Brookhaven, 221 AD2d 423, 633 NYS2d 798; 1984 Opns St Comp No. 84-26, p 33; 1982 Opns St Comp, No. 82-35, p 45). Accordingly, the village may increase the limitation contained in its current local law only by the adoption of another local law. As an alternative, since the village was not required initially to impose the limitation, it is our opinion that the village, by local law, may repeal the current $5,000 cap (see, gen., La Cagina v City of Schenectady, 70 AD2d 761, 416 NYS2d 873; 6 McQuillin, Mun. Corps., §21.10). In that event, as part of the annual budget adoption and amendment process (see Village Law, §5-500 et seq.), and without adoption of a further local law, the village budget officer would recommend, and the village board would determine, the amount, if any, which is to be appropriated for publicity fund purposes in their discretion (1975 Opns St Comp, p 53, supra).

December 29, 1998
Douglas W. Whitney, Esq., Village Attorney
Village of Fairport