Opinion 2007 - 2


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

ELECTIONS -- Board of Elections (liability for expenses of); (authority to charge back expenses of); (method of charging back expenses of); (custody of voting machines)

COUNTY LAW §361-a; ELECTION LAW §§3-226, 4-136 and 4-138: Counties may, but are not required to, charge back to towns and cities all or a portion of the types of expenses connected with elections and matters preliminary or relating thereto that, prior to chapter 180 of the Laws of 2005 were directly incurred by towns and cities, as well as those county expenses that were specifically chargeable to individual cities or towns pursuant to a provision of law, including the expenses of election inspectors and expenses relating to the repair and maintenance of voting machines. Counties may apportion those expenses among the cities and towns using any method the county reasonably determines is equitable. Although a county may not turn over the care, custody and control of voting machines to towns and cities, the county is permitted to enter into leases with towns and cities to store voting machines in facilities owned by the towns and cities, so long as the care, custody and control of the machines remains with the county.

You ask whether amendments made to the Election Law by chapter 180 of the Laws of 2005 (“chapter 180”) require or permit the chargeback of election expenses by the county to towns and cities within the county and, if so, which expenses may or must be charged back. You ask specifically whether the expenses of election inspectors and the expenses for repair and maintenance of voting machines are required or permitted to be charged back. With respect to those expenses that are either required or permitted to be charged back, you ask whether the expenses may be apportioned among the towns and cities on the basis of full valuation of taxable real property, on a per capita basis, or based on the number of registered voters. Finally, you ask whether the county may turn over the care, custody and control of voting machines to the towns and cities and, if not, whether the county is permitted to store voting machines at town and city facilities.

The federal Help America Vote Act of 2002, “HAVA”, (PL 107-252; 42 US Code §§15301, et seq.) made extensive changes to the law relative to voting procedures in the United States, including the elimination of the lever and punch card voting machines. Generally, HAVA requires states to update and improve their current election and voting procedures by passing legislation that is consistent with the requirements contained in HAVA (42 US Code §15403). During the 2005 legislative session, New York passed a number of bills relative to HAVA compliance and implementation. Among the legislation passed at that time was chapter 180, known as the “Election Consolidation and Improvement Act of 2005”.

Initially, we note that prior to chapter 180, Election Law §4-136(3) provided that “all” expenses of a board of elections are a county charge and additionally provided that “[t]he expenses incurred by the board of elections of a county outside the city of New York shall be apportioned among the cities and towns therein” (emphasis added). Election Law §4-138 and County Law §361-a, however, provide in part that:

[t]he board of elections in each county, outside the city of New York,…shall certify to the clerk of the legislative body of the county, the total amount of the expenses of such board of elections…and, if the legislative body of any county shall so direct, shall certify to such clerk the portions of such expenses which under provisions of law are to be borne by any city or cities in said county and the portion thereof which is to be borne by the rest of the county (emphasis added).

The apparent conflict between the mandatory language contained in former section 4-136, and the permissive language contained in sections 4-138 and 361-a, was most recently addressed by this Office in 1992 Opns St Comp No. 92-26, p 64. In Opn No. 92-26, supra, we concluded that, based on a reading of the literal language of sections 4-136(3), 4-138 and 361-a in conjunction with their legislative history, these provisions authorized the charge back only of those expenses that were specifically chargeable to individual cities or towns pursuant to a provision of law, such as Election Law, §4-136(1) and (2).1 In reaching this conclusion, we also noted that, despite the use of the word “apportionment” in the titles of sections 4-138 and 361-a, these sections do not establish a method for such expenses to be apportioned among jurisdictions within the county ( cf., e.g., Education Law §6304[1][c]; Real Property Tax Law §§804[1], 844[1], 900[1], 1314[1], 1402[3][d]; Town Law §181[1]) and, further, do not require the expenses to which they refer to be apportioned on the basis of taxable full valuation of real property. Opn No. 92-26, supra, was cited favorably and followed in City of Binghamton v County of Broome, 168 Misc 2d 792, 645 NYS2d 272.

Chapter 180 made changes to various provisions in the Election Law, including section 4-136. In amending this section, subdivision three was renumbered subdivision two by the legislature, and the language was revised. Election Law §4-136(2) now provides that “[t]he expenses incurred by the board of elections of a county outside the city of New York may, pursuant to section 3-226 of this chapter, be apportioned among the cities and towns therein, or in the case of a village election held other than at the time of the fall primary or general election, apportioned to such villages therein” (emphasis added). Therefore, counties now have the option of charging back election expenses pursuant to section 3-226, but are not required to do so.

With respect to which expenses may be charged back, as indicated above, Election Law §4-136(2) refers to section 3-226, which was added by chapter 180 and provides, in pertinent part, that:

[a]ll expenses of such board of elections shall be certified, audited and paid as are other claims against the county…and all expenses connected with elections and matters preliminarily relating thereto, including compensation of inspectors and clerks of election, shall be a county charge, except, at the option of the county, all or any part of the type of expenses connected with elections and matters preliminary or relating thereto that were previously incurred by towns and cities, may be apportioned pursuant to this chapter to a city or town (emphasis added).

Based on this language, counties now have the option of charging back all or a portion of the “type of expenses connected with elections and matters preliminary or relating thereto” that were “previously incurred by towns and cities”.

Thus, in order for an expense to be among those that may be charged back to towns and cities by counties, it must constitute the type of expense that was “previously incurred by towns and cities”. The word “incurred”, when used in connection with expenses, often refers to expenses for which an entity or individual becomes liable by virtue of their own actions (see, e.g., Black’s Law Dictionary, Eighth Edition). Applying that definition here, counties would be permitted to charge back to cities and towns only those expenses that cities and towns previously incurred directly, by their own actions, and not election expenses that had been initially incurred by counties and charged back to towns and cities. The word “incurred”, however, more fundamentally can relate to expenses that one has “become liable for” (see, e.g., Farr v Traveler’s Indem., 84 Misc 2d 189, 375 NYS2d 229) or “liabilities cast upon one by act or operation of law” (see, e.g., United States v St. Paul Mercury Indem. Co . , 238 F2d 594; see also Town of New Windsor and State of New York v Tesa Tuck, Inc., 935 F Supp 317). If that definition is applied, then election expenses that counties initially incurred but charged back to towns and cities prior to chapter 180 also could be charged back at the county’s option.

The Legislative history of chapter 180 is instructive with respect to the meaning of the term “previously incurred by towns and cities” here (see, gen., McKinney’s Statutes, §235). It clearly indicates that all the election expenses that cities and towns were responsible for prior to the 2005 amendments, including expenses that were charged back by the counties under the prior law, may be charged back by counties in accordance with chapter 180. For example, the Memorandum in Support of the bill that was enacted as chapter 180 states that the amendment to section 4-136 was to “provide for the chargeback to towns, cities and villages, as under current law, for election expenses to be borne by counties” (emphasis added) (Bill Jacket, L 2005, ch 180, New York State Assembly Memorandum in Support of Legislation re: A. 8931/S. 5822). Similarly, the Senate sponsor of that bill and the State Board of Elections both noted that the purpose of chapter 180 was to “provide for all election functions to be consolidated at the county level and allow counties to, at their own option, apportion election expenses to towns and cities which previously paid for such functions in most counties” (emphasis added) (Bill Jacket, L 2005, ch 180, Sen. Flanagan’s Letter to Hon. Richard Platkin in Support of S. 5822, June 27, 2005; Memorandum from the State Board of Elections to Hon. Richard Platkin, July 1, 2005). Furthermore, the State Division of the Budget characterized the fiscal impact of the amendments as minimal since “the bill allows counties to charge back to towns and villages costs these entities currently support” (emphasis added) (Bill Jacket, L 2005, ch 180, Budget Report on Bills re: S. 5822).

Therefore, since prior to chapter 180, cities and towns were responsible for paying election expenses that they incurred directly, as well as county expenses that were specifically chargeable to individual cities or towns pursuant to a provision of law, counties are now permitted to charge back to towns and cities those same types of expenses.

As to expenses of election inspectors and the expenses for repair and maintenance of voting machines specifically, we note that Election Law §7-203 was amended by chapter 180 to make it a requirement of the county board of elections to provide voting machines. This expense was previously borne by cities and towns. Other expenses that were previously city and town expenses and made county expenses by chapter 180 include voting machine custodians, election inspectors, poll clerks, election coordinators, as well as the expenses of providing polling places. As such, these expenses may be charged back to the towns and cities, in whole or in part.

With respect to the method of charging such expenses back, as indicated above, neither County Law §361-a nor Election Law §4-138 establishes a method for such expenses to be apportioned among the cities and towns within the county. We have previously expressed the opinion that apportioning on the basis of taxable real property is not required (see, Opn No. 92-26, supra). In the absence of any statutory direction, it is our opinion that counties, in their discretion, may apportion election expenses using any method that they reasonably determine is equitable, including, if the county so determines, on the basis of full valuation of taxable real property, on a per capita basis, based on the number registered voters or a combination of such methods (see, e.g., 1979 Opns St Comp No. 79-621, p 118; see also Opn No. 92-26, supra).2 

Finally, Election Law §3-226 provides, in pertinent part, that “[a]ll voting machines, and appliances and equipment relating to or used in the conduct of elections shall be in the care, custody and control of the board of elections”. There is nothing in the Election Law that suggests that the county could turn over this function to towns or cities. Indeed, such a transfer of functions would be inconsistent with one of the primary purposes of chapter 180 -- to consolidate all election functions at the county level to “facilitate election modernization, application of common standards and practices and better ensure the smooth operation of elections” (Bill Jacket, L 2005, ch 180, Memorandum in Support of Legislation re: S. 5822, supra).3

Thus, under section 3-226, it is clear that the county is responsible for storing voting machines between elections. Section 3-226, however, does not appear to require that the county store the machines in facilities maintained or owned by the county. As such, we believe that a county is permitted to enter into leases with towns and cities to store voting machines in facilities owned by said towns and cities, either with or without consideration (see General Municipal Law §72-h). Under such an agreement, the voting machines could be physically located in the cities or towns, so long as the care, custody and control would remain with the county and not be turned over to the lessee-city or town.

Accordingly, it is our opinion that counties may, but are not required to, charge back to towns and cities all or a portion of the types of expenses connected with elections and matters preliminary or relating thereto that, prior to chapter 180, were directly incurred by towns and cities, as well as those county expenses that were specifically chargeable to individual cities or towns pursuant to a provision of law, including the expenses of election inspectors and expenses relating to the repair and maintenance of voting machines. It is further our opinion that counties may apportion those expenses among the cities and towns using any method the county reasonably determines is equitable. Finally, it is our opinion that, although a county may not turn over the care, custody and control of voting machines to towns and cities, the county is permitted to enter into leases with towns and cities to store voting machines in facilities owned by the towns and cities, so long as the care, custody and control of the machines remains with the county.4

March 13, 2007

Dennis V. Tobolski, Esq., County Attorney
County of Cattaraugus

 

 

1 Opn No. 92-26, supra, superseded 1987 Opns St Comp No. 87-45, p 68 and 1981 Opns St Comp No. 81-207, p 221, to the extent those opinions were inconsistent with Opn No. 92-26, supra.

2 Since neither section 361-a nor 4-138 of the Election Law was amended by chapter 180, it remains our view, as we concluded in Opn No. 92-26, supra, that the charge back must be added to the city or town property tax levy because County Law §233-a(3)(e) excludes the charge back from the computation of the county’s tax limit and, in so doing, provides that “[a] tax so levied shall be treated as a purpose of and a charge against such city, town or village, as the case may be” ( cf. County Law §233-a[3][s], pertaining to amounts specified in annual town budgets).

3 The State Division of the Budget, commenting on chapter 180, noted that “[c]entralized control will result in better voting machine maintenance and increase accountability and standardization. Centralization also leads to economies of scale, savings, cost avoidance and better service to the public” (Bill Jacket, L 2005, ch 180, Budget Report on Bills re: S. 5822, supra).

4Prior opinions, to the extent inconsistent, are hereby superseded.