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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

PUBLIC OFFICERS AND EMPLOYEES -- Compensation (improvement district commissioners)
IMPROVEMENT DISTRICTS -- Commissioners (compensation)
WORDS AND PHRASES -- "Per day" (for purposes of compensation to improvement district commissioners)

TOWN LAW, §214: Where the town board has designated a "per day" compensation for improvement district commissioners, a commissioner is entitled to the full per day amount for each day on which he or she actually and necessarily renders services on behalf of the district, other than services which may be characterized as nominal, unsubstantial, trivial or inappreciable. It is for the municipal auditing body or official to determine, in the first instance, whether a claimant is entitled to the per day compensation in each particular case. 1981 Opns St Comp No. 81-179, p 191, is superseded to the extent inconsistent with this opinion.

You ask that we reconsider that portion of 1981 Opns St Comp No. 81-179, p 191 in which we concluded that an improvement district commissioner who does not work a full day is entitled only to a proportionate share of the per diem allowance authorized pursuant to Town Law, §214. Section 214 provides that improvement district commissioners may be paid such an amount as may be designated by the town board "but not to exceed the sum of [$60] per day each for each day actually and necessarily spent in the service of the district." (emphasis added).

In Opn No. 81-179, supra, we considered whether a commissioner, who was contacted by telephone to discuss a district matter while out of State, was entitled to a per diem allowance. We concluded that section 214 does not require that services for the district be rendered within the territorial limits of the district. We also stated, however, that "since the services to the district involved only a telephone call which, presumably, did not require a full days [sic] work, the commissioner is entitled to a proportionate share of the [per] day compensation." Upon reconsideration, we now believe that Opn No. 81-179 does not correctly set forth the rule in New York with respect to the payment of per diem compensation to improvement district commissioners.

The leading case in New York on the subject of prorating "per day" compensation of public officials is Stetler v McFarlane, 230 NY 400, in which the Court of Appeals construed, inter alia, a provision of former County Law §23 entitling each member of the county board of supervisors to four dollars "per day while actually engaged in any investigation or other duty, which may be lawfully committed to him by the board ..." (230 NY at409). The plaintiffs, aggrieved taxpayers challenging as illegal certain per diem payments made to a supervisor, claimed that this statutory language meant that supervisors were entitled only to a pro rated per diem for anything less than a full day's work. The court rejected this interpretation, stating as follows (230 NY at 409):

The plaintiffs construe this to mean that payment is to be made upon a graduated basis, $4 for a full day's work, and a proportionate sum for less. We are unable to accept that construction of the statute... . We think the statute means that a supervisor acting in good faith, shall be paid for every day upon which service is rendered in the performance of delegated duties. The notion of service does indeed import a measure of activity not wholly nominal and unsubstantial. It does not fairly include activities so trivial or inappreciable as to fall within the doctrine of de minimis. [Emphasis added]

The Court went on to state that the determination of the character of the services was, in the first instance, a matter for the county auditing body "who might supplement by other sources of information the vague and inconclusive description upon the face of the defendant's bills" (id.). Further, the Court concluded that the only instances where, as a matter of law, the services which the defendant claimed to have rendered would fall within the categories of "wholly nominal and unsubstantial" or "trivial or inappreciable" were those involving the mere receipt of letters or other documents having relation to official business which called for no action or negligible action.

Since Town Law, §214, like former County Law, §23, provides for a rate of compensation "per day" actually engaged in service, the interpretation adopted by the Court of Appeals in Stetler, supra, which has not been superseded by later cases, would have equal application to compensation of commissioners under Town Law, §214. Thus, we conclude that the entitlement to per diem compensation pursuant to Town Law, §214 is not contingent upon the performance of a full day's work, nor may it be reduced pro rata to reflect that portion of a day spent in service. Rather, a commissioner is entitled to his or her per diem compensation for services actually and necessarily rendered unless such services may be characterized as "wholly nominal and unsubstantial" or "trivial or inappreciable", such as, among other circumstances, the mere receipt of mail or engaging in a brief telephone conversation (see also, In re City of New York, 78 AD 87, 79 NYS 793, regarding payment of a per diem for attendance at a scheduled meeting which was adjourned for lack of a quorum; In re Town of Hempstead, 36 AD 321, 55 NYS 345, affd 160 NY 685, denying a town clerk a per diem "as custodian of the papers required to be filed with him"). As the Court in Stetler, supra, explained, it is for the municipal auditing body or official initially to determine, based upon the particular facts supporting the claim in each case and applying the standards discussed above, whether the claimant is entitled to the per diem compensation. We note that the general rule set forth in Stetler v McFarlane, supra, is consistent with the rule in most other states (see, State of Washington ex rel. Greb v Hurn, 172 P 1147; 1 ALR 276).

Accordingly, it is our opinion that where a town board has set a per diem compensation for district commissioners pursuant to section 214 of the Town Law, the commissioners are entitled to receive the full per diem amount for each day on which they actually and necessarily render services on behalf of the district, unless the services are nominal, unsubstantial, trivial or inappreciable. There is no authority for a pro ration of the per diem compensation under section 214 for performance of less than a full day's service. Opn 81-179, supra, is superseded to the extent inconsistent herewith.

December 20, 1990
Frank A. D'Elia, Esq., Attorney
Port Washington Water District