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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 (use of surcharge revenues for establishment of an enhanced emergency telephone service)

COUNTY LAW, §§300, 301, 303, 305, 307, 308: Surcharges imposed on customers within a municipality to pay for the establishment of an enhanced emergency telephone system may be expended only for "system costs", i.e., costs associated with obtaining and maintaining the telecommunication equipment and the telephone services necessary to establish and provide an enhanced 911 emergency telephone system. Other expenses related to the establishment and maintenance of such system are a municipal expense and may not be paid for with surcharge funds.

This is in reply to your letter inquiring about the use of surcharges, levied pursuant to article 6 of the County Law (§300, et seq.), to fund certain activities in relation to the county's proposed installation and implementation of an "E911" system. You describe three general categories of proposed expenditures ("system preparation", "training", and "public awareness") and ask whether surcharge revenues may be used for such purposes.

Under the heading of "system preparation", you list: the salary and expenses of the county coordinator and of temporary personnel who will be involved in data collection and dissemination; assistance to municipalities in regard to local ordinances; and employment of a consultant. We have been advised that the role of the consultant would be to number the parcels of real property within the county for subsequent inclusion in the database. The coordinator's role in the system preparation stage is to number the lots and to assign an "emergency service network number" to each parcel. These numbers alert the person who receives the call as to which emergency service provider will respond to a call from that particular location. The temporary personnel provide clerical and secretarial services in the system preparation stage.

As "training" expenses, you identify costs of certifying and training trainers and purchasing all training equipment and services. Under the category of "public awareness", you list audio/visual equipment to be used in educational programs, printed materials, road signs, various forms of advertising, and equipment and services to improve system accessibility for the disabled and those who speak foreign languages. The equipment would enable disabled individuals to communicate to the person receiving the call by typing a message on a push-button phone; the services would enable a person receiving a call from an individual speaking a foreign language to immediately access translators.

County Law, Article 6 (§300 et seq.), which was added by chapter 756 of the Laws of 1989, relates to the establishment and administration by counties of "E911" systems. An "E911" system is "an enhanced emergency telephone service which automatically connects a person dialing the digits 9-1-1 to an established public service answering point. . ." (County Law, §301[3]).

One of the stated purposes of article 6 is to "provide counties with a funding mechanism to assist in the payment of the costs associated with establishing and maintaining an E911 system ..." (County Law, §300). In this regard, County Law, §303(1) authorizes and empowers any county except a county wholly contained within a city, and the City of New York (see County Law, §301[1]):

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.

The service supplier acts as collection agent of the surcharge for the municipality (County Law, §305[1]).

County Law, §307 is more specific than section 305 as to how surcharge monies remitted to the municipality by a service supplier and other funds dedicated to the payment of "system costs" received by the municipality may be expended. That section provides that such monies may be used "only for payment of system costs as permitted by this article". The term "systems costs" is defined as "the costs associated with obtaining and maintaining the telecommunication equipment and the telephone services costs necessary to establish and provide an E911 system." (County Law, §301[8]; emphasis added).

The legislative history of chapter 756 of the Laws of 1989 indicates that items such as computer terminals and related equipment used to actually provide the E911 system, as well as line charges and installation costs, are intended to be included within the definition of system costs (see Sponsor's Memorandum in Support of S. 3904-A of 1989). County Law, §308(4) provides, however, that "[c]osts incurred for personnel needed to operate an E911 system, including training and compensation thereof, the housing of system equipment and related costs and all other costs not included within the definition of 'system costs' shall be a municipality expense."

In applying the above statutory provisions to the specific purposes which you have identified, it is our opinion that the proposed expenditure for purchasing telecommunication equipment to enable disabled individuals to type messages and telephone services to immediately access foreign language translators in order to improve accessibility of the E911 system to the disabled and those who speak foreign languages, falls within the definition of "system costs". In our view, this expenditure, which contemplates the acquisition of telecommunication equipment and telephone services necessary to establish and provide an E911 system for a segment of the community to be served by the system, constitutes a "system cost" within the meaning of County Law, §301(8).

Further, although the cost incurred for personnel to operate the E911 system are expressly declared to be a municipal expense (County Law, §301[4]), we believe that the costs for the salary and expenses of the county coordinator and temporary county personnel, together with the cost of engaging the consultant, would constitute "system costs" to the extent they relate to numbering the parcels for inclusion into the database of the system. We are informed that this information for the database is essential to make the telecommunication operational in an effective manner. In our opinion, since "system costs" is defined to mean the costs "associated with" obtaining and maintaining telecommunications equipment (County Law, §301[8], the definition encompasses not only the actual costs of acquiring and maintaining the equipment, but also those costs necessarily incidental thereto. In our judgment, making telecommunications equipment operational is a necessary incident to obtaining and maintaining the equipment and, therefore, the costs involved in that function constitute a "system cost".

In contrast, because of the statutory exception for costs of "training" the personnel needed to operate the system (County Law, §308[4]), the costs of certifying and training trainers, and the cost of equipment and services necessary for training personnel are municipal expenses which may not be funded with surcharge monies. Similarly, the costs of assisting municipalities in preparing ordinances, and of purchasing equipment, printed matter, signs and advertising for public awareness are neither costs associated with obtaining and maintaining the telecommunication equipment, nor telephone services costs. Therefore, those expenses also do not constitute "system costs" and may not be paid for with surcharge moneys.

December 31, 1990
Edwin L. Whitman, Esq., Assistant County Attorney
County of Rockland