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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

MUNICIPAL COOPERATION -- Procedures (necessity for referendum) -- Refuse and Garbage (town refuse and garbage district collecting refuse for village)
REFERENDUM -- Permissive (need for prior to cooperation agreement for refuse collection)
REFUSE AND GARBAGE -- Collection of (for village by town refuse and garbage district)
REFUSE AND GARBAGE DISTRICT -- Municipal Cooperation (town district collecting refuse for village)

GENERAL MUNICIPAL LAW, §119-o; TOWN LAW, §§198(9), 209-e(3): A town board, on behalf of a refuse and garbage district, may contract with villages located within the town but excluded from the district for the collection of village refuse. The town board's resolution authorizing the contract would not be subject to referendum.

You ask whether, pursuant to section 119-o of Article 5-G of the General Municipal Law, a town board, on behalf of a garbage and refuse collection district, may contract with villages located within the town but excluded from the district for the collection of village refuse. You also ask whether the town board resolution authorizing the contract is subject to a permissive referendum. You have informed us that the district in question was established pursuant to article 12-A of the Town.

Section 119-o of the General Municipal Law authorizes "municipal corporations and districts", in addition to any other general or special powers, to enter into agreements for the performance among themselves or one for the other of their respective functions, powers and duties on a cooperative or contract basis, or for the provision of a joint service. Any agreement entered into under section 119-o must be approved by each participating municipal corporation or district by a majority vote of the voting strengths of its governing board.

Section 119-n(a) defines "municipal corporation" to include villages, and "district" to mean "...a county or town improvement district for which the county or town or towns in which such district is located is or are required to pledge its or their faith and credit for the payment of the principal of and interest on all indebtedness to be contracted for the purposes of such district" (General Municipal Law, §119-n[b]). A town is required to pledge its full faith and credit for the payment of debt service on obligations issued for purposes of a district established pursuant to article 12-A of Town Law (see NY Const, art VIII, §3; TownLaw, §§209-f, 231). Therefore, both the refuse and garbage district and the villages are authorized to enter into municipal cooperation agreements under section 119-o.

As to the subject matter of the agreement, paragraph 1 of section 119-o, as noted, authorizes municipal corporations and districts to enter into agreements "... for the performance among themselves or one for the other of their respective functions, powers and duties on a cooperative or contract basis ...." (emphasis added). Both villages and town refuse and garbage districts are empowered to provide individually for refuse collection services (Village Law, §4-412; Town Law, §198[9]; General Municipal Law, §120-w; 1979 Opns St Comp No. 79-307, p 52; 1988 Opns St Comp No. 88-2, p 3; 1988 Opns St Comp No. 88-12, p 20). Therefore, the district, pursuant to the authority in section 119-o to agree to perform respective functions "one for the other", may contract with the villages to provide refuse collection services for the villages.

With respect to the necessity of subjecting to permissive referendum requirements the town board resolution approving such agreement, section 119-o(1) provides as follows:

Where the authority of any municipal corporation or district to perform by itself any function, power and duty or to provide by itself any facility, service, activity, project or undertaking or the financing thereof is, by any other general or special law, subject to a public hearing, a mandatory or permissive referendum, consents of governmental agencies, or other requirements applicable to the making of contracts, then its right to participate in an agreement hereunder shall be similarly conditioned.

The purpose of this requirement is to ensure that a cooperation agreement will be subject to hearings, referenda and any required consents in the same manner as though the activity which is the subject of the contract were done severally (see Department of Audit and Control, Report to the Governor on Legislation, Senate Int. 1122, Pr. 1123, enacted as L 1960, ch 102).

Although the establishment of a refuse and garbage district pursuant to article 12-A of the Town Law is subject to permissive referendum (Town Law, §209-e[3]), there is no requirement, once the district is established, for a further referendum to provide for the collection of refuse and garbage in the district (see Town Law, §198[9]; 34 Opns St Comp, 1978, p 180; cf. Town Law, §§81, 221, containing provisions for permissive referendum when a town provides refuse collection as a town-wide function; Town Law, §209-e[3] containing provisions for permissive referendum when the boundaries of a district are extended). Therefore, no further referendum is required by the town to enable the district to provide refuse collection service in this instance.

Based on the foregoing, it is our opinion that, pursuant to General Municipal Law, §119-o, a town board, on behalf of a refuse and garbage district, may contract with villages located in the town but excluded from the district for the collection of refuse. Further, it is our opinion that the town board's resolution authorizing the contract would not be subject to referendum.

April 19, 1991
John A. Paider, Esq., Chief Deputy Town Attorney
Town of Oyster Bay