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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

CITIES -- Powers and Duties (authority to pay for continuing legal education tuition for city attorney)

MUNICIPAL FUNDS -- Appropriations and Expenditures (miscellaneous expenses - continuing legal education tuition for municipal attorney)

PUBLIC OFFICERS AND EMPLOYEES -- Conferences and Training Schools (continuing legal education tuition for municipal attorney) -- Compensation (continuing legal education tuition for municipal attorney)

LOCAL LAWS -- Compensation (continuing legal education tuition for municipal attorney)

GENERAL MUNICIPAL LAW, §77-b; MUNICIPAL HOME RULE LAW, §10(1)(ii)(a)(1): A city, pursuant to General Municipal Law, §77-b, may pay the travel, meal, lodging, registration and tuition expenses of its city attorney for attending a course at a conference for municipal officials that relates to the attorney's work as counsel for the city and that the city believes will be of benefit to it, even though the attorney coincidentally receives continuing legal education ("CLE") credit for attending the course, if the cost to the city is the same irrespective of whether CLE credit is obtained. The city may not, pursuant to section 77-b, pay a tuition charge imposed only on those who seek CLE credit, in addition to fees payable by others who attend the same course. Such additional tuition may be paid as part of the attorney's total compensation if authorized under the city's charter and, if it is not so authorized, the city may adopt a local law to provide therefor.

You ask whether a city may pay for the cost of tuition incurred by the city's corporation counsel for attending a municipal law course at a conference for municipal officials, if the tuition is charged to cover the cost of an "accredited provider" under the continuing legal education ("CLE") requirements for attorneys in New York State. The tuition charge would be in addition to standard registration fees for attendees at the conference, and would not be charged to those who attend the municipal law course, but do not receive CLE credit.

With limited exceptions, all attorneys who have been duly admitted to the practice of law in New York State are required to complete a minimum number of credit hours of accredited CLE (22B NYCRR Part 1500). Pursuant to Part 1500, a CLE Board is established to, among other things, accredit providers of courses, programs and other educational activities that will satisfy the requirements of the program (22B NYCRR §1500.3[e]). Application may be made to the CLE Board for "accredited provider" status (22B NYCRR §1500.4[c]).

General Municipal Law, §77-b provides that the governing board of a municipality may authorize any officer or employee to attend a "conference". The authorization generally must be by resolution adopted prior to the attendance (General Municipal Law, §77-b[2]). The governing board, however, may delegate the power to authorize attendance to an executive officer or administrative board (id.). Pursuant to section 77-b(3), all actual and necessary registration fees, actual and necessary expenses of travel, meals and lodging and necessary tuition fees incurred in connection with attendance shall be a charge against the municipality. For this purpose, a "conference" is defined as a convention, conference or school conducted for the betterment of any municipality (General Municipal Law, §77-b[1][c]).

We have previously concluded that, pursuant to section 77-b, a municipality may pay the travel, meal, lodging, registration and tuition expenses of its municipal attorney for attendance at seminars, such as those conducted by professional associations, that are related to the attorney's work as counsel for the municipality and that the municipality believes are of benefit to the municipality (1979 Opns St Comp No. 79-336, p 59). It is well-established that an incidental private benefit will not invalidate an expenditure that has as its primary objective a proper municipal purpose (see, e.g., Waldo's v Village of Johnson City, 74 NY2d 718, 544 NYS2d 809; Murphy v Erie County, 28 NY2d 80, 320 NYS2d 29). Therefore, the fact that an attorney may coincidentally receive CLE credit for attending such a seminar, in our opinion, would not change the primary purpose of the expense from one that benefits the municipality, if the cost to the municipality is the same irrespective of whether CLE credit is obtained. Under those circumstances, we believe a municipality may pay the attorney's expenses pursuant to General Municipal Law, §77-b.

On the other hand, to the extent there is a discrete tuition charge imposed only on those who seek CLE credit, in addition to fees payable by others who attend the same course, we reach a different conclusion. In that case, the benefit derived from the payment of fee will inure to the attorney personally, inasmuch as the fee would be paid solely for the attorney to obtain CLE credit in satisfaction of requirements that are applicable without regard to whether he or she is an officer or employee of the municipality. The charge in that case is not a necessary tuition fee under section 77-b since the municipality could obtain the benefit of the attorney's attendance at the course without paying the additional tuition charge (cf. 1986 Opns St Comp No. 86-87, p 122, in which we concluded that the attorney registration fee required by Judiciary Law, §468-a is not an actual and necessary expense of the local government).

The city, however, may provide for the additional tuition fee to be payable as part of the attorney's total compensation package if authorized under the city's charter. If the charter does not presently authorize the payment (compare, e.g., Town Law, §27[1]; County Law, §201; Second Class Cities Law, §202), the city may adopt a local law to provide therefor pursuant to Municipal Home Rule Law, §10(1)(ii)(a)(1) (see Opn No. 86-77, supra). That section authorizes local governments to adopt and amend local laws, not inconsistent with the constitution or general law, relating to the compensation and welfare of its officers and employees (see also Second Class Cities Law, §4).

Accordingly, a city, pursuant to General Municipal Law, §77-b, may pay the travel, meal, lodging, registration and tuition expenses of its city attorney for attending a course at a conference for municipal officials that relates to the attorney's work as counsel for the city and that the city believes will be of benefit to it, even though the attorney coincidentally receives CLE credit for attending the course, if the cost to the city is the same irrespective of whether CLE credit is obtained. The city may not, pursuant to section 77-b, pay a tuition charge imposed only on those who seek CLE credit, in addition to fees payable by others who attend the same course. Such additional tuition may be paid as part of the attorney's total compensation if authorized under the city's charter and, if it is not so authorized, the city may adopt a local law to provide therefor.

November 15, 1999
Gregory J. Amoroso, Esq., Corporation Counsel
City of Rome