New Hartford v. New Hartford

Citation784 N.Y.S.2d 303,6 Misc.3d 411
PartiesTOWN OF NEW HARTFORD, Plaintiff,<BR>v.<BR>VILLAGE OF NEW HARTFORD, Defendant.
Decision Date30 July 2004
CourtUnited States State Supreme Court (New York)

Rossi & Murnane (Vincent Rossi of counsel), for plaintiff.

Gustave DeTraglia, Jr., for defendant.

OPINION OF THE COURT

ROBERT F. JULIAN, J.

Relief Requested: The Town of New Hartford moves for summary judgment pursuant to CPLR 3212 for a declaration that to the extent that school crossing guards are hired to cross school children within the confines of the Village of New Hartford, the expense is properly borne by the Village rather than the Town. The Town further asks the court to find that the Town cannot legally pay for crossing guards who perform that function within the Village. The Village cross-moves for summary judgment for a declaration that the Town is bound by agreement to provide crossing guards to the Village as a function of the town police department.

Holding: School crossing guards perform a police function of the town police department pursuant to Town Law § 150 and General Municipal Law § 208-a, and therefore the cost of crossing guards is properly a town-wide charge. The Town, pursuant to Town Law § 154, solely determines the status of crossing guards. There is no agreement between the parties that binds the Town to fund crossing guards. Because crossing guards are a police function, the Town may hire and assign them.

Discussion: The Village of New Hartford is wholly contained within the Town of New Hartford. In 1984 the Village operated a police department that was staffed by police officers and school crossing guards. The Town did not have a police department in 1984. The Village voted to disband its police department in a 1984 referendum. Prior to the referendum, the Town and Village had negotiated and reached an agreement that the Town would operate a town-wide police force absorbing the personnel of the village department. Thereafter, the Village, by Local Law No. 1 (1984) of the Village of New Hartford, disbanded its police department, turning its equipment over to the Town, which in turn created a police department as of January 1, 1985 and hired the members of the former village police department including the school crossing guards, who were given the title of school safety officers. The Town states in its moving papers: "as part of the understanding when the changeover occurred, three police patrol zones were established, one in the Village, and two outside the Village, with each zone provided one 24-hour police car patrol." (Affidavit of V. Rossi, Jr., Esq.) Local Law No. 1 (1984) adopted by the village board transfers all of its equipment and cars over to the Town "in consideration of the police protection being furnished by the Town of New Hartford." Since January 1, 1985 the Town of New Hartford has employed all of the school crossing guards utilized in the Town, including the Village.

The Town of New Hartford is empowered to organize and operate a police department pursuant to Town Law § 150 (1), which provides that "[t]he town board of any town may establish a police department and appoint a chief of police and such officers and patrolmen as may be needed and fix their compensation." When the Village of New Hartford opted in 1984 to disband its police department, the payment of town police officers properly became a town-wide charge:

"The compensation of such policemen shall be a town charge; providing however, no assessment on property in any village within any town or partially within any town shall be made for the maintenance or operation of a town police department established after January first, nineteen hundred sixty, pursuant to this section if any such village maintains a police department of four or more policemen on an annual or full-time basis, established or maintained under the rules of civil service." (Town Law § 150 [1].)

General Municipal Law § 208-a governs the role of the school crossing guards — a statute contained within article 10 of the General Municipal Law entitled "Firemen and Policemen." Section 208-a provides:

"The duly constituted authorities of any city, town, or village or any county police department or police district may designate, authorize and appoint such a number of persons as such authority shall deem necessary, and at such salaries as such authority shall deem advisable, as school crossing guards to aid in protecting school children going to and from school, and church crossing guards to aid in protecting persons going to and from places of worship, and for such purpose shall have power to control vehicular traffic within such municipality."

In the case at bar the Town argues that it is prohibited by section 208-a from charging in the town-wide police budget for school crossing guards. The Town maintains that there are a number of part town districts, that the crossing guards serve the Village, thus there should be a charge to the Village for the cost of compensating the crossing guards. The Town cites in support of its position informal opinions from the State Comptroller and a letter opinion from the General Counsel for the New York State Association of Towns. (1969 Ops St Comp No. 69-122; 1977 Ops St Comp Nos. 77-668, 77-277; 1979 Ops St Comp No. 79-476.)

The Village asserts that school crossing guards were part of the police department when the Town assumed the village police department, that the Town commenced compensating crossing guards at that time, and that the Town is obligated to continue to compensate crossing guards as a town-wide charge based on the agreement between the two governments. The Village in its cross motion asks for a declaration that "to the extent that school crossing guards are hired to cross school children within the confines of the Village of New Hartford, the expense of such crossing guards is properly borne by the Town of New Hartford rather than the Village of New Hartford by agreement."

On the issue of whether or not there was a binding agreement between the municipalities which required the Town to pay for school crossing guards, the Village asserts that there was such an agreement although it is unable to reference any specific, clear, unambiguous language in support of its position. The Town counters with several alternative arguments which are summarized as follows: if there was an agreement regarding the crossing guards the term has expired because any such agreement is limited to five years by law; if there was an agreement to assume the village police department it did not involve school crossing guards, only police officers; and that there was no agreement because the Town opted to create a police department only after the Village, by referendum, decided to disband its police department and turn its police equipment, cars, and uniforms over to the Town. As mentioned above, the Town also maintains that it is illegal for the crossing guards to be paid as a town-wide charge and asks the court to so declare.

The court finds that there was a meeting of the minds between the town and village leaders in 1984-1985 that:

a. The Village would disband its police department and turn its police equipment, cars and uniforms over to the Town.

b. The Town would create a town-wide police department and hire the village police department, including the school crossing guards.

3. The Town would provide 24-hour service to a village zone as referenced above.

The court next turns to the issues of the scope and duration of the agreement and whether or not it is binding upon the Town regarding crossing guards.

The court finds that the parties in 1984-1985 agreed that the Town was organizing a town-wide police department pursuant to Town Law § 150. Based upon that agreement the Village disbanded its police department and the Town absorbed the village employees, including the school crossing guards. The entire agreement is in compliance with Town Law § 150. Section 150 (4) further provides that a town may, by local law, abolish its police department subject to a permissive referendum. Therefore, by implication the duration of the agreement that the Town would operate a police department would be until the same was abolished pursuant to law.

However, in 1984-1985 the parties did not agree upon a specific duration or staffing level regarding crossing guards or for that matter, any other staffing levels or functions except for the previously conceded specific agreement regarding the providing for a separate patrol zone for the Village. Because there was no specific agreement, article 10 of the Town Law controls. More specifically, Town Law § 154 provides that the town board and/or the town police commissioner determine budget, staffing, hiring and firing for the police department. The court explains later in this decision its finding that crossing guards perform a police function. Based on that finding, it is within the discretion of the Town pursuant to Town Law § 154 to provide crossing guards and determine their number and deployment.

The next issue the court must resolve is whether or not, as the Town asserts, it is illegal for the Town to use town-wide funds for crossing guards based on the assertion that the maintenance of crossing guards is a village function pursuant to section 208-a. The Town cites opinions of the State Comptroller to this effect. (1969 Ops St Comp No. 69-122; 1977 Ops St Comp No. 77-668; 1979 Ops St Comp No. 79-476.) The court has reviewed those opinions and finds them to be devoid of any basis; they are the bare conclusions of attorneys in the State Comptroller's office, and as will be seen below, are inconsistent with earlier opinions of the State Comptroller's Counsel. Buttressed by the opinion of the State Comptroller (1979 Ops St Comp No. 79-476), the Town argues that because crossing guards are not peace officers, they are not part of the police function of the Town. Although the Town does not specifically cite Town Law § 150, the court infers that the...

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