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Volume 5 - Opinions of Counsel SBEA No. 119

Opinions of Counsel index

Emergency City and School District Relief Act (advisory committees on pension and social security contributions in certain cities and school districts) (residency and ownership requirements for members) - McKinney’s Unconsol., § 9473:

Members of advisory committees established pursuant to the “Emergency City and School District Relief Act” (L.1976, c.349) must be residents of the municipality in question and must be real property owners as well.

We have received an inquiry concerning the interpretation of certain statutory language in chapter 349 of the Laws of 1976.

Pursuant to chapter 349, the Legislature enacted the “Emergency City and School District Relief Act,” the primary purpose of which was to continue to permit cities and school districts to exclude - on an emergency basis - the cost of annual pension and social security contributions from computation of tax limitations, a practice held unconstitutional in 1974 by the Court of Appeals in Hurd v. City of Buffalo, 34 N.Y.2d 628, 311 N.E.2d 504, 355 N.Y.S.2d 369.

Section 3 of chapter 349 requires the establishment of advisory committees on pension and social security contributions in certain cities and school districts. This first question is whether the language of section 3 to the effect that the governing body “shall establish an advisory committee to consist of not less than five resident real property tax owners of such city or district,” [emphasis added] would permit the Board of Education to appoint nonresidents to the committee provided at least five residents were also included as members.

The second question is whether the above-quoted language precludes the appointment of a non-owner of real property (i.e., a tenant or lessee) to such committee.

As to the first question, the statutory language itself is not at all clear. One could interpret the phrase “not less than five resident. . . owners” to mean that non-residents could be appointed to such committee as long as five resident owners were on same. On the other hand, such language could be read to mean that all committee members must be resident owners, and that the phrase “not less than” simply modifies the number “five” rather than the word “resident” as well.

In the absence of legislative history or judicial interpretation of chapter 349, we must rely on general rules of statutory construction in order to respond to this inquiry. Thus, statutory language should be construed according to its natural and most obvious sense, without resorting to an artificial or forced construction (McKinney’s Statutes, §94 (1971)). At the same time, the general spirit and purpose underlying an enactment is a basic consideration in interpretation (id., §96), and a statute should be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent (id., §97). Finally, in interpreting a statute, the courts are called upon to consider the mischief sought to be remedied by the new legislation, and will construe the act in question so as to suppress the evil and advance the remedy (id., §95).

How are these general rules to be applied to chapter 349? Consider first the apparent aim of the Legislature and the “mischief” it sought to remedy through this enactment. The “legislative findings” set forth as a prelude to chapter 349 recognize the rapidly increasing costs of annual pension and social security contributions to individual cities and school districts, the impact of these costs on the municipalities’ constitutional tax limitations, and the consequent disruptive effects of such costs on the ability of these municipalities to finance other local government programs.

In order to aid these local governmental units in considering those factors and problems, the legislature, by section 3 of chapter 349, mandated the appointment of an “advisory committee,” as previously noted. Specifically, it was declared that,

[It] shall be the duty of such board to act in an advisory capacity to the governing body in respect to pension and social security contributions for employees of the city or district.

Considering the fact that this board is required to deal with the cost of such contributions for employees of the city or district, as such costs affect that city or district, and considering the statute as a whole and the general intent of the Legislature, it is our interpretation that all members of each municipality’s committee must be residents of that municipality, and that the term “not less than” refers only to the fact that at least five individuals must sit on such a committee, and does not mean that if more than five individuals are appointed, only five need be residents of the particular municipality.

The second question is far simpler to answer. Clearly, section 3 of chapter 349 requires individuals appointed to such committees to be “real property ...owners.” To state otherwise would be to disregard the general rule that, if possible, effect and meaning must be given to the entire statute and every part and word thereof (McKinney’s Statutes, §98(1971)). Thus, to appoint tenants or lessees to such committee would not be in keeping with the language of the statute and general rules concerning statutory construction.

The fact that the precise words used were “real property tax owners,” meaning literally owners of “real property tax” - a meaningless expression in and of itself - does not alter this conclusion. Again, referring to general rules of statutory interpretation, statutes are not to be read so literally that the meaning, intention, purpose or beneficial end for which the statute has been designed is thereby destroyed (McKinney’s Statutes, §111 (1971)). To interpret “real property tax owners” literally would require a conclusion that the Legislature included a meaningless phrase within its enactment. To give meaning to every word, as the general construction rules require (id. §98), we interpret that phrase to have been intended to mean something like “owners of real property subject to taxation,” thus excluding owners of wholly exempt real property.

February 1, 1977

NOTE:  Chapter 349 of the Law of 1976 has been declared unconstitutional (Bethlehem Steel Corp. v. Board of Education, City of Lackawanna, 44 N.Y.2d 831, 378 N.E.2d 115, 406 N.Y.S.2d 752).

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