What can the Town Highway Superintendent do when the Town Board eliminates an employee position from the highway crew?
The Town Board has the discretion to designate the amount of funds available to operate the highway department and therefore, has the authority to eliminate positions. For whatever reason, eliminating a position within the highway department is often seen as a money saving proposition.
Whenever this situation occurs the Highway Superintendent should evaluate the impacts on the road network and convey these concerns to the Board and the public. Typical impacts include a decrease in the crew’s ability to maintain and pave roadways, and/or an increase in the amount of time necessary to clear the roadways during snow events. Both of these results could indirectly cause an increase in liability for the town as a result in the decrease in the level of service. The Town Board should not assume that the position of Highway Superintendent will make up for the eliminated position. There may be times when a Highway Superintendent is elected and does not have a CDL license or the knowledge to perform the duties of the crew. This could severely limit the ability of a highway crew to maintain the roads at a safe level.
As such, any productivity or safety issues should be provided to the board prior to any changes, and also when changes are made. It is recommended that the Highway Superintendent clearly identify to the residents of the town the impacts that can be expected and the change in the level of service that they are accustomed to. This should be conveyed at the Town Board meeting for documentation, as well as in a mailer or a public notification to inform the residents.
Red Book: The Office of the Highway Superintendent, Association of Towns of the State of New York
Chapter 1: The Office Generally & Chapter 2: General Duties Under the Law
Section 140 of Highway Law is the Town Highway Superintendent.
Powers and Duties of Local Highway Officials, Cornell Local Roads Program
OPINIONS OF THE STATE COMPTROLLER
Statement of Fact: A town board has fixed the wages of laborers in the town highway department and has appropriated sufficient funds to provide for four such employees. The town highway superintendent has six employees on the payroll and refuses to reduce his force to four employees. It is obvious that, with six employees, the appropriation will be exhausted well before the end of the year.
Inquiry: Can the highway superintendent hire as many employees as he wishes, so long as an appropriation is available at the moment, or can he hire only the number of employees for the year which the appropriation allows?
Statement of Law: Highway Law § 140(4) provides that the town highway superintendent may:
Within the limits of appropriations employ such persons as may be necessary forthe maintenance and repair of town highways and bridges, and the removal of obstructions caused by snow, subject to the approval of the town board, and provide for the supervision of such persons.
This Department has repeatedly taken the position that the import of the statute is that the highway superintendent has the power to hire laborers, drivers and mechanics in the highway department, while the town board fixes the wages of such employees (1972 Op St Compt #72-639 (unreported). We have further stated that the power to fix compensation is not limited to a general power to make appropriations for such compensation, with the general appropriation to be broken down by the highway superintendent as he sees fit, but, rather it is a specific authorization for the town board to set the compensation which each employee in the highway department is to receive (Town L §20; 22 Op St Compt 383 (1966); see also 1943 Op Atty Gen 149 (informal). Accordingly, the town board has the power to fix the wages to be paid to each employee in the highway department.
It logically follows from the foregoing that, since the town board has the power to fix the compensation of each employee and also has the power to fix the total appropriation for the highway department, the town board has the ultimate power to fix the number of employees in the highway department. This it does by necessary implication when it makes its annual appropriation after the respective individual wages have been fixed.
No other conclusion would be logical, since to conclude otherwise would give the highway superintendent the power to expend all of his appropriation for wages in, say, the first nine months of the year and then confront the town board with a state of facts whereby it would be necessary for the board to appropriate additional moneys in order to keep town roads maintained and plowed for the remainder of the year. Such a conclusion would, in essence, mean that the town highway superintendent rather than the town board could dictate the size of the budget for the town highway department.
Conclusion: The town board, rather than the town highway superintendent, sets the wages for and fixes the number of laborers within the town highway department.
March 12, 1975.