Opn. No. ( 1982 )

John D. Delehanty, Esq. Town Attorney, Santa Clara

You have asked whether a town superintendent of highways has the independent authority to dismiss an employee of his department working as an equipment operator, or whether the dismissal is subject to approval by the town board.

Town officers and employees are to be appointed by the town board, "except as otherwise provided by law" (Town Law, § 20[1][a]). It is the duty of the town superintendent of highways to "employ such persons as may be necessary for the 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" (Highway Law, § 140[4]). The language "subject to the approval of the town board" used in this subdivision has been construed as referring to the maintenance and repair of highways and not to the employment of persons (Matter of Hiscox v Holmes, 237 App. Div. 240 [3d Dept, 1932]; see Matter of Clarke v Town of Russia, 257 App. Div. 703 [3d Dept, 1939], revd on other grnds 283 N.Y. 272 [1940]). The town superintendent has full responsibility to employ and supervise the persons described in section 140(4) of the Highway Law (Matter of Hiscox vHolmes, supra; Myruski v Town of Goshen, 87 Misc.2d 1063, 1064 [Sup Ct, Orange Co, 1976]). Since the town superintendent independently has the responsibility to employ and supervise persons necessary for maintenance and repair of town highways, it follows that he may dismiss these persons without the approval of the town board (see McQuillin, Municipal Corporations, 3d Edition, §§ 12.229b and 12.230).

We note that the power of the town superintendent of highways to dismiss an employee is subject to any rights the employee may have under the terms of a collective bargaining agreement or under the Civil Service Law.

We conclude that a town superintendent of highways, without the approval of the town board, may dismiss a person employed by the highway department to maintain and repair town highways.

The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of views of this office.