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Board of managers may remove superintendent.

STATE OF NEW YORK,
ATTORNEY-GENERAL'S OFFICE,

ALBANY, March 22, 1906. To the Honorable the Governor, Executive Chamber, Albany, N. Y.:

Sir.— I have the honor to acknowledge receipt of your communication.of 14th inst. asking my opinion as to whether the board of managers of the New York State Woman's Relief Corps Home has the power to remove at pleasure, or in any other manner, the person who has been acting as superintendent, or whether the method of removal prescribed by section 43 of the State Charities Law is exclusive of any other method.

You also ask me to advise you as to the method or methods by which the superintendent may be removed or her employment may be terminated under existing law. First. Section 43 of the State Charities Law provides as follows:

“ The fiscal supervisor of State charities, or the superintendent or the steward of any institution, subject to the provisions of this article, may be removed by the Governor for cause, an opportunity having been given him to be heard in his defense.”

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This provision became a law on March 27, 1902 (chapter 252, Laws of 1902). It is evident that its general purpose was to take away the power of removal of chief executive or managing officers from boards of managers of State charitable institutions upon whom that power had theretofore been conferred

Ordinarily the word "superintendent” would be a descriptive word, meaning the head or manaying officer of the institution; but in this connection I think that that word has a particular meaning and refers to officers described in the statutes as superintendents.”

An examination of the State Charities Law (chapter 546 of the Laws of 1896, as amended) will show that in various institutions the head or chief executive officer is called superintendent” and is charged with certain duties which are specifically prescribed in the statute itself and frequently set forth at considerable length.

For illustration, see Syracuse State Institution for Feeble-Minded Children (section 65), State Custodial Asylum for Feeble-Minded Children (section 82), Rome State Custodial Asylum (section 93), The Craig Colony for Epileptics (section 107), etc.

By virtue of chapter 468 of the Laws of 1894, the institution now called “New York State Woman's Relief Corps Home” was established. The act is very badly drawn and does not set forth the character or duties of any of the employees, nor, indeed, does it provide in terms for the employment of any persons. The right to engage employees is, therefore, inferred from the general powers conferred upon the managers.

Under the provisions of the act the Governor is limited in his selection of managers to members of the Grand Army of the Republic of the Department of New York and members of the Woman's Relief Corps Auxiliary of the Grand Army of the Republic of the Department of New York. The home was

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for the aged veteran and his wife, veterans' mothers and widows and army nurses. The veteran soldier or sailor in order to avail himself of the privileges of the home must be accompanied or attended by his wife during the time he may be an inmate of the home, and, in brief, the institution was, in many particulars, peculiar and separate and apart in character from many other institutions coming within the State charitable system.

It seems to me, therefore, that the legislative intent was that the managing officer could be changed from time to time, as might be deemed best in the judgment of the managers, and she might have been called "matron or "supervisor " or manager," or any other convenient name just as well as “superintendent.”

While the superintendents of some of the other institutions under the State Charities Law have themselves the power of appointment of subordinates, no such power is given to the person filling a similar place in the institution under consideration. Again, while by statutory requirement the superintendent in other institutions has certain general duties in the way of superintendence, the only authority which the acting head of the New York State Woman's Relief Corps Home would have would be such authority as the managers of that institution would confer.

It seems to me, therefore, that section 43 does not apply to this institution. Whether such was the deliberate purpose of the Legislature, or whether the omission was due to accidental oversight, is not important.

In my opinion the result is that the provisions of section 43, which is a general statute, cannot be held to repeal or modify the provisions of the special law providing for the establishment of the institution in question, and, therefore, it follows that the board of managers of the New York State Woman's Relief Corps Home had the power to remove any employee, whether such employee be in temporary supervision or filling any other place in the institution, and, provided, always that such employee does not come within the particular protection of the Civil Service Law in some way. The employee to whom you direct my attention was not protected in any way from removal by any provision of the Civil Service Law.

Second. In answer to your question as to the method or methods by which the so-called superintendent may be removed, or her employment terminated under existing law, I beg to say that such action must be taken by the board at a regular meeting or at a special meeting, notice whereof has been properly given to each member of the board of managers.

I have not before me the rules and regulations of this boård of managers and, therefore, do not know what provision, if any, is made for special meetings, but if the employee in question was not removed at a regular meeting of the board, then, in order that her removal should be effective, it was necessary that each person should receive proper notice pursuant to the rules and regulations for the calling of a special meeting, as well as notice of the purposes and objects for which such meeting was called.

I trust that the foregoing has answered all of the inquiries contained in your communication.

Respectfully yours,

JULIUS M. MAYER,

Attorney-General

Moneys deposited with the Board of Managers of the Woman's Relief Corps

Home by inmates from pension funds received by them, and donations made by individuals for the entertainment of the inmates, need not be turned into the State Treasury.

FACTS.

The New York State Woman's Relief Corps Home is maintained at Oxford, N. Y., under the provisions of Article XIII of the State Charities Law. It receives as its inmates, under certain restrictions and regulations, honorably discharged soldiers or sailors, when accompanied by their wives, and also admits wives, widows and mothers of honorably discharged soldiers or sailors.

Some of the inmates have from time to time deposited with the board of managers various sums of money derived from their pensions, and in cases of pensioners drawing more than twelve dollars per month a deposit of the excess over that sum has been insisted upon by the board of managers as a condition precedent to the admission of such pensioner. At one time this fund was deposited in a bank on an interest-bearing account and from that interest a considerable accumulation resulted. This practice of depositing the fund upon an interest-bearing account is no longer pursued.

A portion of this excess money, together with sums derived from donations made for that purpose, has been devoted on holiday occasions to furnishing suitable and pleasant entertainments for the inmates. Last Christmas and New Year's Day from these donations and excess money, various presents were made to the inmates.

At the February meeting of the board of managers a resolution was adopted as follows:

“ Resolved, That the superintendent's bills be paid out of the excess pension money."

This resolution was meant to cover expenditures for the presents referred to. The resolution, when reported to the fiscal supervisor, attracted his attention, and he suggests that a question might arise as to the legality of the use for the support of this institution of any money not directly appropriated by the Legislature, and also inquires as to whether money received from all sources in connection with the institution should not as a matter of law be turned into the State Treasury.

OPINION.

The New York State Woman's Relief Corps Home at Oxford comes generally within the provisions of the State Charities Law, and particularly within the provisions of sections 250–258 thereof.

Section 17 of the State Finance Law provides for the rendition of monthly accounts by the officers of each State charitable institution, giving in detai] the source of all receipts and accompanied by vouchers from all funds paid from the State Treasury. These accounts must be rendered to the State Comptroller.

Such account, I am informed, has been rendered by the institution in question, even including the fund derived from the deposits of pension money and donations.

The manifest purpose of this section is to require a uniform and proper

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system of audit and accounting on the part of boards of managers of institutions in regard to State funds appropriated for the benefit of the institution.

Section 37 of the State Finance Law, as amended by chapter 440 of the Laws of 1910, provides as follows:

“ Every state officer, employee, board, department or commission receiving money for or on behalf of the state from fees, penalties, costs, fines, sales of property or otherwise, shall on the fifth day of each month pay to the state treasurer all such money received during the preceding month and on the same day file a detailed, verified statement of such receipts with the comptroller, who shall keep an account thereof in his office.”

Moneys received by the board of managers, by the way of deposited pension funds or donations, is not, in my judgment, money received “ for or on behalf of the state.” It is money held in trust for the pensioners, and I am of the opinion that section 37 has no application thereto.

So far as the disbursement of the excess received from the deposits of the pension fund, for purposes of general entertainment of the inmates at large, it is not a matter which in any way affects the State and could only be questioned by some depositor who might feel himself entitled to some interest which accrued on his specific deposit.

I feel that the practice which has been indulged in by the board of managers relative to the receipt of these deposits and the custodianship thereof for the benefit of the inmates is highly commendable, and the disbursement of the small accumulation of interest on festal occasions is certainly not a matter with which the State should find any fault. I believe that the moneys deposited by the pensioners are very properly kept for their benefit by the board of managers, and such disposition thereof as may be directed by the pensioners themselves, either by themselves voluntarily or by way of a con. dition of admission, can very properly be directed and carried out without interference on the part of the State.

While it is very proper that the board of managers should report as to these funds and all other funds in their hands, under the provisions of section 17 of the State Finance Law, yet I am of the opinion that there is no pro vision of law requiring th the

sums of money should be turned into the State Treasury, because I consider them as trust funds in the hands of the board of managers belonging to the inmates of the home entirely distinguishable from all funds appropriated for the support of the institution.

The peculiar wording of the resolution adopted at the February meeting of the board of managers, very naturally elicited the inquiry from the State fiscal supervisor. From its wording it would seem that some disbursements of the institution were to be paid from the money of the pensioners, which would probably be improper. Dated April 5, 1911.

Respectfully submitted,

THOMAS CARMODY,

Attorney-General. To Hon. GEORGE W. Ray, Norwich, N. Y.

§ 257. Record. The board of managers shall keep in a a book provided for that purpose and kept in the institution, a fair and full record of the doings of the board, which shall be open at all times to the inspection of its members and such other persons and officers of the state as are by law vested with the powers of visitation and inspection, or appointed by the governor, the legislature or other competent authority to make an inspection or investigation of the institution.

ARTICLE 14

Thomas Indian School
Section 270. Establishment of asylum.

271. Board of managers.
272. Powers and duties of board of managers.
273. Officers; salaries.
274. Superintendent, powers and duties.
275. Treasurer, powers and duties.
276. Transfers to other institutions.

$ 270. Establishment of asylum. The Thomas Indian school, established on the Cattaraugus reservation in the county of Erie, is continued. Said asylum may sue and be sued in the corporate name of “ Thomas Indian school ” and service of process and papers may be made upon the superintendent or any manager of such asylum.

§ 271. Board of managers. Said asylum shall be under the control and management of a board of managers, consisting of seven members, three of whom shall be Seneca Indians. Such managers shall be appointed in accordance with the provisions of section fifty-one of this chapter. (As amended by chapter 449 of the Laws of 1910.)

§ 272. Powers and duties of board of managers. The board of managers shall have the general direction and control of all the property and concerns of said asylum, not

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