Can a New York elected county sheriff appear in a public service announcement about handicapped parking, paid for with mandatory surcharge dollars collected from people who violated those parking laws?

Plain-English summary

Monroe County's attorney asked the AG whether the elected sheriff could be the face of public-service announcements about handicapped-parking laws, when those PSAs were paid for from the county's handicapped parking education fund. The fund is built from mandatory surcharges paid by people convicted of handicapped-parking violations, not from general tax revenue. The County thought that distinction might let the sheriff off the hook under Public Officers Law § 73-b, the 2007 statute that bans elected officials from appearing in publicly funded advertisements.

The AG said no, surcharge money is still public funds, and § 73-b applies.

The statutory ban. Public Officers Law § 73-b(2)(a), enacted in 2007, says no elected government official or candidate "shall knowingly appear in any advertisement or promotion, including public or community service announcements, published or broadcast through any print or electronic media . . . if the advertisement or promotion is paid for or produced in whole or in part with funds of the state, a political subdivision thereof or a public authority." Subsection (b) bars anyone from using public funds for such an advertisement. The carve-out is narrow: lawful public campaign funds are fine.

"Funds of a political subdivision" includes surcharge fund balances. Vehicle and Traffic Law § 1203-g(4) says the handicapped parking education fund is "in the custody of the chief fiscal officer" of the county and consists of "moneys granted to such county" by VTL § 1809-b. The statute itself labels the contents as the county's money. The AG also cited Matter of Murphy, 82 N.Y.2d 491 (1993), for the proposition that fines and surcharges paid to courts are public funds.

The "taxpayer-funded" argument. Some Bill Jacket documents for the 2007 enactment described § 73-b as a ban on "taxpayer-funded" advertisements. The County urged that mandatory surcharge funds, paid only by lawbreakers, are not taxpayer-funded. The AG rejected that gloss. The statutory text says "funds of the state, a political subdivision thereof or a public authority," which is broader than tax dollars; the section title refers to "public funds." Where the Bill Jacket and the text conflict, the text wins. Sega v. State, 60 N.Y.2d 183, 190-91 (1983).

The PSAs can still run. The AG was clear that this is a personnel-in-the-ad rule, not a content rule. Monroe County can still produce handicapped-parking PSAs funded by the surcharge dollars; the program required by VTL § 1203-g is undisturbed. The constraint is who appears: not the sheriff (or any other elected official), but anyone else, can.

Who counts as the sheriff for this purpose? The sheriff is an elected county officer under N.Y. Const. Art. XIII, § 13, and County Law § 400(1). § 73-b applies to elected officials by definition.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a deputy sheriff or a sergeant appear in the PSA?
Yes. The § 73-b ban applies to "elected government officials" and "candidates." Career sworn employees who do not hold elected office are not within the prohibition. The county can put a uniform-wearing deputy on camera and convey the same enforcement message.

What if the sheriff's appearance is uncompensated and purely educational, not political?
The statute does not distinguish. It bans the appearance itself, not its compensation or its political content. The legislative concern was incumbency advantage, and § 73-b draws a bright line: no public funds + elected official = no ad.

What about a sheriff's photo on the county website or a flyer?
The statute reaches advertisements and promotions published or broadcast through print or electronic media. A general informational website that includes the sheriff's photo as the head of the department is not obviously an "advertisement or promotion." The line is fact-specific, and other AG opinions and Commission on Public Integrity guidance have wrestled with it. When in doubt, the safer course is to keep the sheriff out of any paid placement or production.

Does this apply to other elected officials too, e.g., county executive, district attorney?
Yes. § 73-b reaches all elected government officials at the state, local, and federal level. The same analysis applies to a county executive's PSA on tax collection or a DA's PSA on identity theft if either is paid with public funds.

What about private sponsors who pay for the PSA?
A purely private-funded PSA falls outside § 73-b. The statute is triggered by public funding, in whole or in part. If a private organization funded the production and time-buy, and no public funds touched it, the elected official could appear. Mixed funding triggers the ban.

Background and statutory framework

Public Officers Law § 73-b. Enacted L. 2007, ch. 14. The Governor's Program Bill described it as a "good government" measure preventing incumbents from using public funds for what amounts to campaign self-promotion. The text reaches paid placements and productions, including in-kind contributions of media time, when funded "in whole or in part" by public money.

Handicapped parking education program. Vehicle and Traffic Law § 1203-g requires each county and New York City to set up a parking-education program and a fund. § 1203-g(2) lists permitted activities: PSAs, public-awareness campaigns, distributing literature, similar activities. § 1203-g(4) puts the fund in the chief fiscal officer's custody and limits use of additional non-surcharge money to consistent purposes.

Mandatory surcharge. Vehicle and Traffic Law § 1809-b(1) imposes a $30 surcharge on each handicapped-parking violation conviction. § 1809-b(2) routes $15 to the county fund and uses the rest for local criminal justice programs.

Public-funds case law. Matter of Murphy, 82 N.Y.2d 491 (1993), treats court-collected fines and surcharges as public funds. Sega v. State, 60 N.Y.2d 183, 190-91 (1983), confirms that statutory text controls over inconsistent Bill Jacket commentary.

Sheriff as elected county officer. N.Y. Const. Art. XIII, § 13 (sheriff elected); County Law § 400(1) (county officers).

Citations

• Public Officers Law § 73-b (general ban); § 73-b(1) (definitions); § 73-b(1)(a) (political subdivision definition); § 73-b(2) (prohibition on appearance and on funding).
• Vehicle and Traffic Law § 1203-g (handicapped parking education program); § 1203-g(1) (program purpose); § 1203-g(2) (program activities); § 1203-g(4) (fund custody and composition).
• Vehicle and Traffic Law § 1809-b (mandatory surcharge); § 1809-b(1) ($30 surcharge); § 1809-b(2) (allocation, $15 to county fund).
• N.Y. Const. Art. XIII, § 13 (sheriff is elected).
• County Law § 400(1) (county officers).
• Matter of Murphy, 82 N.Y.2d 491 (1993) (court-collected fines and surcharges are public funds).
• Sega v. State, 60 N.Y.2d 183, 190-91 (1983) (statutory text controls over inconsistent legislative-history gloss).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2008-6_pw.pdf

Original opinion text

Public Officers Law §§ 73-b, 73-b(1), 73-b(1)(a), 73-b(2);
Vehicle and Traffic Law §§ 1203-g, 1203-g(1), 1203-g(2), 1203-g(4), 1809-b, 1809-b(1), 1809-b(2); New York State Constitution
Article XIII, § 13; County Law § 400(1)

Public Officers Law § 73-b prevents the county sheriff from appearing in public service announcements paid for with money from the county's handicapped parking education fund, even when that fund is composed only of mandatory surcharge moneys.

June 10, 2008

Daniel M. DeLaus, Jr.
County Attorney
Monroe County
307 County Office Building
39 West Main Street
Rochester, New York 14614

Informal Opinion
No. 2008-6

Dear Mr. DeLaus:

You have requested an opinion regarding whether Public Officers Law § 73-b prohibits the elected county sheriff from appearing in public service announcements relating to handicapped parking laws when those announcements are financed with money collected from individuals who have violated the State's handicapped parking laws. As explained more fully below, we conclude that it does.

I. Statutory Background

Public Officers Law § 73-b provides as follows:

Notwithstanding any other provision of law to the contrary,

(a) no elected government official or candidate for elected local, state or federal office shall knowingly appear in any advertisement or promotion, including public or community service announcements, published or broadcast through any print or electronic media (including television, radio and internet) by any private or commercial entity or any other entity that publishes such advertisement for a fee, if the advertisement or promotion is paid for or produced in whole or in part with funds of the state, a political subdivision thereof or a public authority.

(b) No person shall knowingly use the funds of the state, a political subdivision thereof or public authority to pay for or produce, in whole or in part, any advertisement or promotion that is prohibited by paragraph (a) of this subdivision. This prohibition shall not apply to otherwise lawful expenditures of public campaign funds specifically provided for under state, federal or local law.

Public Officers Law § 73-b(2).

Section 1203-g of the Vehicle and Traffic Law requires each county and New York City to establish a handicapped parking education program for the purposes of providing education, advocacy, and increased awareness of handicapped parking laws. Vehicle and Traffic Law § 1203-g(1), (2). The program provides funding for activities such as public service announcements, public education and awareness campaigns, distribution of literature, and other similar activities. Id. § 1203-g(2). Each county and New York City must also establish a handicapped parking education fund, which is in the custody of the chief fiscal officer of the municipality. Id. § 1203-g(4). The fund consists of moneys granted to the county or New York City pursuant to Vehicle and Traffic Law § 1809-b. Id. § 1203-g(4). Funds from other sources may be deposited in the handicapped parking education fund but must be used in a manner and for purposes consistent with Vehicle and Traffic Law § 1203-g. Id. The moneys of the handicapped parking education fund must be disbursed to provide education, advocacy, and increased awareness of handicapped parking laws. Id. The moneys may be used to execute contracts with private organizations for such purposes. Id.

Pursuant to Vehicle and Traffic Law § 1809-b, whenever handicapped parking laws have been found to have been violated, the court or administrative tribunal must levy a mandatory surcharge of $30. Id. § 1809-b(1). The surcharge is paid to the clerk of the court or administrative tribunal, which then pays $15 to the chief fiscal officer of the county or New York City for deposit to the credit of the handicapped parking education fund. Id. § 1809-b(2). The remainder of the surcharge is used for local criminal justice programs and purposes. Id.

II. Analysis

As described above, Public Officers Law § 73-b prohibits elected government officials from knowingly appearing in advertisements, including public service announcements, if they are paid for with "funds of the state, a political subdivision thereof or a public authority." For purposes of Public Officers Law § 73-b, a "political subdivision" means a county, city, town, village or district within the State. Public Officers Law § 73-b(1)(a). The question therefore is whether the portion of the mandatory surcharge collected upon a conviction of a violation of a handicapped parking law that is deposited in the County's handicapped parking education fund constitutes county funds. If it does, the county sheriff, as an elected official, see N.Y. Const. Art. XIII, § 13; County Law § 400(1), is precluded from appearing in public service announcements paid for with moneys from the handicapped parking education fund.

We conclude that the portion of the mandatory surcharge that is deposited in the handicapped parking education fund is county funds. Vehicle and Traffic Law § 1203-g provides that the handicapped parking education fund be in the custody of the County's chief fiscal officer and consists of "moneys granted to such county" by Vehicle and Traffic Law § 1809-b. Vehicle and Traffic Law § 1203-g(4). Thus, section 1203-g itself characterizes the moneys in the handicapped parking education fund as county funds. This characterization is consistent with the judicial recognition of fines and surcharges paid to courts as public funds. See Matter of Murphy, 82 N.Y.2d 491 (1993).

We understand that the question arises because certain documents in the bill jacket to chapter 14 of 2007, by which Public Officers Law § 73-b was adopted, describe section 73-b as a prohibition that bars elected officials from appearing in "taxpayer-funded" advertisements. See, e.g., Memorandum on Governor's Program Bill, at 3 and 6, reprinted in Bill Jacket for ch. 14 (2007). As you have suggested, the handicapped parking education fund is not required to be funded by moneys raised by assessing taxes. (We note, however, moneys received from taxes could be part of the fund, because Vehicle and Traffic Law § 1203-g(4) provides that the County may deposit funds received from sources other than the mandatory surcharge in the handicapped parking education fund.)

The plain language of section 73-b, however, clearly applies to advertisements paid for with "funds of the state, a political subdivision thereof or a public authority," which includes but is not limited to funds raised through taxes. Likewise, the title of section 73-b states that "[a]dvertisements by elected government officials and candidates made with public funds [are] prohibited." There is no indication in the bill jacket documents of any intent to narrow the scope of the statute from the plain meaning of the statutory language. In any event, to the extent there may appear to be a conflict between the bill jacket and the statutory language, the plain language of the statute controls. See Sega v. State, 60 N.Y.2d 183, 190-91 (1983).

This plain reading of section 73-b does not in any way undermine the operation of Vehicle and Traffic Law § 1203-g. The County still can use the handicapped parking education fund for public service announcements relating to the handicapped parking laws, as contemplated by Vehicle and Traffic Law § 1203-g, so long as the advertisements do not include the sheriff.

For the reasons given above, we conclude that Public Officers Law § 73-b prevents the county sheriff from appearing in public service announcements paid for with money from the County's handicapped parking education fund, even when that fund is composed only of mandatory surcharge moneys.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions