Opinion 91-53


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.



TOWN BOARD -- Compensation (additional compensation for additional assigned duties); (additional compensation if also serve as deputy supervisor) -- Powers and Duties (appointment of board member as deputy supervisor)
SUPERINTENDENT OF HIGHWAYS -- Compensation (additional compensation for performing services for special district)
TOWN ASSESSOR -- Compensation (additional compensation for chairman of board of assessors)
PUBLIC OFFICERS AND EMPLOYEES -- Compensation (additional compensation for various town officers)
LOCAL LAWS -- Compensation (necessity for local law when paying additional compensation to town board members and highway superintendents)

TOWN LAW, §§22-b, 27, 42, 202-a[7]:   (1) If particular town board members are assigned additional duties in their capacities as board members, the board may fix their salaries at an amount greater than other board members who do not have such additional assignments. The salary fixed, however, may not exceed the amount set forth in the notice of hearing on the preliminary budget unless a local law subject to permissive referendum is adopted. (2) A town board member may be appointed deputy supervisor and the salary fixed for the office of deputy supervisor is not required to be listed in the notice of hearing on the preliminary budget. (3) A town board may provide additional salary in excess of the amount set forth in the notice of hearing on the preliminary budget for the highway superintendent for services in connection with special districts only pursuant to local law subject to permissive referendum. (4) The town board may direct the chairman of the board of assessors to coordinate the town's re-evaluation project as part of the responsibilities of the chairman's office. The chairman would not be entitled to an additional salary for performance of those services, although the town board, in its discretion, could provide a prospective salary increase for the chairman.

This is in reply to your letter asking whether town board members who serve as "recreation commissioner" and "water commissioner" may receive compensation in addition to their salaries as town board members and, if so, whether the additional compensation must be advertised in the notice of public hearing on the town's preliminary budget. You state that at the annual reorganization meeting, town board members are chosen to act as liaison to the town board in connection with various town functions, including recreation and water. The board members so chosen are designated as "commissioners".

You also ask: whether a town board member may be paid an additional salary to act as deputy supervisor and, if so, whether that salary must be listed in the notice of hearing on the preliminary budget; whether a town highway superintendent may be paid additional salary above the salary listed in the notice of hearing for performing services for a special district if the cost is charged to the special district; and whether the chairman of the board of assessors may be paid an additional salary to act as "project coordinator" of the town's re-evaluation project.

Town Law, §27(1) provides that the town board shall fix, from time to time, the salaries of all town officers and employees. Pursuant to Town Law, §108, the notice of public hearing on the town's preliminary budget must specify the proposed salaries of each member of the town board, an elected town clerk and an elected highway superintendent. Section 27 prohibits the board from fixing the salaries of those listed officers at an amount in excess of the amounts specified in the notice of hearing on the preliminary budget except by local law subject to permissive referendum. Such a local law may not have effect for longer than one fiscal year.

Section 27(1) further states that salaries generally are in lieu of all other compensation for all services rendered to the town or any district therein. This latter provision, however, does not prevent a town officer or employee from receiving an additional salary as compensation for a separate, second town position, the holding of which is not incompatible or otherwise prohibited by law (see, e.g., 20 Opns St Comp, 1964, p 473).

With respect to the salaries of town board members, this Office has expressed the opinion that the town board may fix a higher salary for an individual board member based on additional duties which have been assigned for that office (1980 Opns St Comp No. 80-117, unreported; 1978 Opns St Comp No. 78-868, unreported; see also NY Const, art 1, §11; 1989 Opns St Comp No. 89-27, p 63). Since the salary of an elected officer is an incident of the office (see, e.g., Bookhout v Levitt, 43 NY2d 612, 403 NYS2d 200), however, the differentiation in salary must be based on the duties of the office, not on the particular qualifications of the individual incumbent (1986 Opns St Comp No. 86-32, p 53).

Therefore, if the town board members in question have been assigned additional duties in their capacities as board members, the board may fix their salaries at an amount greater than other board members who do not have such additional assignments. The salary fixed, however, may not exceed the amount set forth in the notice of hearing on the preliminary budget unless a local law subject to permissive referendum is adopted. On the other hand, if the board members are holding separate positions as "commissioners", they may receive an additional salary for those positions without regard to the amount published in the notice, but only if there is no incompatibility or other illegality in holding the second position.

Whether the additional duties have been assigned to these individuals as board members or whether separate positions have been established would depend on the specific actions taken by the board in this regard and whether individuals other than board members can hold these other offices. We express no opinion on this issue. However, if it is determined by the town that the "commissioner" positions are town offices separate from the office of town board member, you may wish to contact the Attorney General for an opinion with respect to the propriety of a board member holding both positions. By informal agreement with the Attorney General, this Office no longer renders opinions on the propriety of dual office-holding.

As to whether a board member may also serve as deputy supervisor, Town Law, §42 provides that any person, including a town officer, may be appointed deputy supervisor provided that the person possesses the same qualifications as an elective town officer. Section 42 also provides that the town board shall fix the compensation which the deputy is to receive and that such compensation may be in addition to any other compensation he or she may receive as a town officer. Pursuant to section 42, a town board member may be appointed as deputy supervisor (13 Opns St Comp, 1957, p 250). Further, since a deputy supervisor does not, by virtue of holding that office, become a member of the town board, the salary fixed for the office of deputy supervisor is not required to be listed in the notice of hearing on the preliminary budget (id.).

Town Law, §202-a(7) authorizes a town board to apportion against and charge to the expense of maintaining any special district improvement an allowance for services rendered by any town officer or employee. Pursuant to this section, a proportionate share of the salary payable to the town highway superintendent for services rendered in connection with operating and maintaining a town special district may be charged back against the district (1976 Opns St Comp No. 76-333, unreported; see also 1980 Opns St Comp No. 80-572, unreported; 1984 Opns St Comp No. 84-60, p 76). This section, however, authorizes only a chargeback of a portion of the superintendent's salary and does not provide for the payment of an additional salary to the superintendent, above the amount listed in the notice of hearing on the preliminary budget, for services rendered to a special district. Therefore, it is our opinion that the town board may provide such additional salary in excess of the amount set forth in the notice of hearing only pursuant to a local law subject to permissive referendum (Town Law, §27[1]).

With respect to the chairman of the board of assessors, Town Law, §22-b provides that, in addition to his other regular duties, the chairman shall perform such additional services in connection with the assessment and taxation of property as the town board shall direct. It is our opinion that, pursuant to section 22-b, the town board may direct the chairman to coordinate the town's re-evaluation project. Since the services in connection with coordinating the project would be performed as part of the responsibilities of the chairman's office, under Town Law, §27(1) the chairman would not be entitled to an additional salary for the performance of those services. The town board, in its discretion, however, could provide a prospective salary increase for the chairman (1979 Opns St Comp No. 79-187, unreported). If it is anticipated that the chairman would also hold a separate town position as "project coordinator", we again suggest you contact the Attorney General for an opinion on the propriety of simultaneously holding those two positions.

December 27, 1991
Jacquelyn Asnoe, Esq., Town Attorney
Town of Frankfort