Opinion 93-1

COUNTY ATTORNEY -- Assistant (entitlement to salary fixed for county attorney in the event of a vacancy)

COUNTY CLERK -- Deputy (entitlement to salary fixed for clerk in the event of a vacancy)

COUNTY TREASURER -- Deputy (entitlement to salary fixed for treasurer in the event of a vacancy)

PUBLIC OFFICERS AND EMPLOYEES -- Compensation (for deputy acting in the event of a vacancy) -- Deputy (entitlement to salary of principal in the event of a vacancy)

COUNTY LAW, §§401(3), 502, 526(1): An assistant county attorney or a deputy county clerk, treasurer or commissioner of public works is entitled to the salary fixed for the office of the principal when acting in the case of a vacancy in the office of the principal.


You ask whether 17 Opns St Comp, 1961, p 240 still represents the views of this Office. In that opinion, we concluded that an assistant county attorney, who becomes acting county attorney due to a vacancy in the office of county attorney, is entitled to the salary of county attorney when so acting. If that opinion does still represent our views, you also ask whether our conclusion applies equally to an acting county clerk, treasurer and commissioner of public works.

County Law, §502(1) authorizes the county legislative board to authorize the county attorney to appoint one or more assistant county attorneys. The assistant, during the absence or inability of the county attorney, "shall perform the powers and duties of the office of county attorney" (County Law, §502[3]). Further, subdivision 4 of section 502 provides that, in the event of a vacancy in the office of county attorney, the assistant "shall perform the powers and duties of the office of county attorney until a successor is appointed and has qualified". If more than one assistant is appointed, the county attorney must designate the order in which the assistants shall exercise the powers and duties of the office in the event of a vacancy in the office of county attorney, or the absence or inability of the county attorney (County Law, §502[5]).

In 17 Opns St Comp, 1961, p 240, supra, we concluded that, because the acts of the assistant county attorney, in the event of a vacancy, are considered as those of the county attorney, the assistant is entitled to the salary fixed for the office of county attorney while acting as county attorney (see also 1962 Atty Gen [Inf Opns] 80; 1928 Opns Atty Gen 229). In support of our conclusion, we cited the Court of Appeals case of People ex rel Church v Hopkins, 55 NY 74, which involved a clerk who had been appointed as deputy to the State Superintendent of Insurance.

The pertinent statute in People ex rel Church, supra, contained provisions similar to County Law, §502(4) and (5). It provided, among other things, that the deputy "shall possess the powers and perform the duties attached by law to the office of principal during a vacancy in such office and during the absence or inability of his principal" (L 1859, ch 366, §2). On the issue of whether the deputy was entitled to the salary set for the Superintendent after the resignation of the Superintendent, the Court of Appeals distinguished between situations when the deputy temporarily acts in the absence or inability of the Superintendent and when he or she acts in the case of a vacancy, stating as follows:

... the powers conferred and duties imposed upon the deputy, in the case of absence or inability of the principal, are limited to such as are thereby made necessary for the transaction of business .... But in case of a vacancy in the office, all its powers and duties at once devolve upon the deputy. There remains no other vested with any of its functions. The deputy at once becomes acting superintendent, and his acts are to all intents and purposes, those of superintendent. He is entitled to the emoluments of the office, the same as though appointed thereto by the governor ... He is entitled to the salary of the former and not to that of the latter office. (55 NY at 70-80; emphasis added).

We find no subsequent case law which would suggest that the analysis in People ex rel. Church, supra, is no longer valid. Therefore, 17 Opns St Comp, 1961, p 240, still represents the views of this Office.

The statutes which authorize the appointment and prescribe the duties of deputies to the offices of county clerk, county treasurer and commissioner of public works contain provisions, similar to those in section 502, relative to the deputy possessing the powers and performing the duties of the principal in the case of a vacancy (County Law, §§401[3], 526[1]; see also Beck v Board of Supervisors of Erie County, 31 App Div 361, 53 NYS 156, revd on other grnds 157 NY 151, rearg den 158 NY 664). Accordingly, for the reasons stated above, we conclude that these deputies also are entitled to the salary fixed for the office of the principal when they act in the case of a vacancy.

February 2, 1993
Alan O. Minsker, Esq., County Attorney
County of Cattaraugus