Opinion 2001 - 4


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 ASSESSOR -- Compensation (fixed amount for specified services plus hourly rate for revaluation work to be performed by appointive assessor); (salary increase for appointive assessor)
LOCAL LAWS -- Compensation (fixed amount plus hourly rate for appointive town assessor)
PUBLIC OFFICERS AND EMPLOYEES -- Compensation (fixed amount plus hourly rate for appointive town assessor); (salary increase for appointive town assessor)

TOWN LAW 27(1); MUNICIPAL HOME RULE LAW 10(1)(ii)(a)(1): A town board may supersede Town Law 27(1) and provide by local law for compensation of an appointive assessor by a fixed amount for the performance of certain of his or her duties and an additional hourly rate for duties performed in connection with a revaluation. When compensation is paid in this manner, the duties to be performed for the fixed amount and those to be performed at the hourly rate must be clearly specified in advance so that entitlement to the hourly compensation may be determined. Further, the duties actually performed for the hourly rate and the amount of time devoted thereto must be properly documented before any payment is approved. As an alternative to the adoption of such a local law, the town board, by resolution, may provide for a prospective salary increase for the assessor, to be paid during the time the assessor would be performing duties in connection with the revaluation. After the completion of the revaluation, the board could reasonably reduce the salary to its original level.

You ask whether the compensation of an appointive town assessor may be temporarily increased to reflect additional work involved in conducting a town-wide revaluation. You indicate that the assessor currently works part-time for a limited, fixed number of hours and that the work in connection with the revaluation would cause an increase in the number of hours worked by the assessor.

Town Law 27(1) provides that, with certain limitations not relevant here, the town board of each town shall fix, from time to time, the salaries of all officers and employees of the town, whether elected or appointed. Subdivision 1 further generally provides that "[s]alaries shall be in lieu of all fees, charges or compensation for all services rendered to the town..." We have expressed the view that this quoted provision of Town Law 27(1) precludes an assessor from receiving separate compensation, in addition to salary, for services rendered in connection with a revaluation inasmuch as these services are part of the responsibilities of the assessor (1979 Opns St Comp No. 79-187, unreported; see also 5 Op Counsel SBEA No. 3).

We note, however, that, with certain exceptions, a town may supersede the provisions of the Town Law (Municipal Home Rule Law 10[1][ii][d][3]). Based on this grant of authority, we have concluded that, pursuant to a duly adopted local law, a town may supersede the quoted restriction in Town Law 27(1) and provide for the compensation of an appointive town officer by both a fixed annual amount for certain specified duties and at a designated hourly rate for specified additional duties (1989 Opns St Comp No. 89-45, p 105; 1980 Opns St Comp No. 80-356, p 108; but see, e.g., 34 Opns St Comp, 1978, p 196; Bookhout v Levitt, 43 NY2d 612, 403 NYS2d 200, concerning the general proposition that elected officials determine their own work hours and are entitled to salary as fixed by law as an incident of the office). It is our opinion that a town similarly may supersede Town Law 27(1) and provide by local law for compensation of an appointive assessor by a fixed amount for the performance of certain of his or her duties and an additional hourly rate for duties performed in connection with a revaluation

When compensation is paid in this manner, the duties to be performed for the fixed amount and those to be performed at the hourly rate must be clearly specified in advance so that entitlement to the hourly compensation may be determined. Further, the duties actually performed for the hourly rate and the amount of time devoted thereto must be properly documented before any payment is approved. Also, where possible, payment should be made pursuant to the payroll method to permit more efficient accounting for the various deductions from gross compensation that may be required (see Opn No. 89-45, supra; Opn No. 80-356, supra).

As an alternative to the adoption of a local law, it is our opinion that the town board, by resolution, may provide for a prospective salary increase for the appointive assessor, to be paid during the time the assessor would be performing duties in connection with the revaluation, pursuant to the board's authority under Town Law 27(1) to fix, from time to time, the salary of all town officers (Opn No. 79-187, supra). After the completion of the revaluation, it is our opinion that the board could reasonably reduce the salary to its original level pursuant to this same authority (cf. Taney v Town of Waterloo, 245 AD2d 1079, 667 NYS2d 553 mot for lv to app dsmd 91 NYS2d 957, 671 NYS2d 717; Benjamin v Town of Fenton, 892 F Supp 64; compare Sacco v Maruca, 175 AD2d 578, 573 NYS2d 787 mot for lv to app denied 78 NY2d 862, 578 NYS2d 877, concerning referendum requirements for mid-term salary decrease for an elected official).

May 15, 2001
Thomas P. Halley, Esq., Town Attorney
Town of Clinton