Opinion 2006 - 5


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

LOCAL LAWS -- Compensation (mid-term decrease for elected town officers) -- Referendum Requirements (mid-term salary decrease for elected town officers)
PUBLIC OFFICERS AND EMPLOYEES -- Compensation (mid-term decrease for elected town officers)
TOWN BOARD -- Powers and Duties (mid-term salary decrease for elected officers by local law subject to mandatory referendum)

TOWN LAW §27(1); MUNICIPAL HOME RULE LAW §23(2)(e): A town board may reduce the salary of an elected town officer, other than a town justice, during a term of office by local law subject to mandatory referendum.

You ask whether the salary of an elected town officer, other than a town justice, may be decreased during the officer’s term of officer by town board resolution.

Town Law §27(1) provides that the town board of each town “shall fix, from time to time, the salaries of all officers and employees of said town, whether elected or appointed …” Section 27(1) further provides that the town board may not fix the salaries of certain listed elected officials in excess of the amounts so specified in the notice of hearing on the preliminary budget, except by local law subject to permissive referendum requirements, for not more than one fiscal year (Town Law §27[1]; Municipal Home Rule Law §24[2][h]; see, e.g., 1981 Opns St Comp No. 81-42, p 43). 1

With regard to reductions in salaries of elected officials, we have concluded in previous opinions that a town board, pursuant to the authority in Town Law §27(1) to fix salaries of town officers and employees, may reasonably reduce the salary of an elected officer during a term of office by the adoption of a resolution (see, e.g., 1977 Opns St Comp No. 77-764, unreported; 1977 Opns St Comp No. 77-451, unreported; 1974 Opns St Comp No. 74-221, unreported; see also 1991 Op Atty Gen No. I 91-40). In these opinions, we noted that section 27(1) contains no local law or referendum requirement for salary reductions for elected officials, analogous to provision for increases in certain salaries (Opn No. 74-221, supra).2 Moreover, while Municipal Home Rule Law §23(2)(e) provides that a local law that reduces the salary of an elective officer during his term of office is subject to a mandatory referendum, we concluded that section 23(2)(e) was not applicable when a local government is authorized to decrease salaries by resolution, unless it chooses to act by local law (Opn No. 77-764, supra; see Municipal Home Rule Law §10[1][ii][a][1]).

Since these opinions were rendered, however, there has been a judicial decision, Sacco v Maruca, 175 AD2d 578, 573 NYS2d 787 app den 78 NY2d 862, 578 NYS2d 877 (1991), that impacts on our prior conclusion. In Sacco, supra, the court nullified a town board resolution that reduced the salary of the town supervisor during his term of office. The court stated as follows:

Reduction of the salary of an elected Town official during his term of office cannot be accomplished by mere resolution, but requires the enactment of a local law subject to mandatory referendum. Town Law §27(1), relied upon by respondents, merely establishes the authority for the Town Board to raise or lower salaries at any time. Municipal Home Rule Law §23(2)(e) is controlling on the issue in this case, which involves the manner in which a municipality reduces the salary of an elected official during his term of office. (citations omitted).

As noted, Municipal Home Rule Law §23(2)(e), which was held to be controlling by the court, provides that a local law that reduces the salary of an elective officer during his term of office is subject to a mandatory referendum. That provision, on its face, does not require the adoption of a local law, but rather prescribes the procedural requirement of a mandatory referendum when a local law is adopted. Nonetheless, the clear import of the court’s conclusion is that a resolution is insufficient, and a local law subject to mandatory referendum is necessary, when reducing the salary of an elected town official during his or her term of office.3

Accordingly, based on Sacco, supra, it is our opinion that a town board may reduce the salary of an elected town officer, other than a town justice, during a term of office only by local law subject to mandatory referendum. Prior inconsistent opinions are hereby superseded.4

July 25, 2006

Brian R. Haak, Esq., Town Attorney
Town of Danube

1 Pursuant to section 108 of the Town Law, the proposed salaries of members of the town board, an elected town clerk and an elected town superintendent of highways must be specified in the notice of hearing on the town’s annual preliminary budget.

2 See also, e.g., Meredith v Connally, 68 Misc 2d 956, 328 NYS2d 719 affd 38 AD2d 385, 330 NYS2d 188 and 5 McQuillin, Municipal Corporations §15.6, stating the general rule that if a statute commits a decision to a governing board and is silent as to mode by which the board is to exercise its power, the decision may be evidenced by resolution.

3 We note that the salary reduction in Sacco, supra, was greater than fifty percent, from $24,000 to $11,000. The holding of the court, however, was not based on the amount of the reduction, but rather solely on the fact that it occurred mid-term by simple resolution (compare Bogacki v Zolemski, 143 Misc 140, 256 NYS 166 affd 238 AD 764, 261 NYS 1036 and Benjamin v Town of Fenton, 892 F Supp 64, discussing the propriety of salary reductions to an unreasonably low amount or reductions instituted to effectuate a “forced removal” or ouster from office).

4 The inquiry suggests that the salary of the town justice is not at issue. Nonetheless, for informational purposes, we note that in Catansie v Town of Fayette, 148 AD2d 210, 543 NYS2d 825 (1989), the court rejected the notion that section 27 of the Town Law authorizes a town board to reduce the salary of a town justice during the justice’s term of office. The court held, based on fundamental constitutional principles of separation of powers, that the mid-term reduction in salary of a town justice constituted an impermissible encroachment upon the independence of the judiciary. The court also noted that, at the time of the enactment of the present language in section 27(1) that authorizes the board to “fix, from time to time, the salaries of all officers …”, the Constitution expressly prohibited any reduction in compensation of a town justice during a term of office. The court declined to infer that the Legislature intended that the power in section 27 to fix salaries was to include the power to reduce a justice’s salary during the term of office. Since Catansie, supra, is premised on constitutional grounds, and since local laws must be consistent with the Constitution (NY Const, art. IX, §2; Municipal Home Rule Law §10), it is evident that a town board may not reduce the salary of a town justice during a term of office, even by local law subject to mandatory referendum.