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Volume 6 - Opinions of Counsel SBEA No. 4

Opinions of Counsel index

Assessor (term of office) (appointments to new term) - Civil Practice Law and Rules, Article 78; Real Property Tax Law, § 1522:

Each assessing unit having a sole appointed assessor pursuant to the provisions of section 1522 of the Real Property Tax Law is under an obligation to make an appointment for the term beginning October 1, 1977 in an expeditious and timely manner. The failure to so act prior to October 1, 1977 gives rise to the right of an elector to seek a court order in the nature of mandamus to compel the appointment of an assessor.

Our opinion has been requested as to the possibility that a town board may consider postponing the appointment of an assessor until after the November elections.

Real Property Tax Law, section 1522, authorizes the legislative body of cities and towns to appoint a sole assessor. That section further provides, with certain exceptions relating to an indefinite term, that the term of office of assessor shall be six years. Subdivision 2 thereof expressly states that “such terms shall commence on the first day of October, nineteen hundred seventy-one and each sixth year thereafter.” Accordingly, the term appointments of incumbent assessors expire on September 30, 1977, and town boards are required to make a new six-year term appointment commencing October 1, 1977. In selecting an individual for the new six-year term, town boards may either reappoint the incumbent or select another individual who meets the minimum qualification standards applicable to the position.

Section 1522 is contained in Article 15-A, which was enacted by chapter 957 of the Laws of 1970. The purpose of that act was to provide a means of improving assessment practices and procedures (Governor’s Memorandum L.1970, c.957; McKinney’s Session Laws of New York, 1970, p. 3020). Among other things, this law was designed to upgrade the position of assessor by requiring him to meet minimum qualification standards, by providing him with adequate training, and by removing the position from the direct political-elective process by means of the six-year term appointment. It is evident that by minimizing the political overtones that might otherwise arise, the six-year term of office and the October 1 appointment date were intended to afford to the assessor the independence necessary to embark upon the extremely critical and demanding task of preparing an equitable assessment roll.

We believe each assessing unit is under an obligation to act to make an appointment for the term beginning October 1, 1977 in an expeditious and timely manner. Certainly, the local governing body has a responsibility to its constituents and taxpayers to comply with the intent and spirit of the law. Additionally, of course, no incumbent should be placed in a position whereby his status is to remain in doubt for an indefinite period of time into the future.

If, however, the governing board of an assessing unit fails to act prior to October 1, then there are certain courses of action available to aggrieved parties. For example, ordinarily, a citizen and an elector has standing to make an application for an order in the nature of mandamus (C.P.L.R., Art. 78) to compel performance by a public officer of a public duty (Ahern v. Board of Supervisors of Suffolk County, 1 App.Div.2d 538, 185 N.Y.S.2d 669, aff’d, 6 N.Y.2d 376, 160 N.E.2d 640, 189 N.Y.S.2d 888). In such a proceeding, the courts may compel public officers to proceed in the performance of a duty to reach an end directed by law, However, if the manner of performance is discretionary, then the courts may not compel any particular method to reach such end (People ex rel. Harris v. Commissioners of the Land Office, 149 N.Y. 26,43 N.E. 418; Howland v. Eldridge, 43 N.Y. 457).

Accordingly, an elector of a town may bring an action to compel the town board to appoint an assessor, but he may not bring an action to compel such board to appoint a particular person as assessor (cf., Leone v. Brewer, 259 N.Y. 386, 182 N.E. 57. “The appointment of the board [of zoning appeals] may be compelled by mandamus.” 259 N.Y. at 389, 182 N.E. at 58).

The concept of the sole appointed assessor, established by section 1522, is still in a relatively early stage of implementation. Necessarily, ambiguities and problems will arise as we reach the conclusion of the term of those assessors first appointed pursuant to this law.

November 22, 1977