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Volume 6 - Opinions of Counsel SBEA No. 65

Opinions of Counsel index

Assessor (powers and duties) (compensation) (hours of work) - Municipal Home Rule Law, § 10; Real Property Tax Law, § 1522:

The salary and hours of work for an appointed town assessor are determined by the town board.

In 6 Op.Counsel SBEA No. 63, an opinion involving the compatibility of the offices of village mayor and appointed town assessor, we addressed some of the problems relating to salary and hours of appointed assessors. However, certain issues, there only treated tangentially, now require a more complete analysis.

Municipal Home Rule Law, section 10(l)(a)(10), provides, in part, that a town has the power to adopt and amend local laws, not inconsistent with any general law, relating to the powers, duties, qualifications, number, mode of selection and removal, terms of office, compensation, hours of work, protection, welfare and safety of its officers and employees.

Town Law, section 11, relating to towns of the first class, and section 12 relating to towns of the second class, both provide, with respect to the appointed office of assessor, that the assessor be appointed in the manner and for the term prescribed by section 1522 of the Real Property Tax Law. Town Law, section 20, relating to town officers, contains like provisions. Town Law, section 33, provides “[w]hen required by the town board in a town of the first class, the assessor or assessors shall keep such office hours for public convenience as the town board shall determine.” Finally, Town Law, section 27, 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.

Real Property Tax Law, section 1522, contained in Article 15-A, which was added by chapter 957 of the Laws of 1970, and is commonly referred to as the Assessment Improvement Law, provides for the selection, term of office, classification, qualifications and training, and removal of appointed assessors. This law makes no direct reference to compensation or hours of work. Therefore, pursuant to the above quoted provisions of the Municipal Home Rule Law and the Town Law, it is within the power and discretion of the town board to provide for the amount of compensation and hours of work for the appointed office of assessor.

It should also be observed that Article 15-A, while making no direct reference to hours of work, recognizes that in some instances the position of assessor may not be full time. As previously indicated, this law provides for the classification and term of office (classified civil service with a six-year term of office) and also provides that where the local legislative body determines the office or position to be full time, such body may request the local civil service commission to classify the position in the competitive class with an indefinite term. Additionally, it should also be noted that Real Property Tax Law, section 576, enacted the same year as Article 15-A, authorizes municipalities to enter into cooperative agreements whereby the same individual would serve as assessor in each municipality. It follows, of necessity, that in such case the position would be part time in each municipality.

As required by section 1550, the State Board of Equalization and Assessment has promulgated minimum qualification standards for the appointed office of assessor (9 NYCRR 188). The complexity and difficulty of the duties of the office of assessor resulted in the establishment of four classification groupings based on the number of parcels in the assessing unit. As stated in the established standards, it is our conclusion that in an assessing unit consisting of more than 3,500 parcels, a full time assessor will need additional help in order to properly carry out the duties of his office (188.1(a)). In so providing, these rules recognize that in those localities that do not have a sufficient number of parcels of property (less than 3,500) to warrant the services of an assessor on a full time basis, an assessor may be appointed to a six-year term of office on either a full time or part time basis.

Finally, it should be observed that the regulation of wages and hours cannot be used as a subterfuge for disciplining an assessor. This power of regulation is subject to a good faith requirement (see, Newell v. City of Buffalo, 261 N.Y. 369, 185 N.E. 499). Should it be found that an appointed assessor lacks the judgment and ability to prepare a proper assessment roll, he can be removed from office for “just cause” utilizing the procedure set forth in Real Property Tax Law, section 1522(7). Under this section, a determination to remove an assessor or take other disciplinary action as a result of a removal proceeding is subject to review by the State Board upon application. Removal and disciplinary proceedings may also be commenced pursuant to Public Officers Law, section 36 and Civil Service Law, sections 75 and 76.

June 11, 1979