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Volume 7 - Opinions of Counsel SBEA No. 111

Opinions of Counsel index

County Director of Real Property Tax Services (reappointment) (political affiliation) - Real Property Tax Law, §§ 1530, 1532:

Since party allegiance is not an appropriate requirement for the effective performance of the office of director of real property tax services, a director should not be denied reappointment solely on account of political affiliation.

In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the United States Supreme Court held that to condition the continued employment of an assistant public defender upon his or her allegiance to the political party in control of the county government is improper and violative of the First and Fourteenth Amendments. We have been asked if that decision has any implications in regard to the reappointment of a county director of real property tax services.

Prior to its decision in the Branti case, the Supreme Court had tested the propriety of dismissal of a government appointee on the basis of whether the position was of either a policymaking or confidential nature (Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). In Branti, however, the Court rejected this “label” test, declaring that “a position may be appropriately considered political even though it is neither confidential nor policy-making in character”, while noting that “party affiliation is not necessarily relevant to every policymaking or confidential position” (445 U.S., at 518, 100 S.Ct., at 1294-1295). Instead, it framed the question as “whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved” (id.).

Sections 1530 and 1532 of the Real Property Tax Law provide for the selection, standards, powers and duties of a county director of real property tax services. Although a county legislative body may choose to make the position competitive (see, 2 Op.Counsel SBEA No. 76), most directors are appointed noncompetitively by either the county legislative body or county executive/manager. The fact that such appointments are made by elected officials is not determinative of the question before us, however, since the assistant public defenders in the Brand case were also appointed by someone who came to office through the political process.

In both the Elrod the Branti cases, the Court acknowledged the difficulty in determining whether political affiliation is a legitimate factor to be considered in employee dismissal or reappointment (445 U.S., at 517, 100 St.Ct., at 1294). The “easy calls” (a governor’s speechwriter, being an example cited by the Court) do not require rigorous analysis; it is the hard cases that require careful scrutiny. The office of real property tax service director may not be an easy call, but there are factors which suggest that party allegiance is not “an appropriate requirement for the effective performance” of that office.

In the context of a study proposing incorporation of a real property tax service agency into a new county department, we have previously concluded that the standards, powers and duties of the office of the director (RPTL, §§ 1530, 1532) establish the director as an independent officer reporting directly to the county legislative body and that the duties assigned to the agency must be performed impartially (3 Op.Counsel SBEA No. 99). While it is clearly within the county’s authority to determine the structure of its government, whatever the determination, the integrity of the agency as an independent arm of county government must be preserved (id.).

Section 1530(4) further suggests the nonpartisan nature of the director of real property tax services. This subdivision provides that in those counties which have a tax commission, the director’s duties shall be performed by the chief administrative officer of the tax commission (see, 5 Op.Counsel SBEA No. 15). Most relevant to this Opinion is that the statute applies to a county tax commission “consisting of members who are required to represent more than one political party” (emphasis added). It seems clear, then, that the State Legislature has determined that the business of administering the “principles and methods relating to the assessment of real property” (RPTL, § 1530(3)(a)) is more related to the needs of the county as a whole than to simply partisan political interests.

Accordingly, it is our opinion that based upon the reasoning of the Supreme Court in the Branti case, a director of real property tax services should not be denied reappointment solely because of his or her political affiliation.

December 1, 1982