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Volume 7 - Opinions of Counsel SBEA No. 95

Opinions of Counsel index

Board of Assessment Review (hearings; meetings) (role of town attorney) - Real Property Tax Law, § 1524; Town Law, § 20:

A town attorney is the legal advisor to the town board of assessment review and, therefore, may attend and participate at hearings and meetings of the board.

Our opinion has been requested concerning the proper role of a town attorney during hearings and meetings of a town board of assessment review. Section 20(2)(a) of the Town Law authorizes the town board of every town to establish the office of town attorney. The Attorney General has stated that a town attorney acts as attorney for the town board and “all of the town officers, in their official capacities” (43 St.Dept. Rpts. 662, at 663 (1933, Op.Atty. Gen.)), and the State Comptroller has reached a similar conclusion (21 Op.State Compt. 245).

Section 1524(l)(a) of the Real Property Tax Law requires each local government (including towns) to appoint a board of assessment review. Although subdivision 1 of section 1524 provides that a majority of the board “shall consist of members who are not officers or employees of the local government,” this does not mean that members of the board of assessment review are not “town officers”. Rather, it is intended to ensure that the majority of the board hold but one town office, in order to avoid incompatibility of office (see, e.g., 1982 Op.Atty.Gen. (Inf.) 52).

Accordingly, since the town attorney is the advisor to all town officers, and the members of the board of assessment review are town officers, it is our conclusion that the town attorney is the legal advisor to the town board of assessment review. Indeed, in our Board of Assessment Review Manual (May 1982), we state, “The board (of assessment review] should also contact the town attorney or corporation counsel for purposes of arranging for his or her presence during grievance days if this should be necessary” (page 2).

This does not mean that the town attorney should assume responsibility for conducting the hearings of the board of assessment review, and thereby relegate the members of that board to a lesser role in the administrative hearing process. It is, however, appropriate for the town attorney to attend the hearings of the board of assessment review. At the hearings, the town attorney may question complainants, especially when requested to do so by the members of the board of assessment review. Since the hearings of the board are intended to provide an informal procedure by which complainants may present their objections to their tentative assessments without the assistance of an attorney (see, e.g., Jakubovitz v. Dworschak, 67 A.D.2d 977, 413 N.Y.S.2d 444 (2d Dept., 1979)), we do not anticipate that it should be necessary for the town attorney to question the complainants in very many cases. Where the complainant is represented by an attorney, which is often the case with owners of commercial and other non-residential property, there is a greater likelihood that the town attorney will need to be involved in the hearing process.

As to the meetings at which the board of assessment review makes its determinations with respect to complaints received, we also believe that the town attorney may be present for the purpose of advising on questions of law. However, the town attorney should avoid assuming the role of advocate for the town or town assessor. We have previously stated that the assessor should not be permitted to attend these meetings (5 Op.Counsel SBEA No. 75), and if the town attorney were to attend as representative of the town assessor, the town would, in effect, be obtaining a further opportunity to present its case, an opportunity which the complainant would not have had (see generally, 6 Op.Counsel SBEA No. 125).

July 28, 1982
Revised September 21, 1982