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Volume 9 - Opinions of Counsel SBEA No. 39

Opinions of Counsel index

Assessor (salary) (reimbursement) - Municipal Home Rule Law, § 10; Town Law, § 27:

A town may enact a local law providing for salary increments to assessors who have successfully completed some or all of the training required by law.

We have been asked whether a town may provide salary increments to members of its Board of Assessors who have successfully completed some or all of the State Board training required by law (RPTL, Art. 3, Title 2; 9 NYCRR 188-2).

The analysis of this issue presents three questions: (1) whether there is a State statute requiring assessors’ salaries to be equal; (2) if so, whether a town has authority under the Municipal Home Rule Law to adopt a local law superseding this requirement; and (3) if so, whether there is any other reason why a local law providing salary increments to assessors who have successfully completed some or all of the training required by law should not be given legal effect.

In Op. State Compt. 86-32, the State Comptroller effectively answered the first two questions in the affirmative but then concluded that the town was nevertheless precluded by common law principles from adopting a local law providing different compensation to assessors based upon their level of training. We agree with the Comptroller on the first two points, but we believe that neither the common law nor any other legal principle would invalidate any such local law.

Section 27(1) of the Town Law provides that the town board shall fix the salaries of all town employees and officers, and that these salaries are in lieu of all fees, charges or compensation for all services rendered to the town. We have previously stated that the salaries of elected assessors must be equal, except that where, pursuant to Town Law, § 22-b, a chairman has been designated, the chairman may receive a higher salary (2 Op.Counsel SBEA No. 68). The basis for our Opinion was a 1960 Opinion of the State Comptroller (15 Op. State Compt. 375), which reasoned that, since section 22-b authorizes a different salary for the chairman, that provision would be unnecessary if authority existed to establish different salaries.

However, in 1963, the “home rule” authority of local governments was I expanded by the adoption of Article IX of the State Constitution, the Municipal Home Rule Law, and the Statute of Local Governments. Section 10 of the MHRL, which authorizes local governments to adopt and amend certain local laws, requires a reexamination of our prior Opinion.

Municipal Home Rule Law, section 10(1)(ii)(a)(1), authorizes towns to adopt local laws, not inconsistent with the State Constitution or any general law, fixing the compensation of town officers and employees. There is no constitutional provision or general law directing equal pay for elected assessors. Town Law, section 22-b, which only inferentially provides for equal pay, is not a general law. A general law is a State statute “which in terms and in effect applies to . . . all towns” (Municipal Home Rule Law, § 2(5)). Section 22-b is not such a law, because, in terms and effect, it does not apply to towns which have not retained elected assessors (see, RPTL, §§ 310, 328).

However, even if section 22-b were deemed a general law, a local law authorizing salary increments to assessors based on training would not be inconsistent. The test for inconsistency is whether a local law prohibits what is permissible under State law or imposes restrictions on rights under State law so as to inhibit the operation of general laws (N.Y.S. Club Association, Inc. v. City of New York, 69 N.Y.2d 211, 505 N.E.2d 915, 513 N.Y.S.2d 349 (1987)). A literal reading of this standard could make the home rule provisions illusory; the expression of State law must be specific in what is authorized or forbidden before a local law will be found inconsistent (Jancyn Manufacturing Corp. v. County of Suffolk, 71 N.Y.2d 91, 518 N.E.2d 903, 524 N.Y.S.2d 8 (1987)). Since section 22-b neither mandates equal salaries nor specifically forbids a salary structure based upon training, a local law establishing such a salary structure would not be inconsistent.

Moreover, even if a local law authorizing such a salary structure for assessors were inconsistent with a general law, MHRL, section 10(1)(ii)(d)(3), nevertheless appears to authorize such a local law. That provision, which was enacted in 1976, provides, in pertinent part:

[A town may adopt a local law providing for the] amendment or supersession in its application to it, of any provision of the town law relating to the property, affairs or government of the town or to other matters in relation to which and to the extent to which it is authorized to adopt local laws by this section, notwithstanding that such provision is a general law, unless the legislature expressly shall have prohibited the adoption of such a local law. . . .

Certainly, the salaries of assessors relate to the “property, affairs or government” of a town. Furthermore, there is no express statutory prohibition against a local law establishing different salaries for assessors. Thus, even if such a local law is inconsistent with general law, the town’s “supersession authority” conferred by MHRL, section 10(1)(ii)(d)(3) validates it (see, Kahmi v. Yorktown, 74 N.Y.2d 423, 547 N.E.2d 346, 548 N.Y.S.2d 144 (1989)).

Several opinions of the State Comptroller are consistent with the conclusion that section 10 would authorize a local law establishing different salaries for assessors with different levels of training. {*}  Indeed, even in the Opinion (86-23, cited above) holding that a salary schedule for assessors based on training was impermissible, the Comptroller implicitly conceded that section 10(1)(ii)(d)(3) of the Municipal Home Rule Law authorizes a town to adopt such a local law, but concluded that other legal principles prevent it. In support of this conclusion, the Comptroller cited Bookhout v. Levin, 43 N.Y.2d 612, 374 N.E.2d 111, 403 N.Y.S.2d 200 (1978), for the proposition that “an elective officer of a municipality is entitled to his salary as an incident of the office and...cannot be deprived of that salary as long as he rightfully holds the office.” We respectfully believe that the Comptroller’s reliance upon Bookhout is misplaced.

First, the proposition for which Bookhout was cited is inapplicable to differential salaries based on training. Such a system would not deprive any elected assessor of his or her salary; an assessor who took no training at all would continue receiving the same salary as long as he or she remained in office (which might not be very long, but that is a different issue). Nor is it proper to view the increments as personal in nature. The salary structure would be objective and uniform: an assessor’s training record is readily observable and quantifiable, and all assessors with the same level of training would receive the same salary.

But our conclusion that the local law is permissible does not rest simply upon a distinction of Bookhout. Having established that the Municipal Home Rule Law authorizes a town to adopt a salary schedule for assessors based upon training, it follows that if such a local law is duly enacted, only a constitutional objection can stand in its way. There is no constitutional impediment of which we are aware that would invalidate such a local law.

The most relevant constitutional provision is the 14th Amendment to the United States Constitution, which prohibits a State (and by implication, its local governments) from “denying its citizens equal protection of the laws.” According to modem constitutional jurisprudence, this allows a State (or its local governments) to establish classifications for most purposes as long as there is a “rational basis” for its classifications. A higher level of scrutiny is involved when a “suspect” classification, such as race, is involved. The local law in question would effectively classify assessors for salary purposes according to their training records. There is nothing constitutionally suspect about this classification, and there is certainly a rational basis for it.

Elected assessors are unique in local government in that they must satisfy a training requirement during their term of office. There is some analogy to elected village and town justices who must attend training. However, those individuals cannot perform “any judicial act” without training (Uniform Justice Court Act, § 105(1)). Elected assessors can serve in office prior to being trained; they are subject to removal if they do not complete training within the appropriate time (Real Property Tax Law, §§ 318, 322; 9 NYCRR 188-2.1, 2.19).

The assessor training program was enacted in 1982 (L.1982, c.33). The implicit presumption behind the program is that assessor training leads to improved assessing. In other words, although members of a board of assessors may have the same responsibilities, a better trained assessor may be expected to be more effective at performing those duties than an untrained assessor. That being so, it is reasonable for the town to provide greater compensation to the trained assessor.

While it is true that the law requires all assessors to be trained by a certain time, the sooner an assessor is trained, the sooner the assessor’s performance will be enhanced. By offering a salary increment for training, a town encourages an assessor to be trained sooner rather than later, which will mean that the benefits of improved assessing will be received by the town sooner rather than later. Clearly, there is a rational basis for the town to provide this incentive.

An analogy for review of the type of local law under discussion would be that of minimum qualifications for eligibility to an office. There the courts apply the standard of whether “any fair argument can be made to sustain” the requirement (Wirzberger v. Watson, 305 N.Y. 507, 514, 114 N.E.2d 15, 17 (1953)). For example, the courts will allow requiring a specific diploma from a national board, rather than another diploma, as a reasonable exercise of discretion (Fagelman v. Ingraham, 28 N.Y.2d 590, 268 N.E.2d 644, 319 N.Y.S.2d 846 (1971)).

In sum, we believe that the type of salary schedule described is permissible if authorized by an appropriate local law. To the extent 2 Op.Counsel SBEA No. 68 leads to a different conclusion, it is modified.

November 20, 1990

{*In Op. State Compt. 81-371, the Comptroller interpreted that section to authorize a local law providing that the member of a town board designated deputy supervisor only receive an additional stipend when actually serving as supervisor. Section 42 of the Town Law had provided for payment only when serving, but chapter 808 of the Laws of 1972 deleted this provision. The Comptroller interpreted this revival of a prior provision as acceptable under section 10.

In Op. State Compt. 79-856, the Comptroller interpreted section 10 to authorize a local law establishing a salary schedule for appointed members of town commissions (Planning Boards, Zoning Boards of Appeal, etc.) based upon actual attendance at meetings. In Op. State Compt. 80-356, the Comptroller interpreted section 10 to authorize a local law providing a fixed annual salary and an hourly rate for specific additional services as compensation for a town attorney. In Op. State Compt. 86-79, the Comptroller interpreted section 10 to authorize a local law providing that a deputy town clerk only be paid when actually serving as town clerk.

In Op. State Compt. 89-18, the Comptroller held that section 10 did not authorize a town to reimburse assessors for lost wages from private employment resulting from attendance at assessor training. However, since that issue related to reimbursement of expenses of town officers and employees, rather than to their compensation, it falls within an exception to the supersession authority. Section 10(1)(ii)(d)(3) expressly precludes a town from superseding Article 8 of the Town Law, which relates to town finances. Section 116 of the Town Law, which is contained within Article 8, authorizes a town to reimburse officers and employees only for “expenses necessarily incurred” in the discharge of their duties. It does not limit a town’s authority to provide compensation to its officers and employees. Thus, that Opinion is not inconsistent with our conclusion that a salary schedule based upon training would be authorized by section 10.