Volume 10 - Opinions of Counsel SBRPS No. 122
Assessor (prospective appointment); County Director of Real Property Tax Services (prospective appointment) - Real Property Tax Law, §§ 310, 1530:
A prospective appointment to the office of assessor or county director of real property tax services for the term of office that will commence on October 1, 2001 may only be made by the appointing authority which can be expected to be in office on October 1, 2001.
Our opinion has been requested as to the authority of a town board to make a prospective appointment to the office of assessor at its January, 2001 organizational meeting. A similar inquiry is presented as to the authority of the county appointing authority to prospectively appoint a county director of real property tax services.
Pursuant to Real Property Tax Law, § 310(2), the term of the incumbent assessor will expire September 30, 2001, the new six year term of office to commence the following day. Most counties have a county director, {1} and the term of office of the county director follows the same six year cycle (RPTL, § 1530(1)).
The appointed town assessor is generally appointed by the town board (RPTL, § 310(1); Town Law, § 20(1)(a),(b)). {2} For purposes of this opinion, we assume that the town board members serve two- or four-year terms (Town Law, § 24) commencing each January 1 of an even-numbered year, that is, following their election in an odd numbered year (Public Officers Law, § 4; Town Law, § 80). {3}
County directors are appointed by the county legislative except in those counties in which heads of departments are appointed by the county executive or county manager (RPTL, § 1530(1)). County governmental structure varies widely. The majority of counties have county legislatures, but some still have county boards of supervisors. A significant number have county charters with executives or managers (see, NYS Dept. of State, Local Government Handbook (5th ed.), ch. V). Each individual county’s structure would have to be examined to determine which official or body has the appointing authority and the term(s) of office of such official or body.
As a general principle, an appointing authority may make a prospective appointment to fill a vacancy which is certain to occur only when “the officer making the appointment is still in office when the vacancy occurs” (People v. Fitzgerald, 180 N.Y. 269, 274, 73 N.E. 55 (1905); LaPolla v. DeSalvatore, 124 Misc.2d 788, 477 N.Y.S.2d 248 (Sup. Ct., Oneida Co., 1984); 18A NY Jur2d, Civil Servants, § 81). Thus, an officer whose term will expire on December 31 of one year may not, in September of that same year, make an appointment to a term to commence the next January 1 (People v. Dethloff, 283 N.Y. 309, 28 N.E.2d 850 (1940)).
Since the term of the incumbent assessor or county director will not expire until September 30, 2001, any prospective appointment to that vacancy may only be made by the appointing authority which may be expected to be in office on October 1, 2001. Assuming, then, that a new town board elected at the 1999 general election begins either a two- or four-year term on January 1, 2000, any appointment to the assessor term beginning October 1, 2001, could be made on or after January 1, 2000. Similarly, where the county legislature is elected in odd numbered years, or is made up of supervisors and mayors elected in odd numbered years, an appointment could be made on or after January 1, 2000. Where a county executive or manager makes the appointment of the director, the term of office of that individual would control the earliest date upon which a county director could be appointed. The incumbent whose term extends through (or beyond) October 1, 2001, could, in theory, make the appointment at any time during that term.
Whether an appointment to a term to commence 21 months in the future, or perhaps even longer in the case of some county directors, is prudent is another matter. Certainly circumstances can change over that period of time. An appointing municipality should consider the possible vulnerability of a prospective appointment that far removed from the start of the term. However, there is certainly no requirement that the municipality wait until the statutory start of the new term to make the appointment.
November 17, 2000
{1} County assessing units (i.e., Nassau and Tompkins) do not have county directors (RPTL, § 1530(1)). In Westchester County, the duties of county director are performed by the chief administrative officer of the county tax commission (RPTL, § 1530(4)). In Rockland County, the duties of county director may be assigned to other county officials (RPTL, § 1538). The counties comprising New York City do not have county directors (RPTL, § 1562(a)).
{2} Although section 20(1)(b) of the Town Law provides that towns of the second class shall have three assessors, that provision is superseded by the RPTL (§§ 332, 334). Those towns still having a three member board of assessors opted to retain those elected officers pursuant to former section 1556 of the RPTL.
{3} In Broome County, elections are held in even numbered years (Town Law, § 86).