Volume 4 - Opinions of Counsel SBEA No. 97
Assessor, powers and duties (action by town board vs. assessor) (assessor’s attorney fees) - Town Law, § 65:
In an action by a town board against him, an assessor, who in good faith performed his duties, is entitled to retain counsel in the defense of an action regarding such performance at the expense of the municipality for which those duties were performed.
Our opinion has been requested concerning the obligation of a town to compensate an attorney for the defense of an action by the town board against an assessor. The assessor has placed a parcel of real property owned by such town on the taxable portion of the assessment roll. We have been asked to comment on the specific issue of retention of, and compensation for, private counsel for the assessor in this situation.
The specific authorization for retention of private counsel by a municipal officer is contained in section 65, subdivision 1, of the Town Law.
1. Any action or special proceeding for or against a town, or for its benefit, and upon a contract lawfully made with it, or with any of its officers or agents authorized to contract in its behalf, or to enforce any liability created, or duly enjoined upon it, or upon any of its officers or agents for which it is liable, or to recover damages for any injury to any property or rights for which it is liable, shall be in the name of the town. The town board of any town may authorize and direct any town officer or officers to institute, defend or appear, in any action or legal proceeding, in the name of the town, as in its judgment may be necessary, for the benefit or protection of the town, in any of its rights or property. It shall be the duty of any officer or officers so authorized and directed to institute said action or legal proceeding or to defend or appear therein, and the reasonable and necessary expense of such action or proceeding, or defense or appearance shall be a town charge. No such officer or officers, however, shall employ legal counsel except as directed by the town board.
The application of this section has been examined at length by Judge Jason of the Court of Appeals in the case of Cahn v. Town of Huntington, 29 N.Y.2d 451, 278 N.E.2d 908, 328 N.Y.S.2d 672. This was an action by an attorney to recover the reasonable value of the legal services performed by him for a town planning board in defense of litigation instituted against the planning board by the town board. The defense of the town board was that under section 65, subdivision 1 of the Town Law only it, the town board, was authorized to retain the attorney and that the planning board had no inherent authority to retain counsel or bind the town for payment of legal fees without authorization from the town board.
The planning board, on the other hand, justified its action on the theory that although section 65, subdivision 1, does not specifically authorize officers of the town to employ counsel, there is implied authority to employ special counsel under specific circumstances.
In agreeing with the contention of the planning board, Judge Jason noted that:
Notwithstanding lack of specific statutory authority, a municipal board or officer possesses implied authority to employ counsel in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction with its or his official duties where the municipal attorney refused to act, or was incapable of, or was disqualified from, acting. (cases cited) This authority is necessarily implied in order to enable the board to effect the purposes of its creation and to allow it to properly function. (cases cited)
Section 65, subd. 1 of the Town Law did not negative this implied authority of the Planning Board to employ counsel. The thrust of this section is to place the burden of the prosecution of actions by a town or its officers against a third party and the defense of actions brought against the town, or its officers by a third party upon the judgment and direction of the town board. (cases cited) The statute certainly does not apply to litigation between two town officers or boards concerning the proper performance of their duties. If it did, a situation would be created in which the town board could prevent the board it sued from engaging counsel. We should not, of course, ascribe to the legislature an intent to have such a result ensue. (cases cited) (emphasis supplied)
It seems clear from the discussion in this case that a town officer, who, in good faith performs his duties, is entitled to retain counsel in the defense of an action regarding such performance at the expense of the municipality for which those duties were performed. In this inquiry, the assessor in question has been carrying out his constitutional and statutory obligations in placing property that he considers to be capable of assessment for real property tax purposes on the assessment roll.
Also, the municipal attorney in this situation is disqualified from acting for the assessor by the fact that the town is the owner of the property that is the subject of the dispute. The court stated in Zablow v. Incorporated Village of Freeport, 41 Misc.2d 803, 246 N.Y.S.2d 434, that:
It is equally well established, however, that a public officer possesses implied authority to employ special counsel in the prosecution or defense of an action undertaken in the public interest and involving his official duties where the municipal attorney is disqualified from acting, as in the case of dispute between two agencies or officers of a governmental body . . . . When such action is prosecuted as an official duty rather than for personal motives, the municipality may be held liable for the payment of the expenses incurred.
Therefore, it is our opinion that a town in the situation described above is liable for the attorney fees of private counsel in the defense of an action against the town assessor. Furthermore, the assessor has implied authority to retain private counsel to represent him.
July 5, 1974