Volume 9 - Opinions of Counsel SBEA No. 25
Assessor (powers and duties) (unpaid leave of absence) - General Municipal Law, § 92; Real Property Tax Law, § 310; Town Law, § 27:
A town may adopt a local law requiring its appointed assessor to request an unpaid leave of absence.
We are asked whether a town has the authority to adopt a law requiring its appointed assessor (RPTL, § 310) to request an unpaid leave of absence.
Section 27(1) of the Town Law provides that the town board fixes the salaries of town officers which are in lieu of any other fees, charges or compensation. Section 92 of the General Municipal Law authorizes towns to grant leaves of absence to their officers and employees with or without pay and to adopt rules relating to such leaves. Section 10(1)(ii)(a)(1) of the Municipal Home Rule Law authorizes towns to adopt or amend local laws not inconsistent with the Constitution or any general law regulating the compensation and hours of work of their officers and employees. In exercising these powers through the determination of the hours of work and salaries of appointed assessors, town boards have broad latitude (6 Op.Counsel SBEA No. 65). Reading these provisions together, it appears that the town is authorized to adopt rules for leaves without pay.
We understand that the assessor in question resides in Florida during the winter. While we conclude that the town may place the individual on leave without pay, the absence of the assessor raises the question of how assessment administration is conducted. Clearly, this extended absence can be the predicate for the town appointing an acting assessor (RPTL, § 314), since the assessor cannot perform the duties of the office while on leave. During the leave, an acting assessor would perform the assessor’s duties. After six months, if the assessor had not returned, the acting assessor would be required to satisfy the State Board’s minimum qualification and certification requirements (RPTL, § 314; 9 NYCRR 188-2.20).
This granting of a leave of absence normally would not result in a vacancy in office. At common law, public officials are entitled to continue in their offices, with all the benefits thereof, until their terms end, they resign, or are removed (Bookhout v. Levitt, 43 N.Y.2d 612, 374 N.E.2d 111, 403 N.Y.S.2d 200 (1978)). The statutes discussed above create an exception to this rule by authorizing the assessor’s absence without pay. The granting of a leave of absence would, of course, be at the discretion of the town. Clearly, if the town board grants leave without pay, it has sanctioned the absence, and the office will not be vacated. Alternately, if the town board determines that the demands of the office require the assessor’s presence, then it should not grant the leave. If the assessor leaves without authorization, then the town may take the appropriate disciplinary action in accordance with section 324 of the Real Property Tax Law.
May 31, 1988
