Can a New York town board abolish the elected office of tax collector by resolution, and if so, when does it take effect?

Plain-English summary

The Town of Palermo's board adopted a resolution in October 1995 to abolish the elected office of tax collector, effective January 1, 1998. The tax collector at the time had a term ending December 31, 1995. After the resolution, a new tax collector was elected for the term beginning January 1, 1996 and ending December 31, 1997. The town attorney later asked whether the procedure was valid: the 1995 resolution was adopted more than 150 days before a biennial election, and the abolition would take effect on a term-end (December 31, 1997).

The AG concluded the procedure did not match the statute. Town Law § 36 lets a second-class town board abolish the office by resolution "adopted at least one hundred fifty days prior to any biennial town election" and provides that abolition takes effect "at the expiration of the term of office to which the incumbent was elected or appointed." The clear intent is that the resolution must be passed during the current incumbent's term, not during a predecessor's term. Otherwise the abolition would attach to whoever the future officeholder happens to be, sliding it across election cycles.

In Palermo's case, the 1995 resolution was adopted while a different incumbent was serving. Its "effective January 1, 1998" date does not match the expiration of that 1995 incumbent's term. To abolish the office effective with the term ending December 31, 1997, the AG concluded the town needed to pass another resolution at least 150 days before the November 1997 biennial election. That resolution would, by operation of § 36, abolish the office at the end of the current incumbent's term.

The opinion's reasoning protects the alignment between voter choice and office structure. A current town board cannot decide the structure of a future board's elected positions; it can only abolish offices held by current incumbents, with effect at the natural end of those incumbents' terms.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is a "second-class town" under New York law?

New York towns are classified as towns of the first class or towns of the second class, with the classification turning on population and other criteria. The classifications carry different structural defaults for elected offices and other matters. Town Law § 36, by its terms, applies to towns of the second class.

Why the 150-day rule?

The 150-day rule ensures that voters and prospective candidates know whether the tax collector office will exist in time to prepare for the election. Adopting the abolition resolution closer to election day could disenfranchise voters or surprise candidates. The biennial-election trigger ties the structural change to the regular electoral cycle.

What happens to the work the tax collector did, after abolition?

The opinion does not detail that, but typically the duties are assumed by another town officer (often the town clerk/receiver of taxes or another designated officer). The town would need to ensure the duties continue without interruption.

Does this same rule apply to other elected town offices?

Town Law § 36 specifically addresses abolition of the elected office of tax collector. Other Town Law provisions govern the abolition or transfer of duties of other elected offices and follow their own timing and procedural rules.

What if the town wants to make the office appointive rather than abolish it?

That is a different question. Town Law contains provisions for converting elected offices to appointive offices under defined conditions, often subject to local-law procedures and sometimes to referendum. The AG's opinion is limited to outright abolition.

Background and statutory framework

Town Law § 36 provides that the town board of a town of the second class may, by resolution adopted at least 150 days prior to any biennial town election, determine that the office of tax collector be abolished, effective at the expiration of the term of office to which the incumbent was elected or appointed.

The opinion's interpretive move is to read "the incumbent" as the person serving at the time the resolution is adopted, not a future officeholder. This preserves the alignment between the resolution and the office's life cycle, and avoids letting one town board lock in structural decisions about future elected positions.

Citations

• Town Law § 36 (abolition by resolution of the elected office of tax collector in second-class towns; 150-day-before-biennial-election timing; effective at expiration of incumbent's term).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-23_pw.pdf

Original opinion text

TOWN LAW § 36.
A town board may adopt a resolution not less than one
hundred fifty days prior to the biennial town election abolishing
the office of tax collector, effective at the expiration of the
incumbent's term.
April 29, 1997
Norman W. Seiter, Jr., Esq.
Town Attorney
Town of Palermo
P.O. Box 120
Mexico, New York 13114

Informal Opinion
No. 97-23

Dear Mr. Seiter:
You have informed us that the town board, acting under
section 36 of the Town Law, abolished the elected position of tax
collector. You inquire whether the procedure they followed is
consistent with the requirements of the statute.
The town board adopted a resolution on October 24, 1995 to
abolish the office of tax collector, effective January 1, 1998.
The position of tax collector has a two-year term and the present
term expires on December 31, 1997. Therefore, the term of the
current incumbent began on January 1, 1996, subsequent to the
enactment of the resolution by the town board.
Under section 36 of the Town Law, the town board of any town
of the second class may by resolution
adopted at least one hundred fifty days prior
to any biennial town election, determine that
said office [tax collector] be abolished,
same to take effect at the expiration of the
term of office to which the incumbent was
elected or appointed.
Your view is that since the resolution was adopted at least
one hundred and fifty days prior to the November 1997 election,
abolition of the office, effective January 1, 1998, is consistent
with the requirements of the statute.
In our view, the town board has not acted in accordance with
the provisions of the statute. Under section 36, the resolution
is to take effect upon the expiration of the incumbent's term.
The clear intent is that the resolution be passed during the term
of the current incumbent and at least one hundred and fifty days
prior to the biennial election. The office of tax collector will
be abolished upon expiration of the incumbent's term.

2

This interpretation of the statute ensures that the
abolition of the office takes effect upon expiration of the term
of the incumbent serving at the time the resolution is passed by
the town board. Under the town's application of the statute, a
resolution could abolish the office of tax collector upon the
expiration of the term of any future officeholder. The abolition
could take effect during a future town board's term. This
interpretation is not consistent with the statutory language nor
with the apparent statutory intent to authorize a town board to
abolish the office of town tax collector upon the expiration of
the term of the person holding office at the time the resolution
is passed.
The current town board, if it desires, may enact another
resolution at least one hundred and fifty days prior to the
November 1997 election to abolish this office, effective
January 1, 1998.
The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.
Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions