Does a New York town need voter approval to give the town board the power to appoint a deputy tax collector if the elected collector won't?

Plain-English summary

The Town of Petersburgh wanted a local law that would let the town board step in and appoint a deputy tax collector if the elected tax collector failed to make the appointment by January 5 or within five days after a vacancy. The Town Attorney asked whether that needed a referendum.

Town Law § 20(1)(b) makes tax collector an elective office. Section 35(2) gives the collector complete discretion whether to appoint a deputy. By letting the town board take over that decision after a deadline, the proposed local law would shift a power away from the elected collector. Under Municipal Home Rule Law § 23(2)(f), any local law that transfers a power of an elective officer requires a mandatory referendum, so the proposed law could not take effect without voter approval.

Currency note

This opinion was issued in 1998. 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

Q: Was the town free to enact the local law at all? A: Yes, under its home-rule authority. The opinion did not question the town's power to enact the local law. It said only that, because the law transferred a power held by an elective officer, voters had to approve it before it could take effect.

Q: What is "mandatory referendum"?
A: Mandatory referendum means the local law cannot take effect until the voters approve it at an election. The Municipal Home Rule Law lists the categories of local laws that trigger this requirement; § 23(2)(f) covers laws that transfer or curtail a power of an elective officer.

Q: Why didn't the collector's failure to appoint a deputy create a vacancy the board could fill? A: Town Law § 35(2) explicitly leaves the appointment to the collector's discretion. The collector can choose not to appoint a deputy at all, or to appoint at a time of their choosing. Reassigning that discretion to the town board changes the elective officer's power, even if the trigger is a missed deadline.

Q: Does the deputy tax collector serve at the collector's pleasure? A: Yes. Town Law § 35(2) lets the collector appoint and remove a deputy at the collector's pleasure. The appointment becomes effective when filed with the town clerk. The deputy steps in when the collector is absent or unable to act, or when the office of collector is vacant.

Background and statutory framework

The deputy tax collector position is unusual in New York town government. The elective tax collector has unlimited discretion over whether and when to appoint a deputy (Town Law § 35(2)), and the collector is responsible for the deputy's actions except when the deputy is filling a vacancy in the collector's own office.

Municipal Home Rule Law § 23(2)(f) requires a mandatory referendum for any local law that transfers a power of an elective officer. The opinion read that requirement strictly. Even an indirect transfer (the board acts only when the collector fails to act) is still a transfer, because the proposed law would override the collector's statutory power to decide not to appoint a deputy. That triggered the referendum requirement no matter how reasonable the town's policy reasons might have been.

Citations and references

Statutes:

• N.Y. Municipal Home Rule Law § 23 (mandatory referendum requirements)
• N.Y. Town Law § 20 (elective town offices)
• N.Y. Town Law § 35 (deputy tax collector)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-32_pw.pdf

Original opinion text

MUNICIPAL HOME RULE LAW § 23(2)(f); TOWN LAW §§ 20(1)(b), 35(2). A local law authorizing the Town Board to appoint a Deputy Collector of Taxes upon the failure of the Collector of Taxes to make the appointment is subject to mandatory referendum. July 10, 1998

Kevin J. Engel, Esq.
Town Attorney
Town of Petersburgh
73 Troy Road Suite 2C
East Greenbush, NY 12061

Informal Opinion
No. 98-32

Dear Mr. Engel:
You have asked whether a local law authorizing the Town Board to appoint a Deputy Tax Collector if the Tax Collector fails to appoint a Deputy by January 5 of any year or within five days after a vacancy occurs is subject to a mandatory referendum. The position of Tax Collector is an elective office. Town Law § 20(1)(b). Under section 35(2) of the Town Law, "the collector of taxes may appoint, and at his pleasure remove, a deputy" tax collector. The appointment is made in writing and becomes effective when it is filed in the office of town clerk. Town Law § 35(2). The deputy tax collector performs the powers and duties of the collector of taxes when the collector of taxes is absent or unable to act or during a vacancy in the office of collector of taxes. Id. Under this provision, the collector of taxes is responsible for the performance of his deputy except when the deputy is acting as a result of a vacancy in the position of collector of taxes. Id. Under the proposed local law, which you have provided, upon the failure of the Collector of taxes to appoint a Deputy within a designated time period, the Town Board would be authorized to appoint a Deputy. In our view, this local law would be subject to a mandatory referendum in that it transfers a power of an elective officer. Municipal Home Rule § 23(2)(f). Under section 35(2) of the Town Law, the Collector of taxes has complete discretion whether to appoint a Deputy Collector of Taxes. Under the proposed local law, upon the failure of the Collector of Taxes to appoint a Deputy by a certain time, the Town Board would have authority to make the appointment. The power of the Town Tax Collector, under section 35(2) of the Town Law to refrain from appointing a Deputy or to appoint a Deputy at a time of his

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choosing, would thus be transferred by the local law. Therefore, the local law is subject to a mandatory referendum under Municipal Home Rule Law § 23(2)(f). We conclude that a local law authorizing the Town Board to appoint a Deputy Collector of Taxes upon the failure of the Collector of Taxes to make the appointment is subject to mandatory referendum. 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