In New York, can the county legislature let social services department attorneys handle their own litigation without going through the county attorney?

Plain-English summary

The Columbia County Attorney asked whether County Law § 501 gave the county attorney exclusive authority over all civil litigation involving the county, or whether Social Services Law § 66 let the county legislature directly hand litigation authority to attorneys working inside the social services department.

The AG concluded that the county legislature could bypass the county attorney. County Law § 501 includes its own carve-out language: the county attorney's authority applies "except as otherwise provided by this chapter or other law." Social Services Law § 66(1) was exactly that "other law." It permitted the legislative body to authorize the social services commissioner to appoint attorneys to perform the duties the legislature deemed necessary to carry out the Social Services Law.

The 1976 amendment to § 66(1) (Chapter 326 of the Laws of 1976) was decisive. Before that amendment, social services attorneys could litigate only if deputized by the county attorney, and the cost of such litigation was a county expense ineligible for state and federal social services reimbursement. The amendment was specifically designed to let the legislature delegate litigation responsibility directly to social services attorneys, qualifying that work for reimbursement.

The result was a three-way choice for the county legislature: keep all litigation with the county attorney, authorize the county attorney to deputize social services attorneys, or grant the social services attorneys direct authority to litigate without involving the county attorney.

Currency note

This opinion was issued in 2000. 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

Why does it matter who represents the social services department?

At the time of the opinion, the answer was reimbursement. Litigation conducted by social services department attorneys (rather than county attorneys) was a social services expense eligible for state and federal matching funds. Litigation conducted by the county attorney was a county expense paid entirely from county funds.

Did the county attorney lose authority over any case touching social services?

No. § 66(1) was permissive. The legislative body could leave litigation with the county attorney, deputize social services attorneys to act on the county attorney's behalf, or grant social services attorneys independent authority. Only the last option fully bypassed the county attorney.

Did the AG read a similar limit into other statutes?

Yes. The AG cited Op Atty Gen (Inf) No. 96-8, which read Family Court Act §§ 254 and 535(b) the same way: those provisions authorized the county legislature to give Family Court counsel litigation responsibilities independent of the county attorney.

What did the 1976 amendment actually change?

Before 1976, § 66(1) authorized social services attorneys "to perform duties other than those of the county attorney." The 1976 amendment struck the bracketed words. After 1976, the legislature could assign litigation duties directly to social services attorneys.

Background and statutory framework

County Law § 501(1) provided that the county attorney "shall prosecute and defend all civil actions and proceedings brought by or against the county" except as otherwise provided by law. That phrase, "except as otherwise provided," was the hinge for § 66(1).

Social Services Law § 66(1) authorized the county legislative body to appoint deputy commissioners and other employees including attorneys to perform duties the legislature considered necessary for the Social Services Law. The section also separately permitted deputization by the county attorney.

The Bill Jacket for Chapter 326 of the Laws of 1976 (memoranda from the State Department of Social Services, Division of the Budget, and Secretary of State) confirmed that the amendment was designed to qualify county social services litigation for state and federal reimbursement by detaching it from the county attorney's office.

Citations

• County Law § 501(1) (county attorney's authority over civil litigation).
• Social Services Law § 66(1) (legislative authority over social services department attorneys).
• L. 1976, ch. 326 (amendment removing exclusivity language).
• Family Court Act §§ 254, 535(b) (analogous structure for Family Court counsel).
• Op Atty Gen (Inf) No. 96-8 (citing 1987 Op Atty Gen [Inf] 89) (same conclusion under Family Court Act).
• Bill Jacket, L. 1976, ch. 326 (legislative history confirming reimbursement-driven purpose).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2000-10_pw.pdf

Original opinion text

Opn. No. 2000-10
COUNTY LAW §501(1); SOCIAL SERVICES LAW §66(1); L. 1976, CH.326. County social services department attorneys appointed by the county social services commissioner may represent their department in litigation if the county legislative body has authorized their appointment to conduct such litigation, even if they have not been deputized to do so by the county attorney. July 10, 2000 Beth A. O'Connor, Esq. County Attorney County of Columbia 401 State Street Hudson, NY 12534

Informal Opinion
No. 2000-10

Dear Ms. O'Connor:
You have inquired whether the county attorney has exclusive authority under section 501 of the County Law to represent the county in all civil litigation brought by or on behalf of the county or whether, pursuant to section 66 of the Social Services Law, the county legislature may authorize county social services department attorneys appointed by the county social services commissioner to represent that department in litigation without these attorneys having been deputized by the county attorney. We conclude that the legislative body has authority, without the involvement of the county attorney, to assign to social services department attorneys appointed by the commissioner the duty to represent the social services department in civil actions and proceedings. Section 501 of the County Law sets forth the authority of the county attorney to conduct litigation for the county. Under this section,
[t]he county attorney shall prosecute and defend all civil actions and proceedings brought by or against the county, the board of supervisors, and any officer whose compensation is paid from county funds for any official act, except as otherwise provided by this chapter or other law. Thus, the county attorney's authority to handle civil litigation for the county is not necessarily exclusive, because section 501 envisions that such authority is limited "as otherwise provided by this chapter or other law." Section 66(1) of the Social Services Law is such an express limitation. This provision permits a county legislative body to authorize appointment by the county social services commissioner of attorneys in the county department of social services to "perform duties [the legislature] considers necessary to carry out" the provisions of the Social Services Law. Specifically, section 66(1) provides as follows: The legislative body of a county may authorize the appointment of any number of deputy commissioners of social services, ... other assistants and employees, including attorneys to perform duties it considers necessary to carry out the provisions of this chapter. However, such legislative body may also authorize that such attorneys, in addition to performing the duties assigned to them by the county commissioner, may be deputized by the county attorney to perform duties on his behalf in connection with the work of the social services department. The legislative history of this provision makes clear that litigation on behalf of the county social services department is among the "duties" that the county legislature might "consider[] necessary to carry out the provisions of" the Social Services Law. Chapter 326 of the Laws of 1976 amended section 66(1) by removing the bracketed language: The [board of supervisors] legislative body of the county may authorize the appointment of any number of deputy commissioners of [public welfare] social services, physicians to care for sick persons in their homes, other assistants and employees, including attorneys to perform duties [other than those of the county attorney,] it considers necessary to carry out the provisions of the chapter. (Emphasis supplied) Prior to the amendment, the statute by its terms precluded direct assignment by the county legislature to social services attorneys of responsibility for litigation, which under County Law § 501 was the exclusive duty of the county attorney. This meant that previously, the cost of such litigation was a county expense rather than a social services expense, and as such ineligible for social services reimbursement by the state and federal governments. The amendment to § 66(1) was expressly designed to permit the legislative body, without the involvement of the county attorney, to authorize social services department attorneys to represent the department in actions and proceedings under the Social Services Law, and thus to establish the county's eligibility for reimbursement of the costs of such litigation. See Bill Jacket, L. 1976, ch. 326, June 1, 1976 Memorandum to the Governor from the New York State Department of Social Services; June 3, 1976 Memorandum to the Governor from the Division of the Budget; June 8, 1976 Memorandum to Counsel to the Governor from the Secretary of State. Both before and after the 1976 amendment to section 66(1), the county legislative body was empowered under that section to authorize the county attorney to deputize social services attorneys. Prior to the amendment, however, deputization was the only mechanism through which social services attorneys could represent that department in litigation. Under current law, deputization is an alternative to a direct grant by the county legislature to social services attorneys of independent authority to represent their department. See Op Atty Gen (Inf) No. 96-8 (citing 1987 Op Atty Gen [Inf] 89), reaching the same conclusions in construing sections 254 and 535(b) of the Family Court Act. Thus, section 66(1) authorizes, consistent with the exception in section 501 of the County Law, the county legislature's direct delegation to attorneys in the social services department of responsibility to represent the department in litigation independently of any authority given these attorneys by the county attorney. It is true that the several provisions of § 66(1) are permissive. The legislative body may decide not to delegate litigation responsibility at all, leaving that responsibility with the county attorney. It may also authorize the county attorney to deputize social services attorneys to represent the social services department in litigation on his behalf. But pursuant to the statute, interpretative case law, and legislative history, a legislative body that wishes to bypass the county attorney in authorizing social services attorneys to conduct litigation may do so. Therefore, in answer to your inquiry, under current law deputization by the county attorney is not necessary to permit social services attorneys appointed by the social services commissioner to represent their department in litigation. 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 Solicitor General In Charge of Opinions

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