Can a town in New York appoint its tax certiorari defense attorney to serve as deputy supervisor?

Plain-English summary

The Town of New Hartford supervisor wanted to appoint as deputy supervisor an attorney already under contract with the town to defend real property tax certiorari (assessment challenge) cases in Supreme Court. The town attorney asked the AG whether that appointment was permissible.

The AG concluded it was not. Town Law § 42 lets any qualified person (including a town officer or employee) be appointed deputy supervisor, but "any person" did not mean "any person without limitation." Conflict-of-interest principles applied even where the statute did not formally bar dual service.

Two distinct conflicts ran the wrong way. First, the deputy supervisor would sit on the town board that periodically negotiated and renewed his contract. The AG flagged that recusal was insufficient. The attorney would be negotiating with colleagues with whom he served, casting doubt on whether the interests of the town and its taxpayers were effectively represented. Second, while serving as both counsel and deputy supervisor, the attorney would, in the supervisor's absence, advise the town board on whether to pursue, settle, or otherwise act on the very cases he was handling. That made him simultaneously attorney and client, which the AG called an "obvious conflict of interest."

The AG noted the standard alternative: appointing another sitting member of the town board as deputy supervisor. That structure preserved continuity of government and avoided the conflicts inherent in mixing private contractor status with board membership.

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

Was General Municipal Law § 805-a the rule that disqualified him?

No, the AG was careful to note that § 805-a (which restricts certain officer activities) did not directly apply on these facts. The AG cited § 805-a only as evidence that conflict-of-interest principles can render an otherwise eligible person ineligible to hold a particular public office.

Why wasn't recusal enough?

The AG offered two reasons. On contract renewal, the attorney would be negotiating with the very colleagues he had served alongside; the appearance was that taxpayers were not getting arm's-length representation. On case decisions, the attorney's recusal still left him advising his own client (the town board) on his own work, an impermissible structural posture.

What if the contract was a small flat fee with no renewal upcoming?

The AG addressed contract renewal as a "first" conflict but emphasized the "second" (self-advice) conflict standing alone. Even a one-shot contract with no renewal would still produce the structural conflict of an attorney advising the board on cases he was handling.

Could the supervisor designate the attorney as deputy only for non-board duties?

Town Law § 42 vests the deputy supervisor with all the powers of the supervisor (except voting on town board matters and serving on the county board of supervisors). The position cannot meaningfully be carved up to avoid presiding over town board meetings. The structural conflict remains.

What is a "tax certiorari" proceeding?

A challenge to a real property tax assessment, brought under Article 7 of the Real Property Tax Law. Defending the town in these cases is ordinary outside-counsel work for many towns, since the volume can spike and the cases often turn on appraisal evidence.

Background and statutory framework

Town Law § 42 governs the deputy supervisor appointment. The deputy serves during the supervisor's absence or inability to act, presides at town board meetings, and exercises the supervisor's powers (except for voting and county-board-of-supervisors membership). The statute requires the deputy to take the oath of office and post an official undertaking.

Town Law § 65 vests the town board with general authority to direct and control town litigation. The board's role in deciding whether to pursue, settle, or act on a case is what the AG identified as creating the impermissible posture for an outside counsel serving as deputy.

General Municipal Law § 805-a sets out specific prohibited acts for municipal officers and employees (gift acceptance, certain disclosures, contingent fee work for private clients against the municipality). The AG cited it as an illustration of the general principle that some positions are simply incompatible with certain interests, not as a direct basis for disqualification here.

Citations

• Town Law § 42 (deputy supervisor; qualifications; powers).
• Town Law § 65 (town board litigation authority).
• General Municipal Law § 805-a (prohibited activities for municipal officers).
• Op Atty Gen (Inf) No. 89-35; Op Atty Gen (Inf) 84-11 (public officials must avoid actions that erode public confidence in the integrity of government).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2000-11_pw.pdf

Original opinion text

Opn. No. 2000-11
GENERAL MUNICIPAL LAW § 805-a; TOWN LAW §§ 42, 65.
An independent contractor who defends the town in real property tax certiorari proceedings should not serve as deputy supervisor. July 10, 2000 Gustave J. DeTraglia, Jr., Esq. Town Attorney Town of New Hartford 1425 Genesee Street New Hartford, NY 13501

Informal Opinion
No. 2000-11

Dear Mr. DeTraglia:
You have inquired whether the town supervisor may appoint as deputy supervisor the attorney now under contract to defend the town in the real property tax assessment matters known as certiorari proceedings, which takes place in Supreme Court. In our view, the subject attorney should not serve as deputy supervisor. Under section 42 of the Town Law, the town supervisor appoints a deputy supervisor to serve during his absence or inability to act or while the office of supervisor is vacant. In these circumstances, the deputy supervisor is authorized to preside at meetings of the town board and is vested with all of the powers of the supervisor, except that he has no voting power on matters coming before the town board and does not serve as a member of the county board of supervisors. Town Law § 42. Any person, including a town officer or employee, may be appointed deputy supervisor provided that the person possesses the qualifications required for elected town officers. Id. Prior to performing any duties, the deputy supervisor is required to take and file the constitutional oath of office and execute and file an official undertaking in the manner prescribed by law. Id. Public officials must avoid actions which erode public confidence in the integrity of government. See Op Atty Gen (Inf) No.89-35; OpAtty Gen (Inf) 84-11. While section 42 of the Town Law permits any person, including a town officer or employee, to serve as deputy supervisor, it cannot be construed to mean "any person" without limitation. Conflicts of interest may preclude an otherwise eligible person from holding public office. Thus, for example, section 805-a of the General Municipal Law, while not applicable here, provides that individuals may not, at the same time, continue in office while engaging in prohibited activities. Similarly, we believe that conflicts of interest can make a person ineligible to hold the office of deputy supervisor. Under the facts presented, a person who has a contract with the town would also act as deputy supervisor. As deputy supervisor, he would, in the absence of the supervisor, preside at meetings of the town board, except he would have no right to vote. His service on the town board would likely be recurring and could last for an extended period. This would raise two substantial conflicts. The first would arise in negotiating the renewal of his contract with the town board. Obviously, the deputy supervisor would at a minimum have to step down from participation in the town board during discussions on the matter. In our view, however, recusal would not be an adequate safeguard. The attorney whose contract was at issue would be negotiating with his colleagues on the town board, which creates doubt as to whether the interests of the town and its taxpayers are represented effectively. This situation creates at least an appearance of impropriety and erodes confidence in the integrity of government. Second, while serving as both counsel and deputy supervisor, the individual would be advising himself, as a member of the town board, on such matters as whether to pursue, settle or take other action with respect to cases he is handling. These decisions are made by the town board. See Town Law §65. The deputy supervisor thus would simultaneously be attorney and client, an obvious conflict of interest. As discussed above, recusal would be an inadequate remedy. The attorney would be advising his colleagues on the board, a situation which creates at least an appearance of impropriety. We conclude that an independent contractor who defends the town in real property tax certiorari proceedings should not serve as deputy supervisor. We note that a common arrangement is that another member of the town board serve as deputy supervisor. In our view, this appointment serves the statutory purpose of providing for continuity of government and minimizes conflicts of interest. 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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