Can a New York county apply its anti-nepotism rule to a county clerk's pick of her own deputy, even though the clerk is elected and has state-law authority to appoint deputies?

Plain-English summary

Wayne County had an anti-nepotism policy adopted by Board of Supervisors resolution: no county hire, transfer, or promotion may create a supervisor/subordinate relationship between relatives, and "relatives" includes siblings. The County Clerk, an elected official, wanted to promote her sister, who was already working in the Clerk's office as a Motor Vehicle License Clerk, to the deputy position supervising the Motor Vehicle Department. The Board's committees refused to waive the policy. The Clerk, citing her statutory appointment authority under County Law § 526, took the position that she could appoint anyone she wanted. While she hadn't formally appointed her sister, she had given her sister the deputy's duties. The County Attorney wrote to the AG.

The AG's office made two points. First, the Clerk's appointment authority is not unlimited. Although County Law § 526 vests the deputy appointment power in the Clerk, nothing in the statute says she is exempt from generally applicable rules governing county appointments. The AG drew the analogy to the common-law rule against incompatibility of office, which limits whom any elected official can appoint as a deputy. If incompatibility of office can constrain her, a valid local anti-nepotism policy can too. The AG also noted that Olmstead v. Meahl characterizes the Clerk, when making non-court deputy appointments, as acting in her capacity as a county officer; that capacity is subject to county rules.

Second, the Board of Supervisors lacks authority to discipline or remove the Clerk for violating the policy. New York doesn't have a state statute letting one elected official discipline or remove another. But the Board can challenge the appointment in court. It can bring an Article 78 proceeding or a declaratory-judgment action in its official capacity (analogizing to Matter of City of New York v. City Civil Serv. Comm'n and Gaffney v. Suffolk County Legislature). Individual supervisors can also bring a taxpayer action under General Municipal Law § 51 if they meet the standing requirements (Olmstead itself involved a taxpayer action over an unlawful Clerk appointment). The AG didn't reach the question of whether Wayne County had authority to enact the policy in the first place, or how it would apply in a competitive civil service context where Civil Service Law § 61's "rule of three" might also be in play.

Currency note

This opinion was issued in 2005. 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.

New York has continued to develop municipal-ethics law since 2005, including amendments to General Municipal Law article 18 and case-law refinements on standing for legislative-body challenges and taxpayer suits. A county considering a similar question should consult current statutes and the local code of ethics.

Common questions

Q: Can a New York county really tell an elected county clerk who she can hire as her deputy?
A: At the time of this 2005 opinion, the AG said yes, to the extent the county has a valid generally applicable rule like an anti-nepotism policy. The Clerk's appointment authority is real, but it is not absolute. It operates against the background of other rules that constrain appointments (incompatibility of office, civil service requirements, ethics rules).

Q: What is the common-law rule against incompatibility of office?
A: It's a long-standing common-law doctrine that says a person cannot simultaneously hold two offices whose duties are incompatible, for example, where one office supervises or auditing the other, or where the two roles could come into substantive conflict. Earlier AG opinions held that deputy county clerk is incompatible with elected village justice, and that full-time deputy county clerk is incompatible with part-time deputy sheriff.

Q: What happens if the County Clerk goes ahead and appoints her sister anyway?
A: The Board of Supervisors cannot fire her over it. There is no state statute giving the Board disciplinary authority over another elected county official. But the Board can sue. It can bring an Article 78 proceeding or a declaratory-judgment action challenging the appointment as a violation of the county's policy. Individual supervisors meeting standing requirements can also bring a taxpayer action under General Municipal Law § 51 to challenge the appointment as illegal official conduct.

Q: What is a taxpayer action under General Municipal Law § 51?
A: It's a statutory cause of action that lets qualified taxpayers sue local officers to prevent illegal official conduct, or to prevent waste or injury to municipal property or funds. Standing requirements include being a taxpayer in the jurisdiction and meeting the statutory minimums for the kind of action.

Q: Does the rule apply differently in the competitive civil service?
A: Maybe. The AG explicitly did not address how an anti-nepotism policy interacts with Civil Service Law § 61, which requires appointment of one of the three highest scoring candidates on an eligible list for competitive class appointments. A county HR director should check both the policy and the civil service framework before making a competitive-class appointment.

Q: Does the Clerk's deputy who handles court matters have a different status?
A: Yes. The 1980 AG opinion and Bartlett v. Evans established that deputies who work exclusively or primarily on court matters are appointed by the Chief Administrator of the Courts, not by the county clerk. Deputies who work exclusively or primarily on non-court county matters (like Motor Vehicle) are appointed by the clerk. Wayne County's situation involved a non-court deputy, so the clerk's appointment authority applied.

Q: Could the county avoid these disputes by setting up a board of ethics?
A: General Municipal Law § 808(3) lets a county establish a board of ethics that can interpret ethics rules and provide opinions to officials in advance of action. A county with an active board of ethics can resolve these disputes before they escalate. Wayne County, like many counties, had to handle this dispute without one in 2005.

Background and statutory framework

The framework here involves three layers. County Law § 400(1) makes the county clerk an elected official. County Law § 525 defines the clerk's role as register, clerk of the Supreme Court, and clerk of the County Court, performing additional and related duties prescribed by law and directed by the board of supervisors. The clerk wears two hats: state officer when acting as a clerk of the court, and local officer in other duties (National Westminster Bank v. New York, Olmsted v. Meahl).

County Law § 526 supplies the deputy-appointment authority. Section 526(1) requires a deputy county clerk who can act for the clerk in temporary absences and fills a vacancy until the office is otherwise filled. Section 526(3) lets the clerk appoint additional deputies authorized by board resolution. The statute vests the appointment in the clerk and does not require board approval or confirmation; that is the textual point on which the Clerk's argument rested.

The constraints come from elsewhere. The common-law rule against incompatibility of office is judge-made and has been applied to deputy county clerks in earlier AG opinions (1975 Op. Att'y Gen. (Inf.) 93; 1960 Op. Att'y Gen. (Inf.) 87). The County's anti-nepotism policy (Wayne County Resolution No. 592-88, as amended by Resolution No. 566-93) operated similarly: a generally applicable rule that constrains appointments by any county officer.

The remedies framework draws on standing and procedural law. Matter of City of New York v. City Civil Serv. Comm'n, 60 N.Y.2d 436 (1983), held that a city personnel director has standing to bring an Article 78 proceeding to challenge a civil service commission's administrative determinations. Gaffney v. Suffolk County Legislature, 267 A.D.2d 198 (2d Dep't 1999), held that a county executive has standing to bring a declaratory-judgment action against the county legislature. By analogy, the Board of Supervisors as a body could challenge the Clerk's conduct.

General Municipal Law § 51 supplies a parallel route for individual taxpayers. It authorizes taxpayer actions against local officers to prevent illegal official conduct or waste of municipal property. Olmstead v. Meahl, 219 N.Y. 270, 278 (1916), recognized a taxpayer action against a county clerk over an illegal appointment of a special deputy. The case is foundational for the proposition that an unlawful appointment is the kind of "illegal official conduct" § 51 reaches.

The AG declined to opine on two related issues. First, whether the County had authority to enact the anti-nepotism policy in the first place (not asked). Second, how the policy might intersect with Civil Service Law § 61, which mandates appointment of one of the three highest-scoring candidates on an eligible list for competitive class jobs. Both are real questions a county HR office still has to work through.

Citations and references

Statutes:

• Civil Service Law § 61 (rule of three for competitive class appointments)
• County Law § 400(1) (county clerk as elected official)
• County Law § 401 (board may authorize county officers to appoint deputies)
• County Law § 525 (county clerk's duties)
• County Law § 525(1)
• County Law § 526 (county clerk's deputies)
• County Law § 526(1) (required deputy)
• County Law § 526(3) (additional deputies authorized by board resolution)
• General Municipal Law § 51 (taxpayer actions)
• General Municipal Law § 808(3) (county board of ethics, referenced in footnote)

Cases:

• National Westminster Bank v. New York, 76 N.Y.2d 507 (1990)
• Olmsted v. Meahl, 219 N.Y. 270 (1916)
• Bartlett v. Evans, 110 A.D.2d 612 (2d Dep't 1985)
• Matter of City of New York v. City Civil Serv. Comm'n, 60 N.Y.2d 436 (1983)
• Gaffney v. Suffolk County Legislature, 267 A.D.2d 198 (2d Dep't 1999)
• Durante v. Evans, 94 A.D.2d 141

Prior AG opinions:

• 1980 Op. Att'y Gen. (Inf.) 180 (court vs. non-court deputies)
• 1975 Op. Att'y Gen. (Inf.) 93 (deputy county clerk incompatible with village justice)
• 1972 Op. Att'y Gen. (Inf.) 278 (county executive may not remove elected official)
• 1960 Op. Att'y Gen. (Inf.) 87 (deputy county clerk incompatible with deputy sheriff)

Wayne County:

• Wayne County Resolution No. 592-88, as amended by Resolution No. 566-93 (anti-nepotism policy)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2005-8_pw.pdf

Original opinion text

CIVIL SERVICE LAW § 61; COUNTY LAW §§ 400(1), 525, 526; GENERAL MUNICIPAL LAW § 51.

An elected county official with statutory authority to appoint deputies may be subject to applicable local rules governing official appointments. The County Board of Supervisors may challenge the conduct of another elected county official through specified judicial proceedings.

March 2, 2005

Daniel M. Wyner
County Attorney
County of Wayne
Office of the County Attorney
Wayne County Courthouse
26 Church Street
Lyons, New York 14489

Informal Opinion
No. 2005-8

Dear Mr. Wyner:

You have asked whether the County may apply its anti-nepotism policy to the appointment of a deputy by the County Clerk, notwithstanding that the Clerk is an elected official and has statutory authority to appoint deputies. If we conclude that state law does not for these reasons prevent application of the County's anti-nepotism policy to the County Clerk's appointment, you have further inquired what remedies are available to the County where the County Clerk appoints a deputy in violation of this policy.

You have advised that when a deputy county clerk recently retired, the County Clerk determined that her sister, who was then employed in the County Clerk's office as a Motor Vehicle License Clerk, was the most qualified person to fill the deputy position, which involved supervision of the Motor Vehicle Department. The County Clerk was advised that such appointment would violate the County's anti-nepotism policy. Further, the appropriate committees of the Wayne County Board of Supervisors refused to issue a waiver of the County's policy with respect to this appointment. You have indicated that the Clerk has maintained that, as an elected official, she has full discretion in appointing deputies. Although the County Clerk has not yet appointed her sister to the position of Deputy County Clerk, she has assigned her the duties of the position.

We conclude that the fact that the County Clerk is an elected official and has authority under state law to appoint deputies does not prevent application of a valid county anti-nepotism policy to her appointment of deputies. We further conclude that the County Board of Supervisors may challenge an appointment in violation of such a policy through specified judicial proceedings.

STATUTORY FRAMEWORK

Authority of County Clerk to Appoint Deputies

The county clerk is an elected official. See County Law § 400(1). Pursuant to County Law § 525, the county clerk acts as register, as well as clerk of the Supreme Court and County Court within the county. County Law § 525(1). The clerk "shall perform such additional and related duties as may be prescribed by law and directed by the board of supervisors." Id. When acting as a clerk of the court, the county clerk is considered a state officer, but in her other general duties the county clerk is considered a local officer. See National Westminster Bank v. New York, 76 N.Y.2d 507, 509 (1990); Olmsted v. Meahl, 219 N.Y. 270, 275, 277 (1916).

Pursuant to state statute, the county clerk is required to appoint a deputy county clerk who performs the duties assigned by the clerk and who is authorized to exercise the powers and duties of the office of the county clerk during the clerk's temporary absence or inability. County Law § 526(1). The deputy county clerk also serves as county clerk in the event of a vacancy in that office, until the vacancy is filled. Id. The county clerk may appoint additional deputies "to act generally for and in the place of their principal" as authorized by resolution of the county board of supervisors. The authority to appoint deputy county clerks whose duties primarily involve court matters rests with the Chief Administrative Judge of the Unified Court System, rather than with the county clerk. See Bartlett v. Evans, 110 A.D.2d 612, 613 (2d Dep't 1985); see also 1980 Op. Att'y Gen. (Inf.) 180 (deputy county clerks who work exclusively or primarily on court matters are subject to appointing authority of Chief Administrator of Courts, while those who work exclusively or primarily on county matters are subject to appointing authority of county clerk). With respect to your inquiry, there is no question as to the Clerk's general authority to fill the deputy position at issue. Id. § 526(3); see also County Law § 401 (permitting board of supervisors to authorize any county officer to appoint one or more deputies).

The County's Anti-Nepotism Policy

You have advised that Wayne County has established an anti-nepotism policy by resolution of the Board of Supervisors, which provides as follows:

1. No person shall be hired, transferred, or promoted to a County position which would create a supervisor/subordinate relationship between relatives.

2. For the purposes of this policy, the term "relatives" shall be defined to include a spouse, parent, step parent, descendant, step son, step daughter, brother, sister, mother-in-law, father-in-law, sister-in-law, brother-in-law, son-in-law, or daughter-in-law.

Wayne County Resolution No. 592-88, as amended by Resolution No. 566-93.

ANALYSIS

A. Application of County Anti-Nepotism Policy to Appointments by an Elected Official

Your initial question is whether the appointment of a deputy by the County Clerk is exempt under state law from application of the County's anti-nepotism policy because the Clerk is an elected official with specific authority to appoint deputies.

Clearly, the statute governing the appointment of deputy county clerks vests the appointment power with the Clerk, as opposed to any other county official. See County Law § 526(1), (3). Nothing in that statute limits the Clerk's discretion with respect to whom she may appoint as a deputy, or requires that the appointment be approved by the county legislature. On the other hand, the statute does not expressly vest the Clerk with unfettered discretion in exercising her appointment power, or exempt the Clerk from applicable statutes or rules that may limit an official's appointment authority.

Thus, notwithstanding that the Clerk is an elected official whose appointments are not subject to approval or consent by other officials, we believe her appointment authority is subject to other applicable rules governing municipal appointments. For example, the Clerk's discretion in appointing deputies would not authorize a violation of the common law rule against incompatibility of office. Consistently with that view, we have held that an individual may not serve as deputy county clerk and hold another incompatible position. See 1975 Op. Att'y Gen. (Inf.) 93 (positions of deputy county clerk and elected village justice are incompatible); 1960 Op. Att'y Gen. (Inf.) 87 (positions of full-time deputy county clerk and part-time deputy sheriff are incompatible). We see no reason why the appointment of a deputy by the County Clerk should not, for like reason, be subject to a generally-applicable county anti-nepotism policy. Notably, in appointing deputies the County Clerk is acting as a county officer, see Olmstead v. Meahl, 219 N.Y. at 278 (taxpayer action lies against county clerk as county official regarding alleged illegal appointment of a special deputy), and for this reason, the appointment should be subject to applicable local rules governing official appointments. Insofar as Olmstead involved the appointment by the county clerk of special deputies who serve as court clerks, its holding has been abrogated by the constitutional amendments that have been construed as vesting such appointment authority in the Chief Administrative Judge. See Durante v. Evans, 94 A.D.2d at 146. However, the conclusion that appointments by the county clerk of deputies who primarily perform non-court duties are made by the clerk as a local officer is not affected by these constitutional amendments.

We thus conclude that the fact that the County Clerk is an elected official and has statutory authority to appoint her deputies does not under state law exempt her appointment of deputies from an otherwise valid county anti-nepotism policy. You have not asked us to review the authority of the County to enact an anti-nepotism policy and we do not address that issue. Nor do we address how such a policy may be applied to appointments and promotions in the competitive civil service. Cf. Civil Service § 61 (requiring appointment of one of three highest candidates on eligible list for appointments and promotions in the competitive class).

B. Remedies Available to County If Elected Official Appoints Subordinate in Violation of County Policy

You have also inquired as to the remedies available to the County in the event the County Clerk appoints a deputy in violation of the County's anti-nepotism policy. This question is premature inasmuch as you have indicated that no such appointment has yet been made. However, in a subsequent telephone conversation, you indicated that the issue of what action the County Board of Supervisors may take when it believes an elected county official has acted in violation of state or local law has arisen in other factual contexts, and that guidance on the issue will be of assistance to the County in future situations as well.

Your question presents the issue whether the County Board of Supervisors, the elective legislative body of the County, has authority under state law to discipline or remove other elected county officials. We are not aware of any state statute that vests a county legislature with authority to discipline or remove other elected county officials. See 1972 Op. Att'y Gen. (Inf.) 278 (county executive has no authority to remove or suspend an elected county official). However, the Board of Supervisors may be able to bring an article 78 proceeding or declaratory judgment action in its official capacity to challenge the conduct of an elected county official. See, e.g., Matter of City of New York v. City Civil Serv. Comm'n, 60 N.Y.2d 436, 440 (1983) (city personnel director has standing to bring article 78 proceeding to challenge administrative determinations of city civil service commission); Gaffney v. Suffolk County Legislature, 267 A.D.2d 198 (2d Dep't 1999) (county executive has standing to bring declaratory judgment action against county legislature challenging budget resolutions). Members of the County Board of Supervisors may also be able to bring a taxpayer action in their individual capacities under General Municipal Law § 51 if they satisfy the standing requirements of that statute. See General Municipal Law § 51 (authorizing actions by qualified taxpayers against local officers to prevent illegal official conduct, or to prevent waste or injury to the property or funds of the municipality); Olmstead v. Meahl, 219 N.Y. at 278 (taxpayer action lies against county clerk regarding appointment of a special deputy in violation of Civil Service Law).

We thus conclude that the fact that the County Clerk is an elected official with statutory authority to appoint deputies does not under state law preclude application of the County's anti-nepotism policy to the appointment of deputies by the Clerk, and that the County Board of Supervisors may challenge the conduct of another elected county official through specified judicial proceedings.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

LAURA ETLINGER
Assistant Solicitor General
In Charge of Opinions