If a New York town changes from second class to first class, what happens to the unexpired four-year terms of the town supervisor, town clerk, and highway superintendent?

Plain-English summary

New York classifies towns as first class or second class, generally based on population. Town Law § 11 covers mandatory classification changes (a second-class town that hits 10,000 population in a decennial census). Town Law § 12 covers optional changes (a second-class town meeting certain thresholds chooses to become first class). The two regimes use similar machinery but treat officer terms differently.

Section 12 requires that, when a town opts to change classification, certain officers be elected at the biennial town election immediately before the effective date of the change. Section 12(4)(a) lists those officers: supervisor (two-year term), and "except as otherwise provided herein," town clerk and town superintendent of highways (two-year terms each). The effective date of the classification change is January 1 of the year following that biennial town election. Officers elected at that biennial election begin serving on that January 1, when the classification change kicks in.

The Town of Lumberland was a second-class town considering optional reclassification to first class. Lumberland had used Town Law § 24-a to give its supervisor, clerk, and highway superintendent four-year terms. Those officers were currently in the middle of their four-year terms, with terms scheduled to expire well after the proposed reclassification would take effect. The town attorney asked the AG what would happen to those four-year terms if the reclassification went through.

The AG answered position by position.

Supervisor. No exception applies. Section 12(4)(a) requires a new supervisor to be elected at the biennial town election immediately preceding the effective date of the classification change. The current supervisor's four-year term therefore ends on December 31 immediately before the effective date.

Town clerk. Same analysis, with one wrinkle. Section 12(4)(e) provides that an election is not required to fill the offices of town clerk or town superintendent of highways if those offices will be appointive on the effective date of the change. So if the Town made the clerk's position appointive by the effective date, no election is needed. Otherwise, a new town clerk must be elected and the current clerk's four-year term ends the day before the change takes effect.

Town highway superintendent. A different result. Section 12(4)(g) says that an election is not required to fill the office of town highway superintendent for a two-year term when the town has increased the superintendent's term to four years under § 24-a, and that "nothing contained in [section 12] shall be construed to abridge the term of office of a town superintendent of highways elected for a term of four years prior to change of classification." So the current highway superintendent's four-year term continues uninterrupted through the classification change.

The town attorney pointed to § 11(2)(e), which contains broader language: nothing in § 11 may be construed to require an election of a town officer for a two-year term where the term has been increased to four years, and nothing in § 11 may be construed to abridge any such officer's four-year term. Could the Town also invoke § 11(2)(e) to protect the supervisor and clerk in an optional reclassification?

The AG said no. By its own terms, § 11(2)(e) applies only to "this section" (§ 11), not to § 12. The drafting history confirms it. Section 12(4)(g) was enacted in 1957, when only Erie County towns could give a highway superintendent a four-year term. By 1960, when the broader § 11(2)(e) was enacted, more towns could give various officers four-year terms. The AG acknowledged the gap between § 11(2)(e) and § 12(4)(g) might be unintentional, but the language is unambiguous. A town that wants the broader protection has to wait for a mandatory reclassification.

A 1967 AG opinion (1967 Op. Att'y Gen. (Inf.) 85) had previously held that a town clerk had to be elected at the biennial election before classification change, even with two years left on the current term. The 2007 opinion reaffirms that reading after applying current law to current facts.

Currency note

This opinion was issued in 2007. 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 the highway superintendent get protected but not the supervisor?
The statute. Section 12(4)(g) has an explicit anti-abridgment clause for highway superintendents elected to four-year terms. Section 12 has no comparable clause for supervisor or town clerk.

Can the town just delay the classification change?
Yes, in a sense. The effective date of an optional reclassification is tied to the next biennial town election held at least a specified number of days after the decision is made (§ 12(3)). A town concerned about cutting incumbent terms short could schedule the decision so that the effective date aligns with regular term expirations.

Is the new supervisor's term two years or four years?
Section 12(4)(a) sets a two-year term for the supervisor elected at the biennial election immediately before the classification change. After that initial two-year term, the town can use § 24-a again to lengthen the term back to four years for future cycles.

What about other officers, like receiver of taxes or town justice?
The 2007 opinion focuses on supervisor, clerk, and highway superintendent because those were the positions Lumberland asked about. Section 12(4)(a) also addresses receiver of taxes. Other officers should be analyzed against the same statutory framework, with attention to whether their term and election rules sit in Town Law § 12 or are governed by separate provisions.

Is there an obvious workaround through § 24-a?
Section 24-a lets a town set four-year terms for elective officers, but it doesn't override § 12(4)(a). The very situation here, where the town used § 24-a and then chose to reclassify, is the one the AG addresses. The four-year terms set under § 24-a do not survive the § 12(4)(a) requirement for election, except for the highway superintendent under § 12(4)(g).

Background and statutory framework

Town Law Article 2 (§§ 10-24-a, and related provisions) is the basic structure for town classification, formation, and officer terms. Section 10 splits towns by class. Section 11 handles mandatory reclassification triggered by census data. Section 12 handles optional reclassification chosen by the town.

Section 12(4)(a) requires election of certain officers at the biennial election immediately preceding the change. The default term for those officers is two years. Section 12(4)(c) fixes the start of those terms at January 1 (the same date the change takes effect). Section 12(4)(e) excuses an election for clerk or highway superintendent if those positions are appointive by the change date. Section 12(4)(g) is the highway-superintendent-specific protection.

Section 24-a authorizes a town to lengthen the terms of its elective officers to four years. Combined with § 12, this creates the puzzle the 2007 opinion addresses: an officer's four-year term granted under § 24-a coincides with a reclassification election under § 12(4)(a).

Section 11(2)(e) provides broader protection but only for officers in mandatory reclassifications. The 2007 opinion explains why and how the legislative history of these provisions yields that asymmetry: § 12(4)(g) was enacted in 1957 when only Erie County highway superintendents had four-year terms; § 11(2)(e) was added in 1960 to broaden protection in mandatory changes, but § 12 was not similarly expanded.

Citations

• Town Law Article 2 (classification of towns).
• Town Law § 10 (first-class vs. second-class town definitions).
• Town Law § 11; § 11(1) (mandatory reclassification on census trigger); § 11(2)(e) (protection of four-year-term officers in mandatory reclassification).
• Town Law § 12; § 12(1) (optional reclassification thresholds and procedure); § 12(3) (effective date of optional reclassification); § 12(4)(a) (election of supervisor, clerk, highway superintendent, receiver of taxes); § 12(4)(c) (term start date); § 12(4)(e) (no election needed for appointive offices); § 12(4)(g) (protection of four-year-term highway superintendent).
• Town Law § 24, § 24-a (authority to extend elective offices to four-year terms).
• 1967 Op. Att'y Gen. (Inf.) 85 (earlier opinion on town clerk election upon reclassification).
• Letter from Edward F. N. Uthe to Governor Harriman (March 18, 1957), reprinted in Bill Jacket for ch. 185 (1957), at 10 (1957 four-year-term authority limited to Erie County).
• Act of April 21, 1960, ch. 738, § 1, 1960 N.Y. Laws 1223, 1224 (enacting § 11(2)(e) broader protection).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2007-4_pw.pdf

Original opinion text

Town Law §§ 10, 11, 11(1), 11(2)(e), 12, 12(1), 12(3), 12(4)(a), 12(4)(c), 12(4)(e), 12(4)(g), 24, 24-a, Article 2

When a town of the second class opts to change its classification to first class, the terms of the town supervisor and the town clerk will end the day before the effective date of the classification change. The term of the town highway superintendent will not be abridged by a change in classification.

May 9, 2007

Brian T. Edwards
Town Attorney
Town of Lumberland
13 Liberty Street
P.O. Drawer 1040
Monticello, New York 12701

Informal Opinion No. 2007-4

Dear Mr. Edwards:

You have requested an opinion regarding whether the current terms of certain town officers with four-year terms (the town supervisor, the town clerk, and the town superintendent of highways) will terminate if the Town opts to change its classification from second class to first class. You have explained that the Town will shortly be holding an election to determine the question of whether the Town, currently a town of the second class, will change its classification to a town of the first class pursuant to Town Law § 12, and you want to know the impact of such a change of classification on the terms of these officers before such election. As explained below, we conclude that the terms of the town supervisor and the town clerk will terminate, but the term of the town highway superintendent will not.

Background

Article 2 of the Town Law provides for the classification of towns. Towns are divided into towns of the first class or of the second class, generally based upon population. Town Law § 10. If, after a decennial federal census, a second class town has a population of 10,000 or more, its classification must change to first class. Id. § 11(1). Other towns of the second class meeting one of several thresholds may choose at any time to change their classification to first class. Id. § 12(1).

The procedure for changing classification, including establishing the effective date of such a change and requiring the election of certain officers before the classification change takes effect, is provided by section 11 (mandatory change of classification) and section 12 (optional change of classification) of the Town Law. Of particular relevance here, Town Law § 12(4)(a) provides that any town that chooses to become a town of the first class

shall elect, at the biennial town election immediately preceding the effective date of the change of classification, the following town officers: a supervisor for a term of two years, and, except as otherwise provided herein, a town clerk and a town superintendent of highways for terms of two years each . . . .

The effective date of the classification change is January 1 following the first biennial town election held at least a specified number of days after the decision to change classification is made.

You have advised that the Town has provided that the terms of its supervisor, clerk, and highway superintendent are four, rather than two, years. The terms of the officers currently serving in these positions are not due to expire for several years (after the change of classification, if approved, takes effect). You are aware that we have previously opined that a town clerk must be elected at the biennial town election immediately preceding the January 1 when the town's classification changes, even though two years of the current town clerk's term remain. 1967 Op. Att'y Gen. (Inf.) 85. Because of the time that has passed since we rendered that opinion and because Town Law § 12 has since been amended, we find it appropriate to consider the question now.

Analysis

As described above, Town Law § 12(4)(a) provides that certain officers must be elected at the biennial election immediately preceding the effective date of the classification change. A supervisor must be elected for a term of two years, and, except as otherwise provided in section 12, a town clerk and a town superintendent of highways must be elected for a term of two years each. The term of the officers elected at the biennial election begins January 1, Town Law § 12(4)(c), the same date the change of classification takes effect.

Section 12 provides certain exceptions to the election requirement. An election is not required to fill the offices of town clerk or town superintendent of highways if these offices will be appointive offices on the effective date of the change of classification. Id. § 12(4)(e). In addition, an election is not required to fill the office of town superintendent of highways for a two-year term when a town has increased the term of the superintendent of highways to four years pursuant to Town Law § 24-a. Id. § 12(4)(g). Moreover, "nothing contained in [section 12] shall be construed to abridge the term of office of a town superintendent of highways elected for a term of four years prior to change of classification." Id. The statute includes no comparable exception for the offices of town supervisor or town clerk.

We therefore conclude that, if the decision to change classification is approved, an election must be held pursuant to § 12(4)(a) to fill the office of town supervisor at the biennial election immediately preceding the effective date of the change of classification. Accordingly, the term of the current town supervisor will terminate the day before the classification change's effective date.

The same analysis applies to the office of town clerk, unless that office is made appointive by the effective date of the change of classification. Thus, unless the office is made appointive, an election must be held to fill the position of town clerk at the biennial election immediately preceding the effective date of the change of classification, and the term of the current town clerk will also terminate the day before the classification change's effective date.

Pursuant to the exception in section 12(4)(g), a change in classification will not affect the term of the current highway superintendent.

You have asked whether language in section 11 provides an applicable exception to the requirement that an election will need to be held to fill the offices of town supervisor and elective town clerk if the change in classification is approved. Specifically, section 11(2)(e) provides that

[t]his section shall not be construed to require the election of a town officer for a two year term in any town in which such term has been increased to four years pursuant to the provisions of this chapter; and nothing contained in this section shall be construed to abridge the term of office of any such town officer elected for a term of four years prior to change of classification.

We believe that this language in section 11 applies only to mandatory changes in the classification of towns, and not to optional changes such as the one you propose, which are governed by section 12. Section 11(2)(e) provides that nothing in "this section," i.e., section 11, shall abridge the term of office of a town officer elected for a term of four years; it does not protect town officers from abridgment of their terms by any other provision of law.

Indeed, if section 11(2)(e) applied to optional reclassifications, section 12(4)(g) would be entirely redundant. Section 12(4)(g) protects the term of a town superintendent of highways from abridgment in an optional town reclassification, using exactly the same language used in section 11(2)(e) to protect the term of any town officer from abridgment in a mandatory town reclassification.

While it is possible that the difference between the narrow exception for town highway superintendents in section 12(4)(g) and the broader exception for other town officers in section 11(2)(e) may have been inadvertent rather than deliberate, the language of the two provisions, including the difference between them, is unambiguous.

In summary, we conclude that, under the facts you have presented, the terms of the town supervisor and the town clerk will end the day before the effective date of the classification change, if approved. The term of the town highway superintendent will not be abridged by a change in classification.

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,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions