Can a New York city's charter give the mayor and city council members the power to administer oaths and take affidavits, even if they aren't commissioners of deeds?

Plain-English summary

The City of Auburn's charter authorizes the mayor, city council members, and several appointed officers to "administer oaths and take affidavits and acknowledgments within the City, the same as Commissioners of Deeds." The City's corporation counsel asked whether that grant was invalid because Executive Law § 139(1) provides that commissioners of deeds are appointed by the common council, raising the question of whether non-appointed officials could lawfully exercise the same powers.

Assistant Solicitor General Kathryn Sheingold, writing for the Attorney General, concluded that the charter validly authorized the mayor and council members to administer oaths within the city. Two reasons were given. First, no inconsistency exists: many other officials beyond commissioners of deeds (notaries, the AG, court referees) can administer oaths in New York, and the charter does not purport to make the mayor or council members commissioners of deeds. They simply hold the same oath-related powers, by direct legislative grant. Second, even if there were an inconsistency, the 1920 charter would supersede the older 1909 predecessor of Executive Law § 139(1) under standard rules of statutory construction.

Currency note

This opinion was issued in 2016. 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.

Historical context

What the opinion meant for cities at the time

At the time of the opinion, New York's Attorney General read state law to permit broad municipal grants of oath-administering authority in special-act city charters. The shorthand phrase "the same as Commissioners of Deeds" did not transform the grantee into a commissioner of deeds; it simply borrowed the bundle of oath-related powers that commissioners of deeds enjoy. The opinion treats the list of officials who can administer oaths in New York as illustrative, not exclusive, of the kinds of officials the Legislature can authorize to perform that function.

What the opinion meant for charter drafters

For municipalities operating under special-act charters enacted by the State Legislature (rather than under the standard Town Law or General City Law), the opinion confirmed that direct legislative grants of administrative powers in the charter trump later-enacted general state statutes only where the charter is later in time, but they certainly survive earlier general statutes. Drafters could rely on the charter to authorize council members to take oaths without going through the commissioner-of-deeds appointment process.

Common questions

Q: Who can administer oaths and take affidavits in New York?
A: Multiple categories of officials, including notaries public (Executive Law § 135), commissioners of deeds (Executive Law § 142), the Attorney General and qualified deputies (Executive Law § 73), court referees (Judiciary Law § 117), and any officials specifically authorized by an applicable charter or statute. The list is not exclusive.

Q: Is a mayor automatically a notary or a commissioner of deeds?
A: No. The opinion makes clear that holding a mayoral office does not by itself confer commissioner-of-deeds status. A specific charter, statute, or appointment is required.

Q: What does "the same as Commissioners of Deeds" mean in a charter?
A: The opinion read that phrase as a shorthand for the same set of oath, affidavit, and acknowledgement powers that commissioners of deeds hold, without converting the grantee into a commissioner of deeds. The charter elsewhere provided separately for the appointment of actual commissioners of deeds.

Q: What if a state statute and a city charter provision conflict?
A: Where both were enacted by the State Legislature, the later-enacted provision controls as to the city in question. The opinion cited Bloom v. Town Bd. of Town of Yorktown, 80 A.D.2d 823 (2d Dep't 1981), as the rule.

Background and statutory framework

The Auburn City Charter, enacted by the State Legislature in 1920 (L. 1920, ch. 438), grants enumerated officials, including the mayor and members of the common council, "the power to administer oaths and take affidavits and acknowledgments within the City, the same as Commissioners of Deeds." Charter § C-28. Auburn was operating as a special-act city under a Legislature-enacted charter, which is why the legislative supersession analysis was available.

Executive Law § 139(1) provides for the appointment of commissioners of deeds by a city's common council. Executive Law § 142 then specifies the oath, affidavit, and acknowledgement powers commissioners of deeds may exercise. The opinion treats these provisions as defining one route to exercising those powers, not the exclusive route.

Citations and references

Statutes:
- N.Y. Executive Law § 73 (Attorney General and qualified deputies)
- N.Y. Executive Law § 135 (notaries public)
- N.Y. Executive Law § 139(1) (appointment of commissioners of deeds)
- N.Y. Executive Law § 142 (powers of commissioners of deeds)
- N.Y. Judiciary Law § 117 (court referees)
- Auburn City Charter § C-28; § C-25(A)(12)
- L. 1920, ch. 438, § 29; 1920 N.Y. Laws 1099, 1117

Cases:
- Bloom v. Town Bd. of Town of Yorktown, 80 A.D.2d 823 (2d Dep't 1981), later-enacted state-legislative provision supersedes earlier general statute as to the affected municipality.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2016-2_pw.pdf

Original opinion text

Executive Law §§ 73, 135, 139(1), 142; Judiciary Law §117; Session Laws L. 1920, CH. 1099, L. 1920, CH. 1117

The mayor and members of the council can administer oaths and take affidavits and acknowledgments within the city as authorized by the City's charter.

November 4, 2016

John C. Rossi
Corporation Counsel
City of Auburn
Memorial City Hall
24 South Street
Auburn, New York 13021-3832

Informal Opinion
No. 2016-2

Dear Mr. Rossi:

You have requested an opinion as to whether the mayor and members of the city council may exercise specific powers granted to them by the City's charter. The charter grants the mayor and members of the council, along with several appointive city officers, "the power to administer oaths and take affidavits and acknowledgments within the City, the same as Commissioners of Deeds." Auburn City Charter § C-28. Your question is whether that grant of power to the mayor and council members is invalid on the ground that it conflicts with Executive Law § 139(1), which provides that commissioners of deeds are appointed by the common council, and you see a potential inconsistency between Executive Law § 139(1) and the city charter's language that the mayor and council members are granted certain powers "the same as Commissioners of Deeds." As explained below, we are of the opinion that section C-28 of the City's charter validly authorizes the mayor and council members to administer oaths and take affidavits and acknowledgements within the city.

First, we are of the view that Executive Law § 139(1) and section C-28 of the charter are not inconsistent. Executive Law § 142 provides that commissioners of deeds, who are appointed in a manner specified by Executive Law § 139(1), are authorized to administer oaths and take affidavits and acknowledgments within the city, but it does not purport to make them the only officials who may do so. Indeed, these powers are also held by notaries, see Executive Law § 135, and others, see, e.g., Executive Law § 73 (Attorney General and qualified deputies and assistants); Judiciary Law § 117 (court referees). Charter section C-28 does not purport to make the mayor or anyone else a commissioner of deeds, but rather to confer upon certain individuals specified powers relating to oaths, affidavits, and acknowledgments, using the shorthand term "the same as Commissioners of Deeds" to describe the relevant powers. Indeed, the charter specifically provides for the appointment of commissioners of deeds, see Auburn City Charter § C-25(A)(12), confirming that the mayor and other officers named in section C-28 are not commissioners of deeds themselves. Thus, the fact that their mode of selection is different from that required by Executive Law § 139(1) is of no practical significance to their authority to exercise the powers granted by section C-28.

Second, if there were some inconsistency between the provisions, which there is not, then, because they were both enacted by the State Legislature, the charter, as the later-enacted provision, would supersede the Executive Law. The predecessor to Executive Law § 139(1) was enacted in 1909. L. 1909, ch. 23, reprinted in Executive Law § 106 (McKinney 1917). The predecessor to section C-28 was enacted by the Legislature in 1920. See L. 1920, ch. 438, § 29; 1920 N.Y. Laws 1099, 1117. Thus, if the provisions of the Executive Law and the charter were inconsistent, the charter provisions enacted by the Legislature would have superseded the existing Executive Law provisions insofar as they applied to the City. See Bloom v. Town Bd. of Town of Yorktown, 80 A.D.2d 823, 824 (2d Dep't 1981).

For these reasons, we are of the opinion that the mayor and members of the council can administer oaths and take affidavits and acknowledgments within the city as authorized by section C-28 of the City's charter.

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