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Volume 10 - Opinions of Counsel SBRPS No. 35

Opinions of Counsel index

Assessor (term of office) (coordinated assessment program); Coordinated Assessment Program (assessor) (term of office) - Real Property Tax Law, §§ 310, 579:

The adoption of a Coordinated Assessment Program may truncate the term of office of an incumbent appointed assessor.

Our opinion has been requested concerning the implications of a Coordinated Assessment Program (CAP) adopted under section 579 of the Real Property Tax Law. The specific question is whether the adoption of a CAP shortens the term of office of an incumbent appointed assessor. In our opinion, it does.

Section 310(2) of the RPTL states, in pertinent part: “The term of office of assessor shall be six years except as otherwise provided in subdivision seven of this section [which authorizes an indefinite term under specified conditions]. The terms for appointive assessor shall commence on the first day of October, [1971], and each sixth year thereafter.” By virtue of this provision, the current term of incumbent appointive assessors began on October 1, 1995, and is set to expire September 30, 2001.

Section 579 allows two or more cities or towns within the same county to establish a CAP, which must provide, among other things, “for a single assessor to be appointed to hold the office of assessor in all the participating assessing units” (RPTL, §579(2)(b)). The statute does not explicitly provide that this “single assessor” may be appointed while the incumbent assessors’ terms are still in progress. However, if this could not be done, CAP’s could only be adopted at the conclusion of each six-year cycle, unless a vacancy should happen to arise in the office of assessor, or unless all the cities and towns should already happen to have the same assessor. There is no evidence that the Legislature intended section 579 to be so circumscribed; there is quite a bit of evidence to the contrary.

Statutory conflicts

To begin with, the provisions of section 579 are fundamentally incompatible with section 310 in several respects. A CAP must be established by local law adopted “at least sixty days before the first taxable status date of an assessment roll to which such program is to apply” (RPTL, §579(1), as amended by L.1996, c.567). There is no other restriction as to when a CAP may be implemented. The implication is that a CAP may become applicable with any assessment roll, as long as the 60 day requirement is satisfied.

The 60 day requirement is especially revealing, because 60 days prior to taxable status date is January first in most towns. As noted, under section 310, the terms of office of incumbent assessors are set to expire on September 30, 2001. But if two or more counties or towns wish to implement a CAP on their 2002 assessment rolls, section 579 unequivocally permits them to do so as late as January 1, 2002. In other words, section 579 indisputably allows cities and towns to adopt CAP’s three months after the next assessors’ terms of office will have begun!

A CAP may also be expanded or terminated by local law adopted at least one year before the expansion or termination is to take place (RPTL, §579(4)(a), (c)). There is no language even remotely suggesting that either event must coincide with the inception of a new six-year term.

Furthermore, to establish a CAP, the participating cities or towns must jointly enter into a “municipal cooperative agreement” pursuant to section 576 of the RPTL and Article 5-G of the General Municipal Law [GML]. Until recently, there was no statutory provision regulating the duration of municipal cooperative agreements established under Article 5-G of the GML. However, by virtue of a recent amendment, the maximum term of a municipal cooperative agreement is now five years, unless otherwise provided by law (GML, §119-o(2)(j), as amended by L.1996, c.620, §4). There is nothing in section 579 of the RPTL authorizing a longer (e.g., six-year) maximum term for a CAP.

These statutory conflicts strongly suggest that the CAP program was intended to supersede the six-year term otherwise provided for by section 310. Moreover, the legislative history is not inconsistent with this conclusion.

Legislative history

There is little direct legislative history on section 579, which was enacted as part of a massive budget-related bill (L.1994, c.170, §332). However, direction may be found in closely related legislation authorizing the creation of “consolidated” assessing units (RPTL, Article 16, as added by L.1993, c.512). The purpose of the consolidated assessing program is “to establish a mechanism by which two or more assessing units may consolidate their assessment functions and thereby provide quality assessment services to all their taxpayers at a reasonable cost” (RPTL, §1600). The sponsor’s memorandum characterizes the purpose of the program as follows:

The purpose of this bill is to increase the accuracy and fairness of assessments, to provide more efficient property tax administration, and to improve taxpayer understanding of the property tax system by providing cities and towns with additional options for carrying out assessment administration through consolidation....

Since the CAP legislation enacted the next year was evidently intended to give local governments additional means to achieve the same ends, the same objectives may be attributed to it.

Case law

We are aware of no judicial decisions construing section 579, but significant guidance on the issue before us may nevertheless be found in case law. In Lanza v. Wagner, 11 N.Y.2d 317, 183 N.E.2d 670, 229 N.Y.S.2d 380 (1962), app. dsmd., 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163 (1962), cert. den., 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164 (1962), a law had been enacted which reorganized and reconstituted the New York City Board of Education, resulting in the termination of three Board members whose terms were still in progress. The displaced former Board members challenged the law, but the State’s highest court, the Court of Appeals, held against them, stating:

We may quickly dispose of the attack upon the statute on the score of its having shortened the plaintiff’s term of office. The office held by each of the plaintiffs was concededly created by the Legislature, not by the Constitution, and there is no constitutional inhibition against the mere shortening of the term of an existing statutory office by legislation aimed at the office rather than its incumbent [citations omitted]. Public offices are created for the benefit of the public, and not granted for the benefit of the incumbent, and the office holder has no contractual, vested or property right in the office [citation omitted]. Absent any express constitutional limitation, the Legislature has full and unquestionable power to abolish an office of its creation or to modify its term, or other incidents attending to it, in the public interest, even though the effect may be to curtail an incumbent’s unexpired term [citations omitted; emphasis added] (11 N.Y.2d at 324, 229 N.Y.S.2d at 385).

Given this rather emphatic language, {1} since CAP’s are clearly considered by the State Legislature to be “in the public interest,” it seems quite likely that the courts would agree that incumbent assessors may be displaced from office upon the adoption of a CAP.

Conclusion

As noted above, the timing aspects of the section 579 program simply cannot be reconciled with the six-year term provided for by section 310; language that would resolve the conflicts is conspicuous by its absence. Since we must presume that section 579 was not intended to be ineffective (McKinney’s, Statutes, §144), we must conclude that section 579 was intended to permit local governments to act in such a way as to supersede section 310. The legislative history is consistent with this conclusion, and the Lanza decision clearly permits the statute to be read accordingly. Thus, we believe the adoption of a CAP pursuant to section 579 does indeed truncate the term of office of an incumbent appointed assessor.

We realize that our construction of section 579 leaves open the possibility that some assessing units may be tempted to adopt CAP’s for the specific purpose of ousting their incumbent assessors. This would be particularly troubling if the assessing units terminated their CAP shortly thereafter (though as noted above, the termination could not take effect until at least one year after the local law providing for the termination was approved).

Nonetheless, if there is a loophole in the law, only the State Legislature can close it. We may not disregard the Legislature’s evident objective, even if we do believe there is the potential for abuse. If the law does not provide incumbent assessors with sufficient protection against the inappropriate use of the CAP program, their ultimate recourse would be to the courts. {2}

January 24, 1997


{1}  The New York State courts have repeatedly stood by the Lanza precedent (see, e.g., Ball v. State of New York, 41 N.Y.2d 617, 363 N.E.2d 323, 394 N.Y.S.2d 597 (1977); St. Lawrence University v. Trustees of the Theological School of St. Lawrence University, 20 N.Y.2d 317, 229 N.E.2d 431, 282 N.Y.S.2d 746 (1967); see also, Michaelis v. City of Long Beach, 46 A.D.2d 772, 360 N.Y.S.2d 475 (2d Dept. 1974); Roth v. Cuevas, 158 Misc.2d 238, 603 N.Y.S.2d 973 (Sup.Ct., New York Co., 1993); Periconi v. State of New York, 91 Misc.2d 823, 398 N.Y.S.2d 963 (Ct. of Claims, 1977).

{2}  The courts would be likely to closely scrutinize a blatant effort to evade section 310. As one court stated in a case involving the abolition of a public servant’s position, “The courts should see that the laws relating to [veterans in public service] do in fact work out the benefits for them that are plainly intended, and should be keen to thwart all attempts to circumvent them. These laws must not be made meaningless by acts of subterfuge” (People ex rel. Weeks v. Ward, 4 Misc.2d 1030, 162 N.Y.S. 744, 751 (Sup.Ct., Kings Co., 1916), aff’d, 179 A.D. 905, 165 N.Y.S. 1106 (2d Dept., 1917)).

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