Volume 2 - Opinions of Counsel SBEA No. 52
Assessor (acting assessor) (deputy assessor) - Real Property Tax Law, § 1522(5); Town Law, § 21(1):
The position of acting assessor may be established by the legislative body of a local government. During the absence, inability or refusal of the assessor to act, the acting assessor is vested with all the powers and duties of the assessor. The provisions concerning a deputy assessor in Town Law, section 21 (1) are superseded by Real Property Tax Law, section 1522(5). The acting assessor may be appointed by the assessor. If the assessor fails to make such appointment within five (5) days of the creation of or vacancy in such office, the body or officer empowered to appoint the assessor has the power to appoint the acting assessor.
We have received an inquiry concerning the office of assessor under section 1522 of Article 15-A of the Real Property Tax Law enacted by Chapter 957 of the Laws of 1970. Specifically, we have been asked for a clarification of subdivision 5 of section 1522 which provides for an acting assessor; whether an acting assessor is the same as deputy assessor; and whether an assessor has the power of appointment.
Under section 1522 of Article 15-A, the town board of a town which did not o r could not opt to retain elective assessors was required to appoint a single assessor on October 1, 1971. Pursuant to subdivision 5 of section 1522 a town board may establish the position of acting assessor. Where a town board establishes such position, the acting assessor is to be appointed by the assessor within five days after the position is established or becomes vacant. Should the assessor fail to act, the town board may appoint the acting assessor. The acting assessor is to serve without compensation except when he functions for the assessor. During the absence, inability or refusal of the assessor to act, the acting assessor is vested with all the powers and duties of the assessor.
Accordingly, the acting assessor position contemplated by subdivision 5 of section 1522 is not a position which might be deemed to be that of a continuing deputy to the assessor. The acting assessor position is one to which there may be a delegation of authority to act for the principal (assessor) during his absence, inability or refusal to act. The person appointed to the position of acting assessor may be an employee in the assessor’s office, which it is assumed will generally be the case, or he may be someone outside that office. However, even though appointed to the office of acting assessor, he is to receive no compensation as acting assessor unless or until such time as he functions as the assessor.
It is noted that subdivision 1 of section 21 of the Town Law provides that in towns where there is but one appointed assessor the town board may appoint a deputy assessor who shall serve without compensation from the town, unless otherwise provided by the town board. This subdivision further provides that such deputy is to have such powers and duties as the town board may determine, not inconsistent with law. Therefore, under this statute a town board could authorize a deputy to perform all the functions of the assessor during the latter’s absence (see, 4 Op.State Compt. 356) and so function as the acting assessor contemplated by subdivision 5 of section 1522 of the Real Property Tax Law.
However, the provisions of subdivision 5 of section 1522 of the Real Property Tax Law clarify the duties of an acting assessor. Also, in certain respects the provisions of subdivision 1 of section 21 of the Town Law appear to be inconsistent with the provisions of subdivision 5 of section 1522 of the Real Property Tax Law; i.e., the manner in which the acting assessor is to be appointed, and the fact that an acting assessor is to receive no compensation as acting assessor unless or until such time as he functions as the assessor. Pursuant to section 1560 of Article 15-A of the Real Property Tax Law, all general, special, local or other laws which are inconsistent with the provisions of Article 15-A are inapplicable to the localities to which Article 15-A applies. Accordingly, it is our opinion that the provisions of subdivision 1 of section 21 of the Town Law with respect to the appointment of a deputy assessor no longer apply and are superseded by the provisions of subdivision 5 of section 1522 of the Real Property Tax Law.
Assessors are those persons vested by law with the authority and responsibility of valuing and assessing real property for the purposes of taxation. Therefore, in jurisdictions with a single assessor such authority and responsibility is vested solely in the one individual occupying that position. The assessor is to be distinguished from members of his staff who may be engaged in the valuation of real property for purposes of taxation. Although such staff members may hold titles containing the word assessor, they are nevertheless real property appraisers rather than assessors.
Pursuant to subdivision 1 of section 20 of the Town Law, a town board of a town of the first class (and of a town of the second class) may provide for such employees as the town board may determine necessary for the proper conduct of the affairs of the town. This subdivision also provides that the town board shall appoint all officers and employees whose appointment or election is not otherwise provided for by law. Accordingly, where a town board determines a full-time assessor will need help in order to properly carry out the duties of his office, the town board may provide for additional staff positions on a professional, subprofessional or clerical level and since the appointment of such persons is not otherwise provided for by law, the appointing authority is vested in the town board.
December 10, 1971
Note: This Opinion construes the law prior to the the enactment of L.1986, c.361, which substantially amended Real Property Tax Law section 1522 and added a new section 314 specifically relating to Acting Assessors. Note also that the Opinion refers to section 21 of the Town Law, which was repealed subsequently repealed by L.1974, c.69.