Volume 6 - Opinions of Counsel SBEA No. 113
Assessor (removal from office) (elected assessor) - Public Officers Law, § 36:
A proceeding to remove an elected assessor from office must be brought pursuant to the provisions of section 36 of the Public Officers Law. If proven, a charge of favoritism in assessing property constitutes grounds for removal from office.
An elected town assessor has been charged with favoritism in assessing real property. We are asked whether this would constitute sufficient grounds to remove the assessor from office.
Appointed town assessors may be removed from office pursuant to the provisions of section 1522(7) of the Real Property Tax Law (2 Op.Counsel SBEA No. 2), and, where relevant, the provisions of section 75 of the Civil Service Law. Elected town assessors, however, may be removed only pursuant to the provisions of section 36 of the Public Officers Law, which provides in part that;
Any town ... officer ... may be removed from office by the supreme court for any misconduct, maladministration, malfeasance or malversation in office. An application for such removal may be made by any citizen resident of such town...or by the district attorney of the county in which such town...is located, and shall be made to the appellate division of the supreme court held within the judicial department embracing such town....
In the case of In re Pisciotta, 41 A.D.2d 949, 343 N.Y.S.2d 992, the Appellate Division concurred with the Justice to whom the case had been referred for findings of fact and stated, “this court is empowered by section 36 of the Public Officers Law to remove a public official for what amounts to intentional wrongdoing, moral turpitude or violation of a public trust” (343 N.Y.S.2d at 994). In the referee’s report (169 N.Y.L.J., No. 5, p. 19, col. 5 (1-8-73)) Justice Geiler stated:
It is important to realize that Sec. 36 of the Public Officers Law was not meant to be utilized as a political expedient nor a tool for disgruntled politicians. Mere technical violations of law or errors in judgment were never intended to be covered by sec. 36. A public official in order to be removed under this section must have committed some misconduct, maladministration, malfeasance or malversation in office.
Our research has disclosed no judicial determination as to whether the facts alleged herein, if proven, would constitute grounds for removal pursuant to section 36. In responding to an inquiry wherein an individual “set forth certain examples of alleged favoritism on the part of the town assessor in assessing property,” the State Comptroller stated that removal from office pursuant to section 36 was the only penalty (3 Op.State Compt. 270).
In our opinion, proof of favoritism in assessing by an elected assessor would amount to “intentional wrongdoing, moral turpitude or violation of a public trust” as that phrase was used by the court in the Pisciotta case (supra) quoted above. Naturally, whether specific allegations, if proven, are sufficient grounds for removal from office, is a question for the court to determine (see also, 4 Op.State. Compt. 57).
May 1, 1980