Volume 7 - Opinions of Counsel SBEA No. 51
Board of Assessors (powers and duties) (majority) (chairman; powers and appointment of) – General Construction Law, § 41; Real Property Tax Law, § 102(3); Town Law, § 22-b:
A power or duty vested in a three person board of assessors may only be exercised by a majority of the members of that board. The chairman of a board of assessors may not act unilaterally.
A town board alone has the authority to create the office and to designate a chairman of the board of assessors. However, designation of a chairman is not mandatory.
We have received several questions regarding the responsibilities of an elected three person board of assessors and whether one board member may act independently in performing the functions of the board.
Real Property Tax Law, section 102, subdivision 3, defines “Assessors” to mean “an elected or appointed officer or body of officers charged by law with the duty of assessing real property for the purposes of taxation or special ad valorem levies, for county, city, town, village, school district or special district purposes”.
Section 22-b of the Town Law authorizes a town board to designate a chairman of its board of assessors and to assign such duties to the chairman, in connection with assessment administration, as it sees fit (see, 1 Op.Counsel SBEA No. 104).
Section 41 of the General Construction Law provides, however, that if a power or public duty is assigned to three or more public officers, a majority of the whole of such officers constitutes a quorum and that
not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words “whole number” shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting. (Emphasis added).
From the foregoing statutes, as well as the following secondary sources, it is apparent that an individual member of an elected board of assessors cannot exercise powers which are vested in the whole board. Where a power or duty is vested in a board, that power or duty cannot be exercised by less than a majority of the members of the board (Op.St. Compt. 67-559).
In Town of Smithtown v. Howell, 31 N.Y.2d 365, at 377, 292 N.E.2d 10, 339 N.Y.S.2d 949, at 957 (1972), Judge Breitel commented on the application of General Construction Law, section 41 by saying, in part, that it was “...designed to abrogate the common-law rule requiring the presence of the whole body to act”. We have previously indicated that it is not necessary that every parcel of real property be viewed and appraised by each member of a three-member board of assessors (2 Op.Counsel SBEA No. 77). However, the assessment to be entered on the assessment roll must be based upon the judgment of a majority of the board of assessors (see also, 6 id. No. 64). This principle was enunciated in People ex rel. Mygatt v. Supervisors of Chenango County, 11 N.Y. 563 (1854) where it was held that assessments may be made by a joint act of all the assessors or by a majority of them.
Thus, two members of a three-member board constitute a quorum which may act as the full board, but action by the board requires an affirmative vote of a majority of the whole, which is also two votes (1969 Op.Atty.Gen. 12). Neither a chairman designated under Town Law, section 22-b, nor any other assessor may act independently in matters concerning the function of the board as defined in Real Property Tax Law, section 102(3). Rather, a majority of the board must agree upon actions taken in fulfillment of its duties.
We have also been asked to discuss the appointment of a chairman of a board of assessors. As explained in 1 Op.Counsel SBEA No. 104, a town board is authorized to appoint one member of a board of assessors as chairman and to pay him additional compensation for serving in that capacity pursuant to section 22-b of the Town Law.
Section 22-b simply provides the authority for creation of the office and designation of a chairman, however. It does not mandate the designation of a chairman. A 1969 Opinion of the State Comptroller’s office (25 Op.St. Compt. 118) reached the same conclusion, stating in part: “The office of chairman is not a required office under the Town Law, and the board of assessors is able to function without a chairman.”
Thus, the town board alone has the authority to create the office and to designate a chairman of town assessors. However, designation of a chairman is not mandatory. (While the board of assessors has no authority to fill the position of chairman of town assessors as described in Town Law, section 22-b, we see no reason why the members of that board could not informally designate one of themselves to preside at board meetings.)
March 6, 1979