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Volume 7 - Opinions of Counsel SBEA No. 78

Opinions of Counsel index

Assessor (term of office) (service beyond mandatory retirement age) - Real Property Tax Law, § 1522; Retirement and Social Security Law, §§ 70, 211:

A person who has reached the mandatory retirement age may be employed as town assessor only upon written request of the employer-town to the State Civil Service Commission, which must make certain findings before granting approval.

We have received an inquiry regarding the employment of a retiree in the appointed position of Town Assessor.

Real Property Tax Law, section 1522, provides that the term of office of the appointed assessor shall be six years (subd. 2) and places this position in the classified service (subd. 3). Therefore, an appointed assessor is subject to the provisions of the Retirement and Social Security Law (§§40 and 70(b)) which provide for mandatory retirement at age 70.

Section 211 of the Retirement and Social Security Law provides that no retired person may be employed in a position in public service except in certain circumstances upon express approval of the State Civil Service Commission. This section further provides that such approval may be granted only on the written request of the employer (town) and findings (1) that the person is qualified, competent and physically fit for the position; (2) that there is a need for his services in such position; (3) that there be no persons readily available for recruitment who are qualified to perform the duties of the position; and (4) that the employment be in the best interests of the government service.

Accordingly, there is no bar to the appointment of a person who would reach the mandatory retirement age of 70 before the expiration of his term if he is otherwise qualified for the office of assessor. However, having been appointed and, subsequent thereto, having attained the age of 70, his service may be continued only where the State Civil Service Commission grants an extension based upon the aforementioned findings. The evident purpose for the procedure provided by section 211 of the Retirement and Social Security Law is to provide a means to employ retired persons possessing needed skills which are not otherwise available for government service (1974 Op.Atty. Gen. 24).

April 24, 1981

Updated: