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Volume 9 - Opinions of Counsel SBEA No. 30

Opinions of Counsel index

Assessor (county agreement to assess for town) - N.Y.S. Constitution, Art. XVI, § 1; Real Property Tax Law, §§ 102, 576, 578, 1532:

A town may not transfer its assessment function to the county except as provided in the State Constitution. An agreement between a town and county, whereby the county provides assessment services to the town, is legally valid only to the extent authorized by State law.

We have been asked to render an opinion as to the legality of an arrangement whereby an employee of the county real property tax service agency functions as appointed assessor for one of the towns in the county. The county and town have entered into an agreement wherein the county has agreed “to provide the following services to the Town:

a) To perform appraisals and assess each parcel of real property in the Town...using commonly applied appraisal and assessing methods...;

b) To respond to inquiries from taxpayers...on assessments, exemptions and taxes...;

c) To provide information as required to maintain the Town assessment file on the County Assessment Roll Levy Module (ARLM) System and to review the output of such system for errors...;

d) To review all applications for property tax exemptions and make a final determination as to...eligibility...;

e) To attend all hearing [sic] of the Assessment Board of Review and...make corrections and changes as directed...;

f) To provide all other services to the Town...as are generally performed by Town assessors within the County....”

In exchange for “full and satisfactory performance” of these services, the town pays the county $18,000 annually. The county may not assign its employees to perform assessment services on behalf of the town without town board approval, but the town board must have “cause” to deny such approval. The contract does not specifically state that the town will “appoint” the county employee to be its assessor.

This arrangement raises numerous issues, each of which requires analysis.

Transfer of function

The term “assessing unit” is defined in section 102(1) of the Real Property Tax Law as “a city, town, county having a county department of assessment with the power to assess real property, or a village” unless the village has terminated its assessing unit status pursuant to section 1402(3) of the RPTL. Currently, only Nassau and Tompkins Counties are county assessing units; the remaining counties, including the one in question, are not.

In 3 Op.Counsel SBEA No. 79, we considered the issue of transferring the assessment function from cities, towns and villages to the county. Based on Article IX, sec. l(h)(l) of the State Constitution, we concluded that the function may be transferred, but only by adoption or amendment of a county charter subject to referendum. Although the county in question has a county charter, there is nothing therein providing for the transfer of the assessment function to the county.

Clearly, the county/town agreement includes elements of a transfer of the assessing function to the county (e.g., items a, d, f listed above), and the “assessor” is a county employee. If so, regardless of whether the purported transfer is by local law, contract or otherwise, it is unconstitutional. In our opinion, the assessment function would be transferred if the county employee were answerable to the county (e.g., through its director of real property tax services) rather than to the town appointing authority (see RPTL, §§310, 324).

Yet, there is some evidence of town control. The town pays the county an amount which equals at least a portion of the county employee’s salary. Moreover, the town indemnifies the county for claims arising from the performance of the assessment contract (see Public Officers Law, §18).

If, therefore, the contract is for assessment services (as opposed to assessment function), other issues must be considered. For purposes of addressing these other issues, we will assume arguendo that the agreement does not create a constitutionally prohibited transfer of the assessment function.

Cooperative assessment agreement

Pursuant to section 576 of the RPTL, two or more assessing units may enter into a cooperative agreement under Article 5-G of the General Municipal Law to engage the services of a single assessor to service each of the assessing units. This should be and is an attractive option for many of the State’s smaller assessing units that find it difficult to afford the services of a professional assessor on a full-time basis.

As we concluded in 7 Op.Counsel SBEA No. 115, however, “[a] county which is not an assessing unit may not enter into a cooperative assessing agreement and contract with a city, town or village located therein to do its assessing.” This conclusion was based on section 119-n(c) of the General Municipal Law which defines the “joint service” to be performed by municipal cooperative agreement as one “which each of the municipal corporations...has the power by any other general or special law to...perform...separately....” As noted previously, the county in question has no assessing authority.

County assessment services

A county may provide certain assessment services to assessing units. It may employ “experts to appraise the value of real property” within the county (RPTL, §572), at the county’s cost (12 Op.State Compt. 140). These appraisals, however, are only for “the assistance of the assessors” (RPTL, §572). The assessors must still make their own assessment determinations (Lessen v. Stevens, 30 A.D.2d 740, 291 N.Y.S.2d 202 (3d Dept. 1968); Samuels v. Town of Clarkson, 91 A.D.2d 837, 458 N.Y.S.2d 393 (4th Dept. 1982); 1 Op.Counsel SBEA No. 39).

Counties may participate in cooperative agreements to provide “data processing and other mechanical assistance in the preparation of assessment rolls, tax bills and other assessment and property tax records...” (RPTL, §578), but this role is “a technical or clerical one, rather than substantive or judgmental” (7 Op.Counsel SBEA No. 115).

Similarly, the county, through its real property tax service agency, performs various specific services for the county’s cities and towns (RPTL, §1532). These include county advisory appraisals of “moderately complex” parcels (RPTL, §§1532(l)(b), 1536; 9 NYCRR 195-2), advice on procedures for the preparation and maintenance of assessment rolls, property record cards,, and other records and documents relating to assessment and taxation (RPTL, §1532(l)(c)), and the provision of appraisal cards in a State Board approved form (RPTL, §1532(l)(d)). County directors are to coordinate county-wide revaluation programs (RPTL, §1532(2)(b)). The county legislature may resolve to authorize the county director to perform additional duties, including the supplying of cities and towns with assessment rolls or other necessary forms used in their preparation and in tax collection (RPTL, §15322(3)(c)).

Nevertheless, none of these services reaches the level of actually assessing property. And, while the county legislature may assign additional duties to the county director of real property tax services, it may not assign duties “inconsistent with...any general or special law” (RPTL, §1532(4)). Given the aforecited section 102(1) of the RPTL designating the town as the assessing unit, in the absence of a change in the law, the county legislature may not designate the county director (or his staff) to assess for a town.

Assessment by contract

Assessors’ means an elected or appointed officer or body of officers charged by law with the duty of assessing real property...“ (RPTL, §102(3)). As the State Comptroller has stated:

There is no authority for a town...to engage an assessor on a contractual basis.... [T]own assessors are public officers (...Real Property Tax Law, §1522 [now §310]). They must be appointed (or elected) to office pursuant to statutory requirements, their terms of office are set by statute ([ibid.]) and their powers and duties are generally defined by statute.... Any compensation received as assessor may not be on a contractual basis, but rather be in the form of an annual salary made from a certified payroll and subject to appropriate payroll deductions (Town Law, §§27(1), 120...) (Op.State Compt. 79-701).

We concur with the Comptroller’s conclusion.

Compatibility of office

There is nothing inherently improper in the appointment of a county employee to be town assessor (cf., O’Malley v. Macejka, 44 N.Y.2d 530, 378 N.E.2d 88, 406 N.Y.S.2d 725 (1978)). Presumably, there would be no question as to a town assessor’s employment by the county highway department. However, when the town assessor is also an employee of the county real property tax service agency, the issue of compatibility is less clear. The determination depends on a case by case review of the duties assigned by the county, a question which we do not reach here because we conclude that the underlying agreement is contrary to law. Nevertheless, for purposes of example, we can make reference to several prior administrative opinions concerning the compatibility of county-town offices related to real property tax administration.

In 3 Op.Counsel SBEA No. 62, we concluded that a part-time town assessor could serve as a county tax map technician, the technician’s duties not interfering “with his ability to exercise objective judgment as an assessor....” Similarly, the Attorney General has concluded that one person may be both town assessor and account clerk-typist in the county director’s office. In Op.Atty.Gen. 83-54, The Attorney General concluded that “the person occupying this [i.e. clerk] position has no responsibility for the determination of policy and makes no discretionary decisions.”

In 6 Op.Counsel SBEA No. 39, we found incompatibility in the appointment of a county director to be an appointed or elected assessor in the same county (accord: Op.Atty. Gen. 82-F23). We also said that the issue of incompatibility for other real property tax service agency employees would depend on the facts of the particular situation. For instance, in 7 Op.Counsel SBEA No. 5, we found the position of a deputy director of real property tax services to be incompatible with the office of assessor. Whether the situation here presents a question of incompatibility will depend on the county employee’s duties for the county. Such questions should be presented to the Attorney General.

Home rule

The final issue is the “home rule” authority of local governments as set forth in Article IX, §2(c) of the Constitution and section 10 of the Municipal Home Rule Law. That is, could the town and county act by local law to implement their assessment arrangement? Clearly, a town may enact a local law pertaining to the making of assessments, so long as that local law does not conflict with State law (see, 41 Kew Gardens Rd. v. Tyburski, 70 N.Y.2d 325, 514 N.E.2d 1114, 520 N.YS.2d 544 (1987); 9 Op.Counsel SBEA No. 7).

In 6 Op.Counsel SBEA No. 88, we concluded that a town could adopt a local law to require its board of assessment review to notify assessment complainants of the review board’s bases for its determinations. While State law (now RPTL, §525(4)) requires boards of assessment review to notify complainants of its decisions, and includes no requirement that the board’s rationale be stated, we found no State preemption of the issue. As the Court of Appeals only recently stated:

Where the State has preempted the field, a local law regulating the same subject matter is deemed inconsistent with the State’s transcendent interest, whether or not the terms of the local law actually conflict with a statewide statute.*** A comprehensive, detailed statutory scheme, for example, may evidence an intent [by the State] to preempt (Albany Area Builders Association, et al. v. Town of Guilderland, 74 N.Y.2d 372, 377, 546 N.E.2d 920, 547 N.Y.S.2d 627, 629 (1989)).

In 8 Op.Counsel SBEA No. 120, we concluded that a municipal corporation may not adopt a senior citizens exemption (RPTL, §467) sliding scale exemption formula different from that found in State law (see also, 9 Op.Counsel SBEA No. 5). Taken in conjunction with the Constitutional requirement that exemptions be granted only pursuant to general law (Art. XVI, §1), section 467’s exemption formula is an example of State preemption.

Here, unlike the board of assessment review determination, and akin to the senior citizens exemption formula, in our opinion, the Constitutional provision regarding transfer of function (Art. IX, §l(h)(l)) and the aforecited sections of law (e.g., RPTL, §§576, 578) indicate State preemption. The assessment services in question could be provided by the county to the town only through adoption of a State, not a local, law.

Conclusion

Assuming that the county-town arrangement does not constitute a transfer of the assessing function in contravention of the State Constitution, there is statutory authority for the provision of extensive county assessment and taxation related services to the town. However, with regard to the arrangement we have been asked to review here, we conclude that the services required of the county pursuant to the contract exceed those authorized by State law.

December 15, 1989

NOTE:  But see Opinion 9-73.

Updated: