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Volume 11 - Opinions of Counsel SBRPS No. 95

Opinions of Counsel index

Assessment review, board of (terms of office) (increasing or decreasing number on board) - Real Property Tax Law, § 523:

An assessing unit may not enact a local law to shorten the terms of the members of its board of assessment review.

An assessing unit may increase the number of members on its board of assessment review by adopting a local law; the new members should be assigned terms not coinciding with those of current board members.

An assessing unit may reduce the number of members on its board of assessment review by adopting a local law to do so, but it may not do so as a subterfuge for disciplining a sitting member. [Opinion 4 Op. Counsel SBEA No. 20 superseded in part.]

We have received three questions concerning membership on the board of assessment review [hereinafter BAR]. The first concerns the validity of a town’s local law to set the terms of office of its BAR members at three years. The second question concerns the terms of office of individual BAR members in a town that is attempting to determine the terms of new members it is appointing. The third is whether a town board that wishes to reduce the number of members on its BAR from five to three may pass a resolution to do so.

In relevant part, section 523(1) of the Real Property Tax Law provides:

(b) The [BAR] shall consist of not less than three nor more than five members appointed by the legislative body of the local government or village. ***

(c) The terms of office of members of the [BAR] shall be five years and shall commence on the first day of October and terminate on the thirtieth day of September, five years thereafter. In the case of the first board appointed under the provisions of this title, however, the terms shall be of such length that not more than one will expire in each of the first five years after the members of such board are appointed. {1}

The first question is most easily addressed. Section 528(1) of the RPTL provides that no “local law shall be adopted which is inconsistent with the provisions of this title.” The title in question is title 1-A of Article five of the RPTL, which is the title in which sections 523 and 528 are both included. {2}  Since section 523(1)(c) mandates a five-year term of office for BAR members, the town’s local law clearly violates section 528. Of course, this agency has no jurisdiction to determine the validity of a local law, but we have little doubt that a court would concur with our opinion on this issue.

The remaining questions are more complex and necessitate our reconsideration of 4 Op.Counsel SBEA No. 20 regarding increasing or decreasing the number of members on a BAR. In that opinion, we concluded, in part: “To increase membership, the town board should make a new appointment in a year that no vacancy exists. To decrease membership, the town board should not fill vacancies which exist.” Upon reconsideration, we now find our prior opinion to be unduly restrictive and erroneous in part.

Statutory prescription of a range for the number of members on a municipal board is not exclusive to section 523 of the RPTL (e.g., Education Law, § 1702(1) [between three and nine trustees of a union free school district]; Education Law, § 2502(2) [five, seven or nine members of a board of education in city school districts in cities of less than 125,000 inhabitants]; General City Law, § 81(1) and Town Law, § 267(2) [three or five members of a zoning board of appeals]). Clearly, the governing board of a city or town subject to section 523 of the RPTL may legally designate a three, four, {3} or five member BAR, and, in our opinion, subject to a few considerations, it may increase or decrease the number of members within that range. {4}

Contrary to our prior opinion, we do not think that an assessing unit may increase the number of its BAR members only in a year when that board has a vacancy. Presumably, that conclusion was reached, at least in part, so as to maintain the staggered terms prescribed in section 523(1)(c). There are at least two reasons for staggered terms.

First, as we explained in 3 Op.Counsel SBEA No. 122, the independent BAR was “intended to remove from the political arena, as much as possible, the matter of hearing assessment complaints.” If the incumbent municipal governing board were empowered to appoint multiple members to five year terms, its appointees could remain in control of the BAR after control of the municipal governing board has passed to others.

The second rationale for staggered terms is to better ensure that at least some BAR members each year have experience in their post. As one court put it many years ago in discussing the staggered terms of a village board of health: “In this way experienced men could be kept in the board; for the term of only a part of the board would expire annually, and thus the public health would be protected in a business rather than in a political way” (Whitney v. Patrick, 64 Misc. 191, 195, 120 N.Y.S. 550, 553 (Sup.Ct., Saratoga Co., 1909)).

We now see no impediment to increasing the size of the BAR in any year from three to four or (preferably) to five or from four to five. Since a predecessor municipal governing board, however, created a three or four-member BAR, while the incumbent board may increase such number, a local law is seemingly required (Municipal Home Rule Law [hereinafter MHRL], § 10(1)(a)(1)). {5}  When that increase occurs, in essence a new BAR is created and the staggered term provision should be followed. In answer to the second question presented then, depending on the terms of office of the incumbent members, the new member or members should be assigned terms ending in a year different from all other members. While this may concededly result in a shorter than five year term for the new member(s), such procedure would most closely comply with the statutory intent.

As to the last question, the process for decreasing the size of the BAR is similar to increasing it, with one additional proviso. Once a municipality has established a four or five member board, if it wishes to eliminate a position, a local law is required (MHRL, § 10(1)(a)(1)). Otherwise, if a vacancy exists in such position, a replacement member should be appointed. Not to do so could complicate BAR decision making. That is, section 41 of the General Construction Law provides, in relevant part:

Whenever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board . . ., a majority of the whole number of such persons or officers . . . shall constitute a quorum and 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 . . . would have were there no vacancies and were none of the persons or officers disqualified from acting.

A majority of a four or five member board is three, so, if an assessing unit with such a BAR fails to appoint a replacement member or members, three members must be present for BAR hearings to proceed and three members must vote affirmatively if an assessment is to be changed (see, 9 Op.Counsel SBEA Nos. 111, 124).

Unlike sections 328 and 329 of the RPTL, which (respectively) authorize the adoption of local laws for changing from elected boards of assessors to a sole appointed or sole elected assessor, and specifically provide that “[o]n December [31] of the year in which such local law shall take effect, the term or terms of office of all assessors then in office shall terminate[,]” as noted previously, section 523 mandates a five-year term for BAR members. Since a municipality may pass a local law to eliminate a BAR position, we would caution a municipality from doing so as a subterfuge for disciplining a sitting BAR member. That is, it remains true, as we discussed in 4 Op.Counsel SBEA No. 20, that BAR members may be removed from office prior to the expiration of their terms only for incompetence or misconduct after a hearing upon notice (Galli v. Barnett, 168 N.Y.L.J., No. 42, p.17, col. 8 (8/30/72), aff’d, 42 A.D.2d 840, 346 N.Y.S.2d 761 (2d Dept., 1973),, 33 N.Y.2d 516, 348 N.Y.S.2d 1027 (1973)). {6}  The municipal governing board should consider eliminating only vacant BAR positions.

To the extent that 4 Op.Counsel SBEA No. 20 conflicts with the foregoing opinion, it should be considered superseded.

March 20, 2007

NOTE: Opinion 4-20 superseded in part by Opinion 11-95.

{1}  Independent boards of assessment review were first created by chapter 957 of the Laws of 1970. Section six of that act provided, in part: “The appointing authority of each such county, city and town shall appoint . . . members of a board of assessment review in accordance with the provisions of this act for terms commencing on [October 1, 1971].”

{2}  Title 1-A applies to all counties except those comprising the City of New York, the City of New York itself, and cities and towns within county assessing units: Nassau and Tompkins (RPTL, § 528(3)).

{3}  To better ensure against tie votes on assessment complaints and correction of errors petitions filed with the BAR (per RPTL, §§ 524, 552 and 553), a four member BAR is not recommended.

{4}  Our opinion is the same as to villages which retain their assessment authority and choose to appoint independent boards of assessment review (RPTL, § 1408(1)).

{5}  Section 10(1)(a)(1) of the MHRL empowers a county, city, town, or village to adopt a local law relating to [among other things] the “number . . . of its officers. . . .” Note that, unless otherwise provided in State law, a local law subject to mandatory referendum is required if the term of an elective office is to be changed (MHRL, § 23(2)(e)).

{6}  See also, Sullivan v. Taylor, 279 N.Y. 364, 18 N.E.2d 531 (1939) and Sheldon v. Stabile, 57 Misc.2d 407, 293 N.Y.S.2d 3 (Sup.Ct., Suffolk Co., 1968)) regarding termination of incumbent officials through elimination of their position.