town clerk duties and legal responsibilities

Town Clerk Duties and Legal Responsibilities

Michael Kenneally, Esq.Association of Towns of the State of New York

Lori Mithen-DeMasiAssociation of Towns of the State of New York

Town Clerk Duties

• Office Management • Town Board Meetings and Minutes• Public Officers • Records Management • Public Notices • Local Laws

Town Clerk Office Location • Town Board generally

provides the Town Clerk with an office at town hall or in another town owned facility

• Rent and reasonable office expenses may be charged to town for office space not provided by the town

Town Clerk’s Office Hours

Town Clerk Office Hours

• No statutory office hours • Generally set by Town Clerk • Reasonable hours to service public

• Town Board may set office hours but cannot require an elected Town Clerk to be physically present unless the hours are set by local law approved by the voters

Town Clerk’s Compensation

Salary

• Set in the town budget

• Published in notice of public hearing on preliminary budget

• Decrease during term– Local Law Mandatory Referendum

• Increase above noticed amount published in the notice for the hearing on the preliminary budget – Local Law Permissive Referendum

Benefits

• Town Board Sets

Health Insurance Vacation Sick Leave Personal Leave

• Retirement

Purchasing Supplies • The town budget will provide funding for

office supplies and equipment

• Purchases must be made in accordance with State Bidding Laws and Local Procurement Policies

• Sufficient funds must be in place prior making a purchase

• Prior Town Board authorization maybe required unless otherwise provided in the town’s procurement policy

Additional Duties

• Town Board may expand the Town Clerk’s duties by resolution– Compatible with statutory duties– Resources Available – Does not conflict with statutory duties – Examples: • Selling Transfer Station Permits• Taking Planning Board Minutes

Deputy Town Clerks

Town Clerk Deputies

• Up to three (3) deputies• Appointed by Town Clerk• Serve at pleasure of Town Clerk • Town Clerk sets first deputy’s duties• Town Board sets duties for other deputies• Compensation set by Town Board

Town Board Meetings

Town Board Meetings• Town Clerk is required to attend Town

Board meetings

• Town Board meetings include:– Regularly Scheduled Meetings– Specially Scheduled Meetings – Workshop Sessions– Agenda Meetings – Budget Sessions

Regular Monthly Meetings & Workshops

Scheduling • Town Board Resolution

• Notice • Post on the Town Clerk Sign Board;

• Town Website;

• Other Sign Boards Designated for Public Notice

• Publish Notice (optional)

Special Town Board Meetings

• Scheduling – Called by Town Board or Town Supervisor

• Notice– Call/Email/Fax News Media

– Post on town clerk sign board

– Post on other sign boards designated for public notice

– Post on town website

– Written notice hand delivered to each Town Board Member

Town Board Agenda

• No statutory requirement

• Varies by town

• Could be determined by Town Board rules of procedure

New Agenda Rules

Agenda and related documents scheduled to be discussed at a Town Board meeting must be made available prior to the meeting to the extent practicable

• Upon request • Posted on town website

Town Board Rules of Procedure

• Formal (Resolution) or Informal (Past Practice)• Quorum Required • Supervisor Presides • Votes by Ayes and Noes • Three Votes Needed • Town Clerk records minutes• Procedures vary by town

Minutes

• Historical record of Town Board meeting • Good faith and accurate accounting of

meeting• Town Clerk records minutes• No prescribed statutory format• Town Board approval optional

Minutes Must include:

– Names of Town Board Members present

– Actions

– Motions

– Proposals

– Resolutions

– Vote recorded by ayes and noes

Minutes May Include:

• Statements for the record

• Debate & discussion (verbatim or summarized)

• Correspondence

• Presentation materials

• Public comments

Recording Votes

• Each Town Board Member’s vote must be recorded

• Town Board Members may not be compelled to vote

• Record abstentions as abstentions• Record absences as absences• Determine whether a matter has passed by

counting the “Yes” or “Aye” votes

Vote on Matter # 1

Supervisor A Yes No Abstain Absent

Councilperson B Yes No Abstain Absent

Councilperson C Yes No Abstain Absent

Councilperson D Yes No Abstain Absent

Councilperson E Yes No Abstain Absent

Vote Totals 2 Yes 1 No 1 Abstain 1 Absent

Majority of Full Board required (3 out of 5)

Result: Vote Fails

Vote on Matter # 2






Vote Totals 2 Yes 1 No 0 Abstain 2 Absent 2 Yes 1 No 0 Abstain 2 Absent


Result: Vote Fails Fails

Vote on Matter #3






Vote Totals 3 Yes 1 No 1 Abstain 0 Absent


Result: Vote Passes

Minutes Available to Public

Open Meetings Law

• Copies for the Public

– 1 week from executive session where minutes were taken

– 2 weeks from regular or special meeting

• Stamp “Draft” or “Subject to board approval” to indicate that Town Board approval is pending

Public Officers

What is a Public Office?

• Statute or Local law creating the position established it as a “public office”

• Duties involve some exercise of sovereign powers

• Administration of duties involves a high degree of initiative & independent judgment

• Receipt of an official seal or commission of office

Appointments

• Town Board makes most appointments by resolution

• Some statutory exceptions:– Bookkeeper/confidential Secretary– Deputies – Town Historian– Planning Board Staff

What is the Town Clerk’s Role in Appointments?

• Town Clerk records appointments in the minutes

• Town Clerk notifies State and County agencies of appointments– Notice within 5 days of appointment/election– Office; Name; Address; Term of Office

How do Vacancies Occur?

• Vacancies occur by State Law• Some Examples

–Resignation–Conviction of a felony during office – Failure to timely take & file

oath/undertaking–Permanently moving out of town –Accepting an incompatible position

Vacancies • Town Board – Fills vacancies

• Town Clerk – Records vacancies– Notifies State & County Agencies (County Clerk

and Bd. of Elections) • Within 3 days of Occuringfor elected offices • Position, Date office became vacant

What is the Town Clerk’s Role Regarding Resignations?

• Resignation must be in accordance with State law

– Written– Addressed to Town clerk– Filed with Town clerk – Resignation Date up to 30 days after

resignation filed or immediately if no date specified

What is the Clerk’s Role regarding Oaths of Office?

Oaths of Office

• All town officers must take and file an oath of office within 30 days of taking office

• Oaths must be filed in the Town Clerk’s office with additional requirements for Town Justices (county clerk & office of court administration)

• Town Clerk notifies Town Board when officer fails to timely file oath

Who can Administer Oaths?

• Town Clerk or Deputy Town Clerk

• Notary public

• Court of Appeals or Supreme Court Judge

• Town Supervisor, but only to other members of the town board

• Town Board Member • Town justice

Oaths are required to be filed in the Town Clerk’s office

• Town officers

• Fire district commissioners

• Fire police squads of fire departments and fire companies

Special Considerations

Town Justices

Must file their oath with:– Town clerk– County clerk– Office Court Administration

Official Undertaking

Faithful Performance Insurance Policy protects the

taxpayers against lost or stolen funds

Officers Required to be Covered

– Town Clerk

– Town Supervisor

– Highway Superintendent

– Tax Collector/Receiver

– Constable

– Town Justice

– Anyone else the Town Board requires

Official Undertaking

• Individual Undertaking approved by town board

• Blanket Bond procured by town board

• Filed in Town Clerk’s office with additional filing requirements for Town Justices in the County Clerk’s office and Office of Court Administration

• Town Clerk notifies Town Board of pending expiration of bonds

• Town Clerk notifies Town Board where there is failure to timely file undertaking or bond

Records Management

Role / Responsibility of Town Clerk

• Town Filing Officer • Record Access Officer • Record Management

Officer

Clerk of the Municipal Board

• Town Law, §30 – Keep record of proceedings of the Town Board – Keep record of all resolutions ordinances and

local laws– Prepare abstracts for board audits

Filing Officer

• Town Law, §30 / Public Officers Law, §10 • All certificates, oaths and other papers

required by law are Filed in the Town Clerk’s Office

Records Access Officer

• Town Clerk charged with custody of all books, records and papers of the town

• May be designated Records Access Officer


• Responsible for coordinating responses to public requests for access to records (FOIL)

• Designated by the Town Board

– Does not have to be Town Clerk, but often is– Town Board may Designate More than One

Record Access Officer

Records Access Officer• Maintain up to date subject matter list

• Assist person seeking records to identify the records sought and assist them in reasonably describing them

• Contact person when a request is voluminous or requires substantial efforts to help reasonably reduce the records requested

• Make records available / deny access

• Make copies or allow copies to be made

• Certify true copies upon request

• Failure to locate -- Certify that RAC is not custodian / records cannot be found after diligent search


• Subject Matter List– Current– Must Update Annually – Sufficiently Detailed– MU1 Record Retention

Schedule as Guide

• Additional Local Rules – Always check local records

access law for additional duties and responsibilities

Records Management Officer

• Arts & Cultural Affairs Law, §57.19– “Each local government shall have one officer who

is designated as records management officer. – In towns, the Town Clerk shall be the records

management officer


• Duties of the Records Management Officer– “This officer shall coordinate the development of

and oversee such program and shall coordinate legal disposition, including destruction of obsolete records.”


• Arts & Cultural Affairs Law, §57.25: – Local officers retain custody of records so long as

they are needed for the conduct of business– Protect, cooperate and pass on– In towns, records no longer needed for the

conduct of the business of the office shall be transferred to the custody of the Town Clerk for their safekeeping and ultimate disposal


• Disposition of Records– Records Retention Schedule (MU1) sets forth the

minimum length of time that records must be kept on file with the Town Clerk’s office

– Schedule constitutes consent to dispose of records in excess of retention period

– If local law sets forth longer periods – local law controls

Custody

• Who has custody of town records?– Town Law, §30: Town Clerk has custody of all

books, papers and records of the municipality– Arts & Cultural Affairs Law, §57.25: local officers

(not town clerks) have custody of records needed for the conduct of business

• Are these provisions in conflict?

Custody Defined

• The care and control of a thing or person for inspection, preservation or security

– Care and control, not physical possession– Possible that multiple people can have custody

over the same things– All officers with custody of records share the same

responsibilities with respect to those records

Public Notices

Elements of Notices

• Who • What • Where• When• How

Who Typically Gets Notice?

The Public The Media

What: Typical Content For Public Hearings

• Time

• Date

• Location

• Purpose

• Summary of Local Law, Ordinance etc.

• Contact for more information

• ADA Compliance

Summary of Action

Must be sufficiently clear to an average person, so as to inform them that pending

legislation may affect their interests

Where Do You Typically Provide Notice?

• Town Clerk’s Signboard• Community Bulletin

Boards

• Newspapers • The Media

How Do You Typically Provide Public Notice?

• Legal Notice in Newspaper

• Post Conspicuously

• Personal Delivery

What is a Newspaper?

• Be in general circulation,

• Be established and ordinarily printed and distributed at least weekly for at least one year,

• Contain news, editorials and other matters of “current interest”,

• Have a paid circulation and

• Be entered as second class mail matter

When Do You Typically Provide Notice?

• Local Law Public Hearing

• Ordinance Public Hearing and Adoption

• Franchise Public Hearing

• Town Budget Hearing

• Fire Protection Contracts

• Board Meetings

• Resolutions Subject to Referenda

Town Board Meetings

– Regular Monthly Meeting• Legal Notice in Official Newspaper• Publicly Post

– Special Town Board Meeting • Written Notice to Each town board member• Call/Fax/Email Media• Post on town clerk and community sign boards

Local Law Public Hearing

– Typically Published in Newspaper of General Circulation

– At least 5 days prior to hearing – Date, Time, Place & Clear Description of Local

Law

Ordinance Public Hearing

– Legal Notice in Newspaper– At least 10 days prior to hearing– Date, Time, Place & General Description of Ordinance

Zoning Ordinance Public Hearing

• Legal Notice published at least 10 days before hearing

• Additional Notices

– personally served or mailed to city, village, town, county, state park or parkway or a housing project owned by a housing authority within 500 feet of property zoned

• Possible Additional Local Notices – personally served or mailed to abutting or neighboring property owners

Town Budget Public Hearing

• Publication/Posting – Legal Notice published in official town

newspaper–At least 5 days prior to hearing–Post on Town Clerk’s signboard

• Content– Time, Date, Location & Availability of

copies for review in clerk’s office– Salaries of elected, clerk, town board &

superintendent of highways

How Do You Count Days for Public Notices?

Defining a DayGeneral Construction Law, §19

define a calendar day as:

“A calendar day includes the time from midnight to midnight. Sunday or any day of the week specifically mentioned means a calendar day” (Op. Atty. Gen. Formal No. 2001-F2)

Counting Days

General Construction Law, §20 –Don’t Count the Day the Notice is Posted or

Published but Count Every Day Including Saturdays, Sundays, & Public Holidays, Unless a statute tells you to do otherwise

Counting Days

Example: • If a notice of a public hearing on a proposed local

law is published on a Wednesday, to determine the earliest day when the public hearing may be held, do not count that Wednesday.

• The Thursday, Friday, Saturday, Sunday, and Monday, count toward the five days.

• Thus, the earliest day on which the public hearing may be held is Tuesday.

Local Legislation

• Resolution

• Ordinance

• Local Law

Ordinances, Rules & Regulations

Moderate Means of Legislating –

• Use to Regulate Conduct– Business Licenses– Zoning – Traffic and Use of

• Need Specific Statutory Authority – Town Law, article 9– Town Law, article 16– Vehicle & Traffic Law, §1660

Resolutions

Least Formal Means of LegislatingUse for Everyday actions:

• Appointments

• Budget Transfers

• Contract Approvals

• Expression of Praise or Mourning

Motions

Town board action comes in the form of a motion which is a proposal to entertain a particular contemplated action followed by a resolution which is the action to be taken (Op. State Comp. 79-109).

Local Laws

Local Laws

Most Formal Means of Legislating

Use for Permanent actions such as

– Structure of Government– Transfer of Power From One Official or Body to

Another– Change From a Statewide Standard or Rule– Everything you do by Ordinance– Don’t need Specific Statutory Authority

Adopting a Local Law

Local LawLocal LawIntroducedIntroduced

AgingAgingRequirementRequirement

PublicPublicHearingHearing

Vote on ProposedVote on ProposedLocal LawLocal Law

Local Law Format

–Title–Enacting Clause–Body of the Law–Effective Date–Covers Only One Subject Matter

Local Law Form & Content

• Introduced by Town Board Member

• Use “introductory” numbers

• Record distribution method in minutes(e.g. hand delivered, mailed, placed on member’s desks or in mail-boxes)

Local Laws

Public Hearing

• Scheduled by town board resolution

• Record resolution in minutes

Public Hearing Notices

• Generally Published in a Newspaper of general circulation

• At least five (5) days prior to the date of the public hearing

• Time, Date & Location

• Brief description of proposed local law

Adoption of Local Law

• Properly Aged (7 days excluding Sundays if hand delivered (in person or electronically) to each board member or 10 days excluding Sundays if mailed to each board member)

• Adopted at a board meeting by majority vote• Vote by “ayes” and “noes” recorded in minutes

Referendum

Local Laws subject to Mandatory Referendum (Municipal Home Rule Law, §23)

• Local Laws subject to Permissive Referendum(Municipal Home Rule Law, §24)

Local Laws

File with Secretary of State

Fill out DOS Forms

Town Clerk certifies

Local Laws Filing

• Follow DOS Rules

• File Consecutively in numerical order

• File Within 20 days of adoption unless subject to referendum – then file after approved by voters

Local Laws Filing

Department of StateState Records & Law Bureau 41 State Street Albany, NY 12231Questions: (518) 474-4770

Local Laws

Local Laws filed in Town Clerk’s office

• Record adopted local laws in separate book

• Numbered as filed

• Index

Hopefully You are Now Feeling Comfortable with your duties

Call AOTSNY with Your FAQs

150 State Street Albany NY 12207

P: (518) 465-7933F: (518) 465-0724

www.nytowns.org

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