1. Town Clerk Duties and Legal Responsibilities
Michael Kenneally, Esq.
Association of Towns of the State of New York
Lori Mithen-DeMasi

2. Town Clerk Duties Office Management Town Board Meetings and Minutes
Public Officers
Records Management
Public Notices
Local Laws

3. 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

4. Town Clerk’s Office Hours

5. 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

6. Town Clerk’s Compensation

7. 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

8. Benefits Town Board Sets Health Insurance Vacation Sick Leave
Personal Leave
Retirement
Health Insurance
The town board is authorized, but not required, to provide town officers and employees, whether active or retired, and their dependents with health insurance benefits (General Municipal Law, §92-a). Please note that health insurance benefits are subject negotiation for officers and employees within collective bargaining units. (Civil Service Law, §§ 200, et seq.)

9. 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

10. 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

11. Deputy Town Clerks

12. 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

13. Town Board Meetings

14. 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

15. 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)

16. Special Town Board Meetings
Scheduling
Called by Town Board or Town Supervisor
Notice
Call/ /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

17. Town Board Agenda No statutory requirement Varies by town
Could be determined by Town Board rules of procedure

18. 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

19. 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

20. 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

21. Minutes Must include: Names of Town Board Members present Actions
Motions
Proposals
Resolutions
Vote recorded by ayes and noes

22. Minutes May Include: Statements for the record
Debate & discussion (verbatim or summarized)
Correspondence
Presentation materials
Public comments

23. 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

24. 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

25. Vote on Matter # 2
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 0 Abstain 2 Absent 2 Yes 1 No 0 Abstain 2 Absent Majority of Full Board required (3 out of 5) Result: Vote Fails Fails

26. Vote on Matter #3
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 3 Yes 1 No 1 Abstain 0 Absent Majority of Full Board required (3 out of 5) Result: Vote Passes

27. 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

28. Public Officers

29. 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

30. Appointments Town Board makes most appointments by resolution
Some statutory exceptions:
Bookkeeper/confidential Secretary
Deputies
Town Historian
Planning Board Staff

31. 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

32. 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

33. 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

34. 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

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

36. 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

37. 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

38. 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

39. Special Considerations
Town Justices
Must file their oath with:
Town clerk
County clerk
Office Court Administration

40. Official Undertaking Faithful Performance
Insurance Policy protects the
taxpayers against lost or stolen funds

41. Officers Required to be Covered
Town Clerk
Town Supervisor
Highway Superintendent
Tax Collector/Receiver
Constable
Town Justice
Anyone else the Town Board requires

42. 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

43. Records Management

44. Role / Responsibility of Town Clerk
Town Filing Officer
Record Access Officer
Record Management Officer

45. 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
Accurate Records? Towns yes, Villages no.

46. 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

47. Records Access Officer
Town Clerk charged with custody of all books, records and papers of the town
May be designated Records Access Officer

48. 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

49. 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

50. Records Access Officer
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

51. 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

52. 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.”

53. Records Management Officer
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

54. Records Management Officer
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

55. 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?

56. 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

57. Public Notices

58. Elements of Notices
Who
What
Where
When
How

59. Who Typically Gets Notice?
The Public
The Media

60. What: Typical Content For Public Hearings
Time
Date
Location
Purpose
Summary of Local Law, Ordinance etc.
Contact for more information
ADA Compliance

61. Summary of Action
Must be sufficiently clear to an average person, so as to inform them that pending legislation may affect their interests

62. Where Do You Typically Provide Notice?
Town Clerk’s Signboard
Community Bulletin Boards
Newspapers
The Media

63. How Do You Typically Provide Public Notice?
Legal Notice in Newspaper
Post Conspicuously
Personal Delivery

64. 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

65. 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

66. 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/ Media
Post on town clerk and community sign boards

67. 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

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

69. 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

70. 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

71. How Do You Count Days for Public Notices?

72. Defining a Day General 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 F2)

73. 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

74. 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.

75. Local Legislation
Resolution
Ordinance
Local Law

76. 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

77. Resolutions Least Formal Means of Legislating
Use for Everyday actions:
Appointments
Budget Transfers
Contract Approvals
Expression of Praise or Mourning

78. 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. Local Laws

80. 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

81. Adopting a Local Law

82. Local Law Format Title Enacting Clause Body of the Law Effective Date
Covers Only One Subject Matter

83. 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)

84. Local Laws Public Hearing Scheduled by town board resolution
Record resolution in minutes

85. 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

86. 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

87. Referendum Local Laws subject to Mandatory Referendum
(Municipal Home Rule Law, §23)
Local Laws subject to Permissive Referendum
(Municipal Home Rule Law, §24)

88. Local Laws File with Secretary of State Fill out DOS Forms
Town Clerk certifies

89. 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

90. Local Laws Filing
Department of State State Records & Law Bureau 41 State Street Albany, NY Questions: (518)

91. Local Laws Local Laws filed in Town Clerk’s office
Record adopted local laws in separate book
Numbered as filed
Index

92. Hopefully You are Now Feeling Comfortable with your duties

93. Call AOTSNY with Your FAQs
Association of Towns
150 State Street Albany NY 12207
P: (518)
F: (518)