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

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Presentation on theme: "Town Clerk Duties and Legal Responsibilities Michael Kenneally, Esq. Association of Towns of the State of New York Lori Mithen-DeMasi Association of Towns."— Presentation transcript:

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

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

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 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 No1 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 No0 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 Totals3 Yes1 No1 Abstain0 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

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 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 150 State Street Albany NY P: (518) F: (518)

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