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Town Clerk Duties and Legal Responsibilities

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Title: Town Clerk Duties and Legal Responsibilities


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 Clerks 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 Clerks 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 towns
    procurement policy

10
Additional Duties
  • Town Board may expand the Town Clerks 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 deputys 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/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

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 Members 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 Clerks 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 Clerks 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 Clerks 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 Clerks 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
Clerks 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 Clerks office with additional
    filing requirements for Town Justices in the
    County Clerks 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 Clerks 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 Clerks 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 Clerks 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/Email 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 Clerks signboard
  • Content
  • Time, Date, Location Availability of copies for
    review in clerks 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. 2001-F2)

73
Counting Days
  • General Construction Law, 20
  • Dont 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.
    79-109).

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
  • Dont 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 members
    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 12231
  • Questions (518) 474-4770

91
Local Laws
  • Local Laws filed in Town Clerks 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) 465-7933
  • F (518) 465-0724
  • www.nytowns.org
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