HomeMy WebLinkAboutThe Town Clerk Manual 2021 AN ASSOCIATION OF TOWNS PUBLICATION
THE
TOWN CLERK
MANUAL
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CHAPTER 1
TheTown Clerk's Office..................................................... 1
§1.1 Introduction .............................................................. 1
§1.2 Elective or Appointive .............................................. 1
§1.3 Term of Office............................................................. 1
§1.4 Eligibility ................................................................... 2
§1.5 Qualifying for Office.................................................3
§1.6 Vacating the Office ................................................... 3
§1.7 Resignation .........:..................................................... 4
§1.8 Compensation .......................................................... 4
§1.9 Salary............................. ........ 4
§1.10 Health Insurance .................................................... 5
§1.11 Leave and Vacation ................................................ 5
§1.12 NYS and Local Government Retirement System.....6
§1.13 Office Location ........................................................ 7
§1.14 Office Access ........................................................... 8
§1.15 Office Hours ............................................................ 8
§1.16 Office Equipment and Supplies .......................... 10
§1.17 Deputies ................................................................ 13
§1.18 Basic Responsibilities........................................... 15
CHAPTER 2
The Town Clerk's Town Board Duties...............................23
`` §2.1 Town Corporate Seal...............................................23
§2.2 Town Board Meetings.............................................24
i §2.3 Statutes Governing Town Board Meetings...........24
j §2.4 Establishing a Quorum...........................................25
§2.5 Location ................................................................... 25
p §2.6 Videoconferencing..................................................25
§2J Meeting Facilities and Access
_. §2.8 Calling Town Board Meetings ................................27
§2.9 Cancelling a Regularly Scheduled
Town Board Meeting......................................... 27
} §2.10 Regular Monthly Meeting Schedule
§2.11 Notice of the Regular Meeting Schedule.............27 =
§2.12 Special Town Board Meetings..............................28
§2.13 Notice of Special Town Board Meetings..............28
§2.14 Cancelling or Postponing a
Special Town Board Meeting.............................30
§2.15 Town Board Rules of Procedure...........................30
§2.16 Open Meetings Law.............................................. 33
§2.17 Exemptions from the Open Meetings Law ...........35
§2.18 Notice of Meetings ............................................... 36
§2.19 Meeting Packets ................................................... 37
§2.20 Executive Sessions ............................................... 37
§2.21 Public Participation in Meetings 39
42.22 Tape Recording Town Board Meetings ...............40
§2.23 Open Meetings Law Enforcement .........40 ,
§2.24 Committee on Open Government.......................41 r
§2.25 Minutes..................................................................41
§2.26 Adoption of Ordinances.......................................67
§2.27 Adoption of Local Laws........................................ 72
i_
CHAPTER 3
The Town Clerks Public Officer Duties 82
§3.1 Characteristics of a Public Officer ......................... 82
§3.2 Qualifications of a Public Officer...........................83
§3.3 Oaths of Office ........................................................ 85
§3.4 Official Undertaking or Bond ................................88
§3.5 Vacancies ................................................................. 89
§3.6 Holding Over after Expiration of Term...................98
§3.7 De Facto Officers.....................................................99
CHAPTER 4
The Town Clerk's Fiscal Duties..................................... 100
§4.1 Countersignature....................................................100
§4.2 Payments not Requiring Prior Audit................... 100
§4.3 Audit and Processing of Claims............................. 101
§4.4 Reports and Annual Audits.................................... 109
§4.5 Report of Fiscal Examination..................................111
§4.6 Record of Obligations.............................................112
§4.7 RecordofClaimsforDamages Filed AgainstTown..112
§4.8 Cash Control .......................................... 113
§4.9 Petty Cash............................................................. 118
§4.10 Electronic Banking............................................... 120
§4.11 Compatibility of Office.........................................121
§4.12 Town Budget Process ..........................................121
CHAPTER 5
Records Access and Management Duties......................132
§5.1 Records Management and Access......................... 132
§5.2 Laws and Regulations........................................... 132
§5.3 Records Management Officer............................... 133
§5.4 Access to the Records Vault..................................144
§5.5 Freedom of Information Law.................................145
CHAPTER 6
The Town Clerk's Receipt of Filing Duties.....................170
§6.1 Creation of a Filing System ................................. 170
CHAPTER 7
The Town Clerk's Petitions and Referendum Duties....198
§7.1 Town Election Replaces Dutch Town Meeting......198
§7.2 Initiative and Referendum Defined.......................199
§7.3 Common Types of Petitions.................................201
§7.4 Town Clerk Petition and Referendum Duties..... 201
§7.5 Referendum Petition General Requirements.......204
§7.6 Minimum Number of Signatures..........................206
§7.7 Filing the Petition...................................................209
§7.8 Minimum Legal Requirements...............................211
§7.9 Certification of Petitions.................................... 216
§7.10 Judicial Review oftheTown Clerk's Actions.........217
§7.11 Objecting to Petitions......................................... 217
§7.12 Proposition Submitted to the Voters...................218
§7.13 Timing of the Election on the Proposition..........219
§7.14Common Issues5ubjectto Referendum..............222
CHAPTER 8
The Town Clerk's Election Duties..................................225
§8.1 Town Elections........................................................225
§8.2 Special Town Elections ....................................... 226
§8.3 Absentee Ballots for Special Town Elections.......238
§8.4 Special Town Election Day Operations...............249
§8.5 General Election Duties ...................................... 257
CHAPTER 9
The Town Clerk's Notice Duties....................................261
§9.1 Common Types of Notice.......................................261
§9.2 Steps to Achieving Proper Notice.......................262
§9.3 Proof of Posting and Publication......................... 272
§9.4Common Statutory Notice Requirements..............275
CHAPTER 10
The Town Clerk's Licensing and Permitting Duties......285
§10.1 License Issuing Officer .................................... 285
§10.2 Licenses Issued Pursuant to Town
Ordinances or Local Laws...............................286
§10.3 Licenses Issued Pursuant to State Law................ 298
CHAPTER 11
The Town Clerk's Special Town Improvement Districts
Duties................................................................340
§11.1 Article 12 Districts(Petition) ............................. 341
§11.2 Article 12-A Districts(Town Board Order).........347
§11.3 Additional Improvement District Duties............353
1091vo9q)
This training manual has been prepared by the Association of Towns as part
of the Association's commitment to providing training to town officers. This
manual is chiefly a guide to the various duties and responsibilities of the town
clerk. Consultation with statutes, regulations, agency publications and opinions
will be necessary in the performance of the town clerk's duties. The material
in this manual contains references to speeches, articles, statutes, regulations,
cases, state agency opinions and publications of New York State departments
and agencies and consultation with town clerks.We wish to express our genuine
thanks for the assistance gleaned from these resources.
This update includes changes enacted bythe State Legislature through mid-2021.
Laws, cases, regulations and opinions are always changing, and we therefore
recommend that the town clerk carefully review the information herein and
consult with the town attorney or legal staff at the Association if any questions
arise regarding the information contained herein,the town clerk's duties or the
application of a particular statute,case or regulation.
Please note that addresses and phone numbers referenced in this guide were
current as of the date of the publication of this guide.
This manual should be considered town property and left as a town resource for
future town officials
Gerald K.Geist
Executive Director
Association of Towns of the State of NewYork
15o State Street
Albany NY 12207
Phone: (518)465-7933
Fax: (518)465-0724
Email: Infol)nytowns.org
Website:www.nytowns.org
Published 2021
0 Association of Towns of the State of New York
1
Chapter 1
THE TOWN CLERK'S OFFICE
§1.1 Introduction
Every town is required to have a town clerk(Town Law,§20).As
town government evolved,so too,did the role of the town clerk.
In the 1800s,the town clerk was a member of the town board.
In the 1900s, the town clerk left the town board to focus on
administrative duties.Today,the town clerk still performs many
important administrative duties on behalf of the state and town
government.
The town clerk's office is frequently considered the center of
town government,or maybe the front door to the town,serving
residents directly through the issuance of licenses and records
management and the town board as the recording secretary of
town board meetings.
§1.2 Elective or Appointive
The office is normally elective (Town Law, §20), but may be
made appointive by the adoption of a local law subject to a
mandatory referendum (voter approval) (Municipal Home Rule
Law,§10-1(ii)-a(1);§23 (2-e)).
§1.3 Term of Office
The town clerk typically serves a two-year term of office,
beginning on January 1 in each even-numbered year (Town
Law, §24). In Broome County, however,town clerks take office
on January 1 in each odd-numbered year.The town clerk's term
of office may be extended to four years by local action.Town
2021 TOWN CLERK MANUAL I 1
Law, §24-a, authorizes town boards, by the adoption of a
resolution subject to a mandatory referendum,to fix a four-year
term for the town clerk. Pursuant to these provisions,the town
board resolution must be adopted at least 150 days prior to any
biennial town election.A biennial town election for the election
of town officers shall be held on the Tuesday next succeeding
the first Monday in November of every odd-numbered year
(with the notable exception of towns in Broome County,
wherein the biennial town election occurs on the Tuesday next
succeeding the first Monday in November of every even-
numbered year) (Town Law, §§80, 86).The term of office can
only increase to four years. The resolution can only be
submitted to the qualified electors of the town for their
approval or disapproval at the next biennial town election. If
approved by a majority of the qualified voters, the four-year
term will apply to the term of such officers who are elected at
the next succeeding biennial town election after approval,and
every fourth year thereafter.
Alternatively,the town board may extend the town clerk's term
of office by the adoption of a local law subject to a mandatory
referendum.Municipal Home Rule Law,§10 authorizes towns to
increase or decrease the terms of office of its officials by local
law. Such a local law changing the term of an elective office is
subject to a mandatory referendum,but such referendum is not
limited for submission to"the next biennial town election"as it
is under the Town Law,§24-a procedure described above.It can
be submitted at a general election or at a special election,fixed
by the town board held not less than 60 days after the adoption
of the local law as provided in Municipal Home Rule Law,§23.
§1.4 Eligibility
The town clerk must, at the time of their election or
appointment and throughout the term of office, be an elector
of the town (Town Law,§23;Public Officers Law,§3).An elector
2021 TOWN CLERK MANUAL 12
must be a town resident,US citizen and at least 18 years of age
(Election Law,§5-102).
§1.5 Qualifying for Office
Before entering office (but not later than 30 days after the
commencement of the term of office),it is required that all town
clerks,whether elected or appointed,accomplish two steps in
order to qualify themselves:
1. Take and subscribe the constitutional oath of office, which
must be filed in the town clerk's office,and
2. Execute and file in the town clerk's office an official
undertaking, which is a bond, guaranteeing the faithful
performance of the office. The town board must approve the
form,amount and the sureties on the undertaking.In addition,
the town board is generally responsible for the cost of the
undertaking (Public Officers Law,§11).
§1.6 Vacating the Office
The town clerk's office may become vacant by either operation
of law or resignation.Public Officers Law,§30 sets forth a list of
reasons by which a town officer vacates their office by
operation of law.Most commonly,vacation of office will occur
if the town clerk: ceases to be an elector of the town; is
convicted of a felony or misdemeanor involving official duties;
fails to timely and properly take and file the oath of office
and/or official undertaking; dies in office; is declared
incompetent by a court of law; or resigns. In addition to the
reasons enumerated in the Public Officers Law,the office could
become vacant if the town clerk accepts an incompatible office
(Smith v.Dillon 267 A.D.39,44 N.Y.S.2d 719(3 Dept. 1943)).For
example,if the town clerk is elected to another town office and
accepts that position by properly filing the oath of office for
2021 TOWN CLERK MANUAL 13
said position, the town clerk vacates the town clerk's office
(Town Law, §20 (4)); People ex rel. Earwicker v. Dillon, 38 A.D.
539,56 N.Y.S.416(2 Dept. 1899); 18 Op.State Compt. 175).
§1.7 Resignation
The town clerk may voluntarily resign the office.Public Officers
Law §31(1)(k), requires the elected town clerk to submit a
written letter of resignation to the Secretary of State. An
appointed town clerk is required to submit a letter of
resignation to the town board. The resignation is deemed
effective upon receipt unless a date is specified in the text of the
letter. The law permits the town clerk to select a resignation
date up to 30 days from the date the letter of resignation is filed.
Care should be taken to time the submission of letters of
resignation to effectuate the date upon which the town clerk
intends to resign (Public Officers Law,§31 (2)).
§1.8 Compensation
The compensation of a town clerk, as for all town officers and
employees,is determined bythe town board(Town Law§27(1);
General Municipal Law,§92-a).
§1.9 Salary
The town clerk's salary is set in the town budget, which is
adopted pursuant to the provisions of Article 8 of the Town Law.
Prior to enactment of the final town budget, the town board
must have a public hearing on the preliminary budget (Town
Law, §108). The notice for the hearing on the preliminary
budget requires the publication of the proposed salary of the
elected town clerk(Town Law,§108). If the town board desires
to increase the salary of the elected town clerk during any given
fiscal year within the limits of the amount published in the
notice for the hearing on the preliminary budget, the town
2021 TOWN CLERK MANUAL 14
board may do so by resolution. If the town board desires to
increase the salary of the elected town clerk above the amount
published in the notice for the hearing on the preliminary
budget,the proper procedure is to enact a local law subject to
a referendum on petition (Town Law, §27(1); Municipal Home
Rule Law §24[2][h]). In the event the town board needs to
reduce the elected town clerk's salary during the clerk's term of
office,the proper procedure is to adopt a local law subject to a
mandatory referendum (Op. St. Comp. No. 2006-5; Sacco v.
Maruca, 175 AD2d 578, app den 78 NY2d 862, (1991)). On the
other hand, the town board may increase or decrease an
appointed town clerk's salary by resolution of the town board
(Town Law, §27(1). Please note that wages are negotiable for
unionized employees(Civil Service Law,§200,et seq.).
§1.10 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(GML,§92-a).Please
note that health insurance benefits are mandatory subjects of
negotiation for unionized employees (CSL, §200, et seq.). The
federal Affordable Care Act (ACA; Public Law 111-148) applies
to towns with the equivalent of 50 or more full-time employees.
The town attorney should be consulted regarding its
application to the town clerk's office.
§1.11 Leave and Vacation
The town board is authorized to determine the leave
allowances for town officers and employees(General Municipal
Law,§92).The state comptroller's office has determined that an
elected town clerk is not subject to the town's leave policies(Op
St Comp No. 2006-6). An appointed town clerk, whose work
hours are regulated,is subject to the town's leave policies (Op.
St.Comp.No.81-332).Please note that leave policies are subject
2021 TOWN CLERK MANUAL 15
to negotiation for officers and employees within collective
bargaining units(Civil Service Law,§200,et seq.).
§1.12 New York State and Local Government Retirement
System
Most towns participate in the New York State and Local
Government Retirement System. Depending upon the number
of hours the town clerkworks and the town's standard work day
determination,the town clerk will either be required to join or
will be eligible to join the State and Local Government
Retirement System (Employer Guide). The date that the town
clerk joins the system indicates the level of benefits the town
clerk is eligible to receive.
Questions regarding the town clerk's participation in the State
and Local Government Retirement System may be submitted to
the state comptroller's office,which administers the program:
New York State and Local Retirement System
Phone: (518)474-7736
Toll Free:(866) 805-0990
Social Security coverage for public employees is administered
by the New York State Social Security Administration. Every
political subdivision in New York State must participate in the
State Social Security agreement.
Questions regarding social security benefits may be submitted
to:
New York State Social Security Administration
Phone: (518)474-7736
Toll Free:(866) 805-0990
2021 TOWN CLERK MANUAL 16
§1.13 Office Location
The town clerk's office must be located within the town unless
special legislation provides otherwise (1975 Op. Atty. Gen. (1)
112; Op. St. Comp. No. 71-705). The town board may provide
office space for the town clerk at a town-provided facility(Town
Law, §64(3); 1957 Op Atty. Gen. (1) 5). Alternatively, the town
board may rent or sub-lease premises owned or leased by the
town clerk for use in the performance of official duties (Town
Law, §116 (1); General Municipal Law §802 (2)(c)).; 1970 Op.
Atty.Gen.(1) No. 170;Op.St.Comp.No.92-16).
There is no express provision of state law that empowers a town
board to compel town officers to use rooms provided by the
town board as their offices.This could,however,be the subject
of a local law under the provisions of the Municipal Home Rule
Law (1979 Op. Atty. Gen. (1) 120). There is a positive and
affirmative duty resting upon the town board to provide for the
safeguarding and safekeeping of town records (Arts and
Cultural Affairs Law, §57.09).The town board may require that
the records and other property of the town be kept in such
place as it shall designate. Under these provisions, the state
comptroller has opined that it is possible for the town board to
dictate the location of the town clerk's office(Op St Compt.No.
71-705).
In addition to the town board's affirmative obligation to ensure
the safekeeping of town records,the state comptroller's office
has opined that the town board is entrusted with the
management, control and custody of all town property,which
includes buildings in which town offices are located(Town Law,
§64(3)).The OSC has thus opined that the power to manage and
control office buildings includes the authority to determine the
physical layout of the offices in such buildings, and as an
exercise of its policy-making powers, the town board may
2021 TOWN CLERK MANUAL 17
decide where various town departments and officers are to be
located (24 Op.St.Comp. 1968;Op.St.Comp.No.83-171).
§1.14 Office Access
Town Law, §64(3) provides the town board with general
authority regarding the management,custody and control of all
town property.One exception to this rule applies to the storage
and custody of town records. Although the town board is
required to provide a suitable facility to house town records,
access to archived town records is managed by the town clerk
(Op. St. Comp. No. 71-705; 16 Op.St. Comp. 34). In light of the
town clerk's statutory responsibility to ensure the integrity of
town records,the attorney general and the state comptroller's
offices have both opined that the town clerk has the authority
to control access to the records vault(1970 Op.Atty.Gen.(I) 104;
Op. St. Comp. No. 78-147 (unreported)). In addition, the state
comptroller has opined that town officers may limit access to
their individual offices in order to provide for the security of
records housed within (Op. State Comp. No. 71-43; 78-231).
Where access has been restricted,the town clerk must establish
a system whereby town officers and the public may obtain
access to records on a reasonable basis. In addition, the town
clerk must work with town personnel regarding general access
for cleaning, maintenance, equipment management and
emergencies.
Where records are not stored in the town clerk's office,the town
clerk's office would then fall under the general regulation of the
town board regarding access(Town Law,§64(3)).
§1.15 Office Hours
There is no state law requiring an elected town clerk to keep
particular office hours. The town board may, however, set
official office hours of all town offices,including that ofthe town
2021 TOWN CLERK MANUAL 18
clerk(1979 Op.Atty. Gen. (1) 120 citing Town Law, §30 (1)(11)).
The town board may not, however, require an elective town
clerk to be present in the clerk's office during the prescribed
office hours (Op. State Compt. 69-333, 80-742). Alternatively,
the town board may regulate the hours during which a town
clerk's office shall be open to the public by the enactment of a
local law pursuant to the Municipal Home Rule Law; the
attorney general's office has opined that this local law is not
subject to mandatory referendum (1979 Op.Atty.Gen. (1) 120).
Where the town board regulates the office hours of the town
clerk, the town board should provide the town clerk with the
necessary resources to complywith said directive(Op.St Comp,
No.91-45).
In addition, the town board may place an advertisement in a
newspaperforthe purpose of informing the public of the name,
office, address, office phone number, and office hours of the
town clerk(Op.St.Comp.No.88-32).
Although there are no specific statutory office hours required,
the town clerk's office must be open to the public for the
inspection of local laws, ordinances, records, the town budget
and the receipt of petitions. The town clerk's office should,
therefore, be open a sufficient number of hours so that the
public may be adequately and efficiently served. Just what
these hours should be is a matter for determination in each
town, keeping in mind the business habits of the community.
The town clerk,as the custodian of public records,should keep
the office open to the public at reasonable hours so as to permit
access to such records.Where this office is elective,it should be
kept in mind that all elective officers are answerable primarily
to the electorate for the way they conduct their offices. If the
electorate is dissatisfied with the hours devoted to town
business by the town clerk personally,it may be reflected at the
polls.
2021 TOWN CLERK MANUAL 19
Where the town clerk is also the town tax collector, state law
requires that the tax collector be available to the public at least
three days a week in the month of January during normal
business hours and on the days specified in the notice of receipt
of the tax roll and warrant(Real Property Tax Law,§920).
§1.16 Office Equipment and Supplies
The town clerk is a department head and is therefore
responsible for managing the equipment and supplies for the
town clerk's office. The town budget will provide funding for
office supplies and equipment. The town clerk, like all
department heads,must make all purchases in accordance with
the state law and local procurement policies (Town Law, §§64
(6); article 8; General Municipal Law, articles 5; 18). Sufficient
funds must be in place prior to the letting of any contract(Town
Law,§117).Prior authorization from the town board is required
to enter into purchase contracts unless otherwise provided in
the town's procurement policy (Town Law, §§64(6); 119;
General Municipal Law, §104-b; 1959 Op. Atty. Gen. (1) No. 58).
Purchase contracts exceeding the statutory threshold set forth
in General Municipal Law,§103 must be let in accordance with
competitive bidding or best value. The town board must
authorize the use of best value by local law.
Procurements by the town clerk are required to be covered
under the procurement policies and procedures adopted by a
town board pursuant to General Municipal Law,§104—b(Op St
Comp, No.81-182). General Municipal Law, §104-b(1) provides
that goods and services that are not required to be procured
pursuant to competitive bidding(i.e.less than$20,000)must be
procured in a manner so as to assure the. prudent and
economical use of public moneys in the best interests of the
taxpayers,to facilitate the acquisition of goods and services of
maximum quality at the lowest possible cost under the
circumstances,and to guard against favoritism, improvidence,
2021 TOWN CLERK MANUAL 110
extravagance, fraud and corruption (Op. St Comp. No. 92-43).
The town procurement policy must,therefore, be examined to
determine the proper procedure before the town clerk enters
into any purchasing contracts.
When considering purchase and service contracts necessary for
town clerk operations,town clerks should also be mindful of the
conflicts in contracts provisions of Article 18 of the General
Municipal Law, common law conflicts of interest (AKA
appearances of impropriety) and the town's code of ethics.
General Municipal Law Article 18 prohibits a town from entering
into a contract where an employee or officer has a prohibited
interest in the contract and has the authority to either (a)
negotiate, prepare, authorize or approve the contract or
authorize or approve payment; (b) audit bills or claims under
the contract;or(c)appoint an officer or employee who has any
of the powers or duties set forth above (see General Municipal
Law, §801). Additionally, courts may find conflicts of interest
even when there is no violation of General Municipal Law Article
18 if there is an appearance of impropriety. In order to
determine if you have a prohibited interest in a contract, you
can evaluate the situation by answering these questions:
1. Is there a contract with the town?
2.If so,does an officer or employee have an"interest"in
the contract?
3. If so, does the officer or employee with the interest
have"control"over the contract?
4. Do any statutory exceptions listed in General
Municipal Law§802 apply?
5. Does the town's local ethics code apply?
2021 TOWN CLERK MANUAL 111
.t
6. Is there a common law conflict of interest
(appearance of impropriety) that would prohibit the
contract?
If the answers to questions 1 through 3 are "yes" and no
statutory exceptions apply,one need not move onto questions
5 and 6 because there is a conflict of interest under General
Municipal Law Article 18,and the town may not enter into the
contract.If the answer to questions 1 through 4 are no,you will
need to review the town's code of ethics and the common law
conflicts of interest doctrine to determine if there is a local or
common law conflict that prohibits the town from entering into
the contract. A prohibited common law conflict of interest is
one that is unique, personal and substantial. Common law
conflicts of interest must be evaluated on a case-by-case basis
with the assistance of the town attorney or the town's board of
ethics.
Pease note that recusal is insufficient to cure a General
Municipal Law Article 18 conflict of interest but it might be
sufficient to cure a common law conflict of interest or a local
conflict of interest. For more information on conflicts in
contracts, please see the state comptroller's guide Conflicts of
Interest of Municipal Officers and Employees.
Towns are authorized to establish the office of director of
purchasing (Town Law, §20(3)(e)). Where the office of director
of purchasing is established pursuant to Section 41-b of the
Town Law,such director is required to make all purchases and
all contracts for supplies,materials and equipment required by
all town departments, boards or agencies, including the town
clerk's office (1957 Op.Atty.Gen. (1) No. 101; Op.St.Comp. No.
81-182).
2021 TOWN CLERK MANUAL 112
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§1.17 Deputies
A. Appointment Authority
The town clerk may appoint up to three deputies, all of whom
serve at the pleasure of the town clerk(Town Law,§30(10).The
town board may adopt a local law increasing the number of
deputy town clerks available to assist the town clerk(1984 Op.
Atty.Gen.(1) 157).
If the town clerk is absent or unable to act,and there is no duly
appointed and qualified deputy present and able to act, the
town board may appoint any duly qualified person as deputy
town clerk for a period no longer than the absence or incapacity
of the town clerk(Town Law,§30(10).
B. Civil Service Classification
Deputies of principal executives fall within the exempt class of
civil service only when they are authorized by law to act
generally for,and in place of,their principals (Civil Service Law,
§41). A deputy by name or title only,who lacks authority to act
+ in place of the principal,will not be placed in the exempt class
under Civil Service Law. In addition to those deputies who are
in the exempt class by statute,the town board may provide by
local action that the second and/or third deputy may act for and
in the place of the town clerk,thereby placing said deputy in the
civil service exempt class (Liss v. New York State Civil Service
Commission, 76 A.D.2d 831,428 N.Y.S.2d 308 (2nd Dept 1980)).
Care should be taken to comply with local civil service rules and
requirements.
C. Local Employment Rules
The town clerk must adhere to any local employment rules,
policies and collective bargaining agreements regarding the
appointment of one or more deputy town clerks. For example,
the appointment of a deputy town clerkwould be subject to the
2021 TOWN CLERK MANUAL 113
town's nepotism policy, which might prohibit a town officer
from appointing a relative(Op.Atty.Gen. (1) No. 2005-8).
D. Eligibility
The deputy town clerk is a town officer and is therefore required
to be an elector of the town.This means that the deputy must
be a town resident, at least 18 years old and a U.S. citizen
(Election Law, §5-102). The residency requirements for the
office of deputy town clerk may be expanded by either local law
or special state legislation (Op Atty.Gen. (1) No 87-52; 95-5; 91-
37).
E. Qualifying for Office
A deputy town clerk(s) is a town officer and must also take,
subscribe, and file the constitutional oath of office before
assuming any duties.The law does not require a deputy town
clerk to file an official undertaking, although the town board
may so require if it desires, in which .case, the cost of the
undertaking is a town charge (Town Law, §25; Public Officers
Law,§11; 1951 N.Y.Op.Atty.Gen. No.20;Opns St Comp, 1980
No.80-618). r.
F. Duties
One of the three deputies is known as the "first deputy town
clerk." The town clerk sets the duties of the first deputy town
clerk and may authorize said deputy to act on the town clerk's
behalf.The town board has the authority to set the duties of the
second and third deputy town clerks; in the event the town
board does not set the duties of the second and/or third deputy,
the town clerk may set the duties of said deputies (Town Law,
§30(10)).
G. Compensation
The town board sets the compensation of each deputy town
clerk(Town Law, §30 (10)).The OSC has opined that any salary
fixed by the town board for the office of deputy town clerk
2021 TOWN CLERK MANUAL 114
would presumably reflect the nature and extent of the duties
expected to be performed. Alternatively, if the town board
wishes to pay the deputy clerk only in those instances where the
deputy clerk actually serves in the stead of the town clerk, it
could adopt a local law providing that they will be
compensated on an hourly or per diem basis (Op. St Comp No.
81-371;Op.St Comp.No.86-79).
If no compensation is provided by the town board,the deputy
serves without compensation (Town Law, §30 (10)). The OSC
has opined that where the town board has not provided a salary
for the office of deputy town clerk,the town clerk should not
pay a deputy town clerk out of the town clerk's personal funds
since the legal status of payments by the town clerk is not clear
and could give rise to an obligation on the part of the town to
pay withholding taxes and workers'compensation benefits or
to make contributions for retirement, social security and other
fringe benefits(Op.State Compt.86-36).
§1.18 Basic Responsibilities
The office of town clerk involves a great variety of different
duties and responsibilities that are contained mainly in section
30 of the Town Law, as well as in other statutes.These duties
and responsibilities are generally outlined below,and some are
discussed in detail in later chapters of this manual.
A.Custodian of Town Records
The town clerk has custody of all the records,books and papers
of the town,including those touching public schools within the
town (Education Law,§2140).
B.Records Management Officer
The town clerk is designated by state law as the town records
management officer, and in this role, coordinates the town's
2021 TOWN CLERK MANUAL 115
records management program (Arts and Cultural Affairs Law,
§57.19).
C.Town Board Meeting Minutes
The town clerk must attend all meetings of the town board,act
as clerkthereof,and keep a complete and accurate record of the
proceedings of each meeting (Town Law,§30(1)).
D.Town Ordinance Book
The town clerk must maintain an"Ordinance Book"and enter in
such book a copy of each ordinance of the town immediately
after its adoption by the town board.This requirement is only
necessary if the town board adopts or has adopted town
ordinances(Town Law,§30(1)).
E.Town Local Law Book
The town clerk shall record all local laws filed in their office in a
"Local Law Book,"which shall be indexed by the town clerk.This
requirement is only necessary if the town board adopts or has
adopted local laws(Municipal Home Rule Law,§27(6)).
F.Receipt of Filings
The town clerk is the filing officer of the town (Town Law,
§30(2)).
G.Town Clerk Signboard
The town clerk must procure and maintain a signboard at the
entrance to the town clerk's office for the posting of legal
notices of the town(Town Law,§30(6)).An electronic version of :
the town clerk's signboard should be included on the town's
website where the town has the resources to do so.
H.Notification of Appointment of Public Officers
The town clerk is required to certify to the county clerk within
20 days after an appointment, the name and address of all
appointed officers (except inspectors of election), the date of
2021 TOWN CLERK MANUAL 116
appointment and expiration of each term.On or before January
10,the town clerk shall file a certificate with the department of
audit and control (state comptroller's office) containing the
names of all elected and appointed officers (except inspectors
of election) (Town Law,§30(3)).
1.Official Undertakings
The town clerk must notify the town board in writing of the
expiration of any undertaking filed in the town clerk's office at
least 30 days and not more than 60 days before the expiration
(Public Officers Law,§13).
J.Town Office Vacancies
When a vacancy occurs in a town office, the town clerk shall
immediately notify the county clerk of the vacancy,and provide
the name of the officer,the office and the date of vacancy(Town
Law,§30(4)). If the vacancy is in an elected office,by February 1
in the year of each general election,the town clerk shall make
and transmit to the board of elections a certificate stating each
town office to be voted for at each such election (Election Law,
§4-106(2). Thereafter, within five days of the vacancy being
filled, the town clerk shall certify to the county clerk and the
department of audit and control (state comptroller's office),the
names and addresses of the individuals elected or appointed to
fill the vacancy and the terms for each.If a vacancy is filled in the
office of town justice, the town clerk must file a duplicate
certificate of the filling of the office with the chief administrator
of the court(Town Law,§30(4)).
NOTE:If a vacancy occurs or exists in the office of town clerk,the
town supervisor is required to notify the county clerk of such
vacancy and date it occurred.
K.Duties Regarding Town Assessor's Office
On or before January 10 annually, the town clerk must file a
certificate with the Office of Real Property Tax Services,
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specifying the names of all town assessors, their post office
addresses, date of appointment or election and expiration of
term; and whenever a vacancy occurs in the office of town
assessor, the clerk must also file a certificate with the state
board within five days after the vacancy is filled, and specify
similar information (Town Law,§30(3)).
L.Duties Regarding the Board of Assessment Review
Within 20 days of the appointment date of a member or
chairman of the board of assessment review, the town clerk
must notify the office of real property services and the county
director of real property tax services of the name,address,date
of appointment and term of the appointee (Real Property Tax
Law,§5230)(f)).
M.Election Duties
The town clerk plays an important role in the election
machinery of the town, both in connection with town and
general elections.The town clerk is responsible for publicizing
and posting various notices;providing certification to state and
county officers of the names and addresses of town officers for
notification when vacancies occur; and for receipt of petitions
(see generally,Articles 3,6,7 of the Town Law).
N.Resignation of Town Officers
The town clerk must immediately notify the state board of
elections of the receipt of any resignation from an elective
officer with the effective date thereof (Public Officers Law,
§31(5)).
O.Fiscal Duties
Except in towns where the office of town comptroller has been
established,the town clerk has extensive fiscal responsibilities
and duties, particularly in connection with processing claims
(Article 8 of the Town Law).
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P.Collection of Water and Sewer Rents
Where the office of receiver of taxes has not been established,
the town clerk is required to collect water rates and sewer rents
unless the town board has designated another officer or
employee to make such collections(Town Law,§30(10)(a)).
Q. Tax Collection
In towns of the second class,the office of tax collector may be
abolished and these duties placed on the town clerk by town
board resolution(Town Law,§36).In towns changing to a town
of the first class,the office of receiver of taxes and assessments
may be made appointive,and the town clerk can be appointed
to such office(Town,§11 (3)(g)).In towns of the first class having
elective receivers, the office may be abolished and duties
placed on the town clerk by local law, subject to a mandatory
referendum (Municipal Home Rule Law,§§10;23).
R.Licensing and Permitting
The town clerk must issue many types of licenses and permits
pursuant to the Town Law,various other laws of the state,and
town local laws and ordinances (Town Law, §30 (9); e.g.:
marriage licenses (Domestic Relations Law, §15); hunting and
fishing decals (Environmental Conservation Law, §11-0713);
games of chance (General Municipal Law §191); dog licenses
(Agriculture and Markets Law, §109); and local licenses (Town
Law§137).
a. Liquor Licenses
Upon receipt of notice from an applicant for a license to
sell liquor at retail for on-premises consumption,the town
clerk must notify the town board promptly to afford the
town board an opportunity to express an opinion for or
against the granting of such license renewal (Alcoholic
Beverage Control Law,§64(2-a)).
b. Cannabis Licenses
An applicant for an adult-use retail dispensary license,
registered organization adult-use cultivator processor
2021 TOWN CLERK MANUAL 19
e
distributer retail dispensary license, or an on-site
consumption license must notify a municipality of its
intention to file an application between 270 days and 30
days before it plans on filing (Cannabis Law, §76 [11).
Notification will go to the town clerk (or village clerk, if in ;
the village) and can be made by certified mail, overnight
delivery, or personal service (Cannabis Law, §76 [5]). The ,
state cannabis control board will create a standardized
form,but it has to include the following information:
• the business name
• the names of the applicants
• the street address of the proposed
establishment(and mailing address if different)
• the name, address, and contact info for the
applicant's attorney
• a statement on what the application is for (i.e.
new establishment,transfer of license,renewal,
or alteration of existing license)
• information about the old establishment, if the
application is for a transfer
• the existing registration or license number, if
the application is for a renewal
If a municipality submits an opinion to the state cannabis
control board for or against granting a license,that opinion
will be considered part of the official record of the
application, and the state cannabis control board must
respond to the municipality explaining how the opinion ,
was considered in granting or denying the application
(Cannabis Law,§76[41).
S. Duties regarding District Courts
Whenever any town becomes a part of any district court system,
the town clerk must transfer all justice dockets and records
previously filed to the office of district court clerk (Uniform
District Court Act,§2021;Uniform Justice Court Act,§107).
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T.Public Inspection of the State Register
When the state register is received from the secretary of state,
the town clerk must make it available for public inspection for a
period of one year.This publication,which must be requested
by the town board, carries all information concerning state
agency rulemaking, and it is imperative that its contents be
made known and available to other town officers (Executive
Law§148).The New York State Register is also available on the
NYS Department of State website https:Hdos.ny.gov/state-
register.
U.Written Notices of Claims
The town clerk of each town shall keep an indexed record, in a
separate book, of all written notices that have been received
regarding the existence of a defective, unsafe, dangerous or
obstructed condition in or upon—or of an accumulation of ice
or snow upon—any town highway, bridge,culvert or sidewalk.
The record of notices shall state the date of receipt of the notice,
the nature and location of the condition stated to exist,and the
name and address of the person from whom the notice is
received.All such written notices shall be indexed according to
the location of the alleged defective, unsafe, dangerous or
obstructed condition, or the location of accumulated snow or
ice.The record of each notice shall be preserved for a period of
five years after the date it is received(Town Law,§65-a (4)).
V.Compliance with State and Local Ethics Requirements
Article 18 of the General Municipal Law sets forth the basic
ethics standards for town officers and employees.In addition to
the statutory ethics requirements,there are common law ethics
requirements that prohibit a town officer from engaging in
conduct that is not in the best interest of the taxpayers. Every
town must have its own local ethics code.
2021 TOWN CLERK MANUAL 21
W.Municipal Report of Special Franchise Activity
The town clerk is required to file by April 15 annually Form RP
7114 with the NYS Department of Tax and Finance's Office of
Real Property Tax Services(20 NYCRR 8197-2.11).
The form is available on the Department of Tax and Finance's
Office of Real Property Tax Services website at:
www.tax.ny.ciov/pdf/current forms/orpts/rp7114 fill in pdf
The form can be returned via email to:
ORPTS.Utility.Reports@tax.ny.gov; faxed to (518) 435-8631 or
mailed to: NYS Tax Department ORPTS, Utility Reporting, W A
Harriman Campus,Albany,NY 12227-0801
X. Additional Duties Assigned by the Town Board
The town clerk shall also have such powers and perform such
additional duties as are,or may be,conferred or imposed by law,
and such further duties as the town board may determine,
provided the additional duties are not inconsistent with law
(Town Law, §30 (11)). Collecting and distributing mail or
preparing the agenda for town board meetings are common
examples of additional duties that may be imposed upon the
town clerk's office by the town board.
2021 TOWN CLERK MANUAL 22
Chapter 2
THE TOWN CLERK'S
TOWN BOARD DUTIES
In addition to the town clerk's various duties, the town clerk
serves as the clerk to the town board(Town Law,§30(1)).
§2.1 Town Corporate Seal
Every town has an official corporate seal.General Construction
Law,§43 provides generally that "a seal of a court,public officer
or corporation may be impressed directly upon the instrument
or writing to be sealed, or upon wafer, wax or other adhesive
substance affixed thereto, or upon paper, or other similar
substance affixed thereto by mucilage or other adhesive
substance, or may appear as a facsimile, or be engraved or
printed or reproduced in any other manner. A seal of a
corporation upon a corporate bond or other corporate
obligation for the payment of money may be a facsimile,
engraved or printed."
Although there are statutory directives regarding application of
the town seal on various documents (e.g. Town Law, §133
requires ordinances to be stamped with the town seal), there
are no statutes generally governing the creation of the town
seal or what officers should have custody or access to the town
seal. Interestingly,state law expressly provides the village clerk
(Village Law, §4-402 (a)), the county clerk (County Law, §404)
and a clerk of a city of the second class(Second Class Cities Law,
§32))with custody of their respective municipal seal.
2021 TOWN CLERK MANUAL 23
Some towns have chosen to address the issue via local law or
special state legislation. In the absence of a state or local law
regarding the use and custody of the town seal, it is
recommended that the town clerk keep and maintain the town
seal.
§2.2 Town Board Meetings
The town clerk is required to attend town board meetings and
to take and record the minutes of the meeting (Town Law, §30
(1)). The town clerk is required to attend regular meetings,
special meetings, agenda meetings, workshop sessions and
public hearings (Op. St. Comp. No. 79-373). Where the town
clerk is unable to attend a particular town board meeting, it is
incumbent upon the town clerk to ensure the attendance of the
deputy town clerk or to find another person who is able to take
and record the meeting minutes in the town clerk's place.If the
town clerk is unable to make the appropriate arrangements,the
town board may designate someone in the room the night of
the meeting to record the minutes (OML-AO-4728; Op. St.
Comp. No. 79-373). The absence of the town clerk does not
invalidate the business carried out at a town board meeting
(Roth v.Loomis,54 Misc.2d 39(N.Y.Sup. 1967)).
§2.3 Statutes Governing Town Board Meetings
The town board is required to meet to conduct town business
(Town Law,§62).A town board meeting must be conducted in -
accordance with state and local rules of procedure (Town Law,
§63); having established a quorum (General Construction Law,
§41); and open to the public (Open Meetings Law,Article 7 of
the Public Officers Law).Although these are the main statutes
that will address town board meetings, there may be other
statutes that address particular aspects of a town board
meeting. Therefore, the town clerk must always consult legal
2021 TOWN CLERK MANUAL 124
counsel if the town clerk is uncertain about the need to comply
with a particular statute.
§2.4 Establishing a Quorum
A quorum (i.e. majority) is required for a town board to hold a
town board meeting (Town Law, §63). A majority of the fully
constituted town board, regardless of absences,abstentions or
vacancies, constitutes a quorum (General Construction Law,
§41).Town Law, §63 further states that"[t]he vote upon every
question shall be taken by ayes and noes,and the names of the
members present and their votes shall be entered in the
minutes."Town Law,§63 has been interpreted to require town
boards to meet in person(Opns St Comp,1979 No.79-242;1963
Op.Atty. Gen. [Inf.] 207). General Construction Law also allows
board members to be counted toward a quorum where they
participate via videoconference as provided for in the Open
Meetings Law(OML-AO-3680;General Construction Law§41).
§2.5 Location
All meetings of the town board must be held within the
territorial limits of the town,except in the case of joint meetings
of town boards of two or more towns, as in the case of the
establishment of a joint fire district,the consolidation of two or
more fire districts,or in the case of a consolidated health district
(Town Law,§62).The state Legislature,by special act,has given
permission to a few individual towns to hold town board
meetings outside the town (Town Law, §62; People v. Watkins,
87 Misc.411 (N.Y.Sup. 1914)).
§2.6 Videoconferencing
The Open Meetings Law,which can be found in Public Officers
Law;article 7, provides that a town board may meet in person
or via videoconference(Public Officers Law,§102).According to
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the Open Meetings Law (OML), "a public body that uses
videoconferencing to conduct its meetings shall provide an
opportunity for the public to attend, listen and observe at any
site at which a member participates," (Public Officers Law§103
(c)). Generally, the OML provides that locations of meetings
should be at venues that are publically accessible and ADA-
compliant (Public Officers Law §103 (d)). The OML further
provides that videoconferencing requires that the notice of the
meeting must provide the time, date and location from where
the board member will be videoconferencing and that the
public has the right to attend the meeting at such location(s),
(Public Officers Law§104(4)).
Although the OML applies to town board meetings, it is
advisable for the town board to consult with the town attorney
if one or more board members wish to participate via
videoconference from an out-of-town location because Town
Law, §63 has been generally interpreted to require board
members to meet in person, and Town Law, §62 requires
meetings to be held in town (see eliek v. Town of Webster, 104
Misc. 2d 852,855 [Sup Ct 1980]; 1963 Op.Atty Gen. [Inf.] 207).
§2.7 Meeting Facilities and Access
Public Officers Law,§103(b) requires that the town board make
all reasonable efforts to hold meetings in facilities that permit
barrier-free access to people with disabilities. Public Officers
Law§74-a,imposes a similar duty on public officers scheduling
public hearings. In addition, Civil Rights Law, §47 authorizes
people with disabilities to enter public facilities with their guide
dogs,hearing dogs and other service dogs. The Americans with
Disabilities Act (ADA) of 1990 requires all local government
programs to be accessible to individuals with disabilities.
Questions regarding building accessibility and service
accommodations may be directed to the U.S. Department of
Justice ADA Help-Line 800-514-0301.
2021 TOWN CLERK MANUAL 126
§2.8 Calling Town Board Meetings
A meeting of the town board may be called by resolution of the
town board or at the direction of the town supervisor (Town
Law, §§63; 62). A meeting is defined as "the official convening
of a public body for the purpose of conducting public business,
including the use of videoconferencing for attendance and
participation by the members of the public body," (Public
Officers Law, §102). Legal requirements are to be followed
whether the meeting is considered to be formal, informal,
regular,special or workshop(OML-AO-4505).
§2.9 Cancelling a Regularly Scheduled Town Board Meeting
A regularly scheduled town board meeting may be cancelled or
postponed by resolution of the board at a town board meeting
(Town Law, §63). The town supervisor may not unilaterally
postpone a regularly scheduled town board meeting (Op. St.
Comp. No.65-533).
§2.10 Regular Monthly Meeting Schedule
Generally, the town board will adopt its regular monthly
meeting schedule at the organizational meeting in January.
Alternatively,the town board may include in the board's rules
of procedure the regular monthly meeting schedule of the town
board(Town Law,§63).At a minimum,the town board in a town
of the first class must meet at least monthly (Town Law, §62);
the town board in a town of the second class is not statutorily
required to meet monthly, although it is likely that the board
: will choose to do so in order to pay claims.
§2.11 Notice of the Regular Meeting Schedule
Notice must be provided to the media and the public in
accordance with the Open Meetings Law(Article 7 of the Public
2021 TOWN CLERK MANUAL 127
Officers Law). According to the Committee on Open
Government, there are three notice requirements set forth in
the Open Meetings Law: (1) notice must be posted in one or
more conspicuous,public locations;(2)notice must be given to
the news media;and (3) notice must be conspicuously posted
on the body's website when there is an ability to do so. The
requirement that notice of a meeting be "posted" in one or
more "designated" locations, in the committee's opinion,
mandates that the town board, by resolution or through the
adoption of policy or a directive, select one or more specific
locations where notice of meetings will consistently and
regularly be posted (OML-AO-4895).The town clerk is required
to maintain a town signboard, where such a notice may be
posted (Town Law,§30(6)).Notice is also required to be posted
on a town website.In addition,the town board is authorized to
designate additional places for the posting of public notices
(Town Law,§64(14-a).
§2.12 Special Town Board Meetings
Occasionally,the town board will need to meet at a time other
than the board's regularly scheduled meetings.There are three
ways to call a special town board meeting: (1) the town board,
while at a town board meeting, may, by resolution,schedule a
special town board meeting (Town Law, §63); (2) the town
supervisor may call a special town board meeting (Town Law,
§62); or (3) two or more town board members may request in
writing that the town supervisor call a special town board
meeting, which the supervisor must call within 10 days of
receipt of the requests(Town Law,§62).
§2.13 Notice of Special Town Board Meetings
If the meeting is called by the town supervisor underTown Law,
§62, the supervisor must provide written notice to each town
board member at least two days in advance of the meeting.
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State agencies have opined that the town board may waive its
right to written notice if all members attend the meeting (1980
Op. Atty. Gen. (1) 129; 18 Op. St. Compt. 442). In addition, the
OSC has opined that the town clerk must be notified of an
impending special meeting of the town board (Op. St. Compt.
No.64-258).
A. Media and Public. Notice of the special meeting must also
be provided to the news media and the public. The Open
Meetings Law provides that if a meeting is scheduled at least a
week in advance,notice of the time and place must be given to
the news media(e.g.phone,fax,email etc.)and to the public by
means of posting in one or more designated public locations
and the town's website, if there is one, not less than 72 hours
prior to the meeting.If a meeting is scheduled less than a week
in advance,again,notice of the time and place must be given to
the news media and posted in the same manner as described
above,"to the extent practicable,"at a reasonable time prior to
the meeting. Although the Open Meetings Law does not make
reference to"special"or"emergency"meetings,if,for example,
there is a need to convene quickly,the notice requirements can
generally be met by telephoning, emailing or faxing notice of
the time and place of a meeting to the local news media and by
posting notice in one or more designated locations and on the
town's website,if any.Although the town board may waive the
notice to the board, it may not waive notice to the public or
media(OML-AO-4737).
B. Notice Content.The Open Meetings Law requires the notice
for a town board meeting to include certain items:
• time of the meeting
• location or place of the meeting
• if a town board member will be participating via
videoconferencing,the location from which the board
member will be participating via videoconferencing
2021 TOWN CLERK MANUAL 129
r
and the public's right to attend the meeting at that
location
• if the meeting will be livestreamed over the internet,
the internet address where the public can watch a
livestreamed meeting
(Public Officers Law,§104).
§2.14 Cancelling or Postponing a Special Town Board
Meeting
The town board may cancel or postpone a special town board
meeting it has called. The proper procedure requires the
adoption of a resolution at a town board meeting approved by
a majority vote of the town board.The supervisor may cancel or
postpone a special town board meeting called by the
supervisor pursuant to Town Law,§62 (Op St Comp No 65-533;
Stetter v. Town Bd.,6 A.D.2d 1006 (4th Dep't 1974) (power to
enact necessarily implies power to repeal)).
§2.15 Town Board Rules of Procedure
The town board has the authority to establish rules of
procedure for the conduct of its meetings(Town Law,§63).The
OSC has opined that, in the absence of formally adopted rules
of procedure, the conduct of the meetings is controlled by
accepted usage and common practice,or in other words,those
procedures that have been used by the town board in the past
(Op St Comp. No. 80-734). Robert's Rules of Order is not
applicable unless the town board has formally adopted the
guide as its rules of procedure. If the town board adopts
Robert's Rules, it should be noted that there may be some
inconsistencies between Robert'sRulesand New York State law;
where there are inconsistencies, New York State law must be
followed (Op St Comp.No.80-734).
2021 TOWN CLERK MANUAL 130
There are some statutory rules that must be incorporated into
the town board's rules of procedure:
Quorum — A majority of the town board shall constitute a
quorum forthe purpose of conducting town business(e.g.3 out
of 5;4 out of 7 etc.) (Town Law,§63;General Construction Law,
§41).
Voting — The vote on every question shall be by "ayes" and
"noes,"and the names of the members present and their votes
shall be entered in the minutes of the town board (Town Law,
§63).
A majority vote of the fully constituted board regardless of
vacancies,absences or abstentions shall be required to approve
any action (Town Law, §63; General Construction Law, §41).
There are some exceptions where more than a simple majority
may be required; for example, overriding a county planning
board's recommendation pursuant to General Municipal Law,
§239-m.Always check with the town attorney where questions
arise regarding the vote required to carry any action.
Voting by proxy,telephone or affidavit is prohibited(Town Law,
§63;Bliek v. Webster, 104 Misc2d 852,866(1980); 1963 Op.Atty.
Gen.(1) No.207;OML-AO-3346;OML-AO-3479;OML-AO-3732).
Although roll call voting is not required, the accepted
procedure is for the town clerk to call a roll of town board
members on every question before the town board (OML-AO-
3502).
Town Supervisor Presides—The town supervisor,if present,is
required by law to preside at all meetings of the town board. In
the supervisor's absence,the members present shall designate
one of their members to act as temporary chairperson.
However,if the town board has established the office of deputy
2021 TOWN CLERK MANUAL 131
supervisor and the office has been filled, then the deputy
supervisor must preside at town board meetings in the absence
of the supervisor(Town Law,§§63;42).
In the absence of the town supervisor,the town board member
selected as chairperson for that meeting also must vote,but has
only one vote to cast. If the town has a deputy supervisor who
is required to preside at a town board meeting in the absence
of the supervisor,the deputy supervisor has no vote unless they
are also a town board member.In that case,they vote by virtue
of their position as a councilperson, not as deputy supervisor
(Town Law,§63).
The supervisor is a member of the town board, and like any
other member of the town board,should vote on every matter
before the town board unless the supervisor has a conflict
necessitating recusal.The supervisor may also move or second
motions(1954 Op.Atty.Gen. (1) No. 105; 1950 Op.Atty.Gen.(1)
No. 114).
Motions -A motion is a parliamentary tool.The function of a
motion is limited. Generally, a motion is used to bring matters
before the town board as part of the town board's rules of
procedure (Town Law, §63; Op. St. Compt. No. 79-109). A
motion is specific in defining the particular matter to be
considered by the town board. For example, a town board
member might make a motion to table a resolution,or to adopt
a resolution awarding a contract to a specific company.
Although not legally required, many town board rules of
procedure may require that a motion be seconded by another
town board member before the town supervisor may call for an
action on the motion.
Resolutions—A resolution is generally used to take actions of a
temporary nature. A resolution is therefore distinguishable
2021 TOWN CLERK MANUAL 132
from legislative actions that establish permanent rules of
government.For example,a resolution may be used to make an
appointment or approve the annual town budget. Resolutions
have also been described as actions of a ministerial nature. For
example, the town board might adopt a resolution to name a
town street or designate the official newspaper(Town Law,§64;
34 Op St Comp. No. 78-180; 5 McQuillin Mun. Corp. §15:8 (3d
ed.)). A resolution is passed by vote of a majority of all the
members of the town board unless otherwise specified in law
(Town Law,§63).
§2.16 Open Meetings Law
The Open Meetings Law (OML),which is housed in Article 7 of
Public Officers Law, applies to town board meetings, and in
general,gives the public the right to attend meetings of public
bodies, listen to debates and watch the decision-making
process in action (POL, §103 (a)). Please note that issues
regarding the OML are also discussed in other portions of the
town clerk's manual.
A"public body"is"any entity,for which a quorum is required in
order to conduct public business and which consists of two or
more members, performing a governmental function for the
state or for an agency or department thereof, or for a public
corporation ... or committee or subcommittee or other similar
body of such public body (POL,§102).Town Law,§63 requires
a quorum of the town board in order to conduct town business;
therefore,the town board is considered a"public body"subject
to the Open Meetings Law.
A. Town Board Subcommittees
Town Law, §63 authorizes the town supervisor to establish
subcommittees of the town board and to appoint town board
members to said subcommittees. The Committee on Open
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Government has opined that meetings held by a subcommittee
of the town board are also subject to the OML(OML-AO-4504).
B. Citizen Advisory Committees and Boards
Citizen advisory committees or boards established and
appointed by the town board that are advisory only (they do
not have the authority to make any decisions)and which do not
perform a statutory function, are not subject to the OML.
According to the Committee on Open Government,an advisory
body has no authority to take final action and merely advises
another board or public body(OML-AO-3143;OML-AO-3633).
C. Training or Educational Seminars
The Committee on Open Government has opined that a
majority or more of a town board may gather for the purpose of
receiving general training and/or education without triggering
the requirements of the OML(OML-AO-4762).
D. Social Gatherings
The OML does not apply to social gatherings where town board
members may meet up accidentally or for the purpose of
socializing rather than for the purpose of conducting town
business; care should be taken in these circumstances to keep
the conversation based on matters other than town business
(OML-AO-05201).
E. Site Visits
A site visit, the purpose of which is to observe and acquire
information,does not constitute a meeting for purposes of the
Open Meetings Law. The town board may not discuss
observations or deliberate while on the site visit,and must take
care to reserve all discussion and deliberations regarding such
observations fora town board meeting (OML-AO-4121).
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§2.17 Exemptions from the Open Meetings Law
1.Judicial or quasi-judicial proceedings,except proceedings of
zoning boards of appeals(POL,§108(1));
2. Deliberations of political committees, conferences and
caucuses(POL,§108(2));
(a) Political Caucuses — Public Officers Law, §108 (2)(b)
provides that "for purposes of this section, the
deliberations of political committees, conferences and
caucuses means a private meeting of members of the
senate or assembly of the State of New York, or of the
legislative body of a county,city,town or village,who are
members or adherents of the same political party,
without regard to (i) the subject matter under
discussion, including discussions of public business, (ii)
the majority or minority status of such political
committees, conferences and caucuses or (iii) whether
such political committees, conferences and caucuses
invite staff or guests to participate in their deliberations
3) Matters made confidential by federal or state law (POL,
§108(3));
(a) Attorney-Client Privileged Conversations
Matters made confidential by federal or state law are
exempt from provisions of the Open Meetings Law.The
attorney-client relationship is considered confidential
under Civil Practice Law and Rules §4503; thus, when
attorney and client, which may include town attorney
and town board, establish privilege of relationship,
communications made pursuant to that relationship
are confidential under state law and exempt from the
Open Meetings Law. This privilege is, however,
applicable only when the client(town board) seeks the
professional, legal advice of the attorney acting in their
2021 TOWN CLERK MANUAL 135
capacity as an attorney(OML-AO-1223 and 1189).Thus,
the board may meet privately with its attorney before
or after a town board meeting for the express purpose
of securing an opinion of law, legal services or
assistance in a legal proceeding (OML-AO-1189).
§2.18 Notice of Meetings
The law requires that notice of the time and place of all
meetings be given prior to every meeting (POL, §104).
Furthermore, if the town board livestreams its meetings over
the internet,the notice must include the internet address where
the public may watch the livestreamed meeting. The Open
Meetings Law also requires the notice to include the location
from which a board member is participating via
videoconferencing and the public's right to attend the meeting
at the videoconference location.
If a meeting is scheduled at least a week in advance,notice must
be given to the public and the news media not less than 72
hours prior to the meeting. Notice to the public must be
accomplished by posting in one or more designated public
locations and on the town's website if the town has a website
(POL, §104). The OML does not specify the exact means of
providing notice to the media;therefore notice may be given to
the news media by any reasonable means such as email,fax,or
telephone (OML-AO-5070). When a meeting is scheduled less
than a week in advance,notice must be given to the public and
the news media"to the extent practicable"at a reasonable time
prior to the meeting.Again, notice to the public must be given
by means of posting,such as the bulletin board maintained by
the town clerk and other community bulletin boards
designated by the town board. Notice must also be posted on
the town's website if the town has a website.
r
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It should be noted that this law does not require notice to the
public and the news media be published as a paid legal notice
(POL, §104(3)).Mere posting and a telephone call,email,fax or
a letter to the news media is sufficient. Publication as a legal
notice is required onlywhen anotherstatute prescribes it(OML-
AO-o3568).For example,when the town board meets to hold a
public hearing on the budget or a local law,the date,time and
place of such public hearing must be published as provided in
the particular law(Town Law,§108;MHRL,§20).
§2.19 Meeting Packets
Public Officers Law, §103 (e) requires towns to make available
to the public, documents that were distributed to the board
members prior to the meeting and will be discussed at a town
board meeting, including proposed resolutions, proposed
policies and proposed local laws,etc.FOIL fees may be charged
for meeting packets.The town board is required to comply only
if it has the capability to do so and has received a request for the
documents. In addition, if the town maintains a regularly and
routinely updated website and utilizes a high-speed internet
connection, such records should be posted on the town
website to the extent practicable at least 24 hours prior to the
meeting. The town may opt to spend additional money to
implement the provisions of this subdivision.
§2.20 Executive Sessions
A. Definition. Public Officers Law, §102(3) defines "executive
session" to mean a portion of an open meeting during which
the public may be excluded.
B.Votes.Votes may be taken in executive session except for the
expenditure of funds. Minutes must be recorded where action
is taken and made available to the public within one week from
the date of the executive session(POL,§106(2)).
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C. Attendance. Attendance at an executive session shall be
permitted to any member of the town board and any others
authorized by a majority vote of the town board.Therefore,the
only people who have the statutory right to attend executive
sessions are the members of the town board;the town attorney,
town clerk or other officer or person must be invited in by
majority vote of the town board (POL,§105(2)).
D. Procedure.The town board must strictly comply with the
statutory procedure in order to call a valid executive session
(Daily Gazette Co. v. Town of Cobleskill, 111 Misc.2d 303 (Sup.
Ct.Schoharie Co.1981)),which is set forth in Public Officers Law,
§105(1). It requires a town board member to make a motion to
enter into executive session,which motion must be approved
by a majority of the entire town board.The Committee on Open
Government has opined that the"the motion must be specific
enough so that the public is informed that the topic or topics
for discussion fall under one of the permitted options" (OML-
AO-5259). For example, if the town board needed to convene
an executive session for the purpose of discussing pending
litigation, the committee has opined that it is insufficient to
merely"regurgitate the statutory language."Rather the motion
must "identify with particularity the pending, proposed or
current litigation to be discussed during the executive session,"
(OML-AO-5259 citing Daily Gazette Co., Inc. v. Town Board,
Town of Cobleskill,44 NYS 2d 44,46(1981)).The committee has
suggested that a proper motion might take the form of"I move
to enter into executive session to discuss our litigation strategy
in the case of the XYZ Company v. the Town of Utopia," (OML-
AO-5259).
E.Items that may be discussed in Executive Session.Only the
following matters specified in Public Officers Law, §105 may
properly be discussed and acted upon in an executive session:
1. A matter that will imperil the public safety if it is
disclosed;
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2. A matter that may disclose the identity of a law
enforcement agent or informer;
3. Information with respect to the investigation or
prosecution of a criminal offense that would jeopardize
effective law enforcement if disclosed;
4. Discussions relating to proposed, pending or current
litigation;
5. Matters relating to collective negotiations under the
Taylor Law;
6. Medical, financial, credit or employment history of a
particular person or corporation, or relating to
appointment,promotion,demotion,discipline or removal;
7.Preparation,grading or administration of examinations;
8. Acquisition, lease or sale of real property or securities
when publicity would substantially affect the value.
F. Executive Session Minutes. The Open Meetings Law
requires that minutes of both open meetings and executive
sessions must be compiled and made available (POL, §106(2)).
Minutes of executive sessions must consist of "a record or
summary of the final determination" of action taken, "and the
date and vote thereon." Therefore, if a public body merely
discusses a matter during executive session,but takes no action,
minutes of an executive session need not be compiled.
However,if action is taken,minutes of the action taken must be
compiled and made available within one week from the date of
the session. A deeper discussion of minutes requirements for
executive session takes place later in this chapter.
§2.21 Public Participation in Town Board Meetings
The Open Meetings Law gives the public the right to attend
town board meetings and to listen to town board deliberations.
The public may not participate in the town board meeting
except upon the invitation of the board. Please note that a
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meeting differs from a public hearing,where the goal is to elicit -
public opinion(OML-AO-3295).
The town board,as part of the board's rules of procedure may
include reasonable rules regarding public participation.These
rules must be consistent with the constitution and the Open
Meeting Law(OML-AO-2974).
§2.22 Tape Recording Town Board Meetings
The public and the media have the right to use recording
equipment (video, audio etc.) to document town board
meetings.The town board may adopt reasonable rules for the
use of such equipment. (POL, §103 (d)(1)(2)). Sample rules are
available from the Committee on Open Government.
§2.23 Open Meetings Law Enforcement
The statute authorizes any "aggrieved" person to enforce the
provisions by a judicial proceeding pursuant to Article 78 of the
CPLR or by an action for a declaratoryjudgment and injunction
relief. Since the statute does not define"an aggrieved person,"
it would appear that it means a person who is adversely affected
by the administration of the law. The Open Meetings Law
authorizes a court to invalidate the actions taken at a meeting
held in violation of the OML,to require town board members to
attend appropriate training. In addition, a court may, in its
discretion,award to the successful party,costs and reasonable
attorney fees in an action brought to enforce such law (POL,
§107). If, however,a court determines that a vote was taken in
material violation of the Open Meetings Law,or that substantial
deliberations relating thereto occurred in private prior to such
vote,the court must award costs and reasonable attorney fees
to the successful petitioner,unless there was a reasonable basis
for a public body to believe that a closed session could properly
have been held.
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§2.24 Committee on Open Government
The Committee on Open Government is a division of the NYS
Department of State. Its staff is charged with advising local
government officials as well as the public with the requirements
of the New York State Sunshine Laws(Open Meetings Law and
the Freedom of Information Law). The committee may be
contacted for advice regarding compliance via phone at (518)
474-2518 and email at coog(@dos_y.aov.You may also visit the
committee's website (https://opengovernment.ny.govto
view advisory opinions as well as a number of guides and
publications.
§2.25 Minutes
"The town clerk... shall attend all meetings of the town board,
act as clerk thereof,and keep a complete and accurate record of
the proceedings of each meeting, and of all propositions
adopted pursuant to this chapter. Immediately after adoption
he or she shall enter into a book to be known as the'ordinance
book'a copy of every ordinance adopted by the town board,
specifying the date of adoption thereof. In addition, he or she
shall act as secretary of the board of commissioners of any
improvement district when so designated by such board of
commissioners. He or she shall keep a complete and accurate
record in his or her office as town clerk of all proceedings of
every board of commissioners of improvement districts in said
town"(Town Law,§30(1)).
The town clerk is also clerk of the board of health of the town
when the town board acts as a local board of health (Public
Health Law, §302). In some cases, there may not be a town
board of health.
2021 TOWN CLERK MANUAL 141
A. Minutes as Historical Records
In speaking of the records of the Town of Concord in
Massachusetts, Ralph Waldo Emerson, in his 1835 Concord
address said:
"I have read with care the Town Records
themselves. They must ever be the fountains of
all just information respecting your character
and customs. They are the history of the town.
They exhibit a pleasing picture of a community
almost exclusively agricultural, where no man
has much time for words, in his search after
things; of a community of great simplicity of
manners, and of a manifest love of justice. For
the most pan`,the town has deserved the name
it wears./find our annals marked with a uniform
good sense. I find no ridiculous laws, no
eavesdropping legislators, no hanging of
witches,no ghosts,no whipping of Quakers,no
unnatural crimes. The tone of the Records rises
with the dignity of the event. These soiled and
musty books are luminous and electric within.
The old town clerks did not spell very correctly,
but they contrive to make pretty intelligible the
will of free and just community."
B. Written and Bound Minutes Books
Town board minutes must be permanently maintained (LGS-1
Retention and Disposition Schedule). Although certain
requirements on taking and keeping minutes were repealed in
1983, the prevailing practice is to continue to create paper
minutes,which are then bound annually into an official minutes
book. Moreover, the Committee on Open Government
recommends that minutes be"reduced to writing in order that
they constitute a permanent,written record that can be viewed
by the public" (OML-AO-3981). It is also recommended that the
town maintain electronic backups of all town minutes, which
2021 TOWN CLERK MANUAL 142
are particularly useful for research and safekeeping in the event
of flood,fire or other damage.
Minutes books vary considerably in type,in size and in choice of
paper. The paper should be of high quality archival content,the
ink durable and the binding permanent.
C.Attachments
No attachments should be made in the town clerk's minute
bookwith tape,staples or by inserting papers.Remember:these
books are kept forever. If an attachment is necessary, copy the
document onto the paper of the minute book.
Copies of the budget(required to be included,Town Law,§109),
more formal resolutions(e.g.indebtedness),and orders(special
districts) may be included on appropriate archival minute
paper.
D.Custody of the Minutes Book
The town clerk is responsible for adequately protecting the
minute book as a public record, while the town board is
responsible for "maintaining secure facilities" in which the
public records are kept(Arts and Cultural Affairs Law,§§57.25(1)
and 57.31).
E. Equipment and Software
The town clerk is authorized to use recording equipment to
assist in the preparation of town minutes (1978 Op. St. Comp.
File No 280;OML-AO-2872).The purchase of needed equipment
is subject to proper budget appropriations as well as state and
local procurement policies. In addition, the recordings are
_ subject to the Freedom of Information Law(FOIL)and the state
record retention schedule.
If budgeting allows, the town clerk might consider a digital
recording system and computer software package to assist the
town clerk in minute-taking duties. There are several
2021 TOWN CLERK MANUAL 143
manufacturers that provide these products.Consult with fellow
clerks and different vendors to find the best-fitting product for
your needs.
F. Board Meeting Preparation
The town clerk should be familiar with the agenda of the town
board for each meeting and prepare as much in advance of the
meeting as possible. For example, several days before the
meeting,the town clerk,to the extent possible, should collect
all supporting documents that will be discussed at the board
meeting (e.g. rules of procedure, minutes from previous
meeting, contracts, affidavits, notices, reports, letters, claims,
proposed resolutions, statements to be read into the minutes
etc.). Various forms can be created to assist the town clerk in
recording the attendance of board members and the vote(s)on
various issues coming before the board. Test all recording
equipment in advance of the meeting to make sure it is in
proper working order.Finally,the town clerk might also benefit
from the creation of various checklists regarding pre-meeting
duties,meeting duties and post-meeting duties.
G. The Importance of Accurate Minutes
In April 1945,the Town Clerk Topics of the Association of Towns
noted "As town clerks of today, you must make intelligible to
the people of all future time the will of those who now inhabit
your towns. The minutes you prepare will constitute an
indelible picture of present events.Omissions can't be supplied,
nor inaccuracies corrected, by some future incumbent of your
office. The responsibility is solely yours, the opportunities for
worthwhile service, however, are equally great" This advice
rings true today as the town clerk is charged with drafting
accurate and fair minutes of the actions taken at the town board
meeting (Town Law, §30; OML-AO-2605). The Open Meetings
Law presumes that town officers will act in good faith regarding
their various duties and responsibilities (OML-AO-257). For
example, the town board may not adopt a rule of procedure
2021 TOWN CLERK MANUAL 144
that would exclude unseconded motions from the minutes
since a motion is an action, and all actions are required to be
included in the minutes (Op St Comp. No. 81-181). Moreover,
care must be taken to present all information objectively,
consistently and fairly. The Committee on Open Government
has, by way of example, opined that it would be unfair and
partisan for the minutes to include verbatim statements of
some town board members but mere summaries or notation of
the statements of other members(OML-AO-2491).
H. Format
The state comptroller's office has opined the town board may,
as part of its rules of procedure, determine the format of the
minutes of its board meetings,provided the format is consistent
with state law (Op. St. Comp. No. 82-181; FOIL-AO-7578). If,
however, the town board has not adopted a format for the
minutes, the town clerk may determine the format, provided
the format is consistent with state law (1977 Op. Atty. Gen. (1)
281;OML-AO-2605).
I. Indexing Minutes
Indexing town minutes provides an easy way to search town
minutes and access needed information. An index is an
alphabetical arrangement of subjects indicating the volumes
and pages where various aspects of a subject are treated. In
addition,the town clerk might consider establishing a minutes
format that assists in the indexing process to reduce staff time
and provide an ease of access to town information. The New
York State Archives has a number of publications available to
assist the town clerk in establishing and maintaining an
indexing system.
J. Content
Content of the town minutes is guided by state law and local
practice. There are a few statutes that set forth rules and
guidance regarding the content of the town board meeting
2021 TOWN CLERK MANUAL 145
minutes. For example, Public Officers Law, §106 (1) provides
that minutes must "consist of a record or summary of all
motions, proposals, resolutions and any other matter formally
voted upon and the vote thereon."Town Law, §63 specifically
requires that"[tlhe vote upon every question shall be taken by
ayes and noes,and the names of the members present and their
votes shall be entered in the minutes." General Municipal Law,
§803 requires town board members who need to disclose a
conflict of interest to so do as part of the minutes. The town
budget must be included in the minutes (Town Law, §109), as
must town ordinances (Town Law, §§133; 264; 265). A
statement showing in detail the actual and complete cost of
public improvements must be entered in the minutes (Town
Law, §236). There are numerous other statutes that might
require specific content to be entered in the minutes. Careful
attention must be paid to all legal requirements associated with
the content of the town board minutes.
In addition to the various requirements of state law, the state
comptroller's office will look for various matters to be recorded
in the minutes. For example, compliance with proper
procurement and bidding procedures, budgeting procedures,
receipt of required financial reports, and approvals of various
policies (e.g. investment, procurement, employment, health
insurance).
Beyond,as Emerson had noted,serving as the historical record
of the town,the town minutes book serves as the legal record
of town actions and proceedings. It is therefore recommended
that the information be short and specific; adjectives and
editorial comment should not be included in the official
minutes.
The record that the town clerk makes is the official record of acts
of the town board. This record should briefly show:
1.Kind of meeting (regular,special);
2.Time,date and place;
2021 TOWN CLERK MANUAL 146
3. Names and titles of the members present (if other
officials are present, the clerk may also note their
presence in the minutes);
4. A statement whether the minutes of the previous
meeting were read or reading dispensed with;
5. All resolutions, acts or motions, given in exact detail
as introduced and adopted;
6.A record showing the vote by"ayes"or"noes"of each
member of the board on each resolution,act or motion,
7. Proofs of any publication or posting;
8. Names of individuals appearing formally before the
town board;
9. Any committees of the board appointed by the
supervisor and the names of town board members
appointed to such committees;
10. All reports of town officers, committees,
departments heads;
11. Reports of professional consultants or special
studies and services;
12. Action of town board on audit of claims (if
applicable);
13.Specific time of adjournment;
14.Signature of town clerk and date.
In addition to the above generalizations,which are intended to
be applicable to the regular meetings of the town board, it
should be noted that there are certain specific items that must
appear in the minutes of the meeting of the town board when
such items are required by law to be considered. For example:
1. Annual budget, including all steps from the
presentation of the tentative budget, the preliminary
budget, the budget hearing and the adoption of the
final budget(Town Law,§109).
2. Budget hearing
a. Resolution calling public hearing on
budget complete with form of notice to
2021 TOWN CLERK MANUAL 147
be posted and published (Town Law,
§108);
b. Proofs of such publication and posting;
names of persons appearing for or
against preliminary budget
(Recommended);
C. Resolution adopting budget and the
annual budget in detail (Town Law,
§109).
Note:The entire final annual budget must be entered
in the minute book,copied or physically placed therein
(Town Law,§109(2);Op.St.Com pt.No.80-469).
3.Annual Accounting Meeting
a. Annual financial statements of town
officers and employees (Town Law,
§123).
b. Fact that books and dockets of town
justices have been submitted for
examination (Town Law,§123).
4.Ordinances and Local Laws
Every ordinance, local law and amendment
thereto adopted or approved by the town
board (Town Law, §133; Municipal Home Rule
Law,§27;Op.St.Comp.No.67-351).
K. Verbatim Minutes
The minutes need not be a verbatim transcript(recording every
word spoken) (Op.St.Comp. No.78-976,unreported; 1977 Op.
Atty.Gen.(1)281).The state comptroller's office has opined that
"the[town]clerk's duty to keep a complete and accurate record
is not a statutory requirement to keep a verbatim record, but
rather, only requires that the minutes contain all the activities
and considerations of the board including the votes on all
motions, resolutions, ordinances or local laws, whether they
were passed or defeated,"(Opns.St.Comp.Nos.82-181;81-301;
79-220, unreported; 78-976, unreported). Occasionally, the
2021 TOWN CLERK MANUAL 148
board may direct the town clerk to include a particular
discussion that is of historical or legal significance in the
minutes verbatim (Opns. St. Comp. Nos. 81-181; 82-181). If the
town board desires to have a full transcript of the town board
meetings to accompany the minutes,the Committee on Open
Government has recommended that the town board invest in
proper recording equipment in order to achieve that goal
(OM L-AO-3658).
L. Statements for the Record
No individual has the statutory authority to demand that a
statement be read into the minutes(OML-AO-3369).If a person
wishes to have a statement included in the minutes,the request
should be presented to the town board for its consideration
(OML-AO-3799).A majority vote of the town board is required
in order for the proposed statement to be included in the
minutes (OML-AO-3369). Alternatively, the town board could
establish a standing. protocol or rule of procedure regarding
statements for the record(Town Law,§63;Op.St.Comp.No.79-
220; OML-AO-3369). It is helpful to have statements for the
record written and submitted to the town clerk for inclusion
(Opns. St. Comp. Nos. 82-181; 81-301). Moreover, the
Committee on Open Government has cautioned that care
should be taken establish a policy that is fair to all concerned
(OML-AO-2491).
M. Voting
An Appellate Division decision that was affirmed by the Court
of Appeals found that "[t]he use of a secret ballot for voting
purposes was improper."In so holding,the court stated:"When
action is taken by formal vote at open or executive sessions,the
Freedom of Information Law and the Open Meetings Law both
require open voting and a record of the manner in which each
member voted (Public Officers Law, §87[3][a]; §106[1], [2]
Smithson v.Ilion Housing Authority,130 AD 2d 965,967(1987);
affd 72 NY 2d 1034(1988)).The Court of Appeals confirmed that
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the law requires that a record of votes of the members must be
prepared when action is taken by a public body and precludes
secret ballot voting by its members (Perez v. City University of
New York,5 NY3d 522 (2005);OML-AO-4240).
N. Town Board Minutes Review
The town board is not statutorily required to review and
approve the minutes of the town board meeting (Op.St.Comp.
No. 83-54; FOIL-AO-8895). Various state agencies have offered
opinions regarding the authority of the town board to review
and approve the minutes prepared by the town clerk. The
Committee on Open Government has noted that, although
there is no direct statutory requirement for the town board to
review the minutes, it is a common practice (OML-AO-2525).
Where the town board reviews minutes, the Committee on
Open Government has noted that the town clerk must still
provide minutes within the statutory timeframes set forth in
Public Officers Law,§106 and would simply note on the minutes
"draft," 'preliminary,"or the like until such time as the minutes
are properly reviewed (OML-AO-2466).
The state comptroller's office has opined that the town board
may, by resolution, require town board review and approval of
the minutes (Op. St. Comp. No. 83-54). Moreover, the state
comptroller has recommended that the town board should
exercise review and approve the town board meeting minutes
(1954 Op. St. Compt. File No. 6609). In order to review the
minutes for approval at the next town board meeting, town
board members are entitled to receive copies of town board
meeting minutes prepared by the town clerk (1972 Op. Atty.
Gen. (1)No.149;1954 Op St.Comp File No.6840).Whenever the
town board reviews and approves meeting minutes, the -
minutes should also be included in the town board meeting
packet, which is available to the public under Public Officers
Law,§103(e).
2021 TOWN CLERK MANUAL 150
Town board review of the meeting minutes does not delay the
timeframe for public access to meeting minutes. Open
Meetings Law, §106 requires the town clerk to make the
minutes available to the public two weeks after the date of the
meeting and one week after the date of an executive session (if
minutes were taken during the executive session). Minutes
requested prior to town board review should be properly
marked as such to alert the recipient that the contents may
change upon review.The Committee on Open Government has
suggested marking the minutes in such cases as"draft,""subject
to board review,"or"preliminary,"(OML-AO-2616).
O. Amending/Correcting Minutes
Errors will occasionally occur. A good practice is to record the
meeting with a tape recorder,video camera or digital recording
device.Keep in mind that if a recording is made,that recording
is subject to both the Freedom of Information Law and the LGS-
1 record retention schedule. Where corrections or amendments
are needed,both the Committee on Open Government and the
Office of the State Comptroller have opined that a town board
member may not unilaterally alter or direct that minutes be
altered; rather, minutes may be amended only pursuant to
action taken by a majority of vote of the total membership of
the town board.Most importantly,amendments or corrections
may be made only if the changes accurately reflect what
transpired at the meeting. For example, the town board may
not direct the town clerk to eliminate any references to a
properly adopted resolution, nor may a town board member
change their vote by simply requesting that the minutes be
changed to reflect a different vote (OML-AO-3092; Op. St.
Comp. No. 81-301). Where amendments or corrections are
required, the common practice is to include the amended or
corrected content in the minutes at the next meeting with a
notation in red ink in the margin next to the content of the
original minutes requiring the correction. The town clerk can
2021 TOWN CLERK MANUAL 151
get a good idea of how to perform corrections by reviewing
prior minutes.
P. Signing the Minutes
Neither the Town Law nor the Open Meetings Law requires the
town clerk to sign the minutes. Although it is not a statutory
requirement, many town clerks sign the minutes to
demonstrate that the town clerk was the person who took the
minutes. Signing the minutes is a commonly adopted practice
by many town clerks(Op.St.Comp.No.79-166).
Q. Executive Session Minutes
The' Open Meetings Law, §106(2) requires the creation of
minutes of executive session when action is taken.As a general
rule,a public body may take action during a properly convened
executive session (Public Officers Law, §105(1)). In the case of
most public bodies, if an action is taken during an executive
session, minutes reflective of the action,the date and the vote
must be recorded in minutes pursuant to §106(2) of the Public
Officers Law.In addition,if the town board reaches a consensus
upon which it relies, minutes reflective of decisions reached
must be prepared and made available (OML-AO-5208). If no
action is taken, there is no requirement that minutes of the
executive session be prepared. As the town clerk is not a
member of the town board, prior to the town board taking
action in executive session, the Committee on Open
Government has advised that the town board should invite the
town clerk to join the board during that portion of the executive
session for the purpose of taking minutes(OML-AO-2583).
R. Subscription for Town Board Minutes
The state comptroller's office has opined that the town board
may adopt a local law establishing a minutes subscription
program. Pursuant to such a local law, the town board could
establish a fee for an annual subscription for copies of the
minutes of the town board meetings and provides for the
2021 TOWN CLERK MANUAL 152
mailing of the copies of the minutes to those who have paid the
fee.The amount of the fee must be reasonably related to the
town's reproduction and mailing costs. The provision of the
subscription service does not obviate the need to respond to
individual requests submitted pursuant to the Freedom of
Information Law for copies of the minutes(Op.St.Comp.No.99-
8)
S. Posting Minutes on the Town's Website
The Open Meetings Law requires that minutes be made
available to the public within one week of an executive session
and two weeks of an open session (POL, §106). Minutes
awaiting board approved may be stamped "draft" or
"unapproved;" etc. (FOIL-AO-f12607). Minutes should also be
posted on the town's website in accordance with the Open
Meetings Law and town policy.
T. Suggestions and Tips for Drafting Minutes
The following information is gathered from various town clerk
topics and training sessions to assist the town clerk in recording
the various actions of the town board.
There are at least two phases involved in the taking and
preparation of minutes of a public meeting, which deserve
particular attention:
(1) The physical act of taking notes and recording
comments during the course of the meeting,and
(2) The format, preparation and completion of the
ultimate and official record of the minutes.
The town clerk can normally and effectively record the names
of public officials present,and those of individuals appearing on
particular matters before the board,the bills submitted for audit
and payment and other matters of a general nature as they
occur. The real pressure on the town clerk arises with the
2021 TOWN CLERK MANUAL 153
recording of specific statements, comments, questions,
decisions,etc.
Preparation and the use of the final, formal minutes of town
board meetings and hearings will be facilitated by urging the
supervisor to propose the following two specific policies:(1)Use
of a specific format or agenda for the conduct of business at all
board meetings; and (2) Adoption of a rule stating that such
meetings are for the purpose of permitting the town board as
distinct from the general public,to conduct the business of the
town.
There are no set rules for preparation of the minutes of a town
board meeting;the law does not give direction in the manner
in which the town clerk shall proceed. In some towns,the town �-
board has adopted rules of procedure for its meetings (Town
Law, §63) and has given the town clerk general instructions _
pertaining to the form and content of its minutes.
U.Sample Town Board Minutes from the Town of Utopia
Time,Place and Type of Meeting Recorded
The first entry in the minutes book should establish the time,
place,type of meeting and enumerate those in attendance. The
when,where,why and who is usually set forth as follows:
Minutes of the Regular Monthly Meeting of the
Town Board of the Town of Utopia held February 8,
20_at the Town Hall commencing at 8:00 P.M.
Present: Abel Leader,Supervisor
Carrie A.Banner,Councilman
Ernest N.Frank,Councilman
Seymour Krimes,Councilman
Absent: Hugh R.Giltee,Jr.,Councilman
Recording Secretary: Mark Wright,Town Clerk
2021 TOWN CLERK MANUAL 54
Others Present: Irwin Rhodes,Supt.of Highways
Board members present or absent should be identified by full
names and titles to eliminate any chance of confusion. Others
who may participate in some phase of the meeting that are also
present should each be identified by name and title.
Order of Business
The order of business of a town board meeting is usually
determined by the rules of procedure adopted by the town
board. The"Call to Order"followed by the"calling of the roll"is
traditionally the first order of business.
The"Call to Order"is generally noted as follows:
The Meeting was called to order by Abel Leader,
Supervisor
Following the "Call to Order," the agenda may follow any of
several formats,depending upon the rules or policy established
by the town board.
The following suggestions and procedures are offered as an
agenda and outline for the development of the meeting and
the recording of the minutes:
1.Call to order
2. Review of the minutes of the previous
meeting
3.Communications and petitions
4. Reports of committees
5. Special orders (usually a specific item for
which a meeting is called or an item given order
preference as provided in a prior meeting;if the
meeting is called for a special or particular
purpose, state the nature of that purpose and
refer specifically to compliance with statutory
2021 TOWN CLERK MANUAL 55
requirements for advance notice of such a
meeting to all members of the town board)
6. Unfinished business (resolutions offered in
conjunction with matters that have been before
the board at an earlier date to be acted upon at
this time)
7. Regular business as shown in previously
adopted agenda
8. New business (original resolutions, acts,
motions or other business to be handled by the
board at the meeting at which such items are
first presented)
9. Announcements of activities or events of
importance to town officials and residents
10. Recognition of citizens present at the
meeting and an opportunity for them to
address or question the board
11. Adjournment by resolution at a specific time to be
entered in the minutes
Review of Prior Meeting Minutes
The second item calls for review of the minutes of the previous
meeting.This may be done by reading the minutes of the last
meeting and indicating that:
A Motion was made by Mr. Leader and
seconded by Mr. Krimes that the Minutes of
January 3,20_be accepted as read.
Whether the minutes of the previous meeting are sent or
delivered to town board members prior to the meeting or are
distributed to board members fortheir inspection and review at
the meeting, an opportunity is given to each member to
suggest any omission or correction thereto. In this case, the
entry would be: '
2021 TOWN CLERK MANUAL 156
Motion was made by Mr. Leader, seconded
by Mr.Krimes that the Minutes of January 3,
20 as submitted by the Town Clerk are
approved.
Amending Prior Meeting Minutes
The power to amend the minutes rests with the town board
rather than the town clerk.Therefore,if a correction is in order,
the action of the town board should be recorded in this manner:
A Motion was made by Mr. Leader and
seconded by Mr. Frank that the Minutes of
October 3,20 (Page 128)be amended by
striking out in Resolution #5 Purchase of
Office Equipment - Accounting Machine -
the amount of the bid of E. Race Company
$995.00 and substituting the amount of
$905.00 therefore.
Marginal Notes
A marginal notation should be made opposite the resolution in
the minutes of October 3,20_ to the effect that the resolution
was amended by order of the town board pursuant to a motion
adopted on December 7,20_(Page 134).
Many town clerks indicate by marginal notes the major events
that transpire at the town board meeting. These notes are a
tremendous help when searching the minutes for a specific
item.
In our sample motions,both the name of the person making the
motion and the name of the person seconding the motion are
shown. Since the statute (Town Law, §30) requires the town
clerk to keep a complete and accurate record of the
proceedings of each meeting,the entry of a motion would be
2021 TOWN CLERK MANUAL 57
incomplete if it did not show the officer by whom it was offered
and seconded.
It must also be kept in mind that the supervisor,as a member of
the town board,as well as its presiding officer, has the right to
introduce or second motions or resolutions,and the supervisor
must vote on each matter coming before the board. In other
words,the supervisor does not vote merely to break a tie.The
supervisor does not,however,have two votes in order to break
a tie.
Communications and Petitions
The next item on our agenda is communications and petitions.
How are letters addressed to the town board handled? After
assigning numbers to the communications, letters may be
noted briefly or entered in their entirety in the minutes. This
decision is a prerogative of the town board,and the town clerk
must follow what it dictates. For example, the board decided
that the following communication was not sufficiently
important to enter verbatim:
Communication No.13
Barren Family of Fertile Rock Rd. -
Acknowledging congratulatory message on
birth of sextuplets.
This entry is adequate to explain the contents of the letter.
However, the next communication was deemed significant
enough to be entered in full.
Communication No.14
To Mark Wright,Town Clerk of the Town of Utopia,
Wolfe County,NewYork
Dear Sir:
I,Lynn X.Catt having been duly appointed to
the office of Constable in and for the Town of
2021 TOWN CLERK MANUAL 158
Utopia on the 3rd day of January, 2019, do
hereby resign such office to take effect
immediately. My extreme good fortune in
winning the sum of $100,000 in the state
Lottery enables me to take this step. I also
request that the balance of salary due me in
the amount of $15 be remitted to the town
Supervisor and credited to the General Fund
as a donation in my name.
Dated:February 7,20
Lynn X.Catt
Reports of Committees
Town Law,§123 provides that the detailed financial statements
of town officers submitted on an annual accounting day shall
be entered in detail in the minutes.The manner in which other
reports should be entered is optional;for example,they may be
entered in full or a notation made that such report was received
as:
Report#2
Supervisor-Monthly Report of Receipts and
Payments for January Read and Filed.
Reports of committees should be noted in a similar manner and
the details entered according to the dictates of the town board.
Once the communications and reports have been addressed,
the board performs as a legislative body. The determinations of
the board will generally be recorded in the form of motions,
resolutions or orders.
Recording Motions and Resolutions
"Motion" and "resolution" are two distinct terms describing
different actions taken by the board.
2021 TOWN CLERK MANUAL 159
Motion: A "motion" is a proposal to bring before the town
board a particular subject for consideration and action at a
meeting. All motions and their dispositions should be entered
in the minutes.
Resolution:A"resolution" is the proposal that the town board
considers (e.g. an expression of the will of the board or of an
action to be taken).
The procedures for enacting resolutions are generally not
mandated by statute,and care should be taken to consult with
the town attorney regarding whether a particular resolution
requires compliance with a specific statute(s). Generally, a
resolution is introduced, discussed and voted upon.Thus, the
town clerk should focus on recording the resolution and the
actions that took place regarding the resolution (tabled,
adopted,defeated,etc.).The minutes should also reflect which
board member offered (and seconded, if required by the rules
of the board)the resolution.
While there are no statutorily mandated procedures, pursuant
to Town Law,§63,a town board may determine its own rules of
procedures established in connection with the adoption of
resolutions. For example, a town board rule might state that
some or all resolutions are to be prepared in writing in advance
and submitted to the supervisor,town attorney or town clerk at
a designated time prior to the meeting. Local rules must be
followed.
The reason(s) or public policy initiatives that necessitate the
adoption of a resolution are embodied in the preamble or
opening paragraphs all of which begin with the word
"whereas." Preambles, if used, should be concise and to the
point. It is not necessary to clutter up the minute book with
somewhat obvious intent clauses. A resolution need not
contain a preamble or series of"whereas"clauses,where it is not
2021 TOWN CLERK MANUAL 160
necessary to outline the public policy or reason(s) for the
enactment of a resolution.
The body of the resolution should contain all of the details of
the issue involved but eliminate all excessive and difficult
wording. If clarity is to be achieved, the essentials must be
retained,but the length kept at a minimum. In many instances,
a simple resolution will do,for example:
WHEREAS, no newspaper is regularly
published in the Town of Utopia,
RESOLVED, that the Truthful Tribune, a
newspaper regularly published at Menda
City in the County of Wolfe and having a
general circulation in this Town, being a
newspaper entered as second class mail
matter,be and is hereby is designated as the
official paper of the Town.
or another:
RESOLVED, that the Supervisor be and is
hereby authorized to make the following
budgetary transfer:
From fund --To fund
Resolutions authorizing borrowing must adhere to strict legal
requirements. The Local Finance Law sets forth the required
form and contents of a borrowing resolution, and this formal
resolution should be recorded in the minutes.Generally,a bond
resolution is drafted by the bond attorney and should be
entered in the minutes without alteration since its provisions
cover specific statutory requirements.A bond resolution usually
begins by enumerating the date,amount and purpose followed
by the specifics required for the particular purpose.
2021 TOWN CLERK MANUAL 61
Bond Resolution of February 8, 20
Authorizing the Issuance and Sale of Serial
Bonds of the Town of Utopia,Wolfe County,
New York, in the amount of$400,000.00 for
the Purchase of a Road Grader.
Be It Resolved this 8th day of February,
20 , by the Town Board of the Town of
Utopia,Wolfe County,New York as follows:
1. The specific object or purpose for which
obligations are to be issued
2.The maximum cost
3.The following determinations are hereby
made; (Specifics concerning period of
probable usefulness, sections of the law,
maturity,etc.)
4-5-6,etc.
Recording Orders
A town board determination may come in the form of an order,
which is really a form of resolution.An order prescribed by Town
Law, §193 in relation to a special district petition would be set
forth as follows:
Whereas, a written petition dated February
2, 20_in due form has been presented to
and filed with the Town Board of the Town of
Utopia, Wolfe County, New York, for the
establishment of a Sewer District(described)
and
Whereas,the improvements proposed
2021 TOWN CLERK MANUAL 162
Whereas,the maximum amount
Ordered,that a Meeting of the Town Board
of said Town of Utopia shall be held
to consider said petition and
hear all persons
Dated Signed
Since Town Law,§193 requires the town board to enter an order
in respect to petitions for improvement districts,the receipt of
such a petition will be acknowledged later in the meeting when
the order is adopted under New Business. In the event that the
town maintains a website, such information may also be
provided on the website.
Recording the Vote
Usually,resolutions,and particularly,borrowing resolutions,are
prepared in writing and given to the town clerk at some time
prior to the meeting. However, even if this rule is ignored, all
considerations of the town board must be duly recorded. Town
board members' individual votes on motions and resolutions
must be specifically noted in the minutes. Town Law, §63
provides "that the vote upon any question shall be taken by
ayes and noes and the names of the members present and their
votes shall be entered in the minutes."
The following entry is not correct:
Resolution No.6-20
Adopted Unanimously
The following Resolution was adopted
A Motion was made,seconded and adopted that
The fact that all of the members vote the same is no excuse for
the failure to record the vote. So, after each motion (except
those of a procedural nature,such as adjournment)enter:
2021 TOWN CLERK MANUAL 163
Adopted Abel Leader Aye
Carrie A.Banner Aye
Ernest N.Frank Aye
Seymour Krimes Aye
As long as the town clerk records each town board member's
name and vote individually,the town clerk may record the vote
in the manner that is most suitable to the town's needs.
Note that an absent member does not vote. The fact that the
board member would have voted for or against a measure had
that board member been at the meeting is of no importance.
Note also that the motions and resolutions defeated are also
included. The minute book is a compilation of the entire
proceedings of the town board,not just the affirmative actions
of the majority.
Discussions
Items are often unnecessarily included in minute books.
General discussions and conversations should not be included
verbatim unless the town board desires a detailed record of the
discussion.
Discussion of a particular subject relevant to the proceedings
can be sufficiently recorded by a simple sentence or two.
A general discussion was held on the advisability of...
The town clerk may not interject personal feelings or
interpretations of the feeling of others into the written record
such as:
"Jim and John favored the idea but naturally Mr.Stonewall
seemed to be against it."
2021 TOWN CLERK MANUAL 164
Public Hearings
If a public hearing is held in conjunction with a town board
meeting,it is normally the first item of business when the town
board convenes, except that it should not be started until the
hour specified in the notice.
The town clerk should present to the town board proof of
publication and posting of the notice.
In the case of all hearings, the town clerk should record the
names of those favoring or opposing the proposed action, but
it is not necessary to record at length the arguments advanced.
In any event,the minutes should indicate that ail desiring to be
heard were heard, what action the town board took on the
proposal before it,and that the hearing was terminated.
Proof of Notice having been furnished, the
Public Hearing on the formation of the Nob
Hill Sewer District was called to order at 8:00
PM by Abel Leader,Supervisor.
The following persons spoke in favor of the
formation of the district:
Alfred Smith
Etc.
The following persons spoke against the
formation of the district:
John Brown
Etc.
All persons desiring to be heard,having been heard,
the Hearing was terminated at 8:35 PM.
2021 TOWN CLERK MANUAL 65
Bids
When sealed bids are received after public advertising,
a compilation of the bids should be made in the
minutes.
The following sealed bids were received for the
purchase of...
DEF Company $10,500
GHQ Company $10,290
The bid information could be included as part of the"whereas"
clause in the resolution awarding the contract for the purchase.
Such resolution should note conformance to the essential
requirements of the competitive bidding statute, such as the
solicitation of bids by public advertising, their receipt at a
specified time and place and the concluding determination and
designation of the lowest responsible bidder.
Audit of Claims
In towns with no town comptroller,the town board's approval
of claims for payment should be entered in the minutes.
However, it is not necessary to list all the claims approved.
Reference to the claims is sufficient,and such reference should
be clear:
General Fund Claims Nos. 12-32 in the
amount of $3,623.50 as set forth in
abstract No.G-2 Dated 2-8-20
NOT
Claims submitted for approval
If a town board member does not approve a voucher, and it is
allowed over their objection, official note of this should be
included in the minutes.
2021 TOWN CLERK MANUAL 166
§2.26 Adoption of Ordinances
A. Adoption of Town Ordinances
An ordinance is a legislative act of the town board.Town Law,
§131 provides that "a town ordinance includes also a rule or
regulation of the town board, for the violation of which a
penalty is imposed;and each provision of this chapter relating
to the enforcement of an ordinance applies to such rule or
regulation."Ordinance powers are delegated to the town board
from the state Legislature in specific and restricted areas.
B. Statutory Authority
The authority and procedure to enact a town ordinance is
primarily set forth in Articles 9 and 16 of the Town Law. The
town clerk has a number of duties with respect to the adoption
of an ordinance.
The method of legally adopting a town ordinance is prescribed
in Town Law, §§ 130-134. Please note additional requirements
regarding the adoption of zoning ordinances are set forth in
Town Law, §§ 264 and 265. These provisions of law must be
adhered to meticulously as failure to do so could result in a
court of law invalidating the ordinance.
C. Introduction
The introduction and adoption of a town ordinance is
accomplished by a resolution of the town board in accordance
with the town board's rules of procedure(e.g.regularly moved,
seconded and passed by roll call vote) and should be recorded
in the minutes.
D. Public Hearing Required
Ordinances cannot be adopted,amended or repealed until after
a public hearing has been held (Town Law, §130). The town
board,by resolution,must set the time,date and location of the
public hearing(Town Law,§63).The town clerk must give notice
2021 TOWN CLERK MANUAL 167
I
of the public hearing (Town Law, §130). The notice must be
published in at least one newspaper circulated in the town at
least 10 days before the date specified for the hearing. The
notice must also specify the timewhen and the placewhere the
hearing will be held and describe the ordinance in general
terms. After the public hearing,the town board may act on the
ordinance (Town Law, §130). Again, there are separate
provisions for zoning ordinances and amendments that provide
similar notice requirement(Town Law,§§264,265).
E. Public Hearing Notice
The notice must be clear and unambiguous and should be
designed to inform the average citizen aboutthe purpose of the.
ordinance. If a notice contains too much information, it can be
confusing; if a notice lacks meaningful information,the reader
will not understand the purpose of the ordinance. A clear and
concise summary of an ordinance might be more informative
than a notice containing the whole ordinance. It's always
advisable to work with the town attorney where questions arise
regarding what information should be contained in the notice.
The following is a sample Notice of a Public Hearing in
connection with the adoption of an ordinance on the subject of
licensing and regulating hawkers and peddlers.
NOTICE OF PUBLIC HEARING
TOWN OF
Proposed Ordinance Relative to Regulating
and Licensing Peddling and Hawking of
Goods, Wares and Merchandise and
Soliciting Orders therefore.
PLEASE TAKE NOTICE that an ordinance has
been introduced by the Town Board in the
Town of to regulate and license
2021 TOWN CLERK MANUAL 68
peddling and hawking of goods, wares and
merchandise and soliciting orders therefore in
the Town of ,County of and
State of New York.
Said proposed ordinance in general terms
provides that certain hawkers and peddlers
shall be required to obtain a license from the
Town Clerk upon application to said Town Clerk
prior to being permitted to act as a hawker,
peddler or solicitor as defined in said ordinance.
Said ordinance provides for a fee and for
revocation of said license upon certain
conditions. Certain restrictions as to the
methods of hawking and peddling are provided
Said ordinance declares that a violation of this
ordinance shall be punishable by a fine of not
less than $5.00 or more than$50.00. A copy of
said proposed ordinance is on file in the office
of the Town Clerk. PLEASE TAKE NOTICE that a
public hearing upon said proposed ordinance
will be held at the Town Hall, , New
York,on the day of ,20 at
o'clock M.(EST or DST)and that an
opportunity to be heard in regard thereto will
then and there be given to those favoring
passage of such proposed ordinance and also
to those opposed thereto.
Town Clerk
Dated .20
2021 TOWN CLERK MANUAL 69
F. Substantial Changes to Proposed Ordinance
If there is a substantial change or amendment in an ordinance
after the public hearing, a new hearing, upon notice, must be
held (1966 Op.Atty.Gen.(1) No. 152).
G. Ordinances must be Entered in the Minutes
Every ordinance and every amendment to an ordinance
thereafter adopted or approved by the town board of a town,
shall be entered in its minutes,except that it is not necessary to
enter in the minutes any map adopted or approved in
connection with a zoning ordinance or amendment(Town Law,
§133).
H. Publication of Summary of Ordinance
The ordinance or amendment, or a summary or abstract
thereof, must be published in the official newspaper of the
town,or if there is none,in a newspaper designated by the town
board having general circulation in the town, once, and the
affidavit of such publication shall be filed with the town clerk
(Town Law,§133).
I. When the Ordinance Takes Effect
An ordinance takes effect 10 days after it,or a summary of it, is
published(Town Law,§§133,264,265),and it can have no effect
unless and until it is so published. However, in certain cases, it
could be effective when a copy, certified by the town clerk, is
personally served on an individual, showing the date of its
passage and entry in the minutes(Town Law,§133).
J. Proof of Ordinance;Maps
The certificate of the town clerk setting forth that the records of
the town shows the adoption of one or more ordinances and
the publishing thereof as required by the Town Law is
presumptive evidence of such adoption and publication in any
action or special proceeding in any court or otherwise (Town
Law,§134).
2021 TOWN CLERK MANUAL 170
K. Ordinance Book
Ordinances are laws of the town. Not only must they be entered
in full in the town board minutes (Town Law, §133), but
immediately after adoption,the town clerk must enter an exact
copy of every ordinance or amendment adopted by the town
board in a book known as the "Ordinance Book" (Town Law,
§30(1)). It is recommended that a suitable index to such
ordinances be kept. Zoning ordinances and building codes
impose rigid restrictions on the use of real property. These
should be easily and readily identifiable.
L. Ordinance Adoption Process Checklist
The following checklist is a summary of a town clerk's
responsibilities in the process of adopting an ordinance.
1. Notice of public hearing
a. Published in at least one newspaper circulating
in the town
b. At least 10 days before the date of the hearing
c. Specify in the notice:
I. Date, time and location of the public
hearing
ii. General description of the nature of the
proposed ordinance
2. Adoption of the ordinance
a. Record the vote
b. Include text of ordinance in the minutes
3. Publication of adopted ordinance
a. The ordinance or amendment,or a summary or
abstract thereof,shall be published once in the
official newspaper of the town or, if there is
none, in a newspaper designated by the town
• board having general circulation in the town
b. File affidavit of publication from newspaper in
the town clerk's office
c. Immediately after adoption, the town clerk
must enter an exact copy of every ordinance or
2021 TOWN CLERK MANUAL 171
amendment adopted by the town board in a
book known as the"Ordinance Book."
§2.27 Town Clerk's Role in the Adoption of Local Laws
Local laws primarily differ from ordinances in that they are
adopted pursuant to local Home Rule powers that are derived
from Article IX of the New York State Constitution. ;
Constitutional home rule powers are codified in the Municipal
Home Rule Law and the Statute of Local Governments. A local
law has the same prestige and authority as a state statute
enacted by the state Legislature - it may be used in more
instances than ordinances and/or to supersede portions of the
Town Law.Although towns have broad authority to adopt local
laws affecting their property affairs or government and to
specific subjects regardless of their import on a town's property
affairs or government, there are a few restrictions (N.Y. Const.,
Art. IX, §2(c); Municipal Home Rule Law, §10). Local laws must
be consistent with general state laws, which are laws that in
terms and effect apply alike to all towns (N.Y. Const. Art. IX,
§3(d)(1)). Towns cannot adopt local laws where the state has
determined that an issue is a matter of state rather than local
concern (e.g. protection of the Adirondack Park - Wambit v.
State of New York,41 N.Y.2d 490 (1977). Finally,a town cannot
adopt a local law where the state has preempted the subject
matter (e.g. highway financing -Albany Area Builders Assn v.
Town of Guilderland, 141 A.D.2d 293 (3d Dep't 1988), affd, 74
N.Y.2d 372 (1989)).
The town clerk has a number of duties in connection with the
enactment of a local law.The procedures are contained in and
governed by the Municipal Home Rule Law.
A. Introduction of Local Law
A local law must be introduced by a member of the town board
at a board meeting or in a manner that is otherwise prescribed
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by the board's rules of procedure (Municipal Home Rule Law,
§20(4)).
A local law must be introduced in the following style: "Be it
enacted by the town board of the Town of "
(Municipal Home Rule Law, §20(2)). A local law may embrace
only one subject, and the title must briefly refer to the subject
(Municipal Home Rule Law,§20(3)).
B. Public Hearing
The town board must hold a public hearing on all local laws
before they may be adopted. The town board must schedule a
public hearing on the local law; the hearing may only be
scheduled by board resolution adopted by majority vote at a
lawfully convened town board meeting (Municipal Home Rule
Law,§20).The town board may direct the town clerk to publish
a notice of the public hearing (Town Law, §30(11); Municipal
Home Rule Law,§20).
There is no maximum time for when the town board must vote
on the adoption of a proposed local law. In lieu of a statutory
directive, the state comptroller's office recommends that the
vote be taken within a reasonable time after the close of the
public hearing in order to give proper effect to the remarks
made at the hearing. In the event that the vote is not taken
within a reasonable period, the state comptroller's office has
opined that the entire procedure for enacting a local law,
including the public hearing, must be undertaken again (Op St
Comp.No.86-35).
C. Notice
Municipal Home Rule Law, §20(5), provides that a public
hearing must be held before the legislative body on at least five
days' public notice with the proviso that the town board may
adopt a local law authorizing a shorter period of notice no less
than three days. Please note that you cannot count the date of
2021 TOWN CLERK MANUAL 173
the public hearing in the five-day notice period.The town clerk
should consult with the town attorney regarding proper
notification. The statute merely prescribes the time between
the giving of notice and the holding of the public hearing; it
does not set forth a specific procedure to be followed. If no
special local law has been adopted prescribing a method of
giving notice of the hearing,notice should be given in whatever
manner is calculated to give the residents of the town actual
notice of the date,time and place of the hearing and the subject
matter of the proposed local law (e.g. publication in a
newspaper of general circulation in the local government or its
official newspaper if it has one) ("Local Law Adoption Process,"
(speech) by Robert W. Marshlow, Associate Counsel Office of
Local Government, Town & County Officers Training School,
School for Town Clerks,Cornell University,June 29, 1964).
The notice should state the date,time and location of the public
hearing. In addition, the notice should contain the title and a
description of the local law.The notice need not set forth the
full text of the local law so long as the public is accurately
apprised of the content,which may be accomplished,normally,
by a brief description of the local law in general terms, or
sometimes just the title(21 Op.St.Compt.733).
D. Extra Notice for Zoning Local Laws
The town attorney should be consulted when addressing the
notice requirements of the adoption of a local law enacting or
amending a land use regulation. Article 16 of the Town Law
provides towns with the authority to enact zoning regulations
by ordinance and contains requirements for the enactment
thereof. For example, Town Law, §264 (2) requires written
notice to specified entities and individuals in addition to public
notice for the enactment of a zoning ordinance.Towns may also
enact land use regulations by local law (Municipal Home Rule
Law, §10).The Municipal Home Rule does not contain a similar
requirement. Because case law regarding the need to comply
2021 TOWN CLERK MANUAL 174
with the additional notice and procedure requirements set
forth in article 16 of the Town Law when enacting zoning
requirements by local law is unclear, the town clerk should
consult with the town attorney regarding proper procedure
(see Matter of Burchetta v. Town of Carmel, 140 Misc. 2d 1050,
532 N.Y.S.2d 620(Sup.Ct.Putnam Co.1988);Pete Drown Inc.et
al v. Town of Ellenburg, 229 A.D.2d 877, 646 N.Y.S. 2d 205 (3d
Dept. 1996); North BayAssociates etal v.Hope,116 A.D.2d 704,
497 N.Y.S.2d 757 (2d Dept. 1986) holding a zoning local law is
not subject to additional notice requirements as set forth in
Town Law, §§264, 265; but see also Trifaro v. Zoning Board of
Appeals,73 Misc.2d 483,342 N.Y.S.2d 95 (Sup.Ct. Dutchess Co.
1973); Orange and Rockland Utilities Inc. v. Town of
Orangetown, 28 A.D.2d 899, 282 N.Y.S. 2d 977 (2d Dept. 1967)
holding that compliance with extra notice provisions within
Article 16 of the Town Law is required in order to properly adopt
a local law regarding zoning)or Village Law,§§7-706 and 7-708
(Village of Savonia v. Soles, 84 A.D.2d 683,446 NYS2d 639 (2d
Dept. 1981)).
E. Aging
A proposed local law may not be passed until it has been in its
final form either on board members' desks or tables at least
seven calendar days,exclusive of Sunday,or has been mailed to
each board member at least 10 days,excluding Sunday,prior to
final passage. To be effective, the mailing must be properly
addressed,in envelopes securely closed and postage paid.Also,
such mailings must be made from within the town (Municipal
Home Rule Law,§20(4)).
"On the desks," which prescribes a seven-day aging
requirement, means either physically on the desks of the town
board members or by delivery via electronic means, such as
through a file-sharing service (note: this does not include
delivery via e-mail).
2021 TOWN CLERK MANUAL 175
"Mailing" the proposed local law, which prescribes a 10-day
aging requirement, means either delivery through the United
States Post Office(USPS)or via e-mail. To introduce a local law
through e-mail, the local law must be in Portable Document
Format(PDF). Additionally,the town must adopt a unanimous
resolution authorizing delivery through e-mail, ensure that
each town board member has an e-mail address, and publish
such e-mail addresses on the town clerk's bulletin board.
After the waiting period is met and a public hearing held on
proper notice,the town board may vote on the adoption of the
proposed local law.In ordinary cases,only a majority vote of the
board is necessary.
F. Amendments
If a local law is substantially amended,a new public hearing on
notice must be held before the local law can be finally adopted
(1978 Op.Atty.Gen.(I)243).
G. Votes
The vote on a local law is taken by "ayes" and "noes," and the
names of the board members present and their votes must be
entered by the town clerk in the board minutes. The full text of
the local law should be recorded in the minutes (23 Op. St.
Compt.290).
Generally, a simple majority of the town board is needed in
order to approve the passage of a local law. Occasionally, a
statute will specify the vote needed; for example, General
Municipal Law, §3-c requires that the town board approve a
local law to override the statutory tax cap by 60 percent of the
fully constituted board (two out of three; three out of five; or
five out of seven).
A two-thirds vote of the town board will be required if the local
law is being passed upon a message of necessity. In addition,
2021 TOWN CLERK MANUAL 176
there may be other statutes that will affect the number of votes
needed to adopt.Therefore,a review of the source of authority
and other relevant statutes should be undertaken prior to the
vote. For example,adoption of certain land use local laws may
require an extraordinary vote if therewas a protest petition filed
pursuant to Town Law, §265, or if the board is acting contrary
to a county planning board recommendation issued pursuant
to General Municipal Law,§239-m.
H. Referendum
Municipal Home Rule Law, §23 (mandatory) and §24(petition)
in addition to other statutes provide that certain local laws are
subject to a referendum.Explanations are provided below.
I.Local Laws Subject to Mandatory Referendum
A referendum must be held,and the local law submitted for the
approval by the electorate at a general election held not less
than 60 days after the adoption of the local law in question. The
local law cannot become effective until the approval of the
electorate,and that vote cannot take place for at least 60 days
after the local law is adopted.If a special election is called for by
the local law itself or by a petition, thatelection cannot be held
until 60 days after the adoption of the local law;thus,whether a
general or special election is held,that election cannot be held
less than 60 days after the local law is adopted.
J. Local Laws Subject to Permissive Referendum
It cannot take effect until at least 45 days after its adoption.
Within those 45 days,a petition protesting the local law may be
filed with the town clerk. Should no petition be filed,then the
local law may be filed with the Department of State without a
referendum at the end of the 45-day period.When a qualified
petition is filed, an election must be held and the proposition
approved in order for the local law to be filed with the
Department of State(Municipal Home Rule Law,§24).
2021 TOWN CLERK MANUAL 177
The petition is filed with the town clerk.Within 30 days from the
date of filing a petition for a referendum on a local law, or 45
days before the election,at which time it will be on the ballot,
whichever is earlier,the town clerk must examine the petition
and transmit a certificate to the town board concerning
whether the petition complies with the law.Written objections,
if any, must be filed with the Supreme Court within five days
after the last day to file such certificate (Municipal Home Rule
Law,§24).
The petition must be signed and authenticated by qualified
electors, registered to vote, totaling at least 10 percent of the
votes cast in the town for governor in the last gubernatorial
election. If the petition filed is valid, the local law must be
submitted at a general election to be held not less than 60 days
after the petition is filed(Municipal Home Rule Law,§24).
Where the petition requests that the local law be submitted to
a special election, and the town board adopts a local law so
providing, the proposition must go before the voters at a
special election to be held not less than 60 days after the local
law is adopted. Whether the proposition is submitted at a
general or special election, at least 60 days must elapse
between the date of filing the petition and the actual election
(Municipal Home Rule Law,§24).
K. Submitting a Proposition to Election (Municipal Home
Rule Law,§25)
1.The proposition must contain the title of the local law;
2.The town clerk,with the advice of the attorney,prepares
an abstract, concisely stating title, purpose and effect of
local law;
3. The town clerk transmits abstract to election officers
charged with duty of publishing notice of and furnishing
copies for election;
2021 TOWN CLERK MANUAL 178
4. Copies of abstract must be printed and made available
at time of registration or in advance of election;
5.Copies of abstract must be delivered with other election
supplies and distributed to electors at time of election;
6.Multiple propositions must be numbered consecutively.
Where the proposition is submitted to the electorate at the
general election conducted by the county board of elections,
the town clerk is required to submit the proposition to the
county board of elections not less than three months prior to
the date of the general election(Election Law,§4-108). In some
situations, the timeframe within which the proposition is
required to go before the voters under the Municipal Home
Rule Law may not line up with the timeframe within which the
town clerk is required to submit the proposition language to the
county board of elections. In these cases, the town board, the
town clerk and the town attorney will need to work with the
county board of elections to determine how to reconcile the
conflicting timeframes set forth in Election Law,§4-108 and the
Municipal Home Rule Law,§§23,24).
L. Certification
The town clerk must certify the local law after its passage
(Municipal Home rule Law, §27). The Department of State
provides certification forms for this purpose.The town attorney
is no longer required to certify the adoption of a local law in
order to file it with the Secretaryof State(Chapter 97 of the Laws
of 2011).
The certified copy must contain only the text of the local law
without any brackets or underlining(Municipal Home rule Law,
§§21,27).
If a local law is subject to a mandatory referendum, or is
submitted to the electors as a result of a petition,a proposition
on such local law must be submitted to and approved by a
2021 TOWN CLERK MANUAL 179
majority of the electors voting thereon (Municipal Home Rule
Law,§§23,24).
M. Numbering Local Laws
Local laws need to be filed annually in numerical sequence.
Therefore, it is suggested that local laws be given an
"introductory" number until filed with the Secretary of State,at
which point the local law should be given the final sequential
number for proper filing order(19 NYCRR 130.3).
N. Filing Local Law with Secretary of State
Within 20 days after the local law has been adopted,the town
clerk must file one certified copy in the town clerk's office and
one certified copy with Secretary of State,except:
a.If the local law was subject to mandatory referendum,
then such local law is filed as above described within 20
days after approval by electors.
b. If the local law was subject to a referendum on
petition, and no petition is filed, the filing as above
described must be accomplished within 20 days after
the time for filing petition has expired (e.g. 45 days),or
if a qualified petition is filed with the town clerk, then
such local law should be filed with the Secretary of State
within 20 days after approval by the electors.
Local laws should be filed with Department of State(19 NYCRR
130.1):
New York State Department of State
Division of Corporations,State Records and Uniform
Commercial Code
One Commerce Plaza,
99 Washington Avenue
Albany,NY 12231-0001
2021 TOWN CLERK MANUAL 180
Each local law shall be filed on forms furnished by the
Department of State(19 NYCRR 130.2).The filing forms include
helpful instructions to assist in the proper filing of local laws.
• Filing forms may be found on the Department of State's
website:https:Hdos.ny.gov/local-law-filing
• State records help line: (518) 473-2492 or
corporationsc@cIos.ny.gov
No local law is effective until filed with the Secretary of State
(Municipal Home Rule Law,§27(3); 19 NYCRR 130.4).
Subject to the above statement,a local law takes effect on the
20th day after final adoption unless a different time is specified
in the local law or required by any other provision of law
(Municipal Home Rule Law,§27(4); 1978 Op.Atty.Gen.(1)282).
O. Local Law Book Filing
The town clerk must record all local laws filed in the town clerk's
office in a separate book or books,which must be indexed by
the town clerk. Local laws must be numbered consecutively for
each year for filing(Municipal Home Rule Law,§27(6)).The local
laws should be numbered as filed(i.e."Local Law#1 for 20_").
P. Documenting All Steps in the Process
As is the case when adopting resolutions and ordinances,it is a
good idea to document all steps taken in connection with the
adoption of local laws. For example,the minutes should show
that a motion to adopt a local law was introduced by a member
of the board,that the text of the proposed local law was given
to each member of the board at least seven/10 days before its
final passage,and the clerk was directed to publish notice of the
public hearing at least five days before the date thereof. By
keeping an accurate record of all these steps,you will have an
easy way to prove that all procedural requirements for the
adoption of the local law have been followed, should you ever
have to.
2021 TOWN CLERK MANUAL 181
Chapter 3
THE TOWN CLERK'S
PUBLIC OFFICER DUTIES
The town clerk has many duties regarding public officers,
including: administering oaths of office, filing official
undertakings, addressing notification of appointments and
vacancies,and processing resignations.
§3.1 Characteristics of a Public Officer
Many people work for and with a town,from public officers,and
town employees to consultants or citizen advisors. To
determine whether a person is serving in a public office, the
town clerk must examine the nature of the position, which
would include a review of the powers,duties,qualifications and
other characteristics of the position (Matter of Dawson v.Knox,
231 App Div 490 (3d Dept [1931]); Op. Atty. Gen. (1) Nos. 95-4;
89-56). It is important to note that a public officer may be
elected or appointed.
A. Some of the hallmarks of a public office include:
Statute or local law creating the position establishes it as a
"public office"(Op.Atty. Gen.(1)Nos.95-40;95-4;89-56;87-73).
Duties involve some exercise of sovereign powers(Matter of
Haller v.Carlson,42 AD2d 829(4th Dept. 1973);Op. Atty.Gen.(1)
Nos. 95-40;95-4;89-56;87-73).
Administration of duties involves a high degree of initiative
and independent judgment (Matter of County of Suffolk v.
2021 TOWN CLERK MANUAL 182
State of New York, 138 AD2d 815 (3d Dept 1988) affd 73 NY2d
838(1989);Op.Atty.Gen.(1) No 89-56;87-73).
Receipt of an official seal or commission of office (Macrum v.
Hawkins,261 NY 193,(1933);Op.Atty.Gen.(1) No.89-56).
If the position does not involve these factors, the position is
probably a position of employment, consultant or advisor,
rather than that of a public office.
§3.2 Qualifications of a Public Officer
In this context, "qualification" has a double meaning. First, a
person must possess the legal qualifications to serve in the
office to which they were appointed or elected (e.g. age,
residency).Second,a person musttake the necessary legal steps
to qualify for the office once elected or appointed to the
position, such as take and file an oath of office.Justice Herrick
said:"[q]ualification,in one sense,means'fitness for;in another,
'the doing of some act as a condition of taking or holding
office," ("Collectors and Receivers of Taxes and Assessments —
Qualifying for Office,"by James Heffernan, Town Clerks Topics,
Association of Towns,May 1965).
A town officer must be an elector of the town (Town Law,§23).
The attorney general's office has construed the term elector as
used in Town Law, §23 to mean a person who, if they wished,
could register as a voter whether or not they have registered
(1970 Op.Atty.Gen.(1) 67; 1975 Op.Atty.Gen.(1)236,238).The
qualifications of voters are set forth in the Election Law: "No
person shall be qualified to register for and vote at any election
unless he [or she] is a citizen of the United States and is or will
be, on the day of such election,eighteen years of age or over,
and a resident of this state and of the county,city or village for
a minimum of thirty days next preceding such election,"
(Election Law, §5-102[1]). The term "resident" for purposes of
2021 TOWN CLERK MANUAL 183
qualifying to vote has been interpreted to mean "domicile"
(1977 Op.Atty.Gen.(1)271).The Attorney General has described
the meaning of domicile as follows:
"The existing domicile,whether of origin or selection,
continues until a new one is acquired and the burden
of proof rests upon the party who alleges a change.
The question is one of fact rather than law, and it
frequently depends upon a variety of circumstances,
which differ as widely as the peculiarities of
individuals. * * * In order to acquire a new domicile
there must be a union of residence and intention.
Residence without intention or intention without
residence is of no avail. Mere change of residence
although continued for a long time does not result in
a change of domicile, while a change of residence
even for a short time with the intention in good faith
to change the domicile, has that effect. * * * There
must be a present, definite and honest purpose to
give up the old and take up the new place as the
domicile of the person whose status is under
consideration. * * * A temporary residence for a
temporary purpose, with intent to return to the old
home when that purpose has been accomplished,
leaves the domicile unchanged."
There are some officers who need not be town residents. For
example, the town attorney or engineer need not be a town
resident where no resident attorney or engineer resides within
town (Town Law, §23(1)).The appointed town assessor is only
required to be a resident of the State of New York(Real Property
Tax Law,§310(1)). In addition,the state Legislature or the town
board may expand the residency requirements of a particular
office (Public Officers Law §3; Municipal Home Rule Law, §10).
2021 TOWN CLERK MANUAL 184
§3.3 Oaths of Office
All town public officers are required to file an "oath of office"
within 30 days of appointment, or the commencement of the
term of office of an elected official (NY Const.Art. 13, §1;Town
Law,§25;Public Officers Law,§10; 1990 Op.Atty.Gen.(1) 1055).
New York State Const.Art. 13,§1
"I do solemnly swear(or affirm)that I will support the
constitution of the United States,and the constitution
of the State of New York, and that I will faithfully
discharge the duties of the office of
according to the best of my ability,"
A.Oaths may be administered by:
1.The town clerk in whose office the oath is required to be
filed, or by the duly designated assistant (i.e., deputy)
(Town Law,§28);
2. Any notary public (Town Law, §25; Public Officers Law
§10;Civil Practice Law and Rules,§2309;Real Property Law,
§298);
3. Any judge of the Court of Appeals or justice of the
Supreme Court (Town Law, §5; Public Officers Law, §10;
Civil Practice Law and Rules, §2309; Real Property Law,
§298);
4. A town supervisor, but only to other members of the
town board (Town Law,§25;Public Officers Law,§10;Civil
Practice Law and Rules,§2309;Real Property Law,§298);
5. Any town councilperson or town justice of the peace,
but onlywithin the county containing the town for which
they serve (Town Law, §25; Public Officers Law, §10; Civil
Practice Law and Rules,§2309;Real Property Law,§298);
6.Any commissioned officer,in active service,of the armed
forces of the United States to any state or local officer who
is also a member of the armed forces of the United States
(Public Officers Law,§10).
2021 TOWN CLERK MANUAL 185
B. Filing Oaths
Oaths are required to be filed in the town clerk's office (Public
Officers Law,§10;Town Law,§25;Town Law,§30(2)).In addition
to town officers, fire district commissioners (Town Law,
§174(6)), fire ,district treasurers, fire district secretaries, fire
district purchasing directors (Town Law, §174 (3)), and
members of a fire police squad(General Municipal Law,§209-c),
must file their oaths of office with the town clerk. Election
inspectors and members of boards of registration appointed for
special town elections are also required to file an oath of office
with the town clerk(Town Law,§83;Town Law,§84-a).
There are additional filing requirements for town justices,
justice court employees, election inspectors, poll clerks, and
registrars of vital statistics.
• Town Justices
Upon assuming office,each town justice shall file with the
county clerk the oath of office and a bond in an amount
fixed by the town board and conditioned for the faithful
performance of the duties. Additional copies of the oath
shall be filed with the Office of Court Administration and
the town clerk(Uniform Justice Court Act,§104).
• Justice Court Employees
Every person employed by the Unified Court System,
except an employee in the labor class,before they shall be
entitled to enter upon the discharge of any duties, shall
take and file an oath or affirmation in the form and
language prescribed by the constitution for executive,
legislative and judicial officers,which may be administered
by any officer authorized to take the acknowledgment of
the execution of a deed of real property,or by an officer in
whose office the oath is required to be filed.The oath or
statement of every employee of the Unified Court System
2021 TOWN CLERK MANUAL 186
shall be filed in the administrative office for the courts (22
NYCRR 25.21).
• Election Inspectors
Town clerks may administer the oath of office to election
inspectors within 10 days of notice of certification. Oaths
are filed with the board of elections(Election Law,§3-414).
• Registrars of Vital Statistics
Registrars of vital statistics are local public officers of their
primary registration districts. A town is a primary
registration district(Public Health Law,§4120(1)).The town
board appoints the registrar of vital statistics(Public Health
Law, §4121 (3)(a)),who is required to file an oath of office
with the county clerk(Public Health Law,§4123(4)).
C. Civil Service Affirmations
Every town employee, except an employee in the labor class,
must take and file a civil service oath or affirmation before
entering upon the discharge of any duties (Civil Service Law,
§62).
D. Fee Prohibited
An officer is not entitled to a fee for administering the oath of
` office to a member of the Legislature, any military officer, an
inspector of election, clerk of the poll, or to any other public
officer or public employee(Public Officers Law,§69).
E. Notice of Neglect
The town clerk is required to provide written notice to the town
board or other appointing authority when an officer fails to
timely file their oath of office and/or official undertaking (Public
Officers Law,§13).
2021 TOWN CLERK MANUAL 87
§3.4 Official Undertaking or Bond
Town Law,§25 requires the supervisor,town clerk,tax collector,
receiver of taxes, town justice, constable, superintendent of
highways and such other officers and employees as the town
board may require to execute and file an official undertaking in
the town clerk's office,in a form,sum and with sureties directed
and approved by the town board as indicated on such
undertaking.
Public Officers Law,§11(2)provides that in lieu of any individual
undertaking as required by law, the town board may approve
the procurement of a blanket undertaking from any duly
authorized corporate surety covering the officers, clerks and
employees of the town. Such blanket undertaking must be
approved as to form, manner of execution and sufficiency of
surety, by the town board and filed in the same manner as
individual undertakings.The section further provides that any
such blanket undertaking entered into after January 1, 1978
must indemnify against losses caused by the failure of the
officers or employees to faithfully perform their duties or by
their fraudulent or dishonest acts.
Public Officers Law, §12 provides that an official undertaking
must be filed before officers with financial responsibilities
engage in the acceptance, handling and/or disposition of
money and/or property associated in the capacity of their
official position;and conversely,any person having the custody
or control of any such money or property must ensure the
official undertaking is filed before transfer of custody or control.
The town clerk must notify the town board in writing of the
expiration of any undertaking or bond filed in his or her office
pursuant to this section,at least 30,and not more than 60,days
prior to the date of expiration thereof(Town Law,§25).
2021 TOWN CLERK MANUAL 188
The town clerk is required to provide written notice to the town
board or other appointing authority when an officer fails to
timely file their official undertaking (Public Officers Law,§13).
If the surety on an official undertaking of a local officer be a
fidelity or surety corporation, the reasonable expense of
procuring such surety,not exceeding one per centum upon the
sum for which such undertaking shall be required by or in
pursuance of law to be given,shall be a charge against the town
(Public Officers Law,§11 (1)).
§3.5 Vacancies
A. Creation of Vacancies
Every office shall be vacant upon the happening of one of the
following events before the expiration of the term thereof:
• Death of the incumbent (Public Officers Law,
§30(1)(a)).
• Resignation .(Public Officers Law, §30(1)(b); Public
Officers Law, §31; Town Law, §26 (resignation
.4
procedure)).
• Removal from office(Public Officers Law,§30(1)(c)see
Public Officers Law, §36 (elected & appointed officers
with specified terms);Town Law,§267(zoning board of
appeals members); Town Law, §271 (planning board
: members)).
• Ceasing to be an inhabitant (resident) of the town
(Public Officers Law,§30(1)(d)).There are special rules
pertaining to police, uniformed paid firefighters,
_ department of corrections and sanitation workers
(Public Officers Law, §30(4)(4-a)(4-16)(5)). Note:
Please see infra regarding elector status.
2021 TOWN CLERK MANUAL 189
• Conviction of a felony, or a crime involving a ;
violation of the oath of office,provided,however,that
a non-elected official may apply for reinstatement to
the appointing authority upon reversal or the vacating
of such conviction where the conviction is the sole basis
for the vacancy(Public Officers Law,§30(1)(e));1989 Op.
Atty. Gen. (1) 71 - a highway superintendent's
conviction of the crime of obstructing governmental
administration on the basis of actions purportedly
taken in the exercise of his official responsibilities would
involve a violation of the oath of office).
• The entry of a judgment or order of a court of
competent jurisdiction declaring the officer to be
incompetent(Public Officers Law,§30(1)(f)).
• The judgment of a court,declaring void the election
or appointment, or that the office is forfeited or
vacant(Public Officers Law,§30(1)(g)).
• Refusal or neglect to file official oath or
undertaking, if one is required, before or within 30
days after the commencement of the term of office.
If an elective office, within 30 days after the
commencement of such term;or if an appointive office,
within 30 days after notice of appointment;or to file a
renewal undertaking within the time required by law,or t
if no time be so specified,within 30 days after notice in
pursuance of law, that such renewal undertaking is
required(Public Officers Law,§30(1)(h)).
o Active Duty Exception.The neglect or failure
of any state or local officer to execute and file
the oath of office and official undertaking
within the time limited therefore by law, shall
not create a vacancy in the office if such officer
was on active duty in the armed forces of the
2021 TOWN CLERK MANUAL 190
United States and absent from the county of his
or her residence at the time of their election or
appointment, and shall take the oath of office
and execute the official undertaking within 30
days after receipt of notice of election or
appointment,and provided such oath of office
and official undertaking be filed within 90 days
following the date it has been taken and
subscribed, any inconsistent provision of law,
general, special, or local to the contrary,
notwithstanding (Public Officers Law,
§30(1)(h)).
Creation of a New Office - When a new or an
additional office is created, such office shall, for the
purposes of an appointment or election,be vacant from
the date of its creation,until it shall be filled by election
or appointment(Public Officers Law,§30(2)).
• Tie Vote in an Election -Occasionally an election will
result in a tie vote,with no declared winner. Due to the
absence of a statutory procedure in Town Law to
resolve a tie vote,the courts have determined that the
office will be considered vacant and may be filled by
-. appointment until the position may be filled by election
(Furk v.Merkenschlager, 1 N.Y.2d 128(1956)).
• Doctrine of Compatibility - The courts have
determined that some positions are incompatible.
Positions may be considered incompatible by statute,
local law or policy or pursuant to the common law
doctrine of compatibility.For example,one person may
not hold two elected town offices (Town Law, §20). A
member of the town board may not be appointed to
the planning board (Town Law,§271).The courts have
determined that one person may not hold two
' 2021 TOWN CLERK MANUAL 91
positions where one position is supervisory to the
other or where the duties of each office are in conflict
(People ex rel. Ryan v. Green, 58 NY 295 (1874)). The
attorney general's office has numerous opinions
regarding compatibility of office that can be viewed on
its website.
The attorney general's office has opined that a person
automatically vacates their position upon the
acceptance of another incompatible office(Op Atty Gen
Inf.No 92-8).
B. Notification of Vacancies and Appointments
Town Law, §30(3) requires the town clerk to certify to the
county clerk within 20 days after appointment the names of all
appointive town officers, except inspectors of election. Notice
shall include: post office addresses, the date of appointment
and expiration of term of office. -
The town clerk is also required on or before the January 10 of
each year to file a certificate with the state comptroller's office
audit and control department specifying the names of all town
officers,whether elected or appointed,excepting inspectors of
election, and file a certificate with the state board of real
property services specifying the names of all town assessors,
with their respective post office addresses, the date of their
appointment or election and the expiration of term of office
(Town Law,§30(3)).
Town Law,§30(4) requires the town clerk to immediately notify
the county clerk of vacancies in town offices.The notice shal I
include the name of the officer,the office in which the vacancy
occurred and the date of vacancy. Further, the town clerk is
required to notify the county clerk and the department of audit
and control within five days after such vacancy is filled. The
certificate of notice shall include the name and address of the
J_
2021 TOWN CLERK MANUAL 192-
person filling the vacancy with the term for which they were
elected or appointed.
The town clerk must also notify the state Office of Real Property
Tax Services regarding the appointment or election of a town
assessor (Town Law, §30(4)), and of the appointment of an
"acting assessor" within 15 days of the appointment (Real
Property Tax Law,§314(1)).
The town clerk must also notify the chief administrator of the
courts regarding the appointment or election of a town justice
(Town Law,§30(4)).
If a vacancy shall occur or exist in the office of town clerk, the
supervisor shall notify the county clerk of such vacancy and the
date when such office became vacant(Town Law,§30(4)).
On or before February 1 of the year a position is scheduled to
be filled at the general election,the town clerk shall make and
transmit to the board of elections a certificate stating each town
office to be voted for at each such election (Election Law, §4-
106 (2)).Within three days after the occurrence of any vacancy
in an office required to be filled at the next general election
conducted by the board of elections, the town clerk shall file
with the county board of elections,a certificate indicating the
occurrence of the vacancy and the position which is to be filled
(Election Law,§4-106(4)).
The Department of Health's Vital Records Registration Unit and
- the county clerk must be notified when a registrar of vital
statistics is appointed. Notification requires the filing of the
proper DOH form.
C. Filling Midterm Vacancies in Elective Office
The procedure for filling a midterm vacancy in elective town
offices is defined by law (NY Const, Art XIII, §3; Town Law,
2021 TOWN CLERK MANUAL 193
§64(5)).A resolution approved by at least a majority vote of the
fully constituted town board is required to fill a vacancy(1972,
Op.Atty. Gen. (Inf.) 248; See, also, 10 Op. St. Compt.270, 1954;
Op.St.Compt.78-1054).
1. Power to Fill Midterm Vacancies.The power to fill
vacancies in elective office is discretionary (7 Op. State
Compt. 83), but the town board should take all
reasonable steps to fill a vacancy in elective office as
expeditiously as possible for the continuity of
governmental services (1970, Op. Atty. Gen. (Inf.) 65).
The governor may call a special election if the town
board does not fill a vacancy in elective office (Public
Officers Law,§42(5)).
2. Term of Appointment. Section 42 of the Public
Officers Law outlines the length of time a person
appointed to fill a midterm vacancy in elected town
office will serve. If the vacancy occurs at least three
months before the general election, the person
appointed will serve until the end of the calendar year
in which the vacancy occurred, and if the vacancy
occurs less than three months before the general
election, the person appointed to fill the vacancy will
serve for the remainder of the calendar year in which
the vacancy occurred and all of the next, unless the
vacancy occurs in the last year of the incumbent's term
of office,in which case,the appointee will only serve for
the remainder of incumbent's term of office.
3. Notification of Vacancies in Elective Office.
Election Law,§4-106(4)requires the town clerk to notify
the county board of elections that a vacancy in elected
office has occurred within three days of the vacancy.By
February 1,the town clerk shall make and transmit to
the board of elections a certificate stating each town
2021 TOWN CLERK MANUAL 194
office to be voted for at the general election (Election
Law,§4-106(2).
4. Election. A midterm vacancy that occurs at least
three months before the general election in November
will appear on the ballot that November, with the
winner holding office for the remainder of the
unexpired term except for town justices that receive a
four-year term regardless of when the vacancy occurred
(Public Officers Law, §42; Munnelly v. Newkirk, 262
A.D.2d 781, (3d Dep't 1999),order affd, 93 N.Y.2d 960,
(1999)).A midterm vacancy that occurs less than three
months before the general election in November will
appear on the ballot.the following November for the
remainder of the unexpired term or for a new term if it
happens to coincide with the expiration of the
incumbent's term of office.
5. Filling Midterm Vacancies in Appointed Office.
The proper appointing authority fills vacancies in all
other offices or positions of employment (e.g. town
clerk fills vacancies in the office of deputy town clerk
(Town Law§30(10);the supervisor fills vacancies in the
office of town bookkeeper and confidential secretary
(Town Law; §29 (15), the town board fills vacancies in
the office of planning board member,(Town Law„§271)
• etc.).A person appointed to fill a midterm vacancy in an
appointed office will sere for the remainder of the
unexpired term.
D. Resignations
Town Law, §26 directs that the resignation of town officers be
accomplished in accordance with the provisions of Public
Officers Law,§31,which provides that a resignation must be in
writing and addressed and delivered to the officer or body to
2021 TOWN CLERK MANUAL 95
whom it is made. Pursuant to Public Officers Law, §31(1)(8),
town officers are to direct their resignations to the town clerk.
1. Town Clerk Resignation. The elected town clerk
resigns to the Secretary of State, and the appointed
town clerk resigns to the town board (Public Officers
Law, §31 (1)(k)); Scriven v. Wade,208 A.D.2d 1035,617
N.Y.S.2d 402 (3d Dept 1994)).
2.Town Justices.Town justices are both town officers
and officers of the Unified Court System (NY Const,Art
VI, §1(a); Op. Atty. Gen. (1) No. 90-46; Op. Atty. Gen. (1)
No. 93-29; Op St. Comp. No. 81-222). Town justices
should therefore submit a written letter of resignation
to both the town clerk and the chief administrative
judge(Public Officers Law,§31 (1) (d)(g)).
3. Resignations must be in Writing. Resignations
must be in writing and addressed to the town clerk and
delivered to the town clerk or filed in the town clerk's
office(Public Officers Law,§31 (2)(3)).
4. Legal Sufficiency of Resignations. The New York
State Attorney General's Office has opined that the
town clerk determines whether statutory requirements
have been met for a town officer's resignation that is
filed with the town clerk (Op. Atty. Gen (1) No. 96-26).
The attorney general's office has further noted that
substantial compliance with the requirements of Public +
Officers Law, §31 will be sufficient to effectuate a valid
resignation (Op. Atty Gen (1) No. 96-26 citing Brescia v.
Mugridge,52 Misc 2d 859,863 (Sup Ct Suffolk Co),aff d,
29 AD2d 632 (2d Dept [1967]); Popp v. Town of
Cornwall, 244 A.D.2d 492 (2d Dept [19971); Shadur v.
Town of Pawling, 116 N.Y.S.3d 591 (2d Dept[2020])).
2021 TOWN CLERK MANUAL 196
5.Effective Date.If no effective date is specified in such
resignation,it shall take effect upon delivery to or filing
with the proper officer or body. If an effective date is
specified in such resignation, it shall take effect upon
the date specified, provided however,that in no event
shall the effective date of such resignation be more than
30 days subsequent to the date of its delivery or filing
for all officers,except town justices,who may select an
effective date up to 90 days from the date the letter of
resignation is filed (Public Officers Law,§31 (2)).
6. Withdrawal of Resignations. A resignation
delivered or filed pursuant to this section, whether
'. effective immediately or at a specified future date,may
not be withdrawn, cancelled, or amended except by
consent of the officer to whom it is delivered or body
with which it is filed (Public Officers Law,§31 (4)).
The town clerk has discretionary authority to allow a
town .officer to withdraw their letter of resignation
(Public Officers Law§31(4); Wright v. Town Bd.of Town
of Ticonderoga, 160 A.D.2d 1156,(3rd Dept. 1990).This
discretion must be exercised in a reasonable manner
and not in an arbitrary or capricious manner(Wonderly
v. Division of New York State Police,80 A.D.2d 974 (3`d
Dept. 1981)). Each case will depend upon the facts at
hand, but courts have found that the town clerk may
properly consent to withdrawal where no actions have
been taken on the resignation (Wright v. Town Bd. of
Town of Ticonderoga, 160 A.D.2d 1156, (3rd Dept.,
1990).
7. Notification of Resignation.The town clerk, as the
officer who receives letters of resignation from elective
officers must immediately notify the state board of
elections of the fact of such resignation and the
2021 TOWN CLERK MANUAL 197
effective date, if any, set forth in such resignation
(Public Officers Law,§31 (5)).The town clerk should also
notify the town board.
§3.6 Holding Over After Expiration of Term
Town officers with a fixed term of office,having duly entered on
the duties of office, may continue to perform the duties of the
office and receive compensation for said services until such
time as a successor is elected or appointed to the office.Town
justices are not authorized to hold over(Public Officers Law,§5).
An officer who is holding over for one or more entire terms,
shall, for the purpose of choosing a successor, be regarded as
having been newly chosen for such terms.An appointment for
a term shortened by reason of a predecessor holding over,shall
be for the remainder of the term only(Public Officers Law,§5).
The purpose of the statute relating to holding over after
expiration of term of office is to ensure a continuance of
government where a vacancy occurs by expiration of time and
there is a failure of election or appointment;the statute can be
employed whenever the office vacated can be identified with a
particular incumbent (Foley v. McNab, 1964, 42 Misc.2d 460,
(Supreme Court,Suffolk County(1964)).
A public officer holds over and continues to perform the duties
of office until a successor is chosen and qualified, but the office
is legally vacant for the purpose of selecting a successor(1979,
Op.Atty.Gen. (1) 198).The person appointed to temporarily fill
a vacancy in an elective office may not, however, hold over
beyond December 31 following the date when the election
should have been held (Op.Atty.Gen.(1) No.84-67).
An officer may hold over where the successor was elected but
failed to take the constitutional oath of office (People ex rel.
2021 TOWN CLERK MANUAL 198
Preston v.Keator 169 A.D.368(3d Dept. 1915),see,also,People
v. Woodruff,32 N.Y.355 (1865);People v.McKinney,52 N.Y.374
(1873)).This is also true where the incumbent's successor failed
to timely file the official undertaking or bond (Pell v. Ulmar,21
Barb.500(1856)).
: §3.7 De Facto Officers
An individual coming into office by election or appointment but
who fails to qualify for office(e.g.fails to take and file a required
oath or undertaking) is a de facto officer, and all actions taken
by that officer are deemed legal and valid (Wilcox v. Smith, 5
Wend. 234; Dolan v. Mayor, 68 N.Y. 274; Adhern v. McNab 7
A.D.2d 546;Public Officers Law,§15).
2021 TOWN CLERK MANUAL 99
Chapter 4
THE TOWN CLERK'S
FISCAL DUTIES
§4.1 Countersignature
"Except in towns where the office of town comptroller has been
created,the town clerk,when required by resolution of its town
board,shall countersign all checks required to be signed by the
supervisor,"(Town Law,§30(9)).
§4.2 Payments not Requiring Prior Audit
Claims must be pre-audited and approved for payment by the ;
town board,except for:
1. Fixed salaries or compensation for services of offices or
employees regularly engaged at agreed wages bythe hour,day,
week,or year(Town Law,§118).
2.Principal of or interest on indebtedness(Town Law,§118).
3. Amounts becoming due upon lawful contracts for periods
exceeding one year(Town Law,§118).
4. Certain welfare payments (Social Services Law, §86; Town
Law,§125(2)).
5.Payments made pursuant to a court order(Town Law,§118).
In addition, the town board may, by resolution, authorize the
payment in advance of audit of claims for public utility services,
which includes fuel oil by specific definition, postage, freight
and express charges(Town Law,§118(2)).
2021 TOWN CLERK MANUAL 1100
All such claims shall be presented at the next regular meeting
for audit, and the claimant and the officer incurring or
approving the same shall be jointly and severally liable for any
amount disallowed by the town board (Town Law,§118(2)).
Where a town,as a participating employer in one or more of the
state's retirement systems,is billed by the state comptroller for
member employees under its jurisdiction, the payment is
mandatory and not subject to pre-audit requirements (Op. St
Comp. No. 66-601). Similar rationale would apply to the
payment of a town's share in the State Health Insurance Plan
and payments made to the State Unemployment Insurance
Fund.
§4.3 Audit and Processing of Claims
A.Town Clerk and Board Duties.In a town in which there is no
comptroller, the town clerk also has various duties in
connection with the initial processing and audit of claims.The
town clerk must cause each claim presented to the town board
for audit to be numbered consecutively beginning with the
number one in each year, and to be stamped or otherwise
marked with the date of presentation, and the claims must be
available for public inspection at all times during office hours
(Town Law,§119).
B.Timing.The town board is not required to audit a claim until
30 days after presentation to the town clerk.When a claim has
been audited by the town board, an official note of the audit
and allowance must be entered in the minutes; and the town
clerk must file the same in numerical order as a public record in
the town clerk's office, prepare and certify an abstract of the
audited claims,specifying the number of the claim,the name of
the claimant, the amount allowed, and the fund and
2021 TOWN CLERK MANUAL 101
appropriation account chargeable therewith, directed to the
supervisor,authorizing and directing the supervisor to pay the
claimant the amount allowed upon the claim (Town Law,§119).
NOTE: General Municipal Law, §106-b requires progress
payments to contractors performing public works projects.
Where a town board audits the progress payment,it has 45 days
to pay it before interest begins to accrue; where a town
comptroller audits the progress payments request, interest
begins to accrue if payment is not made within 30 days of the
submitted request.
C. Claim Defined.In general,the claim,which is presented to
a town for payment,must be(Town Law,§118):
1.Written,
2.Itemized,
3. Certified or verified by the claimant, depending upon
legal requirements and local option,
4. Approved by the officer or employee who gave rise to
the claim,
5. Audited by the town board or officer, or employee
charged with the auditing function,and
6.In a form prescribed and approved by the town board
D. Voucher(Claim Form).Most towns use a standard voucher
form that claimants complete and sign. The voucher form
provides for entering all the information essential to a claim
document. The town board or town comptroller prescribes the
form. Use of the voucher form speeds up the routine of
determining that a claim is ready for audit, as well as the audit
itself. If a vendor submits a properly completed invoice on their
own billhead, it is not necessary that the information be
repeated on the voucher;the vendor's invoice may be attached
to a voucher for filing. If, however,a bill is complete except for
2021 TOWN CLERK MANUAL 1102
certification (or verification),the vendor should not be required
to copy the information on the town voucher forms. Reference
may be made to the invoice attached to the voucher, and the
certification on the voucher signed bythe vendor. Vendors who
frequently do business with the town may be given a supply of
voucher forms; other vendors should be furnished with forms
when orders are placed.
NOTE: The town board is authorized to adopt a resolution
requiring that its vouchers be certified or verified. Verification
means that the claimant must appear before an official
authorized to administer oaths and swear that the voucher is
true and correct. Certification permits the claimant to sign
substantially the same statement without appearing before
such official (Town Law,§118).
E. Helping in the Audit Process. Typically, the town
employee/officer who initially receives the claim is not the town
clerk. The officer or employee initially receiving the vendor's bill
can expedite the auditing process, and if necessary, could
return it for proper completion or compliance.
Some procedural checks that can be made to facilitate the final
audit and subsequent payment are:
1. Prove the mathematical accuracy of all computations; this
should include verification of extensions and additions and the
recalculation of any discount.
2. Determine that the charges are not duplicates of items
already paid; in this respect, recollection of a previous claim
from the same vendor with similar charges might prompt
further investigation.
2021 TOWN CLERK MANUAL 103
3. If a purchase order system is in use, compare the claim with
the receiving copy of the purchase order.
4.See that the claim is properly itemized.Vouchers for supplies
or materials should show such information as the weight or
quantity, size, grade, unit price and total, as well as any other
data appropriate to the commodity purchased. Claims for
multiple deliveries of items (such as gasoline or fuel oil) should
be supported by delivery tickets signed by the person
accepting delivery and identifying the equipment, storage, or
building into which each delivery was made. Delivery tickets
furnish additional proof that the municipality actually received
the items for which it is paying.
Claims submitted by a town officer or employee for
reimbursement of expenses should indicate the reason for the
travel or expense and the authorization for incurring it. The
claim should be properly itemized and supported. Receipts for
such items as lodging, public transportation, registration fees,
parking charges, and thruway tolls should be attached. Meals
should be itemized and the cost of each shown separately.
When the individual's personal car is used for travel, the claim
should include the dates and points of travel, number of miles
and the mileage rate. The rate per mile should be the rate
established by resolution of the governing board (in lieu of
actual and necessary expenses) (Town Law,§116).
A simple rule to remember on itemization — sufficient detail
must be included to permit a satisfactory audit by a person who
is not entirely familiar with the transaction.
5. If the board has passed a resolution requiring vouchers to be
certified or verified,note whether the claimant has complied.
2021 TOWN CLERK MANUAL 1104
6. Observe whether the official responsible for originating the
claim has approved the voucher.
7. See that the claim is accompanied by a receipt of the
employee who actually received the material or equipment for
which the claim is made. In towns where a purchase order
system is in place, the individual responsible for receiving the
materials should note all pertinent information on the
"Receiving Copy,"date and sign it.
F. Auditing Claims
The audit of a claim by the town board or the official charged
with the auditing function should not be a casual review but
rather a deliberate and thorough process to determine that the
proposed payment is proper and just, including verification
that:
1. The proposed payment is for a valid and legal purpose.
2. The obligation was incurred by an authorized town
official/employee.
3. The goods and commodities for which payment is claimed
were in fact received, or if for services, that they were actually
rendered.
4. The obligation does not exceed the available appropriation.
5. The claim is in proper form; it is mathematically correct, it
meets legal requirements; it does not include any charges for
taxes from which the town is exempt;it includes any discounts
to which the town is entitled; it does not include charges
previously claimed and paid; and it is in agreement with an
attached purchase order if a purchase system is in effect.
Sometimes in auditing vouchers, there is a tendency to
overlook a deficiency in a point of audit rather than subject the
town to the inconvenience and expense of returning a voucher
to a vendor or to permit the omission of some legal requirement
2021 TOWN CLERK MANUAL 1105
because it is considered too minor to be of concern. This is not
a good practice as it may lead to more and more omissions. The
auditing bodyshould insist that the voucherbe correctand that
it contain the necessary information.Usually,when vendors are
educated regarding what is required, they cooperate willingly
and the town will have little trouble in this respect. This is
especially true if the vendor is informed that proper claims
enable the municipality to complete the process and issue a
check sooner than those presenting problems.
G. Abstract of Audited Vouchers
After the town board has audited the vouchers,the town clerk
is required to list them on an abstract(Town Law, §119),which
is then signed by the town clerk and directed to the town
supervisor ordering payment to the claimants in the amounts
set opposite their names. Generally, a printed form providing
spaces for all the required information is used.
Many large business firms request that their reference number
be placed on the check so that they might be able to identify
the remittance. If such request is made,the reference number
also should be recorded on the abstract so that the supervisor
might copy it on the check.
Since the claim normally is filed with the town clerk, it is
essential that the abstract contain all information necessary to
effect payment by the disbursing officer, and to make the
appropriate entry in the accounting records. This would include
appropriations and funds to be charged; it is important that
they be shown so the responsible officer will know the correct
amounts to be charged.
In some instances, a claim will contain charges against several
appropriations. In this event,each should be shown separately
2021 TOWN CLERK MANUAL 1106
in the appropriation column on the abstract.All of these items
should then be added and the amount extended to a total
column to equal the amount of the check. If several vouchers
are from the same claimant,only one check need be drawn for
the total amount due.Total charges for all of the appropriation
accounts on the abstract must equal the total of the checks
issued.
It may be desirable to prepare a separate abstract for each fund.
Many town clerks prefer to prepare them in duplicate. When
the audit is accomplished by town board action,the duplicate
may be inserted in the minute book as a record of vouchers
audited,or it may be filed separately with appropriate notation
made in the minutes.For example:Vouchers 1 to 15 on General
Fund Abstract#1 in a total amount of$2,620.53 were audited
and approved. Either of these procedures eliminates the
necessity for listing vouchers individually in the minutes.
In some towns,the abstract is prepared in advance of audit. This
is permissible;however,if a voucher is disallowed or allowed in
a lesser amount,the abstract must be corrected and the proper
totals indicated. In some smaller towns, each member of the
town board audit committee initials or signs each voucher to
indicate their audit and approval. While not required, there is
also no objection to or harm in this procedure provided that the
town board audits and votes on the approval of the vouchers at
a town board meeting (Op.St.Comp.No.80-417).
2021 TOWN CLERK MANUAL 1107
Town of
ABSTRACT OF AUDITED VOUCHERS
FUND NO.
PAGE
Voucher CLAIMANT APPROPRIATION V Amount ENCUMRANCE ]Check V
No. (Name and Address) Account Amount of Check Number Amount No.
Liquidated
Summaryof Accounts
Acct. Amount to be Totals
Code Charged
E�)
Totals
To the Supervisor:
I certify that the Vouchers listed above were audited by the
on and allowed in the amounts shown.
(Town Board-Comptroller) Date
You are hereby authorized and directed to pay each of the claimants the amount opposite his/her name.
Date Town Clerk-Comptroller
2021 TOWN CLERK MANUAL 108
§4.4 Reports and Annual Audits
A. Monthly Reports
The town supervisor must make a monthly statement to the
town board of all monies received and disbursed during the
month and file a copy of such statement in the town clerk's
office(Town Law,§125(2)).
The town clerk is"required to submit monthly to the supervisor
a verified statement of all monies received ... and to pay such
monies to the supervisor who shall deliver [the] receipt
therefor;'(Town Law,§27).Unless such verified statement and
payment is made, the town clerk may not be paid until the
report is properly submitted (Town Law,§27(1)).
All fees or monies received by the town clerk are the property
of the town and must be paid over to the town supervisor
(except such fees and monies the application of which is
otherwise provided by law) (Town Law,§27(1)).
The town clerk is also required to keep records regarding the
sale of dog licenses, marriage licenses, and Environmental
Conservation Law licenses, including the amount of money
that has been remitted to the state(Town Law,§27(1)).
B. Annual Accounting
On or before January 20,the town clerk must account to the
town board all monies received and disbursed by the town
clerk during the year.At this time,the town clerk submits the
town clerk's books and records for audit and is required to file
a written statement with the town board showing in detail the
town clerk's receipts and disbursements for the year (Town
Law,§123).This annual report and audit by the town board are
not necessary in a town having a town comptroller, or in a
2021 TOWN CLERK MANUAL 1109
town where a public accountant has been retained prior to
January 20 to make an annual audit of the town to be
completed within 60 days after the end of the fiscal year(Town
Law,§123).
On or before January 10,the county treasurer must transmit to
the town clerk of each town within the county a statement of
all monies paid by said county treasurer to the town supervisor
during the preceding year(County Law,§550(4)).
C. Supervisor's Annual Financial Report
Within 30 days of the end of each fiscal year, the town
supervisor must prepare and file with the town clerk an annual
financial report accounting for all monies received and
disbursed by the town supervisor with the certificates of the
banks or trust companies where town monies are deposited,
showing the amount of monies on deposit (Town Law,
§29(10)). Alternatively, the town board may allow the
supervisor to submit the AUD report that the supervisor is
required to prepare and submit to the state comptroller's
office (Town Law §29 (10-a)), in which case, the supervisor is
required to submit the report to the town clerk in accordance
with the timeline provided in General Municipal Law,§30.
General Municipal Law, §30 (5) provides three relevant
timeframes for filing the AUD report with the state
comptroller's office:
File date from Extension by
Population of town close of fiscal permission of
year: comptroller
Under 5,000 60 days 60 days
5,000 to 19,999 90 days 30 days
20,000 or greater 120 days None provided
2021 TOWN CLERK MANUAL 1110
The town clerk must cause either a summary of such report to
be published in the official newspaper, and in such other
newspaper as the town board may direct,within 10 days after
it is filed with the town clerk, or a notice that a copy of such
report is on file in the town clerk's office and is available for
public inspection and copying. The state comptroller's office
provides the form in which such summary must be published.
The procedure is wholly optional and will require town board
action to be substituted for the existing procedure(Town Law,
§§29(10-a), 124).
§4.5 Report of Fiscal Examination
After the OSC examiners have completed an audit of the fiscal
affairs of the town,a report of such examination is filed in the
town clerk's office, at which point, such report is a public
record and open to inspection (General Municipal Law,§35).
Within 10 days after such report is filed with the town clerk, a
notice must be published at least once in the official
newspaper,or in a newspaper having general circulation in the
town if no newspaper has been designated,in substantially the
following form:
"NOTICE IS HEREBY GIVEN that the State Comptroller has
caused the fiscal affairs of(name the town)for the period
beginning on...and ending on...to be examined,and that
the report of such examination has been filed in my office
where it is available as a public record for inspection by all
interested persons."
The town clerk must file in the town clerk's office proof of
publication of such notice in a form to be prescribed by the
state comptroller.The town clerk must also present the report
2021 TOWN CLERK MANUAL 1111
of the examination to the town board for its consideration at
the first meeting held after the filing of the report with the
town clerk(General Municipal Law,§35).
§4.6 Record of Obligations
The town clerk must keep a complete record of each issue of
bonds or notes of the town. This record shall include (Local
Finance Law,§163.00):
1.The type thereof
2.The amount thereof
3.The number of obligations in the issue
4.The rate of interest thereon
5.The date of issue thereof
6.The date of maturity of each obligation in the issue
7. The date of adoption of the resolution(s) pursuant to
which the obligations were sold.
In addition,the town clerk is the registry agent unless a bank
or trust company has been so designated by contract.The clerk
should notify or remind the supervisor when principal and
interest payments are due,the amount and to whom payable
(Local Finance Law,§163.00).
§4.7 Record of Claims for Damages Filed Against Town
It is the town clerk's duty to maintain a record of notice of
claims for damages filed against the town, unless the town
board has designated someone else to perform this duty
(General Municipal Law,§50-f).
This record must set forth:
1. The name and post office address of the claimant and
their attorney,if any
2021 TOWN CLERK MANUAL 1112
2. Date of service
3. Time,place and manner of injury
4. Nature of the injury and amount claimed
5. Whether claim was approved or disapproved, with
the date
6. Whether referred to an insurance carrier,with the date
7. Carrier's disposition of the claim,with the date
8. Date of service of a complaint
9. The name and address of any named co-defendant
10. The name and address of any third-party defendant
11. The municipal corporation's equitable share
determined in accordancewith the relative culpability
of each party pursuant to an itemized decision or
itemized jury verdict
12. The extent to which the municipal corporation has
paid more than such equitable share
13. Date and result of any trial
14. Date and result of any appeal
15. Date and amount of any settlement
16. Date and amount of any judgment paid
17. Reason and date file was closed.
§4.8 Cash Control
Well-designed control procedures can help prevent thefts of
cash and recording errors. If proper controls are not
established early on, the handling of cash can become a
nightmare. Below are some measures that will help the town
clerk manage cash.
A. Physical Safeguards. First, the town clerk must establish
physical safeguards. Do not allow large amounts of cash to
accumulate in cash drawers. Never leave cash unattended.
Provision should be made for storing monies in a safe during
peak periods prior to deposit.Limit access to the safe to as few
2021 TOWN CLERK MANUAL 1113
employees as possible.The combination of the safe should be
changed when there is a turnover in staff.
B. Separate Cash Drawers. A primary objective of internal
control is to fix responsibility,accomplished by centralizing the
handling of cash. Each employee who handles cash should
have their own change fund and cash drawer. Do not allow
several employees to use the same cash drawer.At the end of
the day, each employee should make a daily summary of all
transactions and appropriate cash reconciliation, making it
possible to establish responsibility should a discrepancy
develop. The ability to pinpoint responsibility is not only
essential to the town clerk as the accountable officer, but
failure to fix responsibility would be decidedly unfair to
employees.
C.Access to Accounting Records. Employees receiving cash
should not have access to or authority over accounting
records.Do not allow employees receiving cash to have access
to payments received by mail, which could prevent the
substitution of checks received in the mail for recorded cash.
Cash registers provide an excellent form of internal control
when used properly. The tapes should be locked in the
registers and should be removed after each day's work by the
clerk or a designated employee who does not handle cash.
D.Receipts.The next step in the proper handling of cash is the
preparation and issuance of receipts.When no other evidence
satisfactory for audit is available,receipts must be issued for all
monies received (General Municipal Law, §99-b). The law
requires that receipts be in duplicate and be numbered
consecutively,which could be interpreted to mean numbering
the receipts as they are issued. They should be press-
numbered for purposes of internal control.Tax receipts should
2021 TOWN CLERK MANUAL 1114
be in triplicate since copies must be filed with the county
treasurer. In larger towns, an inventory of all receipt forms
should be maintained. Receipt forms should be issued to
cashiers in numerical order and with the requirement that
cashiers sign for the receipts.All towns should retain copies of
voided receipts and note"void"on all copies.
In addition to entering the date, name and the amount of
money received on the receipt, space should be provided to
indicate the purpose(dog or marriage licenses,bingo,hunting
license, etc.) and if the amount received was in the form of
cash,check or money order. Make all change computations on
the receipt. For example:
Cash $120.00
Change $8.90
Attach an adding machine tape to the first receipt if more than
one receipt is issued for one check.Cross-reference receipts or
1 indicate which items were paid by one check.
E. Cash Books. The law provides that a town clerk must
maintain a cashbook(Town Law,§30(1-a)).Cash bookformats
can range from simple to sophisticated, depending on the
needs of the individual office, although certain basic
requirements should be incorporated into any cash book.
There should be a column for date of payments,a column for
each type of receipt,a total column and a deposit column.The
columnar arrangement for each type of receipt will assist the
clerk in preparing the monthly report to the supervisor. A
deposit column is a device for confirming that each day's
receipts were deposited intact, and it can be used in the
preparation of bank reconciliation. It is not recommended that
each receipt be recorded individually; instead, group receipts
2021 TOWN CLERK MANUAL 1115
separately by types, with entry of the total collections in the
columns designated on a daily basis.
The payment side of the cash book should show all payments
made.No payments should be made except by check from the
official bank account established in the name of the town clerk
in a bank designated by the town board. Issue checks in
sequential order,and keep blank checks secure.Regardless of
the format of the cash book, the total daily collections as
posted should be reconciled with cash on hand at the close of
business each day, ensuring that the total amount posted to
the cash book is equal to the total cash available for deposit,as
indicated by counting all cash on hand and deducting the
changefund.
F. Bank Deposits. The final process in handling cash is
depositing it in the bank. All monies in excess of$250 must be
deposited in the bank within three business days (Town Law,
§30 (1-a)). However,it is strongly recommended that deposits
be made daily. The monies deposited each day should be the
exact amount collected for that day.When the volume is large,
one or more deposits may be made on the day of receipt and
the balance on the following day. Be sure that the exact
amount collected during the period is deposited intact.Do not
"even out"deposits.
Checks should be promptly endorsed "For Deposit Only."
Banks should be instructed not to cash checks payable to any
individual as an official of the town. Checks should not be
cashed from receipts or from change funds. This rule should
apply to town payroll checks and to any check in an amount
larger than the payment being tendered.
2021 TOWN CLERK MANUAL 1116
Deposit slips should be made in duplicate. The duplicate
should be validated by the bank, and retained in the town
clerk's files.The amount of each deposit should be entered in
the deposit column of the town clerk's cash book.The date of
the deposit should be indicated.Checks should be individually
listed on the deposit slip; if the volume is so large that this
impracticable,a tape of the checks should be retained with the
deposit slip.With the detail on the receipts and deposit slips,it
is possible to localize errors by being able to trace transactions
from receipts to cash book to deposit.
Police protection should be obtained when you are
transferring large amounts of money from the office to the
bank.With or without police protection,do not follow a fixed
pattern as to time of day.Always travel a different route to the
bank. The bank acts as a cash control when all receipts are
deposited and all disbursements are made by check.Thus,the
bank, an independent organization, acts in the capacity of
keeping a record of receipts and disbursements.
At the end of each month, the bank submits a statement
tabulating all deposits and all checks.The closing balance on
the bank statement may or may not agree with the balance
indicated in the cash book. In order to reconcile the two
balances, these steps should be followed: Compare cash
receipts in the cash book with deposits shown on the bank
statement. Prepare a list of receipts representing deposit in
transit and cash on hand,which are posted to the cash book
but are not on the bank statement. Compare the checks
returned with the bank statement and with the cash book.
Compile a list of checks that were not charged on the bank
statement.Add the deposits in transit and cash on hand to the
bank balance and subtract the checks not charged.The result
will be the town clerk's adjusted bank balance,which should
2021 TOWN CLERK MANUAL 1117
agree with the town clerk's cash book balance. Any
discrepancy between the cash book balance and the adjusted
bank balance should be carefully checked. Errors allowed to
accumulate can become major problems.
G.Official Undertakings. In spite of good internal controls,it
is still possible to sustain a loss of cash. Losses could result
from acts such as theft, burglary, robbery, destruction and
mysterious disappearance. The official undertaking or bond
protects the town;in the event of a loss of cash,the town will
recover on the bond.The bonding company will then turn to
the town clerk. The town clerk is responsible for the
administration of the town clerk's office and liable for the acts
of deputies and employees. To discharge this responsibility
without personal loss to the town clerk, it is recommended
that, with prior approval of the town board, the town clerk
acquire insurance.
§4.9 Petty Cash
Town boards may by resolution establish petty cash funds for
town officers,heads of department or office in the town.Petty
cash may be used for the payment, in advance of audit, of
properly itemized and verified or certified bills for materials,
supplies or services furnished to the town for the conduct of its
affairs, which materials and supplies must be paid for on
delivery;and the purpose of making change when required in
the performance of official duties(Town Law,§64(1-a)).
The amount of a petty cash fund for a receiver of taxes and
assessments in a town of the first class shall not exceed$1,000,
and for any other officer or office or department head,$500.A
town board may create such a fund in any lesser amount if it
sees fit, depending on the size of the town and the
2021 TOWN CLERK MANUAL 1118
complexities of the office.The town board may also increase
such amounts by the adoption of a local law (Town Law, §64
(1-a)).
Upon the adoption of the appropriate resolution creating a
petty cash fund, the town supervisor would draw a check
payable to the respective officer for the full amount of the fund
as so created.The town officer would then cash the check into
the currency denomination needed and place the same in a
cash box or cash register in their office.If the petty cash fund is
used only for the purpose of making change, it should always
total the authorized amount. If the petty cash fund is used for
paying for small purchases or items for which payment is due
on delivery,it will diminish in cash amount and will have to be
replenished as described below.When a payment from a petty
cash fund is made, evidence or proof that the payment was
actually made is required. At the time any payment is made
from a petty cash fund,"a bill in form sufficient for audit by the
town board as required by law" shall be required to be
furnished to the officer for whom the fund was created. The
phrase "as required by law" refers to Town Law, §118. The
portion of that section applicable here requires that the bill be
itemized and certified(or,if the town board has so determined
by resolution,verified).
Monies for change funds should be provided from an
established petty cash fund.The change fund in each drawer
should be in a fixed amount and checked periodically by the
town clerk. Each employee should sign a receipt for the
amount given.After a deposit has been made,the amount in
cash drawers should be the amount of the change funds.
Change funds should not be created by withholding a portion
of cash collections or by delaying deposits.
2021 TOWN CLERK MANUAL 1119
§4.10 Electronic Banking -
Electronic banking can be a more efficient means of processing
and recording receipts and disbursements than traditional
banking. General Municipal Law, §5-a, authorizes the use of
electronic or wire transfers, while section 5 and section 5-b
authorize municipalities to accept payments by credit card and
over the internet,respectively.
Before any payments or disbursements are accepted or made
electronically, the town clerk should review the policies and
procedures that the town board has in place for such
transactions. These policies and procedures should include
guidance as to what online banking and electronic funds
transfers (EFT) will be used, and who is authorized to initiate,
approve,accept and record such transactions.
While electronic banking may be more efficient, town clerks
should observe traditional internal controls and practices
designed to ensure the security of such transactions. For
instance, passwords should be used to access or approve
transactions,and these passwords should not be taped to the
computer or the desk. Town clerks should also take care to
ensure that all electronic transactions are promptly reconciled.
For guidebooks and reference materials regarding the town
clerk's fiscal duties,visit the OSC website(www.osc.state.ny.us)
and/or contact an appropriate regional office.
§4.11 Compatibility of Office
Among the inquiries concerning office compatibility,the most
frequent questions involve whether a person may
simultaneously hold the positions of town clerk and deputy
supervisor and/or whether a person may serve as town clerk
2021 TOWN CLERK MANUAL 1120
and bookkeeper for the town supervisor.Although Town Law
provides that any person, including a town officer, may be
appointed deputy supervisor,the attorney general's office has
concluded that the offices of town clerk and deputy supervisor
are incompatible. This is also true of the positions of
supervisor's bookkeeper and town clerk.The opinion refers to
a system of fiscal checks and balances between the town clerk
and the town supervisor's office to support this conclusion
(1976 Op.Atty.Gen.(1)No. 184).
§4.12 Town Budget Process
One of the primary responsibilities of the town board is to
adopt a structurally balanced budget that accurately estimates
the revenues and expenditures of the town in the coming fiscal
year. The following step-by-step list outlines the budget
adoption process from the initial stages through its final
adoption and beyond. Please note that there are some steps
the law requires be accomplished by a date certain — these
statutory deadlines are listed below in bold,(the deadlines for
towns in Westchester and Monroe counties are different and
are indicated in parentheses).
A. Appointment of Budget Officer
The very first step in preparing a town budget is the town
supervisor's decision to designate a budget officer. The
supervisor may appoint any person other than a member of
the town board to be the budget officer. If no person is
appointed as the budget officer, or if a vacancy occurs in the
office, then the town supervisor is deemed to be the budget
officer(Town Law,§103).
2021 TOWN CLERK MANUAL 121
B. Receipt of Tax Cap Reporting Information
According to the Office of the State Comptroller (OSC), the -
town supervisor should receive a user identification and PIN
number for accessing the online tax cap reporting form
approximately five months prior to the coming the fiscal year.
The online form will be used later in the budget process to
report to OSC the information necessary to calculate the tax
levy limit.Separately,the Department of Taxation and Finance
will make available the relevant tax base-growth factor used to
adjust the town's levy limit(General Municipal Law,§3-c).
C. Development and Submission of Estimates
The budget officer should work with the various department
heads of the town to develop reasonable estimates of the
revenues and expenditures for the coming fiscal year. It is
recommended that this process be started during the summer
so that the department heads have time to give thought and
consideration to their estimates. Budget estimates must be
submitted to the budget officer no later than September 20
(October 20 for towns in Westchester and Monroe
counties).If estimates are not submitted to the budget officer
at this time, then the budget officer is responsible for
preparing the estimate.These estimates form the basis of the
tentative budget(Town Law,§104).
D. Calculate Coming Year's Tax Levy Limit
Each town will be responsible to calculate its own tax levy limit.
While there is no specific point at which this must be done in
the budget process,it is recommended that this calculation for
the coming fiscal year be done early in the budget process.
Doing so will help the budget officer develop a tentative
budget that requires a tax levy within that limit,or give the
2021 TOWN CLERK MANUAL 1122
town board time to consider and adopt a local law overriding
the levy limit.The town may work with OSC regarding tax cap
compliance including, allowable carryovers (if any) (General
Municipal Law,§3-c).
E. Preparing the Tentative Budget
The budget officer must review submitted estimates and
prepare estimates for departments from which no estimates
were received. After completion of the review, the budget
officer develops the tentative budget and files it with the town
clerk by September 30 (October 30 for towns in
Westchester and Monroe counties)(Town Law,§106).
F. Preparation of the Exemption Impact Report
The budget officer must also prepare an exemption impact
report, the form for which is provided by the Department of
Taxation and Finance. The exemption impact report is
annexed to and filed along with the tentative budget by
September 30 (October 30 for towns in Westchester and
Monroe counties) (Real Property Tax Law,§495).
G. Presentation of the Tentative Budget
The town clerk presents the tentative budget to the town
board at a regular or special town board meeting to be held on
or before October 5(November 10 for towns in Westchester
and Monroe counties) (Town Law,§106).
H. Town Board Review of the Tentative Budget
The town board reviews the tentative budget and makes any
changes that it deems necessary,consistent with law.Changes
should be in writing,approved by a majority vote of the town
board by resolution and included in the minutes of a town
board meeting (Town Law, §63). In reviewing the tentative
budget,the town board may call upon the department heads
2021 TOWN CLERK MANUAL 1123
to explain their estimates. Note that the review of the tentative
budget may be adjourned and continued at subsequent
meetings,but take care not to string this out too long,as there
are other deadlines further along in the process that must be
met(Town Law,§106).
I.Adoption of the Preliminary Budget
Once the town board has concluded its review of the tentative
budget, it needs to approve the tentative budget and any
changes by resolution.The tentative budget so adopted by the
town board becomes the preliminary budget.The preliminary
budget is filed with the town clerk, and the town clerk makes
as many copies of the preliminary budget available for public
distribution as the town board directs. From this point, no
changes should be made to the preliminary budget until after
the town board holds a public hearing (Town Law,§107).
I Public Hearing on the Preliminary Budget
The public hearing on the preliminary budget must be held no
later than the first Thursday following Election Day.' Notice
of the public hearing must be published in the official
newspaper and any other paper that the town board directs,
as well as the town clerk's signboard and on the town's
website, if practicable.The notice must state the time, place,
and purpose of the hearing and that copies of the preliminary
budget are available for public inspection by anyone
interested, as well as the proposed salary of each member of
the town board (including the supervisor), the elected town
clerk and the elected highway superintendent. At least five
1 Please note that this does not mean that Election Day is in December
in Westchester and Monroe counties — the deadline for the public
hearing for towns in those counties will always be December 15. For
every other town,the deadline for opening the public hearing will be
tied to Election Day.
2021 TOWN CLERK MANUAL 1124
days must elapse between the first publication of the notice
and the date specified for the hearing. The hearing may be
adjourned, but may not be adjourned beyond November 15
(December 15 for towns in Westchester and Monroe
counties) (Town Law,§108).
K. Modification of the Preliminary Budget
After the public hearing has been closed,the town board may
make any further changes that it deems necessary, consistent
with law (Town Law, §109 (1)). Note that no further public
hearings are required on the changes made to the preliminary
budget after the initial public hearing (Op St Comp No. 79-
826).
L. Adoption of Tax Cap Override
If the town's real property tax levy required under the
preliminary budget exceeds the town's allowable tax levy limit,
then the town board must adopt a local law to override the tax
cap before the final town budget is adopted. The local law
must be adopted by a 60 percent majority of the town board.
For most towns, this will be a simple majority, but for seven-
member town boards, five members must approve the
override.The local law overriding the tax cap must be adopted
before the final adoption of the budget (General Municipal
Law,§3-c).
M. Report to Tax Levy Limit Information to OSC
Towns must submit to OSC the information used to calculate
the tax levy limit for their town. The information should be
submitted on the online form,using the OSC-provided user ID
and PIN number.Although this can be done at any point prior
to the adoption of the final budget, OSC recommends it be
done later in the process, as the form will seek information
relating to the proposed tax levy and whether the town plans
2021 TOWN CLERK MANUAL 1125
on overriding the tax levy limit.Note that this form is simply for
reporting the necessary data; OSC will not calculate the tax
levy limit for the town for the coming fiscal year (General
Municipal Law,§3-c).
N. Adoption of Final Budget
After the town board has completed its review of the
preliminary budget, made any changes, and adopted the tax
cap override (if necessary),the preliminary budget should be
adopted as the final budget by town board resolution. The
final budget must be adopted no later than November 20
(December 20 for towns in Westchester and Monroe
counties),and entered in full in the minutes.If the town board
fails to adopt a final budget,the preliminary budget becomes
the final budget(Town Law,§109).
O.Receipt of Fire District Budgets
Fire districts are responsible for developing their own budgets,
and the town board has no authority to alter the fire district's
budget. Fire districts must file their budget with the town
budget officer no later than November 7.The budget officer
must then attach the fire district budget to the town budget
(Town Law,§105).Fire districts must file two certified copies of
their budget with the town clerk no later than November 7
(Town Law,§181 (3)(c)).
P.Notice of Fire District Budget Hearing
The town clerk is required to post a notice of a fire district
budget hearing on the town signboard not later than five days
before the day designated for such hearing.The notice must
also be posted on the town and/or fire district website or
websites, if one exists. A copy of the proposed fire district
budget must be available in the town clerk's office(Town Law,
§181). Notice must be posted for at least 15 days prior to the
2021 TOWN CLERK MANUAL 1126
hearing but no more than 20 days before the hearing (Town
Law,§1 75-c(2)).
Q. Public Inspection of the Proposed Fire District Budget
The town clerk must receive and make available a copy of a
proposed fire district budget for public inspection (Town Law,
§181(3)(a)).
R. Delivery of Budget to County
Once the final budget is adopted,the town clerk must prepare
two certified copies of the budget(Town Law,§115).A certified
copy of the fire district budget shall be annexed to each (Town
Law,§181 (3)(c)).Within five days,the clerk must deliver copies
of the budget to the supervisor,who must then present them
to the county legislative body within 10 days of receipt. The
county then levies the town taxes and other charges in the
town budget(such as fire district taxes) at the same time and
in the same manner as the county tax(Town Law,§115).
S. Delivery of Tax Roll/Bill Data
Real Property Tax Law,§1590(3) requires each town to submit
the data files used to prepare its tax rolls and tax bills to the
commissioner of the Department of Taxation and Finance
within 10 days of the tax warrant being annexed.If no warrant
is annexed,the data files must be submitted within 10 days of
the last day the law prescribes for levying taxes. If a different
governmental entity prepares a town's tax rolls or tax bills, or
both, that entity is jointly responsible for submitting the
applicable data files to the commissioner.
2021 TOWN CLERK MANUAL 127
T.Special Improvement Districts Budget Process ;
Please note that these dates and procedures may vary if your
town is in a county with a special tax act or operates pursuant
to a special state legislation.
1. Improvement Districts Funded by Special Ad Valorem
LM .
Where the cost of a district is charged by ad valorem levy(in
the same manner and at the same time as other town
charges),the budget process follows closely to that of the
general town budget (Town Law, §§104; 202-a (1)). The
town board (or the commissioners, if there are separate
commissioners) prepares estimates of the revenues and
expenses of the district,and unless otherwise provided by
law, submits them to the budget officer on or before
September 20(Town Law,§104).
2.Improvement Districts Funded by Special Assessment
Where the expense of a special improvement district
(outside Westchester County) is raised by a special
assessment (in proportion to the amount of benefit the
parcel receives), a special assessment roll is required.The
town board(or commissioners,if the district is operated by
a separate board of commissioners) prepares detailed
budget estimates for maintaining these districts for the
ensuing year(Town Law,§202-a (3)).After these estimates
are prepared, the town board (or the commissioners)
assesses the costs against the real property in the district in
proportion to the benefits it determines each will derive
and then prepares an assessment roll listing the properties,
their owners and the assessment so levied on each (Town
Law,§202-a (4)).
3. Improvement District Filing of Estimates and Benefit
Assessment Roll;Public Hearing
The estimates and assessment roll are then filed by the
town board with the town clerk between September 1 and
2021 TOWN CLERK MANUAL 1128
September 15 each year (Town Law §202-a (4)).
Thereafter, the town board must hold a public hearing on
the question of the adoption of the assessment roll and to
hear objections from property owners in the district(Town
Law, §239). Notice of such hearing must be published at
least 10 and not more than 20 days before the date
specified for the hearing. Due process requires that direct
notice must also be provided to each property owner
unless there is a compelling reason not to.This is most often
accomplished by mailing notice to the property owners at
the name and address that appear on the special
assessment roll apprising them of the time, place and
nature of the hearing (Garden Homes Woodland Company
v. Town of Dover, 95 N.Y.2d 516 (2000)). The town clerk
should work with the town attorney regarding questions of
proper notice.
4. Adoption of Assessment Roll;Filing
The assessment roll must be adopted (whether amended,
changed or prepared anew) at least 30 days before the
annual meeting of the board of supervisors (or county
legislative body) at which taxes are levied in the county
(Town Law, §202-a (5)). When finally adopted, it must be
filed in the town clerk's office.The town clerk prepares and
certifies duplicate copies at the time this duty is performed
in connection with the annual budget.One copy is filed in
the town clerk's office, and the other copy is delivered to
the supervisor, who transmits the roll to the board of
supervisors (or county legislative body), along with the
town's annual budget, for levy of taxes against the
properties benefited (Town Law,§115).
2021 TOWN CLERK MANUAL 1129
Town Budget Calendar
Westchester& Town Law
Budget Action Date Monroe County Section
Towns
1.Budget
officer delivers
department 9/1 10/1 Recommended
heads estimate
forms b
2.Estimates 9/20 10/20 §104
submitted by
3.Tentative
budget filed 9/30 10/30 §106(2)
with town clerk
4.Town clerk
submits
tentative 10/5 11/10 §106(3)
budget to
town board
5.Town board Upon completion Upon
revisions; completion of
of review and
preliminary modification of review and §106(4)
budget modification of
prepared tentative budget tentative budget
6.Notice of At least five days At least five days §108
public hearing prior to hearing prior to hearing
Thurs.following
7.Public Election Day;may 12/15 §108
hearing held be adjourned but
not beyond 11/15
8.Final After public After public
hearing but prior hearing but prior §108
revisions to final adoption to final adoption
9. Tax levy
limit info Before adoption Before adoption GML§3-c
submitted to of final budget of final budget
OSC
10. Enact tax
cap override Before adoption Before adoption GML§3-c
local law,if offinal budget of final budget
necessary
11. Adoption of budget by 1 11/20 12/20 §109
2021 TOWN CLERK MANUAL 130
Chapter 5
THE TOWN CLERK'S RECORDS ACCESS
AND MANAGEMENT DUTIES
§5.1 Records Management and Access
"The legislature finds that public records are essential to the
administration of local government. Public records contain
information which allows government programs to function,
provides officials with a basis for making decisions, and
ensures continuity with past operations. Public records
document the legal responsibility of government,protect the
rights of citizens, and provide citizens with a means of
monitoring government programs and measuring the
performance of public officials.Local government records also
reflect the historical development of the government and of
the community it serves. Such records need to be
systematically managed to ensure ready access to vital
information and to promote the efficient and economical
operation of government" (Arts and Cultural Affairs Law,
§57.13).
§5.2 Laws and Regulations
The Local Government Records Law is the single most
important statute dealing with records management (Article
57-a of the Arts and Cultural Affairs Law).A"record"is defined
as "any book, paper, map, photograph, or other information-
recording device, regardless of physical form or characteristic,
that is made, produced, executed, or received by any local
government or officer thereof pursuant to law or in connection
2021 TOWN CLERK MANUAL 1131
with the transaction of public business. Record as used herein
shall not be deemed to include library materials, extra copies
of documents created only for convenience of reference, and
stocks of publications," (Arts and Cultural Affairs Law, §57.17
(4)).Today, records tend to be created electronically and can
include word-processed documents,databases,web pages,e-
mails,and other electronic information.
§5.3 Records Management Officer
The town clerk has been designated,by statute,to serve as the
town records management officer (RMO) (Arts and Cultural
Affairs Law,§57.19).The town board must notify the education
commissioner of the name and contact information of the
town clerk within one month of that person taking office (8
NYCRR 185.2 (a)(7)). You can email the information to State
Archives at recmgmt@nysed.gov. Whenever a vacancy shall
occur in the position of RMO, a replacement shall be
designated within 60 days(8 NYCRR 185.2 (b)(1)).
A. Responsibilities of the RMO
As the RMO, the town clerk is charged with coordinating the
development and oversight of the town's government records
management program.The town clerk is also responsible for
coordinating the legal disposition, including destruction of
obsolete records(Arts and Cultural Affairs Law,§57.19).
The regulations of the education commissioner further detail
the duties of the RMO (8 NYCRR 185.2). In consultation and
cooperation with other local officials, the RMO is responsible
for managing all records,from creation to final disposition.
According to the regulations,the RMO shall initiate,coordinate
and promote the systematic management of the local
2021 TOWN CLERK MANUAL 1132
government's records in consultation and cooperation with
other local officers. Duties of the RMO shall include, but need
not be limited to the following (8 NYCRR 185.2(c)):
1. Recommending and guiding the development and
application of records management practices for local
government employees;
2. Coordinating the continuous disposition of obsolete
records in accordance with legal requirements through
the adoption and use of records retention and disposition
schedules;
3.Recommending to the commissioner suitable retention
periods for any records not covered by records retention
and disposition schedules;
4.Coordinating the storage and management of inactive
records no longer needed for the conduct of the day-to-
day business of the local government;
5. Reviewing and making recommendations on requests
for records storage equipment;
6. Participating in the development of, reviewing
proposals for, or coordinating any micrographics or
electronic information systems;and
7. Organizing or coordinating a program for the
identification, administration and use of records of
enduring value.
The Local Government Records Law and commissioner's
regulations allow RMOs to delegate their responsibilities; the
ultimate responsibility,however,remains with the RMO.
As liaison to other town departments, the town clerk
coordinates the transfer of records to inactive storage,
approves and documents the destruction of records and
provides access to records.
2021 TOWN CLERK MANUAL 1133
B. Retention and Disposition of Records
The New York State Archives, acting on behalf of the
commissioner of education, has established legal minimum
retention periods for most town records. These have been
described in the Records Retention and Disposition Schedule
LGS-1 (8 NYCRR 185.15). The LGS-1 schedule identifies the
records series and indicates the length of time each record
must be retained — the legal minimum retention period —
before they may be disposed of.The issuance of this schedule
constitutes the education commissioner's consent to dispose
of records after specified time periods.The LGS-1 schedule is
available from the state archives, which is part of the
Department of Education.The LGS-1 schedule is also available
on the state archives website:www.archives.nyssed.gov/
Many records do not have continuing administrative, legal,
fiscal, or historical value.At some point, many records are no
longer needed in the performance of day-to-day town
functions;they are no longer significant to the town attorney
or in protecting the legal rights of the town and its citizens;
they are no longeressential for auditing purposes,establishing
proof of payment,or tracking fiscal transactions;and they are
not significant historically or useful for research purposes.
Therefore,there is no reason for their permanent preservation.
Before any records disposition can take place, however, the
town board must adopt the schedule formally by resolution (8
NYCRR 185.4 (B)).The adoption of the schedule constitutes a
town's compliance with the commissioner of education's
regulations. A model form of a resolution is included in the
instructions for using Schedule LGS-1.State archives published
a model resolution that towns may use to adopt the LGS-1
record retention schedule.
2021 TOWN CLERK MANUAL 1134
MODEL RESOLUTION
RESOLVED, By the
[title of governing body] of
[local
government name] that Retention and Disposition Schedule
for New York Local Government Records (LGS-1), issued
pursuant to Article 57-A of the Arts and Cultural Affairs Law,
and containing legal minimum retention periods for local
government records, is hereby adopted for use by all officers
in legally disposing of valueless records listed therein.
FURTHER RESOLVED,that in accordance with Article 57-A:
(a) only those records will be disposed of that are described in
Retention and Disposition Schedule for New York Local
Government Records (LGS-1), after they have met the
minimum retention periods described therein;
(b) only those records will be disposed of that do not have
sufficient administrative, fiscal, legal, or historical value to
merit retention beyond established legal minimum periods
Once the schedule is adopted, records may be disposed of
after they have exceeded retention periods specified in the
records schedule. However, the schedule does not require a
town to dispose of records if the town would prefer to retain
said records.
Retention periods listed in the schedule pertain to records
regardless of media,whether paper,microfilm,computer disk,
magnetic tape, or other formats. Local governments must
retain records for the length of time specified and must ensure
they are accessible for the full retention period. A retention
requirement is not met, for example, if the hardware and
software needed to read an electronic record no longer exists.
2021 TOWN CLERK MANUAL 1135
Exceptions to Disposal
Records exceeding their retention periods can be disposed of
exceptwhen a legal action,FOIL request oran audit is pending,
or when records pre-date 1910. Any record used in legal
actions must be retained for the duration of the action even if
the retention period has passed. If the retention period has
expired by the time the legal action ends,the record must be
retained for one additional year in case of appeal. If the
retention period has not expired,the record must be retained
for the remainder of the retention period,but not less than one
year after the legal action ends.Even after the retention period
has expired, it is advisable to consult with the town attorney
before disposing any records that are subject to a legal action,
FOIL request or audit.
Disposal of records created before 1910,including records that
have been microfilmed, requires written approval from the
state archives. To dispose of such records, the town should
contact Government Records Services about how to obtain
such permission (8 NYCRR§185.6(c)).
C. Records Not Covered in Disposition Schedule LGS-1
.If the town has records not covered by Schedule LGS-1, the
town clerk (as RMO), should contact Government Records
Services to determine whether a minimum retention period
has been established.
Some records are either not regulated by the commissioner of
education or are not covered by Schedule LGS-1. These
records include the following:
• Canceled Obligations. The disposition of canceled
obligations is covered by Section 63.10 of the Local
Finance Law and Part 55 of Title 2 NYCRR. Questions
should be addressed to:Office of the State Comptroller,
2021 TOWN CLERK MANUAL 1136
Division of Legal Affairs, 110 State Street,Albany, New
York 12236;phone(518)474-5586.
• Records of Births,Deaths,and Marriages.Records of
births, deaths, and marriages are state records in the
possession of local governments. For information on
their disposition, contact: New York State Department
of Health,Vital Records Section, P.O. Box 2602,Albany,
New York 12220; phone 518-474-8187 or
clerks health.ny.gov
• Court Records. Retention and disposition of court
records, including after microfilming, is governed by
the state Office of Court Administration. The OCA
website has information on court records management
www.nycourts.ciov/admin/recordsmanaciement/index.
shtml, or you may contact the Office of Court
Administration, Records Office, phone (212) 428-2875;
or email recordsony ourts.org
Please note that special rules apply to the custody,
retention and destruction of justice court records.Care
should be taken to work with the justice court clerk
regarding the management, storage and disclosure of
records turned over to the town clerk pursuant to
Uniform Justice Court Act,§2019-a.The Office of Court
Administration has a records management unit that
works with justice court clerks to properly manage,
maintain, destroy and disseminate justice court
records. Justice records are not subject to FOIL and
operate under unique rules, which the justice court
clerk has been trained to administer. For example,
records that may not be released without a court order
(e.g. a court order is required to obtain a copy of a
presentence investigation report(CPL,§390.50)).
2021 TOWN CLERK MANUAL 1137
D. Electronic Records
Regulations require local officials to "ensure that electronic
records are not rendered unusable because of changing
technology before their retention and preservation
requirements are met."Town officials,in consultation with the
state archives, must develop strategies to ensure electronic
records will remain usable and accessible through conversion
of the records to new system platforms, hardware, software,
and media(8 NYCRR 185.8).There area number of publications
available from state archives to assist local governments in the
maintenance and storage of electronic records.
E. Microfilming and Imaging
There are several reasons to microfilm or image records such
as to save space, protect originals, ensure file integrity and
disaster preparedness. Imaging provides multiple ways to
search for information in records,allows records to be viewed
on computers, and is a necessary step toward launching
records on the web.However,it can be expensive to maintain
access to digital images over time because provisions must be
made for periodic migration to new media and software. To
ensure the accessibility of long-term or permanent records, a
hybrid solution may be best:a microfilm copy to preserve the
records, and digital images to enhance access. The state
archives has developed guidelines for producing quality
microfilm and digital images.
F.Conservation
Some historical records are in such poor condition they are in
imminent danger of being lost.Since conservation treatments
can be costly,reformatting is frequently a cost-effective option
to conservation. State Archives' Publication #60, Criteria for
Selecting Records for Conservation Treatment, is a useful tool
to help you choose those records appropriate for conservation
2021 TOWN CLERK MANUAL 1138
treatment. When seeking to have records conserved, always
hire a professional conservator,and store conserved records in
proper archival enclosures and in a stable environment.
G. Making Historical Records Accessible
Historical records can support day-to-day operations but are
also useful to genealogists, journalists, students, teachers,
scholars, policymakers,government officials, business people,
and other citizens.
Providing direct access to historical town records can be a
challenge,depending on the age and condition of the records
and the time and space you have available.Protecting records
from damage,theft,or simple wear and tear is always a factor.
Researchers using a town's historical records should be asked
to follow clearly stated rules for use:
• Smoking, eating and drinking are not allowed
in the research area.
• Researchers must use pencils,not pens.
• Researchers are not allowed to have coats,
bags, and backpacks at their desks while using
the records.
• Records must be used only under supervision
H. Training and Assistance
For further advice regarding any aspect of records
management,contact your records advisory officer or the state
archives' Government Records Services Unit in Albany.
http://www.archives.nysed.gov/directories/index.shtml
I. Grant Funding
Chapter 78 of the Laws of 1989 created the Local Government
Records Management Improvement Fund (LGRMIF). The
LGRMIF supports a competitive grants program, which
2021 TOWN CLERK MANUAL 1139
provides funding to local governments for a wide array of
records and archives management projects.
Check out the LGRMIF website for more information:
http://www.archives.nysed.gov/grants/Igrmif-grants. You can
reach the Grants Administration Unit at (518) 474-6926 or
archgrants@mail.nysed.gov.
J. Responsibility of all Town Officers Regarding Records
It shall be the responsibility of every town officer:
• to maintain records to adequately document the
transaction of public business and the services and
programs for which such officer is responsible;
• to retain and have custody of such records for so long
as the records are needed for the conduct of the
business of the office;
• to adequately protect such records;to cooperate with
the town clerk who serves as the town RMO on
programs for the orderly and efficient management of
records, including identification and management of
inactive records and identification and preservation of
records of enduring value;
• to dispose of records in accordance with legal
requirements; and to pass on to their successor the
records needed for the continuing conduct of business
of the office.
(Arts and Cultural Affairs Law,§57.25 (1))
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. (Arts
and Cultural Affairs Law, §57.25 (1)). No local officer shall
destroy,sell or otherwise dispose of any public record without
the consent of the commissioner of education (Arts and
Cultural Affairs Law,§57.25 (2)).
2021 TOWN CLERK MANUAL 1140
K. Consequences for Failure to Properly Comply
There are several provisions of the Penal Law that make
tampering with public records and computers a crime(see,for
example, Penal Law, §195.00 (official misconduct); Penal Law,
§175.20 (tampering with public records in the 2nd degree);
Penal Law, §175.25 (tampering with public records in the 11'
degree); Penal Law §256.20 (computer tampering in the 4th
degree)).
L. Transitions—Leaving Public Office and Records
Management
A town officer should file all records with the town clerk's office
upon leaving town service. For example, the town supervisor
is required to keep an accurate and complete account of the
receipt and disbursement of all moneys. Upon the expiration
of the supervisor's term of office, the supervisor must file all
papers with the town clerk(Town Law,§29(4);Opns.St.Comp.
1979 No. 79-759). In addition,the town justice must file court
records with the town clerk upon leaving office.Access to the
records of a former town justice is provided by the clerk with
permission from a presiding justice(Uniform Justice Court Act,
§2019-a).
Public Officers Law, §80 authorizes the incoming officer to
bring an action to recover papers, books and records
belonging to the office.A public officer may demand from his
or her predecessor in office or any person in whose possession
they may be, delivery of all books and papers, money and
property belonging or pertaining to such office. If such
demand is refused, such officer may make complaint thereof
to any justice of the supreme court of the district, or to the
county judge of the county in which the person refusing
resides. The attorney general's office has opined that this
authority is personal to a public officer and no action by the
2021 TOWN CLERK MANUAL 1141
town board is required before a new town officer may bring
the proceeding(1980 Op.Atty.Gen. (1) 120).
M. Custody,Physical Location and Access
Town Law,§30 provides that the town clerk has custody of all
books,papers and records of the municipality,while the Arts&
Cultural Affairs Law, §57.25 provides that local officers shall
have custody of records needed to conduct business.Various
state agency opinions have interpreted this to mean that if an
officer requires papers, records and books to be in their office
forthe purpose of performing town duties,said records should
be stored with said officer(custody of police records, 1975 Op.
Atty. Gen. 112;custody of active fiscal records, Op. St. Comp.
No.80-78).
Other records are required by law to be housed with the town
clerk.For example,the assessor is required to file the tentative
assessment roll and the certified final assessment roll (Real
Property Tax Law, §516); written notices of defect regarding
town highways are required to be filed in the town clerk's
office(Town Law,§65-a(4));various highway records regarding
the design, alteration, or discontinuance of any highway are
required to be filed in the town clerk's office (Highway Law,
§210);the tentative town budget(Town Law,§106);the annual
financial report (Town Law, §29); and various documents
associated with special improvement districts are required to
be housed in the town clerk's office(Town Law,§§195; 197).
Keeping in mind the fact that the town clerk is required to have
custody of certain records and be in a position to make those
records available for public inspection,the next issue is where
the records should be stored. This question requires some
consideration of the location of the town clerk's office and the
power the clerk has to determine where the town clerk's office
2021 TOWN CLERK MANUAL 1142
is to be located.For example,may the town board require that
the town clerk's office be located in the town hall?
It is necessary to realize that although Section 30 of the Town
Law requires the town clerk to be the custodian of town
records, the town board has general control over all town
property (Town Law, §64(3)). In addition, Arts and Cultural
Affairs Law,§57.31 requires that town records be kept in secure
facilities maintained by the town, unless the commissioner of
education consents to their transfer and storage elsewhere. It
is the town board that determines whether the facilities used
for such storage are adequate and secure (Glezen v. Town
Board of Richford,192 Misc.658(Sup.Ct.Broome Co. 1948);24
Op. St. Compt. 918). Based upon these provisions, it has been
the position of the Office of State Comptroller that the town
board may require the clerk to store town records in the town
hall.To the extent that the town board can direct where town
records are to be located,and in exercising this power,directs
that the records be stored in an appropriate vault in the town
hall, the board can require that the town clerk's office be
located in the town hall (Op.St Comp.No.79-221).
The Arts and Cultural Affairs Law, §57.31 also authorizes any
local government to cooperate with another local government
or governments for the improved management and
preservation of records, and may enter into a contractual
arrangement for such purposes.Moreover,in a formal opinion
to the commissioner of education,the attorney general's office
ruled that, pursuant to General Municipal Law,Article 5-G and
subject to the approval of the commissioner of education, a
town may enter into an agreement with a county for the joint
storage of town records in a facility located in the county but
outside the geographical boundaries of the town (Op. Atty.
Gen.84-Fl 3).
2021 TOWN CLERK MANUAL 1143
§5.4 Access to the Records Vault
The next issue to be considered is that of who controls access
to the town records vault. The duty to provide for the
safekeeping of town records - and the implied authority to
designate the location of the town clerk's office - does not
allow the members of the town board to remove from the
town clerk's custody records required by Section 30 of the
Town Law to be kept by the town clerk in the town clerk's office
(27 Op. St Comp. 159). The state comptroller's office has
opined that the town clerk has absolute control over access to
records,and neither the members of the town board, nor any
other town officers, are entitled to have the keys to the town
vault(Op.St.Comp.No.78-147).Moreover,public records may
not be removed from the clerk's office by anyone, except for
repair,restoration or necessary reproduction or upon demand
by a court (Op. St. Comp. No. 73-367). Other than for these
purposes, a town clerk should not permit records under the
clerk's custody to be removed from the clerk's office.
In light of the requirement that public records remain in the
town clerk's office,the town clerk should not allow other town
officers to remove records to prepare reports or for other
purposes. Officers should seek copies or use records in the
town clerk's office where necessary. Other records, however,
that are stored or kept in the town clerk's office temporarily or
for convenience only, would not be subject to these
restrictions. For example, maps or other records continually
being worked on by the planning board or zoning board of
appeals, or records of other officials required for their daily or
regular functions,that are placed overnight in the town clerk's
may be removed by those officials for their continued function.
To facilitate such an arrangement,a separate,yet secure,place
may be provided in the town clerk's office for these type of
2021 TOWN CLERK MANUAL 1144
records, so that the other officials could have access without
breaking the town clerk's custodial responsibility.
§5.5 Freedom of Information Law
The public has a statutory right to obtain copies and view
certain town records in accordance with the Freedom of
Information Law(FOIL).FOIL is housed in Article 6 of the Public
Officers Law (POL). FOIL requires public agencies, including
towns,to make available various public records upon request,
unless an exception applies. The Committee on Open
Government provides training and guidance regarding the
application of the FOIL(https://o pen government.ny govt.
For purposes of FOIL,a"record"is defined as"any information
kept, held, filed, produced or reproduced by, with or for an
agency or the state legislature, in any physical form
whatsoever including, but not limited to, reports, statements,
examinations, memoranda, opinions, folders, files, books,
manuals, pamphlets, forms, papers, designs, drawings, maps,
photos, letters, microfilms, computer tapes or discs, rules,
regulations or codes,"(POL,§86(4)).
A. Index-Public Officers Law,§87(3)(c) requires maintenance
of a current, reasonably detailed list by subject matter, of all
existing town records,whether or not the records are available
for public inspection under the Freedom of Information Law.
B. Town FOIL Rules Required - Town boards must adopt
uniform rules for all departments within the town, relating to
the administration of public access to records, including the
time and place to obtain or view town records,the person from
whom they may be obtained, how to appeal denials and fees
for copies.These standards must be based upon Article 6 of the
2021 TOWN CLERK MANUAL 1145
Public Officers Law and the general regulations issued by the
Committee on Open Government (Committee) (POL, §87
(1(a)(b));21 NYCRR PART 1401).
The town must post in a conspicuous location(e.g.town clerk's
signboard) and/or by publication in a local newspaper of
general circulation (21 NYCRR PART 1401.9):
(a)The locations where records shall be made available
for inspection and copying
(b) The name, title, business address and business
telephone number of the designated records access
officers.
(c)The right to appeal by any person denied access to
a record and the name and business address of the
person or body to whom an appeal is to be directed.
C. Records Access Officer—Appointment and Duties-The
town board must appoint one or more records access officers
(21 NYCRR PART 1401.2).The town clerk is generally appointed
to sere as the records access officer for the town,but the town
board may appoint additional records access officers if
needed.According to the Committee on Open Government's
regulations, the records access officer is responsible for
assuring that town personnel (21 NYCRR PART 1401.2 (b)):
1.Maintain an up-to-date subject matter list.
2. Assist anyone seeking records to identify the records
sought, if necessary, and when appropriate, indicate the
manner in which the records are filed, retrieved or
generated to assist persons in reasonably describing
records.
3. Contact individuals seeking records when a request is
voluminous or when locating the records sought involves
substantial effort,so that agency personnel may ascertain
_. 2021 TOWN CLERK MANUAL 1146
the nature of records of primary interest and attempt to
reasonably reduce the volume of the records requested.
4. Upon locating the records, take one of the following
actions:
(a) Make records promptly available for inspection;or
(b) Deny access to the records in whole or in part and
explain in writing the reasons therefore.
5.Upon request for copies of records:
(a)Make a copy available upon payment or offer to pay
established fees,if any;or
(b) Permit the requester to copy those records.
6.Upon request,certify that a record is a true copy.
7.Upon failure to locate records,certify that:
(a)The agency is not the custodian for such records;or
(b) The records of which the agency is a custodian
cannot be found after diligent search
D. Form and Manner of Records Requests-The town may
require that a request may be made in writing or it may accept
oral requests (POL, §89(3); 21 NYCRR PART §1401.5(a)). The
Committee on Open Government recommends that the town
should be consistent in treatment of requests (FOIL-AO-7747).
Although the town can require that FOIL requests be made in
writing,the town may not require a requester to use a specific
form (FOIL-AO-17970). Towns that have the reasonable means
to do so must accept FOIL requests via email (POL,§89(3)).The
Committee on Open Government recommends that"when a
request is received in a private email account(1)the applicant
should be informed of and directed to submit future requests
to the appropriate agency email address, and (2) the request
should be forwarded to the appropriate agency email address
for handling. If a subsequent request from the same applicant
• is sent to the private email address(1)the applicant should be
informed of and directed to submit future requests to the
2021 TOWN CLERK MANUAL 147
appropriate agency email address, (2) the request should be
forwarded to the appropriate agency email address, and (3)
the applicant should be informed thatfuture requests made to
this email address will not receive a response. In our opinion,
this would serve as a reasonable way to manage requests
made to a private email account, one that is not intended for
receipt of FOIL requests. Whether a request is answered
directly or otherwise,copies of the request and response to it
should be forwarded to the records access officer;' (FOIL-AO-
18332).
E. Status or Reason for Submitting FOIL Requests - The
Freedom of Information Law does not generally require the
party requesting the records to show any particular need or
purpose(see MatterofData Tree,LLCv.Romaine,9 N.Y.3d 454,
(2007); Matter of Daily Gazette Co. v. City of Schenectady, 93
N.Y.2d 145, 156, (1999); Matter of M. Farbman &Sons v. New
York City Health&Hosps. Corp.,62 N.Y.2d 75,80, (1979) FOIL-
A0416401). In addition, a requester's motive or purpose in
seeking records is generally irrelevant (see Matter of Gould v.
New York City Police Dept, 89 N.Y.2d 267, (1996); Matter of
Karimzada v. O'Mara, 111 A.D.3d 1088 (31d Dept. 2013)). The
requester's purpose may, however, become relevant if the
intended use of the requested material would run afoul of a
FOIL exemption(see (Matter ofSuhr v.New York State Dept.of
Civ.Serv., 193 A.D.3d 129,(3 d Dept.2021);Matter of New York
State Rifle&Pistol Assn.,Inc.v.Kelly,55 A.D.3d 222,(2008)).For
example, Public Officers Law, §89(2)(a)(iii) provides that the
sale or release of names and addresses if such lists would be
used for solicitation or fundraising purposes constitutes an
invasion of personal privacy and would constitute a reason to
deny the request.The Public Officers Law authorizes the town
to require a person requesting lists of names and addresses to
provide a written certification that such person will not use
2021 TOWN CLERK MANUAL 1148
such lists of names and addresses for solicitation or fundraising
purposes and will not sell, give or otherwise make available
such lists of names and addresses to any other person for the
purpose of allowing that person to use such lists of names and
addresses for solicitation or fundraising purposes (POL,
§89(3)(a)). The requester's status is also generally irrelevant.
For example, records cannot be denied simply because the
person requesting the records was a criminal defendant (see
Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267,
(1996)), a commercial entity (Matter of Data Tree, LLC v.
Romaine, 9 N.Y.3d 454, (2007); FOIL-AO-16494), or a litigant
against the public agency(MatterofM.Farbman&Sons v.New
York City Health&Hosps.Corp.,62 N.Y.2d 75,80,(1979);Matter
ofJohn P. v. Whalen,54 NY 2d 89,99(1980)).
F. Statutory FOIL Reponses - The Court of Appeals has
recognized that there are three permissible responses to a FOIL
request: (1) grant the request and disclose documents, (2)
certify that the record cannot be found after a diligent search,
or (3) "deny such request," invoking one or more exemptions
(Matter of Abdur—Rashid v. New York City Police Dept., 31
N.Y.3d 217(2018)citing Public Officers Law,§89(3)(a)).
New York courts recognize that the FOIL statute creates a
three-step process when an agency invokes an exemption
(Public Officers Law §89 (3), (4); Matter of Competitive Enter.
Inst.v.Attorney General,161 A.D.3d 1283,1287(3d Dept.2018)
citing Matter ofAbdur-Rashid v.New York City Police Dept.,31
NY3d 217, 244-246 [2018, Wilson, J., concurring in part and
dissenting in part]).
• First, an agency that initially denies a request is not
required to specify a reason for the denial (see Public
Officers Law§89(3)(a)).
• Next, if the FOIL requester files an administrative
appeal, the agency is required to "fully explain in
2021 TOWN CLERK MANUAL 1149
writing ... the reasons for further denial," (Public
Officers Law§89(4)(a)).
• Finally,during CPLR article 78 proceeding,the agency
"shall have the burden of proving that such record falls
within the provisions of a statutory exception (Public
Officers Law§89(4)(b);see Public Officers Law§87(2);
Brown v. Town of Amherst, 195 A.D.2d 979 [4th Dept.
19931) (Affidavits that merely parrot the statutory
language of the exemption are not sufficient)).
G. Certification of Nonexistence and Diligent Search
Required-Public Officers Law,§89(3)(a),states that an agency
"shall certify that it does not have possession of such record or
that such record cannot be found after diligent search." The
Court of Appeals has noted that this provision is triggered
when, in lieu of granting a FOIL request,the agency finds that
it either does not possess the item requested or is unable to
locate it after a diligent search (see Matter ofAbdur—Rashid v.
New York City Police Dept.,31 N.Y.3d 217 (2018)citing Matter
of Rattley v.New York City Police Dept,96 N.Y.2d 873 (2001)).
H. Denials and Appeals -The Freedom of Information Law
provides a person requesting records the right to appeal the
denial of requested records. In addition to an actual denial, a
FOIL request may be considered to have been constructively
denied in the following circumstances: when the town does
not respond to or acknowledge a FOIL request within five
business days; if the town delays responding for an
unreasonable time beyond the approximate date of less than
20 business days given in its acknowledgement; if the town
acknowledges that a request has been received,but has failed
to grant access by the specific date given beyond 20 business
days; or if the specific date given is unreasonable (POL,
§89(4)(x)).
2021 TOWN CLERK MANUAL 1150
Denials may be appealed in accordance with Public Officers
Law, §89(4).The town's records access policy must identify to
whom appeals are to be filed.A failure to determine an appeal
within 10 business days of the receipt of an appeal constitutes
a denial of the appeal (POL, §89 (4)).Where an applicant has
exhausted all administrative remedies, the applicant may
bring an Article 78 action under the Civil Practice Rules (FOIL-
AO-17698). A court may require the town to pay for the
c
litigant's attorney fees.
The Appellate Division Third Department has outlined a three-
step process in the denial of a FOIL request:
An agency that initially denies a request is not
required to specify a reason for the denial (see
Public Officers Law §89[31[a]).Upon the second
step, the administrative appeal, the agency is
required to'fully explain in writing...the reasons
for further denial'(Public Officers Law§89[41[a]).
The third step is a CPLR article 78 proceeding,in
which the agency 'shall have the burden of
proving that such record falls within the
provisions of a statutory exception (Public
Officers Law §89[4][b]; see Public Officers Law
§87[21)," by articulating a particularized and
specific reason for denying access to the record
(Matter of Suhr v. New York State Dept. of Civ.
Serv., 193 A.D.3d 129, (31d Dept. 2021) citing
(Matter of Competitive Enter. Inst. v. Attorney
Gen. of N.Y., 161 A.D.3d 1283 (3'd Dept. 2018);
Matter of Bass Pro,Inc.v.Megna,69 A.D.3d 1040
' (31d Dep. 2010); Matter of Madeiros v. New York
State Educ.Dept.,30 N.Y.3d 67(2017)).
2021 TOWN CLERK MANUAL 151
I. The Town is Generally not Required to Create a Record in
Response to a FOIL Request - Public Officers Law, §89(3)
provides in part that the town is not required to create a record
in response to a request(Matter of Data Tree, LLC v. Romaine,
9 N.Y.3d 454, (2007)). Accordingly, where the town has
indicated that a diligent search for the requested records "has
disclosed no record or entry of the nature requested;' the
Committee on Open Government has opined that the town
has fulfilled its obligations under the law (FOIL-AO-17192).
When, however,the town has the ability to retrieve or extract
a record or data maintained in a computer storage system with
reasonable effort,it shall be required to do so (POL, §89(3)(a);
21 NYCRR PART 1401.8(d)).
J. The Town is Required to Create Certain Records(POL,
§87(3))-The town is required to create and maintain three
records:
1. A record of the final vote of each member in every
agency proceeding in which the member votes;
2. A record setting forth the name, public office address,
title and salary of every officer or employee of the agency,
and
3. A reasonably detailed current list by subject matter of
all records in the possession of the agency,whether or not
available under this article. The town's subject matter list
must be annually updated with the date of the most recent
update conspicuously indicated on the list. The regulations
promulgated by the Committee on Open Government state
that such a list should be sufficiently detailed to enable an
individual to identify a file category of the record or records
in which that person may be interested (21 NYCRR
1401.6(b)). According to the Committee on Open
Government, the subject matter list is not required to
identify each and every town record;rather it must refer,by
2021 TOWN CLERK MANUAL 152
category and in reasonable detail, to the kinds of records
maintained by the town (FOIL-AO-15278).
K. FOIL Requests must be Reasonably Described-Whether
a request reasonably describes the records sought may be
dependent upon the terms of a request,as well as the nature
of the town's filing or recordkeeping system. Whether a FOIL
request reasonably describes the records sought involves the
obligation of an agency to search for its records. The request
need not list or identify each record requested by name, but
rather must reasonably describe the records sought(FOIL-AO-
16813; FOIL-AO-16790). It has been held by the Court of
Appeals that to deny a request on the grounds that it fails to
reasonably describe the records,an agency mustestablish that
"the descriptions were insufficient for purposes of locating and
identifying the documents sought," (Konigsberg v. Coughlin,
68 NY 2d 245, 249 (1986)). The Committee on Open
Government has opined that while the town clerk is not
required to engage in "herculean" or unreasonable efforts in
locating records to accommodate a person seeking records,if
the town clerk can locate the records sought with a reasonable
effort, even if a search involves the review of hundreds of
records, the town clerk would be obliged to do so based on
judicial precedent.As indicated in Konigsberg,only if it can be
established that the town maintains its records in a manner
that renders its staff unable to locate and identify the records
would the request have failed to meet the standard of
reasonably describing the records (FOIL-AO-16813; FOIL-AO-
16790). The Committee on Open Government has also advised
that regulations promulgated by it,which have the force and
effect of law,state that an agency's designated records access
officer has the duty of assuring that agency personnel "assist
persons seeking records to identify the records sought, if
necessary, and when appropriate, indicate the manner in
2021 TOWN CLERK MANUAL 11.53
which the records are filed, retrieved or generated to assist
persons in reasonably describing records," (FOIL-AO-19721
citing 21 NYCRR 1401.2(b)(2)).
L. Form and Manner of Records Provided -The Freedom of
Information Law requires the town to provide records in the
medium requested if the agency can reasonably make such
copy or have such copies made by engaging an outside
professional service. Records provided in a computer format
may not be encrypted (POL,§87(5)).
M. Paper vs. Electronic Files - When information is
maintained electronically, the Committee on Open
Government has opined that if the information sought is
available under the Freedom of Information Law and may be
retrieved by means of existing computer programs,the town
is required to disclose the information and to provide the
records in the format requested (FOIL-AO-16619; 21 NYCRR
PART 1401.8(d)).
The Committee on Open Government has opined that when
information is maintained electronically and yet requested in
paper,the town should prepare the paper copy in a reasonable
manner. This would include taking reasonable steps to
minimize the number of pages of paper produced (FOIL-AO-
18695).
N. FOIL Response Timeframes-There are generally three
timeframes available to respond to a FOIL request.
• Within Five Business Days.First,within five business
days of receiving a FOIL request, the town must (i)
grant access to the requested records in accordance
with FOIL or (ii) deny access in writing or (iii)
2021 TOWN CLERK MANUAL 1154
acknowledge the receipt of the request in writing and
include an approximate date within 20 business days
indicating when it anticipates that a request will be
granted or denied (POL,§89(3)(a)).
• Within the Next 20 Business Days. Second, within
the next 20 business days, the town must (i) grant
access to the requested records in accordance with
FOIL,or(ii)deny access in writing (POL,§89(3)(a)).
• Beyond 20 Business Days. Third, if circumstances
prevent disclosure to the person requesting the record
or records within 20 business days from the date of the
acknowledgement of the receipt of the request, the
town must state, in writing, both the reason for the
inability to grant the request within 20 business days
and a date certain within a reasonable period,
depending on the circumstances, when the request
will be granted in whole or in part(POL,§89(3)(a)).
The Committee on Open Government has opined that the
town should provide the information as quickly as possible
given the nature of the request,the accessibility and review of
the requested records and the availability of the town clerk's
staff. In other words, the town clerk should endeavor to
provide the requested records in as timely a manner as
possible unless it is not reasonable to do so based upon the
circumstances of the request, such as the volume of
documents requested, the time involved in locating the
documents, and the complexity of the issues involved
regarding proper review of the requested records (FOIL-AO-
17125;FOIL-AO-16536).
2021 TOWN CLERK MANUAL 155
O.FOIL Fees
1.Fee Waivers Permitted-The town may waive a fee
in whole or in part when making copies of records
available (21 NYCRR PART 1401.8(g)).
2. Advance Payment of Fees Permitted -The town ;
may require that the fee for copying or reproducing a
record be paid in advance of the preparation of such
copy(21 NYCRR PART 1401.8 (f)).
3. Fees for Inspection_ of Records Prohibited -The
town may not charge a fee to view or inspect town
records(21 NYCRR PART 1401.8 (a)).
4. Fees for Record Search and Administrative
Review Prohibited -The town may not charge a fee
for administrative costs of, or employee time to
prepare, photocopies of records or to review the ;
content of requested records to determine the extent
to which records must be disclosed or may be withheld
(21 NYCRR PART 1401.8(a)).
S. Fees for Record Certification Prohibited - The
town may not charge a fee for certifications requested ;
under the Freedom of Information Law (21 NYCRR
PART 1401.8(a)).
6. Fees for Paper Records -The town may charge a
fee for photocopies of town records. The maximum
amount that a town may charge for photocopies of
Paper records is set by state law. At the time of this
publication,the town FOIL fee cannot exceed 25 cents -
2021 TOWN CLERK MANUAL 156
per page for photocopies up to 9 x 14 inches unless a
different fee is prescribed by statute. Fees for
photocopies of records in excess of 9 x 14 inches shall
not exceed the actual cost of reproduction unless a
different fee is prescribed by statute (21 NYCRR PART
1401.8 (b)). According to the Committee on Open
Government, a statute for purposes of other fees for
record must be a law enacted by the state Legislature
rather than a local law enacted by the town board
(FOIL-AO-16634).
7.Electronic Records and Records in Excess of 9x14
Inches(FOIL-AO-18071)—The fee the town may charge
for a copy of any other record is based on the actual
cost of reproduction and may include only the
following:
(a) An amount equal to the hourly salary
attributed to the lowest paid employee who has the
necessary skill required to prepare a copy of the
: requested record, but only when more than two
hours of the employee's time is necessary to do so;
and
(b) The actual cost of the storage devices or media
provided to the person making the request in
complying with such request;or
(c) The actual cost to the town of engaging an
outside professional service to prepare a copy of a
record, but only when a town's information
technology equipment is inadequate to prepare a
copy,and if such service is used to prepare the copy.
(d) Preparing a copy may not include search time or
administrative costs, and no fee shall be charged
unless at least two hours of agency employee time is
needed to prepare a copy of the record requested.
2021 TOWN CLERK MANUAL 1157
a
A person requesting a record shall be informed of
the estimated cost of preparing a copy of the record
if more than two hours of an agency employee's time
is needed,or if an outside professional service would
be retained to prepare a copy of the record (Public
Officers Law,§87(1)(c);21 NYCRR PART 1401.8(c)).
8.Fees for Redaction—A public agency generally may
not impose its cost of complying with a FOIL request
upon the requesting party(21 NYCRR 1401.8(a)(3).The
Committee on Open Government has noted that"it is
our opinion that an agency may charge for employee
time spent extracting or segregating data from an
electronic database,but not for redacting from records
already prepared or transferring the record to the ;
requested medium," (FOIL-AO-17734; FOIL-AO-
19103).The Committee has also noted that an agency
may recover costs directly associated with redaction of
responsive records when an agency must contract
with a third party to create software to redact content
(e.g.social security numbers)from an electronic record
(FOIL-AO-17606;see also Matter of Jacobson v. Ithaca
City School District,53 Misc.3d 109(Sup.Ct.,Tompkins
County [September 23, 20161)). FOIL-AO-19103
reviews several scenarios regarding when fees can and
cannot be charged for redaction.
9.Advance Notice of Fees Required—The town must
inform a person requesting a record of the estimated
cost of preparing a copy of the record if more than two
hours of an agency employee's time is needed, or if it
is necessary to retain an outside professional service to
prepare a copy of the record (21 NYCRR PART 1401.8
(e))•
2021 TOWN CLERK MANUAL 158
P. Number and Volume of FOIL Request-There is nothing
in the Freedom of Information Law that limits the number or
volume of records that may be requested (FOIL-AO-11564). In
fact, Public Officers Law,§89(3) (a),provides that"[a]n agency
shall not deny a request on the basis that the request is
voluminous," (see also Matter of County of Suffolk v. Long
Island Power Authority,119 A.D.3d 940,(2d Dept.2014)).There
is, however, some precedent sustaining the propriety of a
denial of a request for millions of paper records, which, if
granted,"would bring in its wake an enormous administrative
burden that would interfere with the day-to-day operations of
an already heavily burdened bureaucracy," (Fisher&Fisher v.
Davison, (Supreme Court, New York County,October 6, 1988);
FOIL-AO-16560).This exception however,would generally not
apply where the records at issue are maintained electronically
and where no time consuming or onerous programming
would be necessaryto satisfy the request so that the burden of
transferring the records from one electronic storage medium
to another would not significantly interfere with the work of
your office(FOIL-AO-16560;Matterof Time Warner Cable News
NY1 v. New York City Police Dept.,53 Misc. 3d 657, (Supreme.
Court.,N.Y.County 2016)).
Q. Exemptions - As a general matter, the Freedom of
Information Law is based upon a presumption of access.Stated
differently,all town records are available,except to the extent
that records or portions thereof fall within one or more
grounds for denial appearing in section 87(2)(a)through 0) of
the law(FOIL-AO-17123).The exemptions from disclosure"are
to be narrowly interpreted so that the public is granted
maximum access to the records of government," (Matter of
Data Tree,LLC v.Romaine,9 N.Y.3d 454(2007)).The town must
demonstrate that the requested record "falls squarely within
the ambit of one of the statutory exemptions," (Matter of
2021 TOWN CLERK MANUAL 1159
Verizon N.Y.,Inc. v.Bradbury,40 A.D.3d 1113 (2nd Dept.2007)).
To meet that burden,the town must articulate a"particularized
and specific justification for denying access."
"FOIL's exemptions are independent-that is,any record may
be subject to more than one exemption,and a court's finding
that a given exemption does not apply to a given record has
no bearing upon the potential applicability, of any other
exemptions to that record;" ("Gould Debunked. The-
Prohibition Against Using New York's Freedom of Information
Law as a Criminal Discovery Too/,'William Tesler,44 N.Y.L.Sch.
L. Rev. 71, 117-18 (2000) citing Short v. Board of Managers,57
N.Y.2d 399,404(1982)).
The Court of Appeals has noted in various opinions that
"blanket exemptions for particular types of documents are
inimical to FOIL's policy of open government;" (Matter of
Capital Newspapers Div.of Hearst Corp.v.Burns,67 NY2d 562,
569 (1986)).An agency must instead articulate "particularized
and specific justification" for not disclosing requested
documents in accordance with one or more of the FOIL
exemptions(Matter of Fink v.Lefkowitz,47 N.Y.2d,567(1979)).
R. Redactions - The Committee on Open Government has
opined that the town must review the entire record(s)
requested and must provide those portions of the record
requested that are available under FOIL (FOIL-AO-17123;
Schenectady County Society for Prevention of Cruelty to
Animals,Inc. v.Mills, 18 N.Y.3d 42,(2011)).To comply with this
requirement,the town has the authority to redact portions of
a paper record, which it may do prior to disclosure of the
record by making a photocopy from which the proper
redactions are made(21 NYCRR PART 1401.8 (b) (3)).
2021 TOWN CLERK MANUAL 1160
S. Records or Portions of Records That May Be Withheld or
which are not Subject to FOIL— Public Officers Law, §87 (2)
provides various purposes for which records or portions of
records may be withheld. Some of the most common
examples include:
1. Records specifically exempted by state or federal
statute(POL,§87(2)(a));
(a) The Committee on Open Government has opined that
a town cannot declare a document confidential (FOIL-
AO-17829). To be confidential under FOIL, records
must be "specifically exempted from disclosure by
state or federal statute." For example, when charges
are dismissed in favor of an accused and sealed
pursuant to section 160.50 of the Criminal Procedure
Law,a town police department or justice court would
be prohibited from disclosing (FOIL- AO-16632; (POL,
§87 (2)(a)).
2. Records that, if disclosed, would constitute an
unwarranted invasion of personal privacy (POL, §87 (2)(b)).
According to Public Officers Law, §89 (2) an unwarranted
invasion of personal privacy includes, but shall not be limited
to:
(a) disclosure of employment, medical or credit histories
or personal references of applicants for employment;
(b) disclosure of items involving the medical or personal
records of a client or patient in a medical facility;
(c) sale or release of lists of names and addresses if such
lists would be used for solicitation or fundraising
purposes;
(d) disclosure of information of a personal nature when
disclosure would result in economic or personal
hardship to the subject party and such information is
not relevant to the work of the agency requesting or
maintaining it;
2021 TOWN CLERK MANUAL 1161
(e) disclosure of information of personal nature reported ;
in confidence to an agency and not relevant to the
ordinary work of such agency;
(f) information of a personal nature contained in a
workers' compensation record, except as provided by
section 110-a of the Workers'Compensation Law;
(g) disclosure of electronic contact information,such as an
e-mail address or a social network username that has
been collected from a taxpayer under section 104 of
the RPTL;or
(h) disclosure of law enforcement arrest or booking
photographs of an individual, unless public release of
such photographs will serve a specific law
enforcement purpose and disclosure is not precluded
by any state or federal laws.
If none of these enumerated privacy exceptions apply(Public
Officers Law, §89[21[b]), the town must "balance the privacy
interests at stake against the public interest in disclosure of the
information"in determining whether disclosure is appropriate
(Hearst Corp. v. City of Albany, 88 A.D.3d 1130 (3rd Dept.
2011)).
Unless otherwise provided by Article 6 of the POL, disclosure
shall not be construed to constitute an unwarranted invasion
of personal privacy:
• when identifying details are deleted;
• when the person to whom a record pertains consents
in writing to disclosure;
• when upon presenting reasonable proof of identity,a
person seeks access to records pertaining to him or
her;or
• when a record or group of records relates to the right,
title or interest in real property, or relates to the
inventory, status or characteristics of real property, in
2021 TOWN CLERK MANUAL 1162
which case disclosure and providing copies of such
record or group of records shall not be deemed an
unwarranted invasion of personal privacy, provided
that nothing herein shall be construed to authorize the
disclosure of electronic contact information,such as an
e-mail address or a social network username ... (POL
§89(2)(c)).
Local governments are prohibited from intentionally
communicating to the general public, or otherwise make
available to the general public in any manner, an individual's
social security account number(POL,§96-a).
3.Records that,if disclosed,would impair present or imminent
contract awards or collective bargaining negotiations (POL,
§87(2)(c));
4.Records that,if disclosed,could endanger the life or safety of
any person (POL,§87(2)(f));
5.Portions of inter-agency or intra-agency records that are not
statistical/factual tabulations/data (POL, §87 (2)(g)); please
note,however,staff instructions that affectthe public and final
agency policy or determinations must be released (POL, §87
(2)(g));
(a) Note: These records may be accessible pursuant to
Public Officers Law, §103 (e) if they are scheduled to
be discussed at a board meeting.
(b) Intra-agency material is exempt from disclosure to
ensure that individuals in an advisory role are able to
express their opinions freely to agency decision-
makers(Xerox Corp.v.Town of Webster,65 N.Y.2d 131
[19851).
2021 TOWN CLERK MANUAL 11163
6.Trade secrets(POL,§87(2)(d));
(a) A trade secret may consist of, but shall not necessarily
be limited to,any formula,pattern,process,procedure,
plan, compound, or device that is not published or
divulged and which gives an advantage over
competitors who do not know, use or have access to
such data or information (6 NYCRR 616.7[c][2][i][a]).
7. Records or portions of records that are compiled for law
enforcement purposes and which if disclosed would:
(a) Interfere with law enforcement investigations or
judicial proceedings(POL§87(2)(e)[i]);
(b) Deprive a person of a right to a fair trial or impartial
adjudication (POL§87(2)(e)[iij);
(c) Identify a confidential source or disclose confidential
information relative to a criminal investigation (POL
§87(2)(e)[iii]);or
(d) Reveal criminal investigative techniques or
procedures, except routine techniques and procedures
(POL§87(2)(e)[iv]).
8.Information Technology Security,such assets encompassing
both electronic information systems and infrastructures (POL
§87(2)(i))•
Moreover, the Appellate Division Second Department has
noted that there is no legal authority to allow a requester or
Z The term 'compiled'for this purpose requires only that a document
be created, gathered, or used by an agency for law enforcement
purposes at some time before the agency invokes the exemption(John
Doe Agency v.John Doe Corp.,493 U.S. 146(1989);New York Times v.
New York State Exec. Chamber, 57 Misc. 3d 405 (Sup. Ct. Albany
County 2017)).
2021 TOWN CLERK MANUAL 1164
independent third party to conduct a search of an agency's
records to locate responsive documents because "such a
search would be improper because it would inevitably permit
the person to view agency records that were not responsive or
that were exempt from disclosure" (Gartner v.New York State
Attorney General's Office, 160 AD3d 1087(3d Dept 2018)).
T. Attorney-Client Communications — Records that are
"specifically exempted from disclosure by state or federal
statute"may be withheld under(POL§87(2)(a)).For more than
a century, the courts have found that legal advice given by
municipal attorneys to their clients — municipal officials — is
privileged when it is prepared in conjunction with an attorney-
client relationship (OML-AO-4360 citing People ex rel. Updyke
v. Gilon, 9 NYS 243, 244 (1889)). As such, the Committee on
Open Government has opined that the town attorney may
engage in a privileged relationship with the attorney's client
and that records prepared in conjunction with an attorney-
client relationship may be considered privileged under Civil
Practice Law and Rules§4503.Similarly,the work product of an
attorney may be confidential under Civil Practice Law and
Rules, §3101 (POL, §87(2)(a); Civil Practice Law and Rules,
§§4503;3101).
In general,"the privilege applies only if the asserted holder of
the privilege is or sought to become a client; the person to
whom the communication was made is a member of the bar of
a court, or his or her subordinate and in connection with this
communication relates to a fact of which the attorney was
informed by his or her client without the presence of strangers
for the purpose of securing primarily either an opinion on law
or legal services assistance in some legal proceeding,and not
for the purpose of committing a crime or tort;and the privilege
has been claimed and not waived by the client," (People v.
2021 TOWN CLERK MANUAL 1165
Beige, 59 AD 2d 307 (41h Dept. 1977)). Questions regarding
whether a record is exempt under the attorney-client
communications privilege should be vetted through the town
attorney's office prior to releasing or withholding foiled
records.
U. Police Personnel Records-Chapter 96 of the Laws of 2020
repealed Civil Rights Law §50-a and amended Article 6 of the
Public Officers Law (FOIL). Prior to its repeal, Civil Rights Law
50-a barred the release all personnel records used to evaluate
performance toward continued employment or promotion of
a police officer without the express consent of the officer or a
court order.With the repeal of Civil Rights Law,§50-a,whether
or not police disciplinary or personnel records are exempt from
disclosure requires a review of relevant statutory and common
law exemptions and consultation with the town attorney and
chief of police.
Chapter 96 of the Laws of 2020 also includes new definitions of
law enforcement disciplinary records(see POL,§86(6,7,8,9)).
In addition,Chapter 96 included new mandatory(POL, §89(2-
b))and permissive redactions(POL,§89(2-c))to requested law
enforcement disciplinary records
1.New Definitions
"Law enforcement disciplinary records"means any record
created in furtherance of a law enforcement disciplinary
proceeding, including, but not limited to (POL, §86 (6)[a-
el):
(a) the complaints,allegations,and charges against
an employee;
(b) the name of the employee complained of or
charged;
2021 TOWN CLERK MANUAL 1166
(c) the transcript of any disciplinary trial or hearing,
including any exhibits introduced at such trial or
hearing;
(d) the disposition of any disciplinary proceeding;
and
(e) the final written opinion or memorandum
supporting the disposition and discipline
imposed including the agency's complete
factual findings and its analysis of the conduct
and appropriate discipline of the covered
employee.
"Law enforcement disciplinary proceeding" means the
commencement of any investigation and any subsequent
hearing or disciplinary action conducted by a law enforcement
agency(POL,§86 (7)).
"Law enforcement agency" means a police agency or
department of the state or any political subdivision thereof,
including authorities or agencies maintaining police forces of
individuals defined as police officers in§ 1.20 of the Criminal
Procedure Law, a sheriffs department, the Department of
Corrections and Community Supervision, a local department
of correction,a local probation department,a fire department,
or force of individuals employed as firefighters or
firefighter/paramedics(POL,§86(8)).
"Technical infraction"means a minor rule violation by a person
employed by a law enforcement agency as defined in this
section as a police officer, peace officer, or firefighter or
firefighter/paramedic, solely related to the enforcement of
administrative departmental rules that (a) do not involve
interactions with members of the public, (b) are not of public
concern,and (c)are not otherwise connected to such person's
2021 TOWN CLERK MANUAL 1167
investigative, enforcement,training, supervision, or reporting
responsibilities(POL,§86(9)).
2.Mandatory Redactions(POL§89(2-b))
For records that constitute law enforcement disciplinary
records, a law enforcement agency shall redact the
following information from such records prior to
disclosing such records under this article:
(a) items involving the medical history of a
person employed by a law enforcement agency as a
police officer, peace officer, or firefighter or
firefighter/paramedic, not including records obtained
during the course of an agency's investigation of such
person's misconduct that are relevant to the
disposition of such investigation (POL§89(2-b)[a])
(b) the home addresses, personal telephone
numbers, personal cell phone numbers, personal
email addresses of a person employed by a law
enforcement agency as a police officer, peace officer,
or firefighter or firefighter/paramedic, or a family
member of such a person,a complainant or any other
person named in a law enforcement disciplinary
record, except where required pursuant to article
fourteen of the civil service law,or in accordance with
subdivision four of section two hundred eight of the
civil service law, or as otherwise required by law.This
paragraph shall not prohibit other provisions of law
regarding work-related,publicly available information
such as title,salary,and dates of employment(POL§89
(2-b)[b]);
(c) any social security numbers(POL§89(2-b)[c]);
(d) disclosure of the use of an employee assistance
program, mental health service, or substance abuse
assistance service by a person employed by a law
2021 TOWN CLERK MANUAL 1168
enforcement agency as a police officer, peace officer,
or firefighter or firefighter/paramedic, unless such use
is mandated by a law enforcement disciplinary
proceeding that may otherwise be disclosed pursuant
to this article(POL§89(2-b)[d]).
3.Permissive Redactions
For records that constitute "law enforcement disciplinary
records," a law enforcement agency may redact records
pertaining to technical infractions prior to disclosing such
records under this article(POL§89(2-c)).
2021 TOWN CLERK MANUAL 1169
Chapter 6
TOWN CLERK'S
RECEIPT OF FILING DUTIES
"The town clerk... shall file all certificates or oaths and other
papers required by law to be filed in his office," (Town Law,
§30(2)).
Various laws detail the filing requirements for the many
documents with which the town clerk is concerned.
§6.1 Creation of a Filing System
Making books and records readily accessible to authorized
individuals and the public involves knowledge of the law, as
well as the adoption of a systematic filing procedure. Legal
documents, records,correspondence,etc.should be filed and
managed in accordance with applicable laws and rules, to
meet local needs and requirements.The most important thing
is provision for an adequate and readily expandable filing
system,complete with a workable index to permit prompt and
accurate reference to the records.
The following examples are illustrative of various documents,
papers and records in connection with the operation and
administration of town government that are required by law
to be filed with and be on file in the town clerk's office. Please
note that this is not a complete list but merely a representative
sampling.
2021 TOWN CLERK MANUAL 1170
A. Animals
Dog Licenses.Dog licenses issued by an authorized pound or
shelter manager shall send, within 48 hours of validation, a
copy of the license to the licensing municipality within which
the dog is to be harbored (Agriculture and Markets Law, §109
(1)(f))•
Exotic(Wild)Animal Registry(General Municipal Law,§209-
cc;Agriculture and Markets Law,§123; 19 NYCRR 820.3).
B. Annexation
Annexation documents must be filed with the town clerk(e.g.
board orders and determinations, agreements, petitions,
resolutions, notices objections, testimony and minutes)
(General Municipal Law,§711 (2)(b)).
If the annexation is approved, a certificate of the election
results together with a copy of the petition or joint resolution
must be filed in the town clerk's office within 20 days of the
election. If the annexation is not approved, a certificate of
election must be filed in the town clerk's office within 10 days
of the election (General Municipal law,§713).
Once an annexation proceeding under Article 17 of the
Municipal Home Rule Law is completed,the local governments
must create a new boundary map and file the new map in the
town clerk's office(General Municipal Law,§717 (1)).
C. Assessing Records
Property Tax Maps. The county director of real property
services shall file with the town assessor,or if there is no town
2021 TOWN CLERK MANUAL 171
assessor with the town clerk,a copy of the approved tax map
(Real Property Tax Law,§503).
Demand for List of Properties Owned.No later than 15 days
prior to the date required by law for completion and filing of
the tentative assessment roll,any person or corporation,who
or which owns or has an interest in real property in a city or
town and is a non-resident thereof, may file with the clerk
thereof a written demand for a list of each parcel of real
property assessed in his or its name,the assessed valuation of
each such parcel and any separate assessment thereof for
special district or school district purposes ... at which the
board of assessment review will meet for the purpose of
hearing complaints relative thereto (Real Property Tax Law,
§508(1)).
Tax Notice to Non-Residents in Towns. Any person or
corporation, who or which owns or has an interest in real
property liable to taxation in a town and is a non-resident
thereof,may file with the town clerk thereof a notice stating(a)
the person's name, residence and post-office address, or in
case of a corporation,its principal office,(b)a description of the
property sufficient to identify the same and (c) if situated in a
village or school district,the name of each village and number
and designation of each school district, and requesting that
statements of all town,village and school taxes be delivered to
him by registered mail.Such notice shall be valid and continue
in effect until cancelled by such person or corporation. The
town clerk shall, within five days after the delivery of the
warrants for the collection of taxes in the town, village and
school district, respectively, in which such real property is
situated,furnish the collecting officer thereof with a transcript
of all notices so filed (Real Property Tax Law,§982).
2021 TOWN CLERK MANUAL 1172
Supplemental Assessment Roll.On or before the first day of
February, the assessors shall finally complete the
supplemental assessment roll and prepare and file a certified
copy thereof in the office of the town clerk.A certified copy of
such supplemental assessment roll shall remain on file in the
office of the town clerk until the first day of March.On that day,
such copy shall be delivered to the county treasurer (Real
Property Tax Law,§1335).
Village Assessment Status Notification.A village may adopt
a local law opting out of assessing services.Within five days of
the date the local law takes effect,the board of trustees of the
village shall file a copy thereof with the town clerk and assessor
(Real Property Tax Law,§1402).
Final Assessment Roll;Notice of Completion (Real Property
Tax Law,§516).
Proceeding to Review a Special Franchise Assessment.
There a proceeding is commenced by a special franchise
owner,the petitioner,within 10 days after service,shall file an
additional copy with the clerk of the city, town or village and
with the clerk of the school district in which that special
franchise is situated (Real Property Tax Law,§740).
Exemption Impact Reports (Posted and Annexed to
Budget). The exemption impact report is required to show
how much of the total assessed value on the final assessment
roll used in that budgetary process is exempt from taxation
(Real Property Tax Law,§495).
2021 TOWN CLERK MANUAL 1173
D.Books
Local Law Book.The town clerk shall record all local laws filed
in the town clerk's office in a separate book or books, which
shall be indexed by the town clerk(Municipal Home Rule Law,
§27(6)).
Ordinance Book.Immediately after adoption of an ordinance,
the town clerk shall enter into a book to be known as the
"ordinance book" a copy of every ordinance adopted by the
town board, specifying the date of adoption thereof (Town
Law,§30(1)).
Minutes Book.The town clerk shall attend all meetings of the
town board, act as clerk thereof, and keep a complete and
accurate record of the proceedings of each meeting,and of all
propositions adopted pursuant to this chapter(Town Law,§30
Record of Money Book.The town clerk shall enter daily in a
suitable book or books a record of all moneys received in the
town clerk's office and shall deposit all such moneys not later
than the third business day after the total thereof exceeds the
sum of$250(Town Law,§30(1-a)).
Notice of Lien Book. The town clerk is required to keep a
notice of lien book in which the town clerk shall file notices
regarding stray animals.The town clerk may receive $0.10 for
each animal specified in the notice.The fee is to be paid by the
person delivering the notice. Such books shall always be kept
open for inspection, and no fees shall be taken by the clerk
therefore(Town Law,§311).
2021 TOWN CLERK MANUAL 1174 -
E. Cannabis Licenses
Notification of Cannabis License Applications.An applicant
for an adult-use retail dispensary, registered organization
adult-use cultivator processor distributor retail dispensary, or
an on-site consumption license must file a notice of such
application with the town clerk between 270 days and 30 days
before it files its application with the state Cannabis Board
(Cannabis Law, §76).The town board may express an opinion
for or against the granting of the license, and that opinion is
deemed part of the record on which the cannabis board makes
its determination.
F. Classification of Towns
Population Change Notice.When the population of any town
as shown by such federal census is 5,000 or more,the Secretary
of State shall file with the town clerk of such town a copy of
such authenticated statement(Town Law,§11(1)).
Mandatory Change of Classification Notice.The Secretary of
State shall file with the town clerk a notice that a town has
reached the required threshold to change to a town of the first
class(Town Law,§11 (1)).
G. Consolidation,Dissolution and Shared Services
Records
Alteration of Town Boundaries. A copy of the determination
of the board of supervisors duly certified by the clerk of the
board shall be filed in the office of the town clerk of each town
affected (Town Law,§73).
2021 TOWN CLERK MANUAL 1175
Municipal Consolidation Petitions. Elector-initiated
consolidation petitions may be filed in the town clerk's office
(General Municipal Law,§763). ,
Municipal Dissolution Petitions.Elector-initiated dissolution
petitions may be filed in the town clerk's office (General
Municipal Law,§785).
School District Dissolution,Reformation and Construction
of School Districts. School superintendent orders and
decisions dissolving or uniting districts or portions thereof
must be filed in the town clerk's office(Education Law,§1505).
School superintendent orders creating a common school
district or union-free school district must be filed in the town
clerk's office(Education Law,§1513).
Canvass Results for Enlarging City School Districts.
(Education Law,§1526(10)).
Election Results for the Creation of a Central School District
(Education Law,§1 803-a).
Mutual Aid Water Interconnection Plan Certificates.
Upon approval of plans for an interconnection, the state
coordinator shall file a certificate thereof with the town clerk
(General Municipal Law,§120-u).
H. Election and Petitions Records
Special Election Results. As soon as possible after ,
completion, the inspectors shall file with the town clerk a
certificate setting forth the holding of the election, the total
number of votes cast upon each proposition,and the number
of votes cast for and against each proposition, together with
2021 TOWN CLERK MANUAL 1176
the name and address of every person voting at such election
upon such proposition or propositions(Town Law,§83).
Special Election Absentee Ballots.No absentee voter's ballot
shall be canvassed, unless it shall have been received in the
office of the town clerk not later than 5 p.m.on the day of the
election (Town Law,§84-a(8)).
Municipal Home Rule Law Petitions. Electors may file a
petition in the town clerk's office requesting a referendum on
a proposed local law, which is subject to a permissive
referendum (Municipal Home Rule Law,§24).
Electors may file a petition in the town clerk's office seeking a
special election on a local law,which is subject to a mandatory
referendum (Municipal Home Rule Law,§23).
Local ABC Law Option Referendum Petitions.Electors of the
town may file a petition in the town clerk's office requesting an
election on the issue of whether to allow alcohol to be sold
within the town (Alcoholic Beverage Control Law,§141).
Local ABC Law Option Election Results Certificates. The
town clerk shall file a statement of the results and a certificate
of determination of the local option election with the state
liquor authority(Alcoholic Beverage Control Law,§143).
Election Districts.Maps and/or descriptions of congressional,
senatorial,assembly and election districts shall be filed by the
state Board of Elections in the office of the town clerk,and kept
open to public inspection(Election Law,§4-102 (5)(c)).
2021 TOWN CLERK MANUAL 1177
Permissive Referendum Petitions. Petitions submitted by
the electorate seeking a voter referendum on various town
issues(Town Law,§§81,91).
Petitions to Establish or Vote on Town Improvement
Districts. Petitions may be submitted to the town clerk
seeking to have the town board establish a town special
improvement district(Town Law,§§191; 191-c; 200). Petitions
may be submitted to the town clerk seeking voter approval of
the establishment or extension of a town special improvement
district(Town Law,§209-e).
I. Employment Policies
Personnel Policies and Employee Handbooks. The town
board will adopt a series of personnel policies (e.g. leave
allowances under General Municipal Law, §92; health
insurance under General Municipal Law,§92-a;overtime under
General Municipal Law, §90; mileage reimbursement under
Town Law, §116). Towns are not required to have an
employment handbook, but where the town has established
an employment handbook, a copy should be on file in the
town clerk's office.
Sexual Harassment Policy. The town's sexual harassment
policy,which is a written policy prohibiting harassing conduct
that includes a procedure telling employees where to turn if
they believe that the policy has been violated,should be filed
in the town clerk's office (Labor Law § 201-g; Section 703 of
Title VII of the Civil Rights Act of 1964).
Workplace Violence Policy.Towns with 20 or more full-time
permanent employees must have a written workplace
violence prevention program (Labor Law, §27-b).Towns with
2021 TOWN CLERK MANUAL 1178
less than 20 full-time employees are required to have a
workplace violence policy statement(12 NYCRR§800.6(e) (1)).
Code of Ethics.All towns are required to adopt a local code of
ethics to supplement the general state ethics requirements for
local government officials and municipal employees set forth
in article 18 of the General Municipal Law. The town's ethics
code should be on file with the town clerk(General Municipal
Law,§806).
Pandemic Plans.Towns are required to adopt an employee
emergency health plan. A copy of such plan should be filed
with the town clerk(Labor law 27-c).
J. Environmental Records
SPDES Discharge Monitoring Reports(Environmental
Conservation Law,§17-0815-a).
Freshwater Wetland Maps and Permit Applications. In
accordance with Article 24 of the Environmental Conservation
Law,freshwater wetland maps and permit applications may be
filed and on record for public view in the town clerk's office.
The map filed with a local government may, at the local
government's request, be either a physical copy of the
tentative freshwater wetlands map,or,if available,a digital file
that represents it (Environmental Conservation Law, §§ 24-
0301,24-0703).
DEC Drainage District Certified Cost Statements.A certified
estimate of drainage district costs is required to be filed in the
town clerk's office (Environmental Conservation Law, §15-
1955).
2021 TOWN CLERK MANUAL 1179
DEC River Improvement Districts. Copies of DEC river
improvement district maps are required to be filed with the
town clerk(Environmental Conservation law,§15-2303).
DEC Orders Forming Joint River Regulating District
(Environmental Conservation Law,§ 15-2501).
Local Regulation of Coastal Erosion Hazard.Coastal erosion
hazard area maps are filed with the town clerk(6 NYCRR 505.16
(a);Environmental Conservation Law,§34-0105(1)or(3).
Erosion Hazard Areas. Maps or descriptions and the final
identification of all erosion hazard areas pursuant to article 34
of the Environmental Conservation Law, shall be available to
the public for inspection and examination in the office of the
clerk of each local government in which each area or part
thereof is located (Environmental Conservation Law, § 34-
0104).
Coastal Area Boundary Amendment(19 NYCRR 602.2 (g;) 19
NYCRR 602.4).
Migratory Game Bird Hunter Information.DEC is required to
prepare a syllabus informing migratory game bird hunters
where they can obtain information regarding open seasons
and bag limits and federal regulations pursuant to sections 11-
1721 and 11-1723 of the Environmental Conservation Law
relating to invasive species (as defined in section 9-1703).The
department shall deliver copies of such syllabus to town clerk
in numbers sufficient for the furnishing of one copy to each
person to whom a hunting,trapping or fishing license is issued.
Each such licensee shall be entitled to one copy of such
syllabus(Environmental Conservation Law,§ 11-0323).
2021 TOWN CLERK MANUAL 1180
K. Financial Records
Record of Obligations(Local Finance Law,§163.00).
Tentative Town Budget.Town budget officer must file in the
office of the town clerk the tentative budget, the budget
message, if any, and the estimates and schedules (Town Law,
§106).
Preliminary Town Budget.The town board must ensure that
there are sufficient copies of the preliminary budget available
' for public inspection in the town clerk's office before the public
hearing (Town Law,§108).
Claims and Audited Claims(Town Law,§119).
State Comptroller Audits. General Municipal Law, §33
requires the state comptroller to audit town records.The state
comptroller's examination report must also be filed in the
town clerk's office(General Municipal Law,§35).
Town Supervisor's Annual Financial Report(Town Law,§29
(10);(10-a)).
Town Supervisor Records. Such books of account shall be
public records, open and available for inspection at all
reasonable hours of the day, and upon the expiration of the
term of office,shal I be filed in the office of the town clerk(Town
Law,§29(4)).
Supervisor Monthly Financial Report(Town Law,§125 (2)).
2021 TOWN CLERK MANUAL 1181
Investment Policy. The town board may adopt a policy
providing for the temporary investment of town money
(General Municipal Law,§11).
Procurement Policy. The town board must adopt a
procurement policy to govern contracts when competitive
bidding is not required by law (General Municipal Law, §104-
b).
Record of Bonds and Notes(Local Finance Law,§163.00).
Contents of Statement of Housing and Urban Renewal
Indebtedness. A duplicate copy of every annual and
supplemental housing and urban renewal debt statement
shall be filed in the same period of time with the clerk or
corresponding officer of such municipality(Local Finance Law,
§151.00).
L. Fire District Records
Alteration of Boundaries of Fire Districts.Orders regarding
fire district boundary line changes must be filed with the town
clerk(Town Law,§172-a).
Proposed Fire District Budget(Town Law,§181 (3)(a)).
Adopted Fire District Budget. Within.three days after the
adoption of the annual budget of a fire district,the fire district
secretary shall prepare and deliver to the town clerk of each
town in which the fire district is located two certified copies of
the annual budget(Town Law,§181 (3)(c)).
2021 TOWN CLERK MANUAL 1182
Fire District Map Boundary Disputes. Fire district
commissioners are required to produce a district map. If an
adjacent fire district objects to the location of a boundary line
affecting such adjacent fire district,then within 45 days of the
receipt of such notification and map,such objections shall be
filed with the fire district secretary of the fire district proposing
such map and with the town clerk of each town in which any
part of such fire district is located. The town board
determination after a public hearing on the disputed
boundary lines must also be filed with the town clerk (Town
Law,§176(5)).
Fire District Name Change. Orders changing the name of a
fire district must be filed in the office of town clerk(Town Law,
§1 72-e).
M. Fire Protection District Records
Explanation of Assessment Rate Estimate. Prior to the
publication of the notice,the board or boards shall cause to be
prepared,and filed for public inspection with the town clerk,a
detailed explanation of how the estimated rate of assessment
for the proposed district or extended district was computed
(Town Law,§171).
Joint Fire District Budget. Within three days after the
adoption of the annual budget of a joint fire district, the fire
district secretary shall prepare and deliver to the town clerk of
each town in which the fire district is located two certified
copies of the annual budget(Town Law,§189-h (1) (b)).
Annual Financial Statement.The treasurer of each joint fire
district shall prepare and file annually in the office of the town
clerk of each town in which any part of such joint fire district
2021 TOWN CLERK MANUAL 1183
shall be located, and in the Office of the State Comptroller, a
financial statement setting forth in detail the receipts and
expenditures of such joint fire district.Such statement shall be
filed in such offices within 60 days after the close of the fiscal
year of the joint fire district(Town Law,§189-h (3)).
N. Highway and Infrastructure Records
Record/Index of Notice of Highway Defects.The town clerk
is required to keep an indexed record,in a separate book,of all
written notices received regarding the existence of defective,
unsafe,dangerous or obstructed condition in or upon,or of an
accumulation of ice or snow upon any town highway, bridge,
culvert or sidewalk. This record must state: 1. the date of
receipt of the notice; 2. the nature and location of the
condition stated to exist; and 3.the name and address of the
person from whom the notice is received.The record of each
notice must be preserved for a period of five years after the
date it is received (Town Law,§65-a(4)).
Record/Index of Notice of Highway Defects Regarding
Snowmobile Operation. The town clerk is also required to
keep an indexed record of all written notices received
regarding the existence of a defective, unsafe, dangerous or
obstructed condition in or upon, or of a hazardous condition
caused by snow and/or ice removal, or the non-removal
thereof from highways designated for snowmobile operation
pursuant to Article 25 of the Parks, Recreation and Historical
Preservation Law. This record must state:(1)the date of receipt
of the notice and (2)the name and address of the person who
provided the notice. The record of each notice shall be
preserved for a period of five years after the date it is received
(General Municipal Law,§71-b.)
2021 TOWN CLERK MANUAL 1184
Survey for the Laying Out of a Town Highway (Highway
Law,§170).
Names and Numbers of Streets; Providing Street Signs.
The town board may designate by name and number the
streets, avenues, lots, public buildings and places, and may
cause a map of the town to be prepared and filed in the office
of the town clerk, and purchase, install and maintain street
signs showing the names of streets and avenues therein.Such
names may also be changed and altered as the town board
may determine. Whenever the town board shall change the
name or number of any street, avenue, public building or
place,the town clerk shall,within 10 days thereafter,notify the
assessor(s) and the planning board, if any, of said town, the
county clerk and county engineer of the county in which said
town is located, and the United States Post Office for that
location (Town Law,§64(9)).
Street Profiles. The town board may provide for the
establishment of the profiles and grades of any accepted
street, avenue or highway in the town, and upon the
completion thereof, shall cause the same to be filed in the
office of the town clerk and of the superintendent of highways
of the town (Town Law,§64(10).
Description of Town Road Affected by Canal Work.When it
is necessary to discontinue or alter any part of a town road in
order to accommodate work on the canal system, the
commissioner of the Department of Transportation must file,
in the town clerk's office,an accurate description of the part of
such road or highway so discontinued and of the one laid out
anew(Canal Law,§60).
2021 TOWN CLERK MANUAL 1185
Estimates Regarding the Cost of Bridges over Canals
(Canal Law,§66).
Notice of Highway Closing.Certificate of state or town road
closure must be filed in the town clerk's office (Highway Law,
§104).
Order Laying Out Dedicated Highway (Highway Law, §171
(1))•
Orders Laying Out, Altering or Discontinuing Town
Highways(Highway Law,§171 (2)).
Record of Highways Used for 20 Years that have not been
Previously Reported (Highway Law,§140(8)).
Highway Mileage Report. As often as the Department of '
Transportation shall direct,the town highway superintendent
shall measure all town highways in town ... and such report
shall be filed with the town clerk,the county superintendent,
and the Department of Transportation, respectively(Highway
Law,§140(12)).
Abandoned Town Highways. The town highway
superintendent with the written consent of a majority of the
town board shall file, and cause to be recorded in the town
clerk's office of the town a written description (Highway Law,
§205).
Abandoned School Roads. A description of certain town
highways in school districts scheduled to be abandoned is to
be filed in the town clerk's office(Highway Law,§211-b).
Bridge Abandonment Order(Highway Law,§234(11)(c)).
2021 TOWN CLERK MANUAL 1186
Certificate of Qualified Abandonment of a Town Highway.
The town highway superintendent must file and cause to be
recorded in the town clerk's office a certificate containing a
description of that portion of the highway partly disused as
aforesaid and declaring a qualified abandonment thereof
(Highway Law,§205).
Discontinuance of Terminus of Town Highway. The town
highway superintendent shall file in the town clerk's office an
order directing the terminus of a town highway to be
discontinued and abandoned for public purposes (Highway
Law,§§207;208).
Discontinuance of Town Highways in Forest Land(Highway
Law,§211-a).
All Highway Papers. All applications, certificates,
appointments and other papers relating to the laying out,
alterations to or discontinuation of any highway shall be filed
by the town highway superintendent as soon as a decision
shall have been made thereon in the town clerk's office of the
town (Highway Law,§210).
a
Notice to Town of County Road Abandonment.Notice from
county legislative body must be filed in the town clerk's office
prior to the abandonment of any county highway or portion
thereof to a town (Highway Law,§115-c).
Bids for the Construction of Town Highways. All bids
submitted for highway construction work shall be filed in the
town clerk's office(Highway Law,§193).
Highway Construction Contracts. The town highway
superintendent shall file all contracts awarded under this
2021 TOWN CLERK MANUAL 1187
section with the town clerk within 10 days after their execution
(Highway Law,§193).
Highway Law, §284 Agreement. The annual agreement
between the town highway superintendent and town board
regarding town highway work and expenditures must be filed
in the town clerk's office as well as with the county highway
superintendent(Highway Law,§284).
O. Improvement District Records
Improvement Districts in Suburban Class Towns. Maps,
plans and orders adopted by a town board of the suburban
class regarding establishment of an improvement district shall
be filed in the town clerk's office(Town Law,§54(3)).
Business Improvement Districts. A plan to establish a
business improvement district must be filed in the town clerk's
office(General Municipal Law,§980-e).
Petitions for Town Improvement Districts.Petitions may be
submitted to the town clerk seeking to have the town board
establish a town special improvement district (Town Law,
§§191; 191-c; 200). Petitions may be submitted to the town
clerk seeking voter approval of the establishment or extension
of a town special improvement district(Town Law,§209-e).
Application to Establish or Extend District.A certified copy
of the notice of public hearing, with proof of publishing and
posting thereof, and in the instance of a sewer, wastewater
disposal, drainage or water district, the map, plan and report
filed in the town clerk's office. Order of the State Comptroller
granting or denying permission for the establishment or
2021 TOWN CLERK MANUAL 1188
extension of the district shall be filed with the town clerk(Town
Law,§209-fl.
Maps and Plans. The town clerk is required to receive, for
filing,all maps and plans associated with the establishment of
extension of a water quality treatment district (Town Law,
§§190-g (2); 191-a; 192; 197;209-c).
Notices of Approval from the Department of Health. The
town clerk is required to receive for filing from the state
Department of Health the notice of approval or denial of a
water quality treatment district(Town Law,§§190-g(3); 191-a;
192).
Notices from the State Comptroller's Office.The town clerk
shall receive for filing an order of the state comptroller
granting or denying permission for the establishment or
extension of the district as set forth in article 12-a of the Town
Law.The town clerk shall present such order to the town board
of the town at the next meeting thereof(Town Law,§§194(4);
209-f(4)).The town clerk shall receive for filing an order of the
state comptroller regarding increasing the maximum amount
to be spent on various improvement districts (Town Law,
§§202-d;209-h).
Purchase Contracts.The town clerk is required to receive for
filing contracts for the purchase from any person or
corporation,municipal or otherwise,of any trunk sewer,lateral
sewer, sewer system or disposal plant, rights of way and
appurtenances,forthe purpose of supplying the inhabitants of
any such district with sanitary sewer facilities(Town Law,§198
(1) (c)).
2021 TOWN CLERK MANUAL 1189
Town Board's Order.The town clerk must make available a
copy of the town board order together with an estimate of the
cost to property owners for public inspection in the town
clerk's office(Town Law,§§193 (1) 209-d (1)).
Expense of Maintenance. After the improvement is
constructed and completed, the town clerk shall accept for
filing from the town board estimates and the assessment roll
between the first and the 15th days of September in each year.
(Westchester County towns have different filing
requirements.)(Town Law,§202-a).
Change of name.Within 10 days after the adoption of such
resolution,a certified copy thereof shall be filed in the office of
the town clerk(Town Law,§198 (13)).
Annual Estimates(Town Law,§202-a (8)).
P. Liquor Licenses
Notification of Liquor License Applications. When an
application is filed for a license to sell liquor for consumption
on the premises, the applicant must give certified mail notice
to the town clerk.The town board may express an opinion for
or against the granting of the license, and that opinion is
deemed part of the record on which the liquor board makes its
determination(Alcohol Beverage Control Law,§64(2-a)).
Q.Notice of Claims
Notices of Claim for Personal Injury or Property Damage
Filed with the Secretary of State. A potential plaintiff in a
personal injuryor property damage lawsuit may file a notice of
claim upon the town attorney, a person designated by the
2021 TOWN CLERK MANUAL 1190
town board to receive service(e.g.town clerk)or the secretary
of state (General Municipal Law, §53). The town must file a
certificate with the secretary of state,designating the secretary
as the agent for service of a notice of claim and shall in such
statement provide the secretary with the name and address of
an officer,person,or designee,nominee or other agent-in-fact
for the transmittal of notices of claim served upon the
secretary as the public corporation's agent. Any designated
post office address to which the secretary of state shall mail a
copy of the notice of claim served upon him or her as agent
shall continue to be the address to which such notices shall be
mailed until the public corporation sends a notice to the
secretary informing him or her of a new address to which such
notices shall be mailed.
Record/Index of Notices of Claims Filed with the Town.
Unless the town board designates another officer to do so,the
town clerk shall make and keep a record numbered
consecutively and indexed alphabetically according to the
name of the claimant, of each notice of claim filed in
compliance with such requirement and of the disposition of
the claim so noticed (General Municipal Law,§50-f(1)).
Record/Index Highway, Bridge and Sidewalk Notices of
Claims.(General Municipal Law,§50-f(1)).
Summons in an Action in the Supreme Court Personal
Service. Personal service upon a town shall be made by
delivering the summons to the town supervisor or the town
clerk.If the town clerk receives a notice of claim,the town clerk
should file it in the town clerk's office and notify the town
attorney, town supervisor and town insurance carrier (Civil
Practice Law and Rules,§311 (a)(5)).
2021 TOWN CLERK MANUAL 1191
R. Planning and Zoning
Official Town Zoning Map.The town board may establish an
official map of that part of the town outside the limits of any
incorporated city or village showing the streets,highways and
parks theretofore laid out, adopted and established by law,
and drainage systems may also be shown on such map.The
clerk of every town which has established such an official map
shall immediately file a certificate of that fact with the clerk or
registrar of the county in which said town is located (Town
Law,§270).
Zoning Maps Maintained in Town Clerk's Office.Every town
clerk shall maintain a separate file or filing cabinet for each and
every map adopted in connection with a zoning ordinance or
amendment and shall file therein every such map hereafter
adopted;said file or filing cabinet is to be available at any time
during regular business hours for public inspection(Town Law,
§264).
Zoning Ordinance Proof of Publication(Town Law,§264).
Zoning Ordinance. Every zoning ordinance and every
amendment to a zoning ordinance (excluding any map _
incorporated therein) adopted pursuant to the provisions of
this chapter shall be entered in the minutes of the town board
(Town Law, §264). Immediately after adoption,the clerk shall
enter into a book to be known as the"ordinance book"a copy
of every ordinance adopted by the town board,specifying the
date of adoption thereof(Town Law,§30(1)).
Changes to the Zoning Ordinance. Every town clerk shall
maintain every map adopted in connection with a zoning
ordinance or amendment(Town Law,§265).
2021 TOWN CLERK MANUAL 1192
Comprehensive Plan.The adopted town comprehensive plan
and any amendments thereto shall be filed in the office of the
town clerk and a copy thereof shall be filed in the office of the
county planning agency(Town Law,§272-a (12)).
ZBA Decisions. The town board may, by resolution, require
that such filings be made in the town clerk's office (instead of
the administrative official charged with zoning enforcement)
(Town Law,§267-a(5)).
Special Use Permit Decisions(Town Law,§274-b(6)).
Site Plan Review Decisions(Town Law,§274-a (8)).
Planning Board Subdivision Decision (Town Law,§276(9)).
Subdivision Plats(Town Law,§276(7)(a)).
Notice of Hearings. The town clerk may receive notice of
public hearing on various land use applications from adjacent
municipalities. The notice must be received at least 10 days
prior to the public hearing (General Municipal Law, §239-nn
(4))•
S. Public Officer Records
Resignations.Written resignations of town officers should be
filed in the town clerk's office (Public Officers Law, §31;Town
Law,§26).
Oaths and Undertakings:
• Town Officers and Town Justices. (Town
Law, §25,Uniform Justice Court Act, §104)
2021 TOWN CLERK MANUAL 193
• Fire District Commissioners (Oaths).
(Town Law, §174(6))
• Fire District Treasurer, Secretary and
Director of Purchasing. (Town Law, §174
(3))
• Fire Police Squads of Fire Departments
and Fire Companies (Oaths). (General
Municipal Law, §209-c)
• Improvement District Commissioners.
(Town Law,§214)
• Ambulance District Commissioners.
(Town Law, §198 (10-f)
Deputy Tax Collector Appointment. The tax collector may
appoint a deputy tax collector; such appointment shall be
made in writing which shall become effective upon the filing
thereof in the office of the town clerk(Town Law,§35 (2)).
Town Civil Service Employee Affirmations.Civil Service Law,
§62 requires every person employed by the state or any of its
civil divisions,except an employee in the labor class,before he
or she shall be entitled to enter upon the discharge of any
duties, shall take and file an oath or affirmation (Civil Service
Law,§62).
Certificate of Justice Training.Town justices must file in the
town clerk's office a certificate of the completion of required
training (Uniform Justice Court Act,§105).
Assessor Certification. Certificates and/or temporary
certificates issued by the Office of Real Property Tax Services
regarding the completion of required assessor training (Real
Property Tax Law,§§354;358).
2021 TOWN CLERK MANUAL 1194
Board of Assessment Review Certification. Copies of Office
of Real Property Tax Services certificates of attendance of
members of boards of assessment review at required training
(Real Property Tax Law,§523).
Planning and Zoning Board Training Certificates.Although
not statutorily required to be filed in the town clerk's office,the
town board may direct that training certificates from planning
and zoning board members be filed in the town clerk's office
(Town Law,§§30(11);267;271).
T. Vital Records
Birth and Death Certificates. Where the town clerk also
serves as the registrar of vital statistics for the town, birth and
death certificates must be filed in the town clerk's office(Public
Health Law,§4170(c)).
Marriage Licenses. Each town and city clerk hereby
empowered to issue marriage licenses shall keep a book
supplied by the state Department of Health in which such clerk
shall record and index such information as is required therein,
which book shall be kept and preserved as a part of the public
records of the office(Domestic Relations Law,§19 (1)).
U. Miscellaneous
Notices. Proofs of all publications and posting of notices
where such notices are required to be given should be filed in
the town clerk's office.
Record of Cemetery Plot Inscriptions. Whenever any
cemetery is abandoned or is taken for a public use, the town
2021 TOWN CLERK MANUAL 1195
board shall cause to be made,at the time of the removal of the
bodies interred therein, an exact copy of all inscriptions on
each headstone, monument, slab or marker erected on each
lot or plot in such cemetery and shall cause the same to be duly
certified and shall file one copy thereof in the office of the town
clerk(N-PCL,§1510(i)).
Agricultural District Maps(Agriculture&Markets Law,§304).
Fence Disputes between Property Owners (Town Law,
§303).
Damages from Other Personal Property. Notice of lien
involving damages to property by animals or inanimate
objects are required to be filed in the town clerk's office(Town
Law,§323).
Deeds of Conveyances.The town clerk shall record all deeds
of conveyances with the county clerk in which the property is
located and thereafter file the same in the town clerk's office.
The cost and necessary expenses incurred in the recording of
such deeds in the county clerk's office is a town charge(Town
Law,§30(1)).
New York State Register(Executive Law,§148).
Orders Declaring States of Emergency.The proclamation of
a local state of emergency and local emergency orders must
be filed within 72 hours or as soon thereafter as practicable
with the town clerk,the county clerk,the Department of State
and the,Office of Emergency Management within the Division
of Homeland Security and Emergency Services(Executive Law,
§24(3)).
2021 TOWN CLERK MANUAL 1196
Schools District Descriptions. All papers and proceedings
turned over by the district superintendent of schools and
descriptions of school districts are required to be filed in the
town clerk's office (Education Law, §2140; Education Law,
§2215).
Games of Chance Finance Reports. Copies of bingo and/or
"games of chance" financial report forms (original of which
must be filed with state racing and wagering board) must be
filed in the town clerk's office within seven days after the
conclusion of any occasion (General Municipal Law, §§491;
195-f;9 NYCRR 4624).
Adirondack Park Agency Subdivision or Land Use Hearing
Notice.The Adirondack Park Agency is required to file notice
with the town clerk where the application for a subdivision or
land use is within 500 feet of the border of the town (NYCRR
580.4).
Adirondack Park Land Use and Development Plan Map
Amendments. Notice of hearings on map amendment
requests shall be filed not less than 15 days prior to the hearing
with the clerk of each town and/or village within 500 feet of
the land involved (9 NYCRR 583.5).
2021 TOWN CLERK MANUAL 1197
Chapter 7
THE TOWN CLERK'S
PETITIONS AND REFERENDUM DUTIES
The word "referendum" should not strike fear in the
hearts of anyone. Whether such a referendum is
mandatory or permissive,it is merely method by which
the qualified electors of a town may make their feelings
known to the town officials who are charged with the
responsibility of running town government.
- George W. Cregg, Town Attorney, Town of Salina,
Town and County Officers Training School for Town
Clerks Cornell University,Ithaca,New York(1964)).
A referendum is "a general vote by the electorate on a
single political question which has been referred to
them fora direct decision"-Oxford Dictionary
§7.1 Town Election Replaces Dutch Town Meeting
The town election of today takes the place of former Dutch-
style town meetings. The Dutch-style town meeting
historically drew together all of the electors of the town for the
election of town officials and the adoption of resolutions
authorizing special projects or certain activities (Local
Government Handbook,6th ed.(NY Dept of State,2009)).
Section 80 of the Town Law provides that a biennial town
election shall be held on the Tuesday next succeeding the first
1021 TOWN CLERK MANUAL 1198
Monday in November of every odd-numbered year,except in
Broome County,where the biennial election is held in an even-
numbered year (Town Law, §86). Such elections are held for
the election of town officers,and"for the consideration of such
questions as may be proposed by the town board or the duly
qualified electors." In addition to the biennial town election,
the town may also call special elections (Town Law, §§80;86).
Therefore, town government now functions largely as a
representative form of government. Town voters elect town
board members to represent them at the town government
level and to make decisions accordingly (Matter of McCabe v.
Voorhis,243 N.Y.401 (1926)).
The submission of a question for consideration at an election
is usually referred to as a "referendum." The question voted
upon is usually referred to as a "proposition." A referendum
may be either mandatory (required by statute) or permissive
(authorized by statute).
This chapter is primarily devoted to the area of permissive
referendum and initiative and referendum, as the town clerk
has many duties regarding processing petitions associated
with both democratic processes.
§7.2 Initiative and Referendum Defined
A. Mandatory and Permissive Referendum
A voter referendum may be either mandatory or permissive.A
mandatory referendum is required when a statute
specifically directs that the town board may not take action
unless authorized by a majority vote of the electorate. For
example, § 23 of the Municipal Home Rule Law requires voter
approval before the town board may file a local law with the
secretary of state on a list of issues including changing the
term of office of an elected officer or converting an elected
: office to an appointed office.A permissive referendum,also
2021 TOWN CLERK MANUAL 199
referred to as a referendum on petition, is required when a
statute authorizes the voters to submit a petition requesting a
vote on a matter before the town board,or alternatively,where
the statute authorizes the town board,by board resolution,to
put the issue before the voters. For example, § 35.00 of the
Local Finance Law authorizes the voters to submit a petition to
require a referendum on the issuance of certain bonds.
Pursuant to section 24 of the Municipal Home Rule Law, the
permissive referendum process is referred to as a referendum
on petition. For purposes of this publication, we will refer to
the referendum on petition process as permissive referendum.
B. Voter Initiative and Referendum
In addition to providing voters the right to determine whether
a town board action should proceed,the state Legislature has
also provided town voters with the limited right of initiative
and referendum. Initiative and referendum affords town
voters the right to petition the town to call a referendum on an
issue that the voters would like to have the town undertake
even though the town board has not expressed any intent to
so act.For example,section 81 of the Town Law authorizes the
voters to hold a referendum on whether the town should
reduce the number of town board members,establish a ward
system or improve a town park(Op.Atty.Gen.(1)No.2002-18).
C. Advisory or Nonbinding Referendum
New York State does not provide for advisory or nonbinding
referenda (Matter of McCabe v. Voorhis,243 N.Y.401 (1926)).
The town board may not, therefore, use the referendum
process to determine the public's opinion on an issue or
controversy of the day (Op. St. Comp. No. 96-18). There are,
however, other means available to the town board to
determine the public's opinion on a particular issue, for
example: informational meetings, surreys, or polling
(Woodburn v. Village of Owego, 151 A.D.3d 1216(2017)).
2021 TOWN CLERK MANUAL 1200
§7.3 Common Types of Petitions
There are essentially five main types of petitions that may be
filed in the office of the town clerk:
• Protest Petitions(permissive referendum)-calls for a
vote on a town board action (e.g.Town Law,§§11; 12;
81; 91; 220; 64; 60-a; 150 General Municipal Law, §6-c
et al;Local Finance Law,§35.00).
• Proposition for Election Petitions (initiative and
referendum) - calls for a vote to require board action
(e.g.Town Law, §81; Alcoholic Beverage Control Law
(ABC) §141;General Municipal Law,§757).
• Special District Petitions (initiative and referendum,
permissive referendum) - requests the establishment
or extension an improvement district (Article 12 and
Article 12-A of the Town Law).
• Local Law Petitions (permissive referendum) - calls
for a vote on a proposed local law (e.g. Municipal
Home Rule Law,§24,Real Property Tax Law,§328;GML
§980-b).
• Public Opinion Petitions (advisory or nonbinding) -
submitted expressing the opinion of the signers but
not in accordance with any statutory authority and
merely a nonbinding expression of public opinion.
§7.4 Town Clerk Petition and Referendum Duties
The town clerk plays a vital role in the petition and referendum
process.When a petition is filed in the town clerk's office,the
town clerk should immediately contact the town board, the
town supervisor and the town attorney to notify them of the
petition and to seek guidance regarding proper procedures to
follow. The town clerk's authority and responsibilities vary
depending upon the specific statute that gives rise to the
petition, so,.the first step in the process is to determine the
statutory source giving rise to the petition.Most petitions will
2021 TOWN CLERK MANUAL 1201
be submitted in accordance with the Town Law, Municipal
Home Rule Law, Local Finance Law and the General Municipal
Law,although there are other statutes that might give rise to a
petition.There is a list of common statutory provisions at the
end of the chapter to assist the town clerk in identifying the
proper statutory procedures associated with the petition.
The facts, legal requirements and issues will vary with each
situation. It is therefore recommended that the town clerk
consult the town attorney prior to taking any official action.
A. Publish and Post Notice of Adoption of Resolutions
Subject to Permissive Referendum
Article 7 of the Town Law sets forth the basic requirements
regarding matters subject to permissive referendum.The first
order of business for the town clerk is to publish and post a
notice informing the public that the town board has adopted
a resolution that is subject to permissive referendum (Town
Law,§90).Within 10 days after the adoption by the town board
of any resolution that is subject to a permissive referendum,
the town clerk,in the same manner as provided for notice of a
special election, shall post and publish a notice which shall
set forth the date of the adoption of the resolution and contain
an abstract of such act or resolution concisely stating the
purpose and effect thereof.The notice shall specify that such
resolution was adopted subject to a permissive referendum
(Town Law,§90).While the Municipal Home Rule Law does not
require the town clerk to publish and post a notice informing
the public that the town board has adopted a local law subject
to permissive referendum, the state comptroller's office has
opined that it is advisable to do so(Op.St.Comp.No.78-675).
B. Develop a Checklist
Petitions tend to be submitted with little notice;therefore,the
town clerk should develop a checklist with respect to
2021 TOWN CLERK MANUAL 1202
addressing petitions and the responsibilities associated with
permissive referenda. A basic sample checklist that the town
clerk may use to begin the process might look like:
Sample Checklist
✓ Document each step in the process.
✓ Date stamp the petition upon receipt.
✓ Immediately notify the town supervisor, members of
the town board,and the town attorney that a petition
was submitted and provide copies upon request to
each person notified.
✓ Work with the town attorney to determine the
statutory authority pursuant to which the petition was
submitted.
✓ Work with the town attorney to determine the
statutory requirements associated with the particular
petition.
✓ Work with the town attorney to determine the
calendar and timeframes for timely completion of
petition-related duties.
✓ Work with the town attorney to determine whether
the petition was timely submitted.
✓ Work with the town attorney to determine whether
the requirements of the petition have been met.
✓ Work with the town attorney to determine whether
the town clerk should accept or reject the petition for
filing.
✓ Certify the petition to the town board if required to do
so by statute.
✓ Fill out an affidavit or form prepared by the town
attorney verifying that the town clerk has complied
with all of the necessary procedural steps.
C. Sample Petitions and Forms in the Town Clerk's Office
While,generally,petitioners are required to create and provide
their own petitions, the town clerk is required to provide
2021 TOWN CLERK MANUAL 1203
petitions in certain circumstances.For example,the town clerk
is generally required to provide property owners with sample
petitions who are seeking to petition the town board, in
accordance with articles 12 and 12-a of the Town Law,for the
establishment or extension of a town improvement district
(see Town Law, §209-e).The town clerk should work with the
town attorney to develop a sample petition in situations where
the town clerk is required to provide a sample pursuant to
statute.
D. Authority of the Town Clerk upon Receipt of a Petition
Once a petition is filed with the town clerk,the statute giving
rise to the petition will govern the town clerk's authority. For
example,the town clerk is not statutorily required to certify the
legal sufficiency of petitions submitted in accordance with
Article 7 of the Town Law. The town clerk is, however,
statutorily required to certify the legal sufficiency of petitions
submitted in accordance with the Municipal Home Rule Law.
It is not incumbent upon the town clerk to pass upon the
validity or sufficiency of a petition submitted pursuant to a
provision of the Town Law(Application of Cox,40 Misc.2d 531
(N.Y.Sup.Oct 21, 1963).Although not required,the town clerk
may review a petition submitted in accordance with the Town
Law. As the town clerk is not statutorily required to certify a
petition submitted in accordance with the Town Law,there is
some legal debate regarding the purposes for which the town
clerk may reject such a petition, and therefore, it is essential
that the town clerk consult the town attorney prior to taking
any action regarding said petitions.
§7.5 Referendum Petition General Requirements
All petitions must meet basic requirements regarding form
and content(see c.f.Town Law, §§ 91, 81(4), 84(1);Municipal
2021 TOWN CLERK MANUAL 1204
Home Rule Law, §24; Election Law, §§ 6-140, 6-138; 6-134).
There are some petitions that will require additional or
different content, and therefore, each statute must be
consulted when embarking upon the task of reviewing or
certifying a petition.
A. Basic Content
• Statement of Purpose,Prayer for Relief,Proposition
o Local Law Subject to Permissive Referendum
If the petition is in response to a local law subject
to permissive referendum, the petition must
include the title of local law(Municipal Home Rule
Law,§24).
o Petition to Create an Improvement District
■ The petition should seek the creation
of the district in question (e.g. water, sewer,
lighting etc.) (Town Law,§190).
■ The petition shall describe the
boundaries of the proposed district or
extension in a manner sufficient to identify the
lands included therein as in a deed of
conveyance(Town Law,§191).
■ If such petition shall request the
construction or acquisition of an
improvement, it shall state the maximum
amount proposed to be expended therefore
(Town Law,§191).
■ If the petition shall not request the
construction or acquisition of an improvement
but shall propose the performance or
supplying of certain services, it may state the
maximum amount to be expended annually
for such services.In addition,a petition for the
establishment or extension of a park or public
parking district shall describe the property
2021 TOWN CLERK MANUAL 1205
proposed to be acquired for the purposes
thereof(Town Law,§191).
• Information about the petition signers and signatures:
o Date of signature
o Signer's signature
o Printed name of signer
o Residence address
o Town and county of residence
o Signer's attestation
• Statement of witness or notary public or commissioner
of deeds
B. Form of Petition
• Signature sheets must be fastened together.
• Petition must be signed in ink.
§7.6 Minimum Number of Signatures
A. Town Law, §81: A petition requesting a proposition to
require the town to undertake a particular activity must be
signed by at least 5 percent of the total votes cast for governor
in said town at the last general election held for the election of
state officers-but not less than 100 in first class towns,nor less
than 25 in second class towns.
B. Town Law,§91: A protest petition submitted in response
to a resolution, which is subject to permissive referendum,
must be signed by at least 5 percent of the total votes cast for
governor in said town at the last general election held for the
election of state officers - but not less than 100 in first class
towns,nor less than 25 in second class towns.
C. Town Law §191: A petition for the establishment or the
extension of an improvement district must be signed by the
2021 TOWN CLERK MANUAL 1206
owners of taxable real property situated in the proposed
district or extension thereof,owning in the aggregate at least
one-half of the assessed valuation of all the taxable real
property of the proposed district or extension thereof, as
shown upon the latest completed assessment roll of said town;
provided, however, that if there be any resident owners, the
petition shall include the signatures of resident owners
owning taxable real property aggregating at least one-half of
the assessed valuation of all the taxable real property of the
proposed district or extension owned by resident owners,
according to the latest completed assessment roll.If a portion
only of a parcel of such real estate appearing upon the
assessment roll is situated within the proposed district or
extension thereof, then the town board may determine the
relative value of the part thereof within the proposed district
or extension thereof, based upon the valuation of the entire
parcel as the same appears upon the assessment roll.
D. Town Law,§209-e:A petition requesting a referendum on
the establishment or extension of an improvement district
under Article 12-a of the Town Law, must be signed by the
owners of taxable real property situated in the proposed
district or proposed extended district, as shown upon the
latest completed assessment roll of said town, in number
equal to at least 5 percent of the total number of such
owners, or by 100 of such owners, whichever is less. For the
purposes of this section,a corporate owner of such taxable real
property shall be considered one owner for the purposes of a
petition requesting a referendum and shall be entitled to one
vote to be cast by an officer or agent of the corporation or
other duly authorized person designated by appropriate
resolution of such corporation.
E. Town Law, §200 (2): A petition requesting a street
improvement must be signed by resident owners of real estate
fronting or abutting either side of the road to be improved to
2021 TOWN CLERK MANUAL 1207
the extent of not less than one-half of the entire frontage on
both sides of the road, or else by the owners of real estate
fronting or abutting either side of the road to the extent of at
least 80 percent of the entire frontage(see Town Law,§200(5);
Op.St.Comp.No.81-353).Section 200 petitions requirements
are complex,and therefore, it is recommended that the town
clerk consult with the town attorney.
F. Municipal Home Rule Law, §24: A petition requesting a
referendum on local laws that are subject to permissive
referendum must be signed by at least 10 percent of the total
number of votes cast for governor at the last gubernatorial
election in such local government.
G. General Municipal Law,§757:The petition to consolidate
two or more local government entities (towns, villages, fire
districts,library districts or improvement districts)shall contain
the signatures of at least 10 percent of the number of electors
or 5,000 electors,whichever is less, in each local government
entity to be consolidated; provided, however, that where the
local government entity to be consolidated contains 500 or
fewer electors, the petition shall contain the signatures of at
least 20 percent of the number of electors. No signature on a
petition is valid unless it is the original signature of an elector.
H. General Municipal Law, §779:The petition to dissolve a
village,fire district,library district or improvement district must
be signed by at least 10 percent of the number of electors or
5,000 electors,whichever is less,in the local government entity
to be dissolved; provided, however, that where the local
government entity to be dissolved contains 500 or fewer
electors,the petition shall contain the signatures of at least 20
percent of the number of electors. No signature on a petition
is valid unless it is an original signature of an elector.
2021 TOWN CLERK MANUAL 1208
I. Alcohol Beverage Control Law,§141:The petition to vote
on whether to allow the sale of alcohol within town boundaries
must be signed by electors of the town in a number amounting
to 25 percent of the votes cast in the town for governor at the
last preceding gubernatorial election, acknowledged by the
signers or authenticated by witnesses as provided in the
election law in respect of a nominating petition.
§7.7 Filing the Petition
A. Method of Filing
• Petitions may be hand-delivered or mailed.
B. Place of Filing
• Petitions must be filed with the town clerk at the town
clerk's office.
C. Time of Filing
• The petition must be submitted to the town clerk at
the town clerk's office during the posted town clerk
office hours (Constable v. Neish, 157 Misc. 91, 282
N.Y.S. 872 (N.Y.Sup. Oct 18, 1935)). If the last day for
filing falls on a Saturday, Sunday or legal holiday,the
next business day shall become the last day for filing
(General Construction Law,§25-a).
• All papers sent by mail in an envelope postmarked
prior to midnight of the last day of filing shall be
'= deemed timely filed and accepted for filing when
received (General Construction,§19).
}
D. Timeframes for Filing Petitions
In order for petitions to be effective, they must meet the
= specific statutory requirements. In some cases, petitions must
be submitted within specific timeframes, as in the case of
protest petitions submitted in response to resolutions or local
laws subject to permissive referendum, while in other cases,
`' 2021 TOWN CLERK MANUAL 209
there are not express statutory timeframes as in the case of a
petition submitted to initiate a town action.
• Protest petitions submitted pursuant to Town Law,
§91 must be filed with the town clerk within 30 days of
the adoption of the town board resolution that is the
subject of the petition.
• Proposition for election petitions submitted
pursuant to Town Law,§81 or General Municipal Law,
§757 must be filed with the town clerk,but there is no
timeframe within which the petitions must be
submitted.
• Local option petitions under the Alcohol Beverage
Control Law may be submitted not less than 60 days
or more than 75 days before the general election
requesting a proposition be placed on the ballot
regarding the sale and consumption of alcohol with
the town(Alcohol Beverage Control Law,§141).
• Local law petitions submitted pursuant to Municipal J-
Home Rule Law,§24 must be filed with the town clerk
within 45 days of the adoption of the local law which is
the subject of the petition.
• Special district petitions submitted in response to a
town board order establishing a district on the board's
own motion(Town Law,§209-e) must be filed with the
town clerk within 30 days of the town board adopting `
a resolution approving the establishment or extension
of the district.Special district petitions submitted to
initiate the establishment of a district (Town Law,
§191) are not filed with the town clerk but rather are
presented to the town board,and there is no statutory
of
2021 TOWN CLERK MANUAL 210
rt.
timeframe within which such petitions must be
submitted.
• Special district petitions for street improvements
initiating the establishment of street improvements
(Town Law,§200) are not filed with the town clerk but
rather are presented to the town board,and there is no
statutory timeframe within which such petitions must
be submitted. Special district petitions for street
improvement submitted in response to a town board
order calling for a street improvement (Town Law,
§200) must be filed with the town clerk within 30 days
of the town board adopting a resolution approving
street improvements.
• Public opinion petitions are not submitted in
accordance with any specific statutory directive and
therefore are not subject to a specific timeframe.
§7.8 Minimum Legal Requirements
The state comptroller's office has opined that:"[a]n official with
whom documents are required to be filed has power to
determine whether those documents are in proper form for
filing. [Their] duties are ministerial and in that capacity [they]
may reject documents which are on their face invalid and not
entitled to be filed," (1953 Op. St. Compt. No. 6331 citing
Matter ofFrankel,212 AD 664,(2d Dept(1925)).Moreover,"The
town board could have no part in such a determination. It is
neither custodian of the documents nor empowered by
statute to determine the sufficiency of petitions filed with the
town clerk and has only powers as are conferred upon it by
statute."(Id)
Where the town clerk is not statutorily required to certify
whether or not the petition meets the legal requirements,the
2021 TOWN CLERK MANUAL 1211
town clerk may still review the petition to determine whether
or not the petition, on its face, meets the basic requirements
(1953 Op. St. Compt. No.6331).The extent of this review and
the authority to act regarding petition deficiencies will be
considered by the courts on a case-by-case basis. It is critical
that the town clerk work closely with the town attorney
regarding petition review and the town clerk's authority over
the petition.
A.Is the petition timely submitted?
First, the town clerk should determine whether the petition
was timely submitted. Immediately upon receipt of a petition,
the town clerk should stamp the date of receipt upon the
petition and duly note the date on the town clerk's calendar.
Once the town clerk determines the date of receipt,the town
clerk must then calculate whether the petition was timely
submitted from the date of the town board's action giving rise
to the petition. Failure to timely submit a petition could be
grounds for the town clerk to reject a petition for filing. The
facts, legal requirements and standards vary with each
situation,and therefore,the town clerk must consult the town
attorney prior to taking any official action(1953 Op.St.Compt.
No.6331;Matter of Fisher v.Sampson,27 A.D.3d 560,562,(2d
Dep't 2006);Heath v.Town of Islip,169 Misc.2d 382 affirmed at
239 A.D.2d 501 (1997); Kurtz v. Town of Amherst, 244 A.D.2d
895(4th Dept., 1997);but see Cavallaro v.Schimel,194 Misc.2d
788,790(2003)).
B.Does the petition contain the basic elements?
As previously noted,a qualified petition must contain the basic
statutory requirements: (1) statement of purpose, prayer for
relief,proposition;(2) information about the petition signers&
signature and (3)the statement of witness or notary public or
commissioner of deeds.Failure to include one or more of these
basic elements could constitute grounds for the town clerk to
reject the petition for filing.The facts, legal requirements and
2021 TOWN CLERK MANUAL 212
standards vary with each situation, and therefore, the town
clerk must consult the town attorney prior to taking any official
action. The town clerk must work with the town attorney
where the town clerk needs to examine the sufficiency of a
particular signature or sufficiency of a witness statement or
• proposition. Looking beyond the presence of the required
content and into the sufficiency of the content is legally
nuanced and often the subject of litigation (1953 Op. St.
Compt. No. 6331; Matter of Fisher v. Sampson,27 A.D.3d 560,
562 ((2d Dep't 2006); Heath v. Town of Islip, 169 Misc.2d 382
affirmed at 239 A.D.2d 501 (1997); Kurtz v. Town of Amherst,
244 A.D.2d 895 (4th Dept 1997); In the Matter of Merlin
Entertainments Group U.S. Holdings, Inc., et al., v.409
Signatories To The Challenged Referendum Petition, 160
A.D.3d 867 (2d Dept.2018)), but see Cavallaro v.Schimel, 194
Misc.2d 788,790 (2003)).
C. Does the petition contain the required number of
signatures?
If the petition does not contain the minimum number of
signatures,the petition is not a qualified petition.To assist the
town clerk in determining whether the petition meets the
required minimum number of signatures, the town clerk
should merely count the signatures on the petition and match
that number against the minimum number required by
statute. If the petition lacks the minimum number of
signatures the town clerk may reject the petition for filing.As
previously noted, where the town clerk looks beyond the
number of signatures on the page and begins to review the
sufficiency or legality of individual signatures, the town
attorney must be consulted.
Signer must state: "that my present place of residence is truly
stated opposite my signature hereto"and"In witness whereof,
I have hereunto set my hand,the day and year placed opposite
my signature"(Election Law,§6-140[1][a]). -
2021 TOWN CLERK MANUAL 213
Signer information&signature:
o Date:
(Date must include the: Day,Month and Year(Purtell v.
Kuczek, 112 A.D.2d 1092 Q d Dept. [1985]))
o Signer's Signature(Name):
(Full name preferred but not required if signature
matches poll ledger signature(Election Law,§6-134[5]))
o Printed Name of Signer:
(Not required but helpful (Election Law,§6-134[13]))
o Residence:
(Customary abbreviations of addresses acceptable
(Election Law,§6-134[5]))
o Town:
Note: A signer need only place their signature upon
the petition, and need not personally fill in the other ;
required information (Election Law,§6-134[71).
Sample
IN WITNESS WHEREOF, I have hereunto set my hand
the day and year placed opposite my signature and do
hereby attest that my present residence is truly stated
opposite my signature hereto
Date Name Signature,Town `Residence
2021 TOWN CLERK MANUAL 214
D. Who can sign petitions?
Generally, a petition signer must be a town elector or a
qualified town elector depending upon the statute. Property
ownership is not required, with the exception of certain
improvement district petitions or petitions for street
improvements (articles 12 and 12-a of the Town Law; Esler v
Walters,56 NY2d 306(1982). The town clerk should review the
statutory requirements for each petition and consult with the
town attorney where necessary.
• The term elector means a person whose primary
residency is in the town and who is eligible to
register to vote from that address,whether or not
they have chosen to do so (1970,Op.Atty.Gen.67;
Election Law,§5-102).
• The term "qualified elector" means that the
petition signers must be electors of the town who
are currently registered to vote in the town.The
signer's registration must still be in effect when
they signed the petition (1978 Op. Atty. Gen. (1)
291).
There may be additional requirements such as the person
signing the petition must also have been registered to vote in
the last gubernatorial election (see e.g. Municipal Home Rule
Law,§24).
E. Does the petition meet the required form?
The facts, legal requirements and issues will vary with each
situation. Therefore, the town clerk should consult with the
town attorney prior to taking any official action.
A qualified petition must be signed in ink and properly
fastened together(Town Law, §91;Municipal Home Rule Law,
§24;Election Law,§6-140(1)(a)).
• Properly bound and fastened
The language of section 91 of the Town Law ("the
several sheets so signed and authenticated when
2021 TOWN CLERK MANUAL 1215
fastened together and offered for filing shall be
deemed to constitute one petition") is designed to
avoid a challenge to the whole petition that each sheet
thereof is a separate petition, not one of which would
contain the required percentage of signatures, thus
rendering each sheet invalid as a petition by reason of
that defect (Application of McComb,232 N.Y.S.2d 861
(Sup. Ct.Suffolk County 1962)) order affirmed by In re
Town of Brookhaven, 18 A.D.2d 662 (2nd Dept (1962)).
Petitions have been rejected and invalidated by courts
where separate sheets of paper, not fastened in any
way, were submitted (Stemmer v. Ehlers, 129 A.D.2d
1010([4th Dept. 1987). Although the statutes plainly
require petitions to be properly bound and fastened,
courts have validated petitions that were not properly
bound or fastened together (Cohalan v. Olmo, 41
A.D.2d 840 (2nd Dept. (1973)), validating a petition
submitted in four volumes even though they were not
fastened together).
• Petitions are required to be signed in ink.
This requirement is to avoid erasures and changes in
the signature (Potash v. Molik, 35 Misc.2d 1 (Sup. Ct.
Erie County 1962) order affirmed 17 A.D.2d 111 [4th
Dept. 1962]).
§7.9 Certification of Petitions
Some statutes require the town clerk to certify whether a filed
petition complies with the requirements of law(e.g.Municipal
Home Rule Law, §24[l][a]; General Municipal Law, §757).The
Municipal Home Rule Law requires the town clerk to examine
each such petition filed with the town clerk, not later than 30
days after the date of its filing or 45 days before the day of the
election the referendum would appear on the ballot,
whichever is earlier.The town clerk must transmit to the town
2021 TOWN CLERK MANUAL 1216
board a certificate regarding their examination of the petition
and whether the petition complies with the requirements of
law.
Similarly,General Municipal Law,§757 requires the town clerk
to certify petitions submitted seeking a voter referendum on
the issue of local government consolidation.Within 10 days of
the filing of the petition seeking consolidation pursuant to
General Municipal Law, §757, the town clerk with whom the
petition was filed shall make a final determination regarding
the sufficiency of the number of signatures on the petition and
provide timely written notice of such determination to the
contact person named in the cover sheet accompanying the
petition.This is a complex statute;therefore,careful attention
should be paid to the legal requirements.The Department of
State has published several manuals regarding the
requirements of "The New N.Y. Government Reorganization
and Citizen Empowerment Act" (Article 17-a of the General
Municipal Law).
§7.10 Judicial Review of the Town Clerk's Actions
The town clerk's determination regarding a petition may be
challenged in court(CPLR Article 78;English v.Seigerman, 111
A.D.2d 389 (2nd Dept. (1985)) citing Matter of Graham v. City
Clerk of City of Ogdensburg, 104 A.D.2d 703;Matter of Potash
v. Molik, 35 Misc.2d 1, affd. 17 A.D.2d 111). If the town clerk's
decision is challenged in court,the town clerkwill need to work
with the town attorney and the town board.
§7.11 Objecting to Petitions
Petitions may be officially objected to in accordance with
Election Law, §16-116.Town Law, §91 requires an objector to
file both a "written statement" with the town clerk and a
2021 TOWN CLERK MANUAL 1217
"verified petition" with the supreme court or any justice
thereof within the judicial district setting forth their objections
within five days of the date the petition is filed in the town
clerk's office. Municipal Home Rule Law, §24[1][a] requires an
objector to file a certificate of objection to the clerk's ;
determination with the supreme court or any justice thereof
within the judicial district within five days of the date the clerk
files the petition certification with the town board. Consult
with the town attorney and county board of elections for
assistance regarding these statutory provision or others that
might be applicable to the specific petition.The town board
may object to a petition (9 Op.St.Compt.318).
§7.12 Proposition Submitted to the Voters
Where a qualified petition has been timely submitted,the next
step is to put the proposition before the voters.The town clerk
must consult the statute giving rise to the petition to
determine the content of the proposition and the town clerk's
duties regarding preparation and distribution of the same.For
example:
A. Town Law, §92 requires the town clerk to prepare the
proposition with the advice of the town attorney. The town r
clerk must immediately transmit the proposition to the town
board in the form in which it is to be submitted at such annual ,
or special election in accord with the provisions of the Town
Law. If there is more than one such proposition to be voted
upon at such election,each proposition shall be separately and
consecutively numbered. Each proposition for raising,
appropriating or expending money or incurring any liability,
which shall be a charge wholly against a district or a portion of
the town shall be submitted upon a separate ballot.
B. Municipal Home Rule Law, §25, which requires that a
proposition forthe submission of a local law to the approval of
2021 TOWN CLERK MANUAL 1218
the electors must contain the title of such local law.The town
clerk,with the advice town attorney,must prepare an abstract
of such local law concisely stating the title,purpose and effect
thereof.The abstract and the proposition must be immediately
filed with the proper election officers whom are charged with
publishing the notice of and furnishing the supplies for such
election.
A sufficient number of copies of the abstract shall be printed
and made available at the time of registration or otherwise in
advance of the election to such electors as desire them, and
shall also be delivered with the other election supplies and
distributed to the electors at the election.If there is more than
one proposition to be voted upon at such election, such
propositions shall be separately and consecutively numbered.
C. Election Law,§4-108, provides that at least three months
prior to the general election,the town clerk must transmit to
the county board of elections a certified copy of the text of
such proposal, proposition or referendum and a statement of
the form in which it is to be submitted.If a special election is to
be held, such transmittal shall also give the date of such
election (Election Law, §4-108 (1-b)). The town clerk should
workwith the town attorney and the county board of elections
regarding the proper procedures, format and content of the
submissions to the county board of elections.
§7.13 Timing of the Election on the Proposition
Please note that these timeframes should be read in
conjunction with Election Law, §4-108 and may be subject to
change with future legislation.
A. Propositions under Town Law
Town Law, §81 provides that the proposition shall go before
the voters not less than 60 nor more than 75 days from the date
2021 TOWN CLERK MANUAL 1219
the petition is submitted (or resolution adopted under Town
Law, §94), meaning the town board has a 15-day window in
which to hold a referendum on an issue under Article 7 of the
Town Law. If this 15-day window coincides with the biennial
election in November, the proposition is to be placed on the
ballot at the biennial election(the general election held in odd-
numbered years,except in Broome County, in which case it is
held in even-numbered years).If,however,the 15-day window
occurs at another time, then the town must place the
proposition on the ballot before the voters at a special town
election.The town clerk's election duties are generally set forth
in Article 6 of the Town Law and the Election Law.
Town Law,§91 provides that propositions must go before the
voters not less than 90 nor more than 105 days from the date
the petition is submitted (or resolution adopted under Town
Law, §94), meaning the town board has a 15-day window in
which to hold a referendum on an issue under Article 7 of the
Town Law. If this 15-day window coincides with the biennial
election in November, the proposition is to be placed on the
ballot at the biennial election(the general election held in odd-
numbered years,except in Broome County, in which case it is
held in even-numbered years).If,however,the 15-day window
occurs at another time, then the town must place the
proposition on the ballot before the voters at a special town
election.The town clerk's election duties are generally set forth
in Article 6 of the Town Law and the Election Law.
B. Propositions under the Municipal Home Rule Law.
Municipal Home Rule Law, §24 provides that if a petition is
filed, a proposition shall be submitted at the next general
election of state or local government officers held in such
local government not less than 60 days after the filing of such
petition, unless the petition request and the legislative body
adopt a local law submitting such proposition at a special
2021 TOWN CLERK MANUAL 1220
election held not less than 60 days after the adoption of the
local law providing for such special election.
C. Propositions under Article 17-a of General Municipal
Law. General Municipal Law, §757 provides that upon the
town clerk's determination that the petition contains at least
the number of signatures of electors, the governing body or
bodies of the local government entities to be consolidated
shall, no later than 30 days thereafter, enact a resolution in
accordance with General Municipal Law, §755 (2) calling for a
referendum on the proposed consolidation by the electors in
each of the entities and set a date for such referendum.
D. Propositions under Article 9 of the Alcohol Beverage
Control Law. Alcohol Beverage Control Law, §141 provides
that local option propositions may be submitted only at the
time of the general election.The town clerk must prepare and
file with the county board of elections a copy of any petitions
filed in the town clerk's office.The town clerk must file the copy
of the petition with the county board of elections within five
days from the date the petition was filed with the town clerk.
E. Biennial/General Election. Where the proposition will be
going before the voters at a biennial or general election run by
: the county board of elections,at least three months before the
election, the town clerk must provide the county board of
elections a certified copy of the text of such proposal,
proposition or referendum and a statement of-the form in
which it is to be submitted. If a special election is to be held,
such transmittal shall also give the date of such election
(Election Law,§4-108(1-b)).
Please note that in some situations, the timeframe within
which the proposition is required to go before the voters
pursuant to Town Law, §81; Municipal Home Rule Law, §§23,
2021 TOWN CLERK MANUAL 1221
24; Alcohol Beverage Control Law, §141 or General Municipal
Law§758 may not line up with the timeframe within which the
town clerk is required to submit the proposition language to
the county board of elections. It is therefore important for the
town board,the town clerk and the town attorney to work with
the county board of elections to determine how to reconcile
the conflicting timeframes set forth in Election Law, §4-108
and other statutes).
§7.14 Common Issues Subject to Referendum
Please note that this is not a complete list of statutes that give
rise to voter referendum.The town clerk must always consult
the town attorney regarding whether a particular issue gives
rise to a referendum and the proper procedures to follow in the
event an issue is subject to referendum.
A. Mandatory referendum
• Fire Service Award Program, (General Municipal, Law
§216)
• Volunteer Ambulance Workers Service Award
Program,(General Municipal Law,§219-d)
• Municipal Electric or Gas Utility, (General Municipal
Law§360)
• Games of Chance,(General Municipal Law,§187)
• Municipal Annexation,(General Municipal Law,§713)
• Certain Local Laws,(Municipal Home Rule Law,§23)
• Single-Appointed Assessor, (Real Property Tax Law
§328)
• Sole-Elected Assessor,(Real Property Tax Law§329)
• Terms of Office, (Town Law, §24-a; Municipal Home
Rule Law,§23)
B. Permissive referendum
• Bingo,(General Municipal Law,§478)
2021 TOWN CLERK MANUAL 222
• Reserve Funds, (General Municipal Law,§§6-c;6-e 6-g
6-h)
• Installment Purchase Contracts, (General Municipal
Law,§109-b)
• Business Improvement Districts, (General Municipal
Law,§980-b)
• Bonds,(Local Finance Law,§35.00)
• Certain Local Laws,(Municipal Home Rule Law,§24)
• Single-Appointed Assessor, (Real Property Tax Law,
§328)
• Sole-Elected Assessor,(Real Property Tax Law,§329)
• Consolidated Assessing Units, (Real Property Tax Law,
§1602)
• Special Districts Suburban Class Towns, (Town Law,
§54)
• Dissolution of Special Improvement Districts Suburban
Class Towns,(Town Law,§57)
• Reserve Funds for Improvement Districts Suburban
Class Towns,(Town Law,§55-a)
• General Reserve Fund Suburban Class Towns, (Town
Law,§55)
• Change from Appointive to Elective Town Clerk,(Town
Law,§20(6) (a))
• Change from Appointive to Elective Highway
Superintendent,(Town Law,§20(6) (b))
• Change from Appointive to Elective Receiver of Taxes,
(Town Law,§20(6)(c))
• Mandatory Change of Classification to a Town of the
First Class,(Town Law,§11)
• Optional Change of Classification to Town of the First
Class, (Town Law,§12)
• Reduction in Number of Justices or Councilmen or
Restoration of Positions,(Town Law,§60-a)
• Sale, Conveyance or Lease of Town-Owned Real
Property,(Town Law,§64(2))
• Drainage Facilities,(Town Law,§64(11-a))
2021 TOWN CLERK MANUAL 1223
• Publicity Fund,(Town Law,§64(14))
• Police Department Abolished via Local Law, (Town
Law,§150(4))
• Fire, Fire Alarm and Fire Protection Districts, (Town
Law,§170(4))
• Fire Protection District Consolidation, (Town Law,
§172-b)
• Alteration of Boundaries of Fire Protection District,
(Town Law,§172-c)
• Powers and Duties of Fire District Commissioners,
(Town Law,§176)
• Dissolution of Fire, Fire Alarm and Fire Protection
Districts,(Town Law,§185)
• Joint Fire Districts in Towns and Villages, (Town Law,
§189-a)
• Districts Extending into Villages,(Town Law,§190)
• Preparation of Maps and Plans,(Town Law,§190-c)
• Establishment or Extension of Improvement District,
(Town Law,§§191,209-e,200)
• Consolidation of Towns, Villages, Fire Districts or
Improvement Districts,(General Municipal Law,§757)
• Dissolution of Villages, Fire Districts or Improvement
Districts,(General Municipal Law,§779)
• Library Taxation(Education Law, §259)
2021 TOWN CLERK MANUAL 224
Chapter 8
THE TOWN CLERK'S
ELECTION DUTIES
The town clerk has many responsibilities regarding special
town elections held pursuant to Article 6 of the Town Law.This
chapter is intended to provide the town clerk with general
information regarding special town elections.Individual issues
may require additional procedures,and the town clerk should
work with the town attorneyand the county board of elections
with respect to conducting special town elections, when
necessary.
§8.1 Town Elections
The term"town election"means either biennial or special town
election(3 Op.St Compt.361, 1947).
A. Biennial Town Elections
A town election held for the election of town officers and
consideration of propositions, the biennial town election is
held on the Tuesday next succeeding the first Monday in
November of every odd-numbered year (Town Law §80).
Essentially,a biennial town election is held in conjunction with
the general election.
Broome County Exception
For the election of town officers and for the
consideration of such questions as may be proposed
2021 TOWN CLERK MANUAL 1225
by the town board or the duly qualified electors,
pursuant to the provisions of the Town Law, shall be
held on the Tuesday next succeeding the first Monday
in November of every even-numbered year (Town
Law,§86).
B. Special Town Elections
All other town elections are special elections(Town Law,§80).
C. Voting on Propositions during a Biennial or General
Election
The provisions of the New York State Election Law govern any
ballot question submitted to the voters of any county, city,
town or village at the time of a general election (Election Law,
§1-102). To properly submit information for placement of a
town proposition on the ballot during a general election,the
town clerk should work with the county board of elections.
At least three months prior to the general election,the town
clerk must transmit to county board of elections a certified
copy of the text of such proposal, proposition or referendum
and a statement of the form in which it is to be submitted
(Election Law, §4-108 (1-b)).The town clerk should work with
the town attorney and the county board of elections regarding
the proper procedures,format and content of the submissions
to the county board of elections.
§8.2 Special Town Elections
A. State Law Regarding Special Town Elections
A town special election is conducted pursuant to article 6 of
the Town Law and where applicable, and to the extent
practicable,the Election Law(Town Law,§83;Election Law,§1-
102).Where applicable and to the extent practicable,the town
2021 TOWN CLERK MANUAL 1 226
clerk should conduct a town special election in accordance
with the following provisions of the Election Law:
• The Conduct of the Special Election (Town Law, §83;
Article 8 of the Election Law)
• The Registration of Voters(Town Law,§84;Article 5 of
the Election Law)
• The Canvassing of Votes of the Special Election (Town
Law,§83;Article 9 of the Election Law)
• The Certification of Results of the Special Election
(Town Law,§83;Article 9 of the Election Law)
• Absentee Ballots for Special Town Elections; Special
Provisions (Town Law §84-a; articles 8 and 10 of the
Election Law)
• Supplies are Provided by the Town Clerk(Election Law,
§4-128(1))
There may be additional requirements in other statutes
depending upon the issue.For example:
• Annexation Special Elections (Article 17 of the General
Municipal Law).
• Village Incorporation Special Elections (Article 2 of the
Village Law)
The town should make every reasonable effort to comply with
the statutory requirements intended to make town elections
more effective, convenient and efficient. Some of these
requirements may be jurisdictional (required) while others
might be considered directory (advisable) (D'Addario v.
McNab,32 N.Y.2d 84 (1973);Op.St.Compt.80-247).The town
clerk should therefore work with the town attorney and
consult with the county board of elections where needed.
Legal actions to challenge a special election will be in the form
of an CPLR Article 78 proceeding, declaratory judgement
action or a hybrid action rather than a proceeding under article
2021 TOWN CLERK MANUAL 1227
16 of the Election Law (Matter of Parietti v. Town of Ramapo,
129 A.D.3d 1088(2d Dept.2015)1).
B. When a Special Election is Required
A special town election is most commonly triggered by the
submission of a petition pursuant to Town Law, §91 or the
adoption of a resolution pursuant to Town Law,§94.
If such petition is filed or a town board resolution is adopted
not more than 105 days nor less than 90 days prior to a
biennial town election,a proposition for the approval of such
act or resolution shall be submitted at such biennial town
election (Town Law, §§91, §94). If a petition is filed or a town
board resolution is adopted at any other time,a proposition for
the approval of such act or resolution shall be submitted at a
special town election to be held not less than 90 nor more
than 105 days after the filing of such petition or the adoption
of such resolution (Town Law,§§91,94).
A special town election might also be required pursuant to
Town Law, §81. If such petition is filed or a town board
resolution is adopted not more than 75 days nor less than 60
days prior to a biennial town election, a proposition for the
approval of such act or resolution shall be submitted at such
biennial town election (Town Law, §81). Please note that
where the proposition is submitted to the electorate at the
biennial election conducted by the county board of elections,
the town clerk is required to submit the proposition to the
county board of elections not less than three months prior to
the date of the biennial election (Election Law, §4-108). In
some situations,the timeframe within which the proposition is
required to go before the voters pursuant to Town Law, §81
may not line up with the timeframe within which the town
clerk is required to submit the proposition language to the
2021 TOWN CLERK MANUAL 1228
county board of elections.The town board,town clerk and the
town attorney should work with the county board of elections
to determine how to reconcile the conflicting timeframes set
forth in Election Law,§4-108 and Town Law,§81.
If a petition is filed or a town board resolution is adopted at any
other time, a proposition for the approval of such act or
resolution shall be submitted at a special town election to be
held not less than 60 nor more than 75 days after the filing of
such petition or the adoption of such resolution (Town Law,
§81).
C. Town Board Schedules Special Elections
Special elections are called by resolution of the town board
(Town Law, §82) at least 20 days before the special election,
setting the: date of the special election;the hours of opening
and closing the poll;the proposition to be voted on in full;and
the location(s)of the election.
If the town board shall designate more than one voting place,
the resolution and the notice shall specify the place at which
the qualified voters of each election district shall vote.
D. Notice Requirements for Special Town Elections
Proper compliance with statutory notice requirements is
jurisdictional,which means that the failure to properly comply
may result in the election results being nullified.Actual notice
or substantial equivalences are generally not acceptable
substitutes(Town Law,§82;D'Addario v.McNab,32 N.Y.2d 84,
(1973)).
The town clerk must cause to be published in a newspaper
published in the town,if there be any,or,if there be none,in a
newspaper published in the county having general circulation
in the town, a notice at least 10 days before the election,
2021 TOWN CLERK MANUAL 1229
setting forth the details of the special election,containing at a
minimum,the information listed below(Town Law,§82):
• Time of the special election
• Date of the special election
• Place(s)where the special election will be held
• Hours the polls will be open for voting
• Full text of all propositions to be voted upon
In addition,the town clerk must post a copy of such notice on
the town clerk's signboard at least 10 days prior to such
election (Town Law,§82).
Sample Notice of Special Election
NOTICE IS HEREBY GIVEN that pursuant to
section 12 and section 82 of the Town Law, a
special election of the qualified voters of the
Town of County, New
York, will be held at in New
York,in said Town,on day of ,20
, between the hours of o'clock
_M and o'clock M.(EST or DST)for
the purpose of voting on the adoption or
rejection of a resolution adopted by the Town
Board of said Town on day of
20_, which resolution provides for the
change of classification of such town from a
town of the second class to that of a town of
the first class.
The polls will be open for the receipt of ballots
during the aforesaid hours and ballots will be
substantially in the following form,to wit:
2021 TOWN CLERK MANUAL 230
PROPOSITION
Shall the qualified electors of the Town of
in the County of approve
(set forth the proposition in full)
BY ORDER OF THE TOWN BOARD
OF THE TOWN OF
By
Town Clerk
Dated: 20
Proposition for the Voters'Consideration
Where a special election is required, the town clerk must
prepare the proposition with the advice of the town attorney
and submit it to the town board (Town Law,§92).
Form of Proposition
Shall the qualified electors of the Town of
in the County of
approve the resolution adopted by the
Town Board of such Town on the
day of , 20 , which
resolution authorizes the change of
classification of such town from a town of
the second class to that of a town of the first
class pursuant to section 12 of the Town
Law.
2021 TOWN CLERK MANUAL 231
E. Notice of Proposition during a Biennial Town Election
At least 10 days prior to the biennial town election,the town
clerk must post and publish a notice that a proposition will go
before the voters at the biennial town election for their
consideration. The notice must include the full text of the
proposition (Town Law,§82).
F. Hours of Special Town Election
The town board, by board resolution, sets the hours of the
election. In the case of special town elections to vote upon a
proposition, the polls must remain open for at least six
consecutive hours between 8:00 a.m.and 8:00 p.m.(Town Law,
§82).
G. Designation of Polling Places
The town board, by board resolution,determines the number
and location of polling places for the special town election
(Town Law,§82).Compliance with Election Law,§4-104 should
be considered where practicable. Polling places may be
consolidated for purposes of a special town election
depending upon the number of voters in a district(Town Law,
§82; 1958 Op. Atty. Gen. No. 30). The town board may, in
appropriate circumstances, designate a single polling place
(1957 Op. Atty. Gen. No. 58; 19 Op. St. Compt. 211, 1963).
Contact the county board of elections for guidance on
determining the number and locations of polling places.
H. Appointment of Election Inspectors
The town board names election inspectors from among those
appointed to serve at the general and primary elections(Town
Law, §83). The county board of elections selects the election
inspectors and poll clerks for the general and primary elections
(Election Law,§3-404).
2021 TOWN CLERK MANUAL 232
I. Voter Qualification
The eligibility requirements to vote in a special town election
vary depending on the underlying purpose for the special
election. For example, property ownership is not required to
vote in most special town elections, but it might be a
requirement to vote in certain special elections held in
connection with.improvement districts. Therefore, the town
clerk should work with the town attorney to determine voter
eligibility for each special town election.
J. Qualifications of Voters
In general,a person must be a town elector in order to vote in
a special town election(Town Law,§84).The attorney general's
office has defined the term "elector"to mean a person who is
a resident of the town and who, if they wished,could register
as a voter,whether or not they have in fact registered (1970,
Op.Atty. Gen. (1) 67;Op Atty Gen (1) No.89-51;see also Op.St.
Comp. No 80-240). To be a resident of a place, a person must
be physically present with the intent to remain for a time
(Diamondstone v. Connor,12 Misc.3d 1196(A), (N.Y.Sup.2006)
citing Matter of Palla v. Suffolk County Bd. of Elections, 31
N.Y.2d 36,47 [1972]; Williams v.Salerno,792 F.2d 323,327 [2d
Cir. 19861)• Therefore, the determination of an individual's
residence is dependent upon an individual's expressed intent
and conduct.In general,no person shall be qualified to register
for and vote at any election unless that person is a citizen of
the United States and is or will be,on the day of such election,
18 years of age or over,and a resident of New York State and
of the town for a minimum of 30 days next preceding such
election(Election Law,§5-102(1)).
As a person's elector status can be both a matter of intent and
law,it is best for the town clerk to work with the town attorney
regarding any questions about a voter's eligibility in a
particular town election.
2021 TOWN CLERK MANUAL 1233
K. Property Ownership
Property ownership is not required to vote in a special town
election, as the courts have found this requirement to be
unconstitutional, with limited exceptions for special
improvement district elections(Town Law,§84(1);Application
of Cohalan,1972,71 Misc2d 196;affirmed 41 AD2d 840(1972);
Chap.281, L. 1998;Esler v Walters,56 NY2d 306).
L. Improvement District Special Elections
No person shall be entitled to vote upon any proposition for
raising, appropriating or expending money or incurring any
liability that shall be a charge wholly against a district or a
portion of said town unless they are an elector(Town Law,§84
(1)). Property ownership,as well as other qualifications, might
apply to special improvement elections (Town Law, §209-3
(3)).In addition to those electors authorized to vote in a special
improvement district election, corporations and other
property owners may likewise be entitled to vote (Town Law,
§209-3 (3)). The town clerk should work with the town
attorney to determine all eligible voters prior to the election.
M. Personal Registration
Personal registration is not required for town elections unless
the town board requires it(Town Law, §84(2); N.Y. Const.Art
11§5;Ecker v. Town of West Seneca,87 Misc.2d 322, 1976).
N. Board of Registration
Where the town board requires personal registration the town
board must appoint a board(s) of registration for the special
town election.The town board appoints one or more a boards
of registration but need not appoint a board of registration for
each polling site(Town Law,§84(3)).
2021 TOWN CLERK MANUAL 1234
1. Eligibility
The town board must select from the list of election
' inspectors previously designated for general election
purposes, not less than two, nor more than four persons
to constitute a board of registration for each voting place
designated by the town board for such special town
election(Town Law,§84(3)).
2. Oath of Office
Each member of the board(s) of registration should take
and file an oath of office in the town clerk's office (Town
Law,§25).
3. Compensation
Each member of a board of registration shall be entitled
to compensation at a rate to be fixed by the town board
(Town Law,§84(3)).
4. Personal Registration Days
The town board, by resolution, must set forth the day or
days, the place or places, and the hours during which a
board or boards of registration shall meet for the purpose
of preparing a register of voters of the town qualified to
vote in such special elections who shall present
themselves personally for registration for such special
election (Town Law§84(2)).
The town board must designate, by resolution,the hours
during which the board(s) of registration shall meet to
prepare the register for the special town election,which
must include at least four consecutive hours between
12:00 p.m.and 9:00 p.m.(Town Law,§84(4)).
2021 TOWN CLERK MANUAL 1235
The last date that the board(s) of shall meet cannot be
more than 15 nor less than 10 days preceding the special
town election(Town Law,§84(4).
5. Board of Registration Meeting Notice
The town clerk shall give notice, at the expense of the
town, by the publication of a notice in a newspaper
published in town,if there be any,or,if there be none, in
a newspaper published in the county having general
circulation in the town,specifying:
•the day or days and hours,
•the place or places,
The first publication of such notice shall be at least 10
days prior to the first day the board(s) of registration is
required to meet. In addition,the town clerk shall post in
five conspicuous places in town copies of such notice.
Notice must be posted at least 10 days prior to the first
day the board(s)of registration is required to meet(Town
Law§84(2)).
1
6. List of Registered Voters from the County Board of
Elections
At least 23 days before the special election and prior to
the first meeting of the board(s) of registration,the town
clerk must obtain from the county board of elections in
which such town is located, the list of names and
addresses of all voters registered with the county board of
elections(Town Law,§84(5)).
The town clerk shall deliver the names and addresses of
qualified voters to the appropriate board(s)of registration
on or before the first meeting of such board or boards
(Town Law,§84(5)).
2021 TOWN CLERK MANUAL 1236
At the first and subsequent meetings of the board(s) of
registration, such board of registration shall place on the
register the names of all qualified voters and all other
qualified voters who personally appear,and those military
voters and such other voters who are absent by reason of
confining illness or physical disability or whose duties,
occupation or business required them to be outside of the
State of New York, having the qualifications of voters
prescribed in this section and who have made an
application for absentee ballots as certified to them by the
town clerk(Town Law,§84(5)).
7. Minimum Requirements for the Register(Town Law,
§84(4))
.A space for the name of the voter and his or her
address within the town
•A space for the voter's signature to be signed on the
day of the election and
•A space in which there shall be entered the
qualifications for voters as provided by Town Law,§84
8. Voter Registration Conducted in Accordance with
the Election Law
All the provisions of the Election Law in relation to the
registration of voters shall, so far as applicable, apply to
the registration provided for by Town Law, §84. In
addition,special town elections must be conducted in the
manner provided by Article 6 of the Town Law and the
Election Law, except that no person shall be entitled to
vote thereat whose name does not appear upon the
register of the voting place in which they claim to be
entitled to vote.The board(s) of registration should work
with the town clerk and the town attorney regarding
2021 TOWN CLERK MANUAL 1237
relevant procedures and applicability of law (Town Law,
§84(5)).
9. Register Filed and Public Inspection
The register shall, immediately upon its completion and
not more than 18 hours thereafter,be filed in the office of
the town clerk(Town Law,§84(6)).
The town clerk shall make the register available for public
inspection at all reasonable times on each day up to and
including the day before the special town election,except
Saturdays,Sundays and holidays(Town Law,§84(6)).
Additions, corrections, challenges and judicial review of
registration procedure shall,so far as practicable,conform
to sections 5-218, 5-220 and 16-108 of the Election Law
(Town Law,§84(6)).
§8.3 Absentee Ballots for Special Town Elections
The Legislature may, by general law, provide for absentee
voting (NYS Const.Art.2,§2;Town Law,§84-a).
A.Propositions Submitted to Voters at the General Election
Absentee voting is permitted when a proposition is presented
to the voters at the general town election (Election Law, §§1-
102, 8-400; 1983 Op. Atty. Gen. (1) 1018; 1982 Op. St. Bd. of
Election No 6).
B.Propositions Submitted at a Special Town Election
Absentee voting is also permitted at a special election where
the town board, by resolution, has required personal
registration (Election Law, §§1-102, 8-400; Town Law, §84-a
(1); 1983 Op.Atty.Gen.(1) 1018; 1982 Op.St.Bd.of Election No
6).
2021 TOWN CLERK MANUAL 1238
The provisions of Town Law,§84-a apply to absentee ballots in
special town elections,notwithstanding any other provision of
law(Town Law,§84-a (13)).
The provisions of any other law as they relate to special town
elections not inconsistent with the Town Law shall apply to the
conduct of such elections(Town Law,§84-a(13)).
Absentee ballots shall be provided for all special town
elections for which personal registration is required (Town
Law,§84-a (1)).
The town board may not provide for absentee ballots unless
personal registration has been required (Op.Atty. Gen. (1) No.
83-6).
C. Permanently Disabled Voters do not have to fill out
Separate Application for Absentee Ballot
An applicant whose ability to appear personally at the polling
place is substantially impaired by reason of permanent illness
or physical disability and whose registration record has been
marked "permanently disabled" by the county board of
elections shall be entitled to receive an absentee ballot
pursuant to the provisions of Town Law,§84-a without making
separate application for such absentee ballot(Town Law,§84-
a(2)).
The county board of elections must provide the town clerk
with a list of "permanently disabled" voters. The town clerk
must send an absentee ballot to permanently disabled voters
whose names appear on county list(Town Law,§84-a(2)).
The town clerk, upon being advised by the board of elections
of the list of registered voters that the registration record of a
voter is marked "permanently disabled," shall send an
absentee ballot to such voter at his last known address by first
2021 TOWN CLERK MANUAL 1239
class mail with a request to the postal authorities not to
forward same but to return same in five days in the event that
it cannot be delivered to the addressee.
The board(s)of inspectors must make an appropriate entry on
the registration record indicating the fact that an absentee
ballot has been sent and the date of mailing (Town Law, §84-
a(2)).
D. Persons Not Permanently Disabled Must Apply for
Absentee Ballots
An applicantforan absentee ballot must submit an application
setting forth (Town Law§84-a (2)):
1. Voter's name and residence address, including the
street and number, if any, or town and rural delivery
route,if any,
2.That the voter is or will be,on the day of the election,
a qualified voter of the town in which voter resides;
3.That voter is registered in the town;
4.That voter will be unable to appear to vote in person
on the day of the election for which the absentee
ballot is requested because voter is,or will be on such
day:
(a) A patient in a hospital or unable to appear
personally at the polling place on such day
because of illness or physical disability:or
(b) Required to be outside the county of
residence on such day due to occupational or
business duties;or
(c) Be outside the county of residence on such
day because of vacation;or
(d) Absent.from the voting residence because
the voter is detained in jail awaiting action by
a grand jury or awaiting trial or is confined in
2021 TOWN CLERK MANUAL 1240
prison after conviction for an offense other
than a felony.
Such application must be received by the town clerk at least
seven days before the election if the ballot is to be mailed to
the voter, or one day before the election if the ballot is to be
delivered personally to the voter or the voter's agent.
Such application shall include the following statement to be
signed by the voter(Town Law,§84-a (2)):
1 hereby declare that the foregoing is a true statement
to the best of my knowledge and belief, and I
understand that if I make any material false statement
in the foregoing statement of application for absentee
ballots,I shall be guilty of a misdemeanor.
Date........Signature of Voter...............................................
Such application shall also include, if applicable, (Town
Law,§84-a(2)):
1.Out of Town on Business
(a) Where such duties,occupation or business
are of such a nature as ordinarily to require
such absence - a brief description of such
duties, occupation or business must be set
forth in such affidavit;and
(b) Where such duties,occupation or business
are not of such a nature as ordinarily to require
such absence-such application must contain
a statement of the special circumstances
requiring the voter's absence.
2.Out of Town on Vacation
Where the applicant expects, in good faith, to be
' absent on the day of the election because the voter will
2021 TOWN CLERK MANUAL 1241
be on vacation elsewhere on such day, such
application shall also contain:
(a) the dates upon which the voter expects to
begin and end vacation,
(b)the place or places where the voter expects
to be on vacation,
(c) the name and address of the voter's
employer,if any,and
(d) if self-employed,a statement to that effect.
3.Incarceration
Where the absence is because of detention or
confinement to jail, such affidavit shall state whether
the voter is detained awaiting action of the grand jury
or is confined after conviction for an offense other than
a felony.
4. Spouse,Parent or Child of Absentee Voter
Where a person is or would be, if the person were a
qualified voter, entitled to apply for the right to vote
by absentee ballot under the provisions of Town Law,
§84-a, the person's spouse, parent or child, if also a
qualified voter and a resident of the same town, shall
be entitled to vote as an absentee voter upon
personally making and signing an application in
accordance with Town Law,§84-a.
E. Duties of Clerk and Board of Inspectors when Applicant
is Entitled to Absentee Ballot
The board of inspectors must examine absentee ballot
applications and put the names of voters deemed qualified
and entitled to vote by absentee ballot on a list.Voters on the
list must be issued or mailed an absentee voter's ballot. The
town clerk is required to make an appropriate entry on the list
indicating that an absentee ballot has been applied for by,and
issued to,the applicant(Town Law§84-a(2)).
2021 TOWN CLERK MANUAL 1242
f
F. Form of Absentee Ballots
Ballots for absentee voters shall be,as nearly as practicable, in
the same form as those to be voted at the town election. On
the back of such absentee ballots shall be printed the words
"Official Ballot, Absentee Voter" (Town Law, §84-a (4)). The
board of registration shall enclose each absentee voter's ballot
in an envelope which shall be so labeled(Town Law,§84-a(5)).
ELECTION MATERIAL
PLEASE EXPEDITE
On one side of such envelope shall be printed:
OFFICIAL BALLOT,ABSENTEE VOTER
For Special Town Election
Name of Voter........................................
Residence(street and number,if any).................
Townof..............................................
Countyof............................................
The date of the election and name of the town shall be
printed, and the name of the voter, residence and
district shall be written in by the town clerk.
On the reverse side of such envelope shall be printed the
following statement:
STATEMENT OF ABSENTEE VOTER
I do declare that I will have been a citizen of the United States
for thirty days, and will be at least eighteen years of
age,on the date of the special town election;that I will
have been a resident of this state and of the town
shown on the reverse side of this envelope for thirty
days next preceding the said election;that I am or on
such date will be,a registered voter of said town;that I
2021 TOWN CLERK MANUAL 1243
will be unable to appear personally on the day of said
special town election at the polling place of the
election district in which I am or will be a qualified
voter because of the reason stated on my application
heretofore submitted;that I have not qualified,or do I
intend to vote, elsewhere than as set forth on the
reverse side of this envelope;that I have not received
or offered, do not expect to receive, have not paid,
offered or promised to pay, contributed, offered or
promised to contribute to another to be paid or used,
any money or other valuable thing,as a compensation
or reward for the giving or withholding of a vote at this
special town election,and have not made any promise
to influence the giving or withholding of any such
votes; that I have not made or become directly or
indirectly interested in any bet or wager depending
upon the result of this special town election;and that I
have not been convicted of bribery or any infamous
crime,or,if so convicted,that I have been pardoned or
restored to all the rights of citizen,without restriction
as to the right of suffrage, or received a certificate of
good conduct granted by the board of parole pursuant
to the provisions of the executive law removing my
disability to register and vote.
I hereby declare that the foregoing is a true statement to the
best of my knowledge and belief, and I understand
that if I make any material false statement in the
foregoing statement of absentee voter,I shall be guilty
of a misdemeanor.
Date........Signature of Voter................................................
G. Envelope Requirements
The envelope shall be gummed, ready for sealing, and shall
have printed thereon, on the side opposite the statement,
instructions as to the duties of the voter after the marking of
2021 TOWN CLERK MANUAL 1244
the ballot,which instructions shall include a specific direction
stating that the envelope must reach the office of the town
clerk not later than 5 p.m. on the day of the election in order
that the vote may be canvassed.
A person who shall make any material false statement in the
statement of absentee voter appearing on the reverse side of
the envelope as provided in this subdivision,shall be guilty of
a misdemeanor.
H. Absentee Voter Ballots List
The town clerk shall make a list of all persons to whom
absentee voter ballots shall have been issued and keep such
list on file in the town clerk's office,where it shall be available
for public inspection during regular office hours until the day
of the election (Town Law,§84-a (6)).
Such list shall also be posted in a conspicuous place or places
during the election (Town Law,§84-a(6)).
I. Absentee Voter Challenges
Any qualified voter may, upon examination of such list, file a
written challenge of the qualifications as a voter of any person
whose name appears on such list,stating the reasons for such
challenge. The town clerk shall transmit such written
challenge(s) to the inspectors of election on Election Day
(Town Law,§84-a(6)).
Any qualified voter may challenge the acceptance of the
absentee voter's ballot of any person on such list, by making
their challenge and the reasons therefore known to election
inspectors before the close of the polls(Town Law,§84-a(6).
J. List Posted at Polling Site during Election
Such list shall also be posted in a conspicuous place or places
during the election (Town Law,§84-a(6)).
2021 TOWN CLERK MANUAL 1245
K. Voter Challenge during Election
Any qualified voter may challenge the acceptance of the
absentee voter's ballot of any person on such list, by making
their challenge and the reasons therefore known to election
inspectors before the close of the polls(Town Law,§84-a(6).
L. Town Clerk May Call Police for Help
The town clerk is authorized to call upon the commissioner of
police and the officers and members of the police force for
such assistance in the enforcement of the provisions of the
Town Law as he or she shall require, and such commissioner
and officers and members of the police force shall be
authorized to render such assistance(Town Law,§84-a(7)).
M. Board of Inspectors may Examine Voters
The board of inspectors may require any person to appear
before the board at the town clerk's office in order to examine
any matter relating to its duties, with the power to issue a
subpoena. Each member of such board of inspectors shall be
authorized to administer any oath that may be required or
authorized by law in this connection (Town Law,§84-a(7)).
N. Canvassing Absentee Ballots
No absentee voter's ballot shall be canvassed unless it shall
have been received in the office of the town clerk no later than
5 p.m.on the day of the election (Town Law,§84-a(8)).
O. Absentee Ballots Sent to Town Clerk
On Election Day, the town clerk shall transmit all absentee
voters' envelopes to the election inspectors (Town Law, §84-
a(9)).
P. Absentee Ballots Sent to Polling Place
Immediately after the closing of the polls, the inspectors of
election must examine any absentee voters' envelopes that
were received at the polling place.The inspectors of election
2021 TOWN CLERK MANUAL 1246
shall compare the signature,if any,on each envelope with the
signature, if any, on the register, of the person of the same
name who registered from the same address. If the signatures
are found to correspond,the inspectors shall certifythereto by
signing their initials opposite the name of the voter at the
appropriate place in the register.If a person whose name is on
an envelope as a voter shall have already voted in person at
such special town election,or if his or her name,residence and
signature as stated on the envelope are not on the register,or
if there is no signature on the envelope,this envelope shall be
laid aside unopened and be returned unopened to the town
clerk. If such person is found to be registered and has not so
voted in person,and if no objection is made,or if an objection
made be not sustained,the envelope shall be opened and the
ballot withdrawn without unfolding and deposited in the
proper box or boxes.At the time of the deposit of such ballot,
the inspectors shall enter the words "absentee vote" at an
appropriate place in the register(Town Law,§84-a(10)).
Q. Objections by Qualified Voter Present at Polling Place
During such examination, any qualified voter present in the
polling place may object to the voting of the ballot contained
in any envelope upon the ground or grounds that:
1. the person named thereon is not a qualified voter of
the town,or
2.the person was within the countywhile the polls of the
election were open, except where the applicant is a
patient in a hospital located within the county or city or
detained or confined in a jail located within the county
and except where the ballot was obtained upon the
ground of inability to appear personally at the polling
place on the day of the special town election because of
illness or physical disability,or
3. the person was able to appear personally while the
polls were open,in cases where the ballot was obtained
upon the ground that the voter was a patient in a
2021 TOWN CLERK MANUAL 1247
hospital located within the county or detained or
confined in a jail located within the county or upon the
ground of inability to appear personally at the polling
place on the day of the election because of illness or
physical disability,or
4.the person was not entitled to cast such ballot(Town
Law,§84-a (11)).
An inspector shall make such an objection if the inspector
knows or suspects that the person named on such envelope is
not a qualified voter or was within the county or was able to
appear personally,orwas not entitled to cast such ballot(Town
Law, §84-a (11)). The election inspectors shall forthwith
proceed to determine each objection, including any written
challenge transmitted to them by the town clerk as provided
in Town Law,§84-a (6).Unless the inspectors,by majority vote,
sustain the objection,the chair,or if the chair refuses,another
inspector,shall endorse upon the envelope the objection and
the words "not sustained," shall sign such endorsement, and
shall open the envelope and deposit the ballot as provided in
this section (Town Law,§84-a (11)).
Should the inspectors, by majority vote, sustain such
objection,the objection and word"sustained"shall be similarly
endorsed upon the envelope, the envelope shall not be
opened nor the ballots therein canvassed,and such envelope
shall be returned unopened to the town clerk.If the inspectors
of election have received an envelope endorsed with the name
of a person who, to the knowledge of the inspectors, is
deceased on the day of the election,the inspectors shall return
such envelope unopened to the town clerk with the words
"deceased-objection sustained" endorsed on the envelope
(Town Law,§84-a (11)).
2021 TOWN CLERK MANUAL 1248
R. Empty Absentee Ballot Envelope
If the inspectors of election receive an envelope, and upon
opening find it contains no ballot,the inspectors shall make a
memorandum showing that the ballot is missing. When the
casting of absentee voters'ballots shall have been completed,
the inspectors shall ascertain the number of such ballots that
have been deposited in the ballot box by deducting from the
number of envelopes opened the number of missing ballots,
and shall make a separate return thereof in duplicate. The
number of absentee voters'ballots deposited in the ballot box
_ shall be added to the number of other ballots deposited in the
ballot box in order to determine the number of all ballots to be
accounted for in the ballot box. Such ballots shall then be
counted or canvassed by the inspectors of election,along with
the other ballots cast at such district election,or,where voting
machines are used, shall be added to the votes recorded on
such machines (Town Law,§84-a(12)).
- §8.4 Special Town Election Day Operations
• The conduct of special town elections is governed by
provisions of both the Town Law and Election Law(Town Law,
- ' §83).The town clerk should become familiar with Article 6 of
the Town Law,as well as articles 4 and 8 of the Election Law.
A. Conducting the Special Town Election
Special town elections are required to be conducted,the votes
canvassed, and the results certified and returned so far as
practicable in the manner prescribed by the Election Law.
Articles 4 and 8 of the Election Law set forth the requirements
for conducting elections.Election inspectors should be familiar
with the proper procedures regarding the conduct of
elections, the management of polling sites, the vetting of
voters, and the canvassing of votes. Most county boards of
elections offer handbooks and guides for election inspectors
to assist in the functions of their office.The town clerk should
2021 TOWN CLERK MANUAL 1249
obtain all county guides and review the provisions of Article 8
of the Election Law prior to the date of the special town
election (articles 4 and 8 of the Election Law).
B. Voting Machines and Paper Ballots
Towns can no longer use lever machines for town special
elections(The Election Reform and Modernization Act of 2005
-Chapter 181 of the Laws of 2005,§11).
C. Paper Ballots
Instead of using county voting machines,the town board may
decide to use paper ballots(Town Law§83;1958 Op.Atty.Gen. ,.
No.30; 1945 Atty.Gen. 116).
As for the form of the paper ballot itself,the town clerk should
consultwith the town attorney and Election Law,§7-106 which
identifies,for example,that each ballot shall be printed with a
stub which shall be separated therefrom ... and so forth
(Election Law,§7-106).
D. Machines Owned by the County Board of Elections ;
The town may use voting .machines owned by the county
board of elections for special elections; use is subject to the
county rules and requirements (Town Law, §83; Election Law,
§7-203 (1)).
E. Military Ballots
Once the town board authorizes personal registration, rules
regarding military voters might apply. The county board of
elections will have information regarding military voters and
military ballot procedures (art. 10 of the Election).The town
clerk should contact the county board of elections as soon as
the town board sets the date for the special election regarding
appropriate procedures.
2021 TOWN CLERK MANUAL 1250
F. Election Ballots,Supplies and Equipment
The town clerk will be required to provide official and sample
ballots, registration records,seals,supplies and equipment,as
described in Election Law, §4-134 for town elections not
conducted by the county board of elections. It is the duty of
the town clerk to deliver these supplies to the inspectors or
presiding officers of the election at each polling place at which
such meetings and elections are held, respectively, in like
sealed packages marked on the outside in like manner, and
shall take receipts therefore in like manner (Election Law, §4-
134(5)).
G. Supplies Furnished by the Town Clerk
The town clerk shall provide the requisite number of official
and facsimile ballots,two cards of instruction to voters in the
form prescribed by the state board of elections, at least one
copy of the instruction booklet for inspectors, a sufficient
number of maps, street finders or other descriptions of all of
the polling places and election districts within the political
subdivision in which the polling place is located to enable the
election inspectors and poll clerks to determine the correct
election district and polling place for each street address,
distance markers,tally sheets and return blanks, pens, pencils
or other appropriate marking devices, envelopes for the
ballots of voters whose registration poll records are not in the
ledger or whose names are not on the computer-generated
registration list and for returns, identification buttons, badges
or emblems for the inspectors and clerks in the form
prescribed by the state board of elections and such other
articles of stationery as may be necessary for the proper
conduct of elections(Election Law,§4-128(1)).
If the official ballots required to be furnished by any board or 'r
officer shall not be delivered to such board or officer at the
time required, or if after delivery shall be lost, destroyed or
2021 TOWN CLERK MANUAL 251 +?:
31
y�
stolen, such board or officer shall cause other ballots to be
prepared as nearly in the form of the official ballots as
practicable, and delivered to the inspectors of election.Such
ballots shall be known as unofficial ballots. Sample ballots of
each kind shall be printed on paper of a different color from
any of the official ballots and without numbers on the stubs,
but in all other respects precisely similar to the official ballots
(Election Law,§4-128(2)).
H. Hours of Special Town Election
The town board, by resolution, sets the hours of the election.
In the case of special town elections to vote upon a
proposition, the polls must remain open for at least six
consecutive hours between 8:00 a.m.and 8:00 p.m.(Town Law, `
§82).
I. Polling Places
The town board, by resolution, determines the number and
location of polling places for the special town election (Town
Law, §82). Compliance with Election Law, §4-104 should be
considered where practicable. Polling places may be
consolidated for purposes of a special town election, _
depending upon the number of voters in a district(Town Law,
§82;.1958 Op. Atty. Gen. (1) No. 30). The town board may, in
appropriate circumstances, designate as few as one polling
place(1957 Op.Atty.Gen.(1) No.58).Contact-the county-board - l:
of elections for guidance.
J. Election Inspectors
The town board names election inspectors from among those
appointed to serve at the general and primary elections (Town
Law, §83).The county board of elections selects the election
inspectors and poll clerks for the general and primary elections
(Election Law,§3-404).
2021 TOWN CLERK MANUAL 252
s
K. Opening the Polls
The election inspectors and clerks(if any)are required to meet
at the polling place at least 30 minutes before the time set for
opening the polls of election (Election Law,§8-102(1)).
Election inspectors are required to take the following actions:
1. Verify that the American flag is displayed (Election
Law, §8-1020)(a)) and is kept on display at each
polling place throughout the election (Election Law,
§8-104(1)).
2. Cause the facsimile ballots to be posted
conspicuously within the polling place (Election Law,
§8-102(1)(b)), where they, along with voter
information postings and distance markers, shall not
be taken down, torn or defaced during the election
(Election Law,§8-104(1)).
3. Cause distance markers to be placed 100 feet from
the polling place(Election Law,§8-102(1)(c)).
a. While the polls are open, no person shall do
any electioneering within the polling place,or
in any public street, within a 100-foot radius,
measured from the entrances designated by
the inspectors of election,to such polling place
or within such distance in any place in a public
manner; and no political banner, button,
poster or placard shall be allowed in or upon
the polling place or within such 100-foot
radius(Election Law,§8-104(1)).
4.Establish a guardrail by delineating and marking out
the voting area by a suitable means (equipment and
supplies are required to be kept within the guardrail)
(Election Law,§8-102(1)(d)).
5. Place the books, ballots,and sample ballots, blanks,
stationary,and supplies so that they will be ready and
convenient for use(Election Law,§8-102(1)(e)).
2021 TOWN CLERK MANUAL 1253
6.Affix,or attach to their clothing,and cause the clerks
(if any) to affix or attach to their clothing, the proper
identification buttons, badges, or emblems issued by
the board of elections, ensuring no other buttons,
emblems or badges are worn (Election Law, §8-
102(1)(fl).
7. See that the voting booths are supplied with
appropriate writing instruments for marking ballots
(Election Law,§8-102(1)(g)).
8. Unlock the ballot boxes, see that they are empty,
allow them to be examined by the watchers present,
and lock them up again in such a manner that the
watchers and the persons just outside the guardrail
may see that the boxes are empty when re-locked
(Election Law,§8-1020)(h)).
9.Where voting machines are used,inspect the ballot
scanner and ballot marking device to see that it is in
good working order(Election Law,§8-102(1)(i)).
10. Inspect the placement of privacy booths to
preserve the secrecy of voting; inspect the screen of
the ballot scanner and ballot-marking device; inspect
the polling place to make certain there is no way that
anyone can view any voting action by a voter at the
ballot scanner, ballot-marking device, or in a privacy
booth; and affix a conspicuous notice, in the form
prescribed by the state board of elections, in a
prominent place near the ballot scanner and in the
privacy booth, instructing the voter on how to
properly mark a ballot in order to have his or her vote
counted. Such notice shall be printed in English and
such other languages as the board of elections may
determine to be appropriate (Election Law, §8-
102(1)(i)).
2021 TOWN CLERK MANUAL 1 254
11. Announce that the polls are open for voting and
the time when the polls will close (Election Law, §8-
102(1)U)).
L. Placement of Equipment and Supplies within Guardrail
The ballots and all equipment must be kept within the
guardrail (Application of Ingamells, 259 AD 36, 1940). The
boxes and all official ballots are required to be kept at least 6
feet from the guardrail,from the opening of the polls until the
announcement of the result of the canvass and the signing of
the inspectors'returns thereof(Election Law,§8-104(2)).
Every part of the polling place must be in plain view of the
election inspectors and watchers. The guardrail must be at
least 3 feet from the voting booth and the table used by the
inspectors, and must have openings to admit voters to and
from the machine. The voting booth must be at least 4 feet
from the inspector's table in charge of poll books and must be
so located in the polling place, that unless its construction
requires otherwise,the ballot labels on the face of the machine
can be seen plainly by the election inspectors and the party
watchers when the booth is not in use by voters(Election Law,
§8-202(2)).
No person may be admitted within the guardrail during the
period from the opening of the polls until the announcement
of the result of the canvass and the signing of the inspectors'
returns except the election officers, authorized watchers,
persons admitted by the inspectors to preserve order or
enforce the law, and voters duly admitted for the purpose of
voting (Election Law,§8-104(2)).
M. Entrances and Exits
While the polls are open, no person shall make any change,
alteration or modification to any entrance to or exit from the
2021 TOWN CLERK MANUAL 1255
polling place unless such change, alteration or modification
allows for increased access for persons with disabilities or is
necessary to maintain public safety due to the occurrence of
an emergency. Any such change, alteration or modification
shall be clearly marked on signage placed adjacent to the
former entrance or exit(Election Law,§8-104(1)).
N. Custody of the Ballot Box
Each inspector is personally responsible for the custody of
each ballot box and its contents from the time the election
begins until the box is delivered to the person entitled to
receive it.After a ballot box has been locked for the purposes
of election,it must not be opened until it is opened at the close
of the polls for purposes of canvass(Election Law,§8-202(2)).
O. No Alcoholic Beverages
While the polls are open, no person shall consume any
alcoholic beverages within the polling place(Election Law,§8-
104(l)).
P. Canvassing and Certifying the Vote
Upon the closing of the polls at any special town election,the
election inspectors shall proceed to canvass the votes thereat
and shall complete such canvass without adjournment.
Procedures to properly canvas the vote in special town
elections should be taken from Article 9 of the Election Law. As
soon as possible after completing the canvassing of the vote,
the inspectors shall file with the town clerk a certificate setting
forth the holding of the election,the total number of votes cast
upon each proposition, and the number of votes cast for and
against each proposition,together with the name and address
of every person voting at such election upon such proposition
or propositions(Town Law,§83).
2021 TOWN CLERK MANUAL 1 256
Q. County Boards of Election
County boards of election have election procedure guides,
forms and informational materials that may be utilized to assist
the town clerk in developing forms and protocols for the
conduct of special town elections.
§8.5 General Election Duties
Although the responsibility to administer general elections
was transferred to the county boards of elections as part of
New York's Help America Vote Act (Chapters 180; 181 of the
Laws of 2005), town clerks retained a statutory role in the
general election process. While this manual includes a list of
some of the town clerk's general/primary election duties,town
clerks should also contact the county board of elections with
respect to these and other general/primary election duties that
the town clerk is required to perform and to receive a copy of
the annual election calendar containing the dates for the
primary and general elections.
A. Notification of Town Offices Ripe for Election
At least eight months before the general election, the town
clerk shall make and transmit to the state board of elections a
certificate stating each town office to be voted for at each such
election (Election Law,§4-106(2)).
B. Notification of Vacancies in Town Offices
The town clerk must file a certificate with the county board of
elections notifying the county that a vacancy has occurred in
an elected town office,to be filed within three days after the
position becomes vacant(Election Law,§4-106 (4)).
2021 TOWN CLERK MANUAL 1257
C. Notification of New Streets or Changes in Street Names
The town clerk should ensure the proper notification to the
county board of elections of any action by the town which shall
affect or change the name or street numbers of any street
located within the town (Election Law,§5-708(6)).
D. Local Registration Records
The board of elections shall deliver to the town clerk, at the
town clerk's office, not more than five days before the
beginning of local registration, the registration record forms,
supplies and equipment required for local registration. The
town clerk shall then deliver the same to the several boards of
inspectors within the town approximately 30 minutes before
the opening of registration (Election Law,§4-130(2)).
E. Preparation and Delivery of Ballots, Supplies and
Equipment
The board of elections shall deliver to the town clerk at the
town clerk's office by the Saturday before the primary,general,
or other election for which they are required: the official and
sample ballots; ledgers and registration poll records of all
persons entitled to vote at such election in such town, or
computer-generated registration lists containing the names of
all persons entitled to vote at such election in such town,;
challenge reports; sufficient applications for registration by
mail;sufficient ledger seals and other supplies and equipment
required by the Election Law to be provided by the board of
elections for each polling place in such town.The town clerk
shall call at the office of such board of elections at such time
and receive such ballots, supplies and equipment (Election
Law,§4-134(1)).
2021 TOWN CLERK MANUAL 1 258
The board of elections shall provide for each election district a
ledger or ledgers containing the registration poll records or
lists with computer-generated facsimile signatures of all
persons entitled to vote in such election district at such
election. Such ledgers shall be labeled, sealed, locked and
transported in locked carrying cases. Once the carrying case
leaves the board of elections,it may not be unlocked except at
the time and in the manner provided for in the Election Law
(Election Law,§4-134(2)).
Each kind of official ballot shall be arranged in a package in the
consecutive order of the numbers printed on the stubs thereof
beginning with No. 1. All official and sample ballots for each
election district shall be in separate sealed packages, clearly
marked on the outside thereof, with the number and kind of
ballots contained therein and endorsed with the designation
of the election district for which they were prepared.The other
supplies provided for each election district also shall be
enclosed in a sealed package,or packages,with a label on the
outside thereof showing the contents of each package
(Election Law,§4-134(3)).
The town clerk receiving such packages shall cause all such
packages so received and marked for any election district to be
delivered unopened and with the seals thereof unbroken to
the inspectors of election of such election districts at least 60
minutes before the opening of the polls of such election
therein, and shall take a receipt therefore specifying the
number and kind of packages delivered (Election Law, §4-134
(4))•
F. Supplies Furnished by Board of Elections or Town Clerk
The board of elections of each county shall provide the
requisite number of official and facsimile ballots,two cards of
2021 TOWN CLERK MANUAL 1259
instruction to voters in the form prescribed by the state board
of elections, at least one copy of the instruction booklet for
inspectors,a sufficient number of maps,street finders or other
descriptions of all of the polling places and election districts
within the political subdivision in which the polling place is
located to enable the election inspectors and poll clerks to
determine the correct election district and polling place for
each street address within the political subdivision in which
the polling place is located,distance markers,tally sheets and
return blanks, pens, pencils or other appropriate marking
devices,envelopes for the ballots of voters whose registration
poll records are not in the ledger or whose names are not on
the computer-generated registration list, envelopes for
returns, identification buttons, badges or emblems for the
inspectors and clerks in the form prescribed by the state board
of elections and such other articles of stationery as may be
necessary for the proper conduct of elections (Election Law,
§4-128(1)).
If the official ballots required to be furnished by any board or
officer shall not be delivered to such board or officer at the
time required, or if after delivery, shall be lost, destroyed or
stolen, such board or officer shall cause other ballots to be
prepared as nearly in the form of the official ballots as
practicable, and delivered to the inspectors of election. Such
ballots shall be known as unofficial ballots. Sample ballots of
each kind shall be printed on paper of a different color from
any of the official ballots and without numbers on the stubs,
but in all other respects precisely similar to the official ballots
(Election Law,§4-128(2)).
G. Preparation of Emergency Ballots
The county board of elections may request the town clerk to
prepare emergency ballots where ballots are lost, stolen or
destroyed (Election Law,§7-120(2)).
2021 TOWN CLERK MANUAL 1 260
Chapter 9
THE TOWN'CLERK'S
NOTICE DUTIES
"Hear ye!Hear ye!"Once upon a time,the town crier,dressed
in a triangle hat, walked through town ringing a bell while
shouting the news and notices of the of the day. Today, the
town clerk,sans the triangle hat and bell,provides public
notices on behalf of the town.The responsibility to provide
public notice may be housed in a specific state statute that
expressly directs the town clerk to provide public notice or it
may come at the direction of the town board.
§9.1 Common Types of Notice
There are many different types of notice that a town clerk
might encounter in their tenure.A"public notice" is intended
to notify the public at large of a particular event or issue.Public
notice generally occurs by publication and/or posting. A"legal
notice" is a paid public notice that appears in a newspaper
(General Construction Law, §60; Public Officers Law, §70-a).
Public Officers Law, §70-a sets forth the fees newspapers can
charge for legal notices.Finally,"personal notice"is notice that
is served on a particular individual, corporation or entity by
either the U.S. Postal Service, commercial delivery service or
hand delivery.
2021 TOWN CLERK MANUAL 1261
§9.2 Steps to Achieving Proper Notice
When reviewing a statute,regulation or local law regarding the
town clerk's duties pertaining to the provision of notice,
careful attention should be paid to the basic elements of the
provision of notice, including the content of the notice; the
timing of the notice; the manner of providing the notice and
the place where the notice must be provided. The
requirements of providing public notice are similar in nature to
the old newspaper adage"who,what,where,when,why and
how."
A. Who must receive the notice? Notice will generally be
provided to the public at large, a particular segment of the
public or to particular individuals. Every statute, regulation or
local law could contain different requirements regarding the
person(s)intended to benefit from the notice;therefore careful
attention to the precise legal requirements is a must. More
often than not, the notice will be intended for the public at
large as in the case of a public hearing for the adoption of the
town budget(Town Law,§108),or the enactment of a local law
(Municipal Home Rule Law, §20). Occasionally, notice will be
intended for a limited audience, such as in the case of an
election on the issue of village incorporation (Village Law, §2-
214). Finally, some notices will be intended for a few
designated individuals, like a special town board meeting
provided to each member of the town board (Town Law,§62),
or upon a property owner regarding a public hearing to
condemn his or her property (Eminent Domain Procedures
Law,§202).
B. What must the notice contain? The statute, regulation or
local law should contain the information that must be included
in the notice.In most circumstances,the notice should contain
2021 TOWN CLERK MANUAL 1262
the purpose of the notice (e.g. "public hearing on the
preliminary budget"),as well as the time,date and location of
the public hearing. In addition,the notice might also need to
contain information regarding the availability of supporting
documents (e.g. copies of the town budget available in the
town clerk's office).
If the purpose of the notice is to announce a public hearing on
the enactment of a local law or ordinance, the notice must
contain a reasonable description of the proposed law or
ordinance. Public notices must be clear to an average person,
so as to inform them that pending legislation may affect their
interests (Tops Markets, Inc. v. County of Erie, 156 Misc.2d 49
(Sup.Ct.Erie Co.(1992)).A notice has been said to be sufficient
if it gives the average reader reasonable warning that property
in which the reader has an interest may be affected, and
affords that person an opportunity by the exercise of
reasonable diligence to determine whether such is the fact
(2525 EastAve.,Inc.v.Town of Brighton,33 Misc.2d 1029,(Sup.
Ct. Mon. Co. 1962)). A notice that substantially complies with
these requirements is usually considered sufficient,and minor
defects are disregarded where they have not prejudiced
interested persons,(Albright v. Town of Manlius,28 NY2d 108,
(1971)).
C. Where to post, publish or deliver notice? As previously
noted, the governing statute, regulation or local law will set
forth the exact requirements of where notice must be
provided. Statutes and regulations directing notices to be
posted will often require posting to occur in a single location
or in several locations.
2021 TOWN CLERK MANUAL 1263
Posting Notice
• Posting on the Town Clerk Signboard
Most notices that must be posted will be required to
be posted on the town clerk's signboard. Town Law,
§30(6),states that the town clerk shall,at the expense
of the town, "procure and affix on or near the main
entrance to the town clerk's office a signboard with the
name of the town followed by the words'town clerk's
office'in plain characters thereon with sufficient space
immediately below for posting thereon the legal
notices of the town.Such signboard shall be one of the
public places upon which any legal notice may be
posted." The state comptroller has opined that town
clerk's signboard may be affixed inside or outside a
public building near the main entrance to the building
or the town clerk's office located therein.According to
this opinion, therefore, the bulletin board need not
necessarily be immediately in front of the town clerk's
office(1968 Op St Comp 572).
• Additional Public Locations
Some statutes might require notice to be posted in
several places. For example, Public Officers Law, §104
requires notices of open meetings to be posted in one
or more designated public locations, and Town Law,
§64 (14-a) authorizes the town board to require
notices to be posted in additional locations,as well as
the required locations that are set forth in the
governing statute or regulation.The town clerk should
identifya list of community signboards(e.g.the library,
the bank, post office or grocery store) available for
public notice, as well as other locations that might
work for this purpose (e.g. specific telephone poles,
trees or fence posts).
2021 TOWN CLERK MANUAL 1264
• Posting on the Town Website
Many statutes and regulations also require that notices
be posted on the town's website. Most statutes
directing a notice to be posted on the town's website
will exempt towns without websites from said
requirements.The town attorney should be consulted
where the requirements are not clear.
Publishing Notices
Publication of notices is generally required in either the town's
official newspaper or in a newspaper of general circulation in
the town or county.
• Definition of Newspaper. A "newspaper" has a
statutory definition,and not all publications will meet
the statutory definition (General Construction Law,
§60(a) and Public Officers Law, §70-a). In general, in
order for a publication to be considered a"newspaper"
it must meet the following criteria: (1) be in general
circulation, (2) be established and ordinarily printed
and distributed at least weekly for at least one year,(3)
contain news,editorials and other matters of"current
interest,"(4) have a paid circulation and (5) be entered
as second class mail matter(Op.St.Comp.No.94-9;Op.
Atty. Gen. (1) No. 90-49). Perhaps the most important
factor today is the requirement that the publication
have a paid circulation. A publication that is
distributed for free does not qualify as a newspaper
(1946 Op.Atty.Gen.(1)No.97;Op St.Comp.No.84-58).
A pennysaver or advertiser, for example, may not be
used to satisfy a statutory requirement that a notice be
published in a newspaper(Op.St.Comp.No.81-70).
• Official Town Newspaper.Town Law,§64 authorizes,
but does not require,the town board to designate an
official newspaper.There are several things to consider
in the process of selecting an official newspaper. First,
2021 TOWN CLERK MANUAL 1265
the publication must qualify as a newspaper in
accordance with General Construction Law,§60(a)and
Public Officers Law, §70-a. Second, once the town
board has identified the local publications that meet
the statutory definition of a "newspaper," the town
board must then select an "official newspaper" based
upon the hierarchy set forth in Town Law,§64(11)(Op.
St.Comp.No.82-307)as follows:
o First, a newspaper regularly published in the
town that has been entered as second-class
mail matter.
o Second,if no newspaper is generally published
in the town and entered as second-class mail
matter, the town board must then consider
any paper published in the county having a
general circulation in the town and entered in
a post office within 5 miles from the town.
o Third, if there is no such newspaper, then the
town board must exercise a choice and
designate as its official newspaper either: (1) a
newspaper published within the county
having a general circulation within the town,
but entered in a post office more than 5 miles
from the town,or(2)any newspaper published
in a city,town or village in an adjoining county
and having a circulation in the town (Op. St.
Comp.No.88-28).
• Town Law, §64(11) provides an exception for
newspapers designated prior to 1940:
o A publication may be designated as the town's
official newspaper that was designated and
published notice as an official newspaper of
the town prior to 1940 and continued to be so
designated and published for at least 30 years
after such year.
2021 TOWN CLERK MANUAL 266
• According to the state comptroller's office, it is
necessary to determine where a newspaper is
published in order to examine whether it may be
selected as the town's official newspaper.A newspaper
is deemed "published" in the place where it is first
given to the public for circulation.The place where a
newspaper is first given to the public is a question of
fact. Factors to consider include: the place where the
paper is printed,the place where the paper is mailed,
and the manner in which the paper is distributed (Op.
St.Comp.No.88-28).
• The town board is not required to designate an official
newspaper. Town law, §64(11) provides "if no official
newspaper has been designated,the town board may
authorize the publication of a notice, resolution or
ordinance in any newspaper which could be
designated as the official newspaper of the town or,if
there be no newspaper which is regularly published in
the town and entered as second class mail matter,the
town board may authorize such publication in any
newspaper published and having a general circulation
in the town."
• In many instances,the town's"official"newspaper will
be a weekly publication;in some instances,towns have
designated a daily newspaper of general circulation in
the town as the town's alternate "official" newspaper.
It is important to take note of the newspaper's
publication deadlines in order to properly complywith
• the statutory or regulatory notice requirements.
• A town board resolution designating an official
newspaper continues in full force and effect until it is
repealed (Cowan v. Burns, 110 NYS2d 671, Suffolk
County,1952).A town board resolution designating an
official town newspaper may be repealed at any time
(Op.St.Comp.No.81-221).
2021 TOWN CLERK MANUAL 267
• Town Law, §64(11) provides that where the town
board has designated a newspaper as the official
newspaper of the town, the board may designate for
the publication of notices,resolutions,and ordinances
any additional newspapers that are published in the
English language. This designation is in addition to
publication in the town's official newspaper and not in
lieu of publication in the town's official newspaper. In
situations where a municipality designates more than
one newspaper for public notice, notice must be
published in all such newspapers (Op. St. Comp. No.
82-173).
• Where the town board has not designated an official
newspaper, notices that are required to be published
in the town's official newspaper may be published in
any newspaper thatwould qualify as the town's official
newspaper.It is,therefore,important to keep a current
list of all newspapers in the region that qualify for
designation of the town's official newspaper.
Personal/Direct Notice
• Notice is occasionally required to be personal or direct.
Personal notice essentially requires that notice be
mailed or served upon a particular person(s) or
corporation(s). Where personal or direct notice is
required, pay careful attention to the exact means of
delivery.
• For example,Town Law,§264(2) provides that at least
10 days prior to the date of the public hearing on a
zoning ordinance, written notice of any proposed
regulations,restrictions or boundaries of such districts,
including anyamendments thereto,affecting property
within 500 feet shall be served personally or by mail by
the town upon the persons specified in the statute.
2021 TOWN CLERK MANUAL 1268
• Careful attention must be paid to local and/or
common law exceptions to statutory notice
requirements.
• Occasionally, the courts will add additional
requirements to statutory notice provisions in order to
address constitutional due process considerations.For
example,Town Law §239 requires notice for a public
hearing on special district assessment rolls to be
published "at least once in a newspaper published
within the town, or if there be none published in the
town, then in a newspaper published in the county
• and having a circulation within the town." In Garden
Homes v.Town of Dover,95 NY2d 516,(2000),the New
York State Court of Appeals determined that where the
interest of a property owner will be substantially
affected by an act of government, and where the
owner's name and address are known, constitutional
due process requires that actual notice be given, and
this principle is not limited in its application to tax sale
or condemnation cases.Therefore, it is recommended
that the town clerk provide personal or direct notice to
known property owners in addition to publication of
notice in the newspaper regarding the time and date
of the hearing on a special district assessment roll.The
town clerk should always confer with the town
attorney regarding the application of any common law
notice exceptions or requirements.
D. When must the notice be provided? Statutes and
regulations require different timeframes within which a notice
must be published. For example, a statute might require that
notice must to be published "at least days before" a
public hearing (see e.g.Town Law,§64 (7) requiring notice to
be published at least 10 days before a public hearing to grant
f
a franchise to use town property).Alternatively,a statute might
provide that notice must be published"not less than nor more
2021 TOWN CLERK MANUAL 1269
than days" before the public hearing (see e.g. Eminent
Domain Procedures Law, §202 requiring notice to be
published at least 10 but no more than 30 days prior to such
public hearing). Sometimes, a statute might provide that "at
least days shall elapse between the date of the first
publication of the notice and the date specified for the
hearing" (see e.g.Town Law, §108 requiring that at least five
days shall elapse between the date of the first publication of
the notice and the date specified for the hearing). In order to
meet the necessary timeframes,it is important to learn how to
properly compute time and days.
Most statutes require a specific number of days to elapse
between when the notice is published or posted and when the ,
public hearing is held.Therefore,the first step is to define the
term "day" for purposes of reading the statutory notice
requirements. "A calendar day includes the time from
f
midnight to midnight. Sunday or any day of the week
specifically mentioned means a calendar day," (General
Construction Law§19;Op.Atty.Gen.No.2001+2).
The next step is to determine how to properly compute the
specified number of days. Section 20 of the General
Construction Law states: "A number of days specified as a
period from a certain day within which or after or before which
an act is authorized or required to be done means such
number of calendar days exclusive of the calendar day from
which the reckoning is made. If such period is a period of two
days, Saturday, Sunday or a public holiday must be excluded
from the reckoning if it is an intervening day between the day
from which the reckoning is made and the last day of the
period. In computing any specified period of time from a
specified event, the day upon which the event happens is
deemed the day from which the reckoning is made.The day ,
from which any specified period of time is reckoned shall be
2021 TOWN CLERK MANUAL 1270
excluded in making the reckoning." In simpler terms: when
counting the required number of days that must elapse
between the date the notice is posted/published and the date
of the public hearing, do not include the date of the public
hearing in the calculation.
Finally,count all days of the week(including Saturday,Sunday
and holidays) unless the statute, regulation or town board
directive expressly provides otherwise.
The town clerk should customize a notice calendar.
Numbering each day of the calendar year consecutively can be
very helpful in counting days and calculating notice
timeframes. In addition, there are a number of computer
software programs and websites that are available to assist in
creating a notice calendar.
E. Why must the notice be provided? Notice must be
provided because of a statutory, regulatory or local
requirement.The failure to properly comply with the required
notice requirements could result in nullification of action or
local law(D'Addario v.McNab,32 N.Y.2d 84,295 (1973)).
F. How must the notice be provided? Notice is typically
coordinated and performed by the town clerk's office (Town
Law, §30(11)). Providing proper public notice is one of the
town clerk's most important duties and should therefore be
undertaken with care and attention to detail.To assist in this
responsibility, it is recommended that the town clerk develop
a standard operating procedure for the provision of public
notice.
• Review the statutory, regulatory and/or local
requirements regarding the provision of notice in
any given circumstance.
• Develop a checklist of the
statutory/regulatory/local requirements.
2021 TOWN CLERK MANUAL 1271
• Mark on the calendar all of the relevant dates
associated with the notice requirements. ;
• Contact the newspaper regarding publication
deadlines.
• Contact store or bank managers which house
community sign boards regarding authority and
compliance requirements for public notices. `
• Contact the town's webmaster regarding the
logistics of posting notices on the town's website. ,
• Draft the notice or confirm the contents of the
notice provided.
• Review the posting/publishing/mailing
requirements and notice content with the town
attorney.
• Complete the actual posting/publication/mailing
of the notices by posting said notice on the
designated signboard(s), the town website and
publishing in the newspaper.
• Document all steps in the process immediately
upon completion in the form of an affidavit and file
it in the town clerk's office.
• File a copy of the notice from the newspaper
together with proof of publication from the
newspaper in the town clerk's office.
Answering these basic questions should assist the town clerk
in providing proper notice.
§9.3 Proof of Posting and Publication
Establish a formal and routine practice of documenting the
posting and/or publication of public notices. If the action that
gave rise to the public notice is challenged,the town clerk may
be called upon to prove that the notice was properly
published,posted and/or delivered.
New York State Law recognizes two ways that public records
can be admitted into evidence in a legal proceeding.
2021 TOWN CLERK MANUAL 272
• Public Officer's Records Exception
"Where a public officer is required or authorized, by
special provision of law, to make a certificate or an
affidavit to a fact ascertained,or an act performed, by
him/her in the course of his official duty,and to file or
deposit it in a public office of the state,the certificate
or affidavit so filed or deposited is prima facie evidence
of the facts stated,"(CPLR,§4520).
Assuming the prerequisites of CPLR,§4520 can be met,
the record will be"prima facie evidence"of the truth of
the matters asserted therein.
• Public Documents Common-Law Hearsay Exception
(Consolidated Midland Corp. v. Columbia Pharm.
Corp.,42 AD2d 601 (2d Dept 1973))
The common-law public document exception
provides that when a public officer is required or
authorized statutorily or by the nature of his or her
official duties to keep records of transactions occurring
in the course of such duties, the records made by or
under the supervision of the public officer are
admissible (People v. Minck 21 NY 539; Prince,
Richardson on Evidence §8-.1101 (Farrell lith ed.)).
When the document is offered under this exception to
the hearsay rule, proper authentication is nonetheless
required(People v.Garneau,120 A.D.2d 11 2,(4th Dept.
1986);CPLR,4540).
A. Proof of Publication
• Newspaper Publisher's Affidavit
• Tear sheet or copy of legal ad
• Town Clerk's Affidavit or Certificate of Compliance
Note:Date of publication of a public notice is the date the
newspaper containing the notice is put into circulation
(Op.St.Comp.No.71-918).
2021 TOWN CLERK MANUAL 1273
B. Proof of Posting
• Town Clerk's Affidavit or Certificate
The town clerk should work with the town attorney to
develop a proof of posting and proof of publication
affidavit form that may be used as needed.
An affidavit is a written statement, under oath, taken
before an officer who has authority to administer the oath.
It is imperative that local statutes be consulted to ascertain
the specific provisions and content of an affidavit to assure
compliance with all statutory requirements. Generally, an
affidavit need not be in any particular form unless
expressly provided for by statute.
An affidavit ordinarily includes:
1.The place where the affidavit is taken,
2.The name of the affiant(one who makes an affidavit
-generally town clerk)
3.A statement that the affiant was duly sworn,
4.A statement of the facts sworn to,
5. The signature of the affiant and the jurat (person
before whom affiant [town clerk] has sworn) showing
that the oath was administered by a named person at
a specified date
6.The signature,with the official seal, by the officer in
his or her official capacity with a statement respecting
the expiration of the officer's commission.
The following suggestions should be kept in mind when
drafting an affidavit or certification:
1. The affidavit/certification should be clear, concise
and positive.
2.Normally,the affidavit/certification will be in the first
person and in the present tense.
3.The name of the affiant/certifier should appear in the
body of the affidavit/certification as well as the
2021 TOWN CLERK MANUAL 1274
signature, and the name in the body of the affidavit
should correspond with the signature.
4. A lengthy affidavit/certification should be divided
into numbered paragraphs.
5. Erasures and interlineations should be avoided.
Where done, the officer taking the oath should initial
those changes and should state that changes were
made in the jurat.
6. A certificate placed at the bottom of an
affidavit/certification, declaring that the witness has
been sworn or affirmed to the truth of the facts therein
alleged. Its usual form is: 'Sworn (or affirmed) before
me, the day of 20
{Signature of the Jurat}.
C. Proof of Delivery.Mailing notices via certified mail—return
receipt requested, where permitted — is one means of
documenting proper delivery. Affidavits may also be used to
demonstrate proper delivery.
§9.4 Common Statutory Notice Requirements
Please note that this is not a full list of all statutory, regulatory
or local notice requirements. Please further note that the
statute or regulation should be consulted in order to ascertain
the full requirements for each notice.
A. Agriculture and Markets Law,§305-a (3) requires, upon
the receipt of such application by the planning board,zoning
board of appeals,town board or village board of trustees,the
clerk of such board to mail written notice of such application
to the owners of land as identified by the applicant in the
agricultural data statement. Such notice shall include a
description of the proposed project and its location,and may
be sent in conjunction with any other notice required by state
2021 TOWN CLERK MANUAL 1275
F
or local law,ordinance, rule or regulation for said project.The
cost of mailing shall be borne by the applicant.
B. County Law,§277 requires the notice of a public hearing
regarding the petition of a town to the county to legalize or
validate a town board action to be posted upon the town
clerk's signboard.
C. Election Law, §4-120 (2) authorizes the publication of a
notice of election to be published in a newspaper or
newspapers designated by such board or body.
D. Eminent Domain Procedure Law,§202 requires notice to
be published at least 10 but no more than 30 days prior to a
condemnation public hearing in at least five successive issues
of an official daily newspaper if there is one designated in the
locality where the project will be situated and in at least five
successive issues of a daily newspaper of general circulation in
such locality.
E. General Municipal Law, §35 requires the town clerk to
publish a notice that the state comptroller's report of
examination has been filed in the town clerk's office. The
notice must be published at least once in the official
newspaper,or if there be no official newspaper,in a newspaper
having general circulation in the town.If there is no newspaper
having general circulation, the town clerk must post such
notice conspicuously in 10 public places in town.
F. General Municipal Law,§99-w requires the town board to
hold a public hearing on the adoption of a local law regarding
the change in status of designated veteran memorials. Such
public hearing shall be on such notice as is required Municipal
Home Rule Law, §20. Notice of such public hearing shall also
2021 TOWN CLERK MANUAL 1276
be posted in at least five public places,and shall be advertised
for three consecutive days in at least one newspaper of general
circulation in the municipal corporation, which shall be the
official newspaper if one exists,within 15 days of such public
hearing.The municipal corporation shall also post such notice
on its official website,if one exists,for at least 15 days prior to
such hearing.
G. General Municipal Law, §239-nn requires the town to
give notice to the municipal clerk of a municipality located
within 500 feet of property that is the subject of a public
hearing regarding an application for a special use permit, site
plan review and subdivision review.
H. General Municipal Law, §239-nn requires the town to
give notice to an adjacent municipality when a public hearing
is held relating to various land use issues and applications
affecting property within 500 feet of an adjacent municipality.
Notice may be provided by mail or electronic transmission to
the clerk of the adjacent municipality at least 10 days prior to
the hearing.
I. General Municipal Law, §704 - Notice of an annexation
hearing is required to be published in the official newspapers
of the affected municipalities, or in the absence of an official
newspaper, in a newspaper published in the county with
general circulation within the areas of the affected
municipalities.This notice must be published within 20 days
afterthe receipt of an annexation petition ora joint annexation
resolution. Notice must also be mailed to each person and
corporation owning property in the territory subject to
annexation. At least 10 days before the hearing, notice must
also be mailed to the affected school districts, fire districts,
public benefit corporations and other district corporations
. 2021 TOWN CLERK MANUAL 1277
situated in whole or in part in the affected area. Each of such
governing boards shall also cause a copy of such notice to be '
posted on the website of the local government,if one exists.
J. Municipal Home Rule Law,§20 (5) requires public notice
of the public hearing regarding the adoption of a local law.
K. Real Property Tax Law, §501 requires that notice
announcing the availability of the town assessor to review
assessment inventory and valuation data must be posted on
the town clerk's signboard and published at least once in each
of two consecutive weeks in a newspaper having general local
circulation.
L. Real Property Tax Law, §506 requires a notice regarding
the completion and availability of the tentative assessment roll
to be posted on the town clerk signboard and published once
in the official newspaper of such city or town, or if no
newspaper has been designated the official newspaper, in a
newspaper having general circulation in such city or town.
M. Town Law,§73 provides that the town clerk shall publish
a notice of a public hearing on the alteration of town boundary
lines in a newspaper published in the town, or if none, in a
newspaper having circulation in such town, once a week for
four successive weeks next preceding the hearing and shall
also cause a copy of the notice to be posted on the signboard
of the town maintained pursuant to Town Law, §30(6) at least
four weeks next preceding the hearing. In the event that the
town maintains a website, such information may also be
provided on the website.The cost of publication and posting
shall be a town charge and due proof thereof shall be filed with
the clerk of the board of supervisors at or before the hearing.
2021 TOWN CLERK MANUAL 1278
N. Town Law,§82 requires the town clerk to give notice of a
special town election by the publication of a notice in a
newspaper published in said town,if there be any,or, if there
be none, in a newspaper published in the county having
general circulation in the town,specifying the time when and-
place or places where such election will be held, the hours
during which the polls will remain open for the purpose of
receiving ballots,and setting forth in full all propositions to be
voted upon.The first publication of such notice shall be at least
10 days prior to the time of such special election. In addition,
the town clerk shall post or cause to be posted a copy of such
notice on the signboard of the town at least 10 days prior to
such election. In the event that any such questions or
propositions shall be submitted at a biennial town election,
notice that the same will be submitted setting them forth in
full shall be published and posted in the manner above
provided for special town elections.
O. Town Law,§84 requires the town clerk publish notice in a
newspaper published in said town,if there be any,or, if there
be none, in a newspaper published in the county having
general circulation in the town, specifying the day(s), the
place(s), and hours during which the board(s) of personal
registration for special town election will meet to prepare a
register of qualified voters of the town.The first publication of
such notice shall be at least 10 days prior to the first day the
town board determines the board will meet. In addition, the
town clerk shall post or cause to be posted in five conspicuous
places in said town copies of such notice,also at least 10 days
prior to the first day the boards of registration shall meet as
fixed by the town board.
P. Town Law,§90 requires the town clerk to post a notice of
' the adoption of a resolution subject to permissive referendum
2021 TOWN CLERK MANUAL 279
on the town clerk's signboard and to publish a notice in a
newspaper published in said town, if there be any,or, if there
be none, in a newspaper published in the county having
general circulation in the town within 10 days of the adoption
of the resolution.
Q. Public Officers Law,§104 requires the time and place of
open meetings to be conspicuously posted in one or more
designated public locations at least 72 hours before such
meeting and that notice be provided to the local news media.
R.Town Law, §108 requires notice of the public hearing on
the preliminary town budget to be published at least once in
the official newspaper, or if no official newspaper has been
designated,in any newspaper having general circulation in the
town.The notice may be published in such other newspapers
and for such other additional times as the town board, by
resolution,shall direct.At least five days shall elapse between
the date of the first publication of the notice and the date
specified for the hearing.The notice of hearing shall state the
time and location of the public hearing, the purpose thereof
and that a copy of the preliminary budget is available at the
office of the town clerk where it may be inspected by any
interested person during office hours. Such notice shall also
specify the proposed salaries of each member of the town
board, an elected town clerk and an elected town
superintendent of highways.The town clerk shall cause a copy
of the notice to be posted on the town clerk's signboard not
later than five days before the day designated for such hearing.
S. Town Law, §133 requires a summary or abstract of the
ordinance to be published in the official newspaper of the
town or, if there is none, in a newspaper designated by the
town board having general circulation in the town,once,and
2021 TOWN CLERK MANUAL 1280
' the affidavit of such publication shall be filed with the town
clerk.
T. Town Law,§181 requires the town clerk to cause a copy of
a notice of a fire district budget hearing to be posted on the
town signboard not later than five days before the day
designated for such hearing.The notice shall also be posted on
the municipal and/or fire district website or websites, if one
exists.
U. Town Law,§171 regarding fire protection districts requires
the town clerk to cause copies of such notice to be posted on
the town clerk's sign-board and conspicuously in such other
places within or without the territory affected as the town
board or town boards may direct, not less than 10 nor more
than 20 days before the day designated for the hearing as
aforesaid.
V. Town Law, §193 regarding consideration of the
establishment or extension of a district (sewer, wastewater
disposal, drainage, water, water treatment, park, lighting,
snow removal,etc.) requires the town clerk to certify the town
board order and publish it at least once in the official paper,
between 10 and 20 days of the scheduled hearing, and shall
also cause a copy thereof to be posted on the signboard of the
town, not less than 10 nor more than 20 days before the day
designated for the hearing. In the event that the town
maintains a website, such information may also be provided
on the website.
W.Town Law,§198,with respect to lighting districts,requires
the town clerk to certify the town board order and publish at
least once in the official paper, the first publication to be
2021 TOWN CLERK MANUAL 1281
between 10 and 20 days before the date set for the hearing,
and shall also be posted on the signboard of the town.
X. Town Law, §199, regarding the construction of lateral
sewers,drains or water mains,requires the town clerk to certify
the town board order and to publish at least once in the official
paper, the first publication to be between 10 and 20 days
before the day set for the hearing, and shall cause a copy
thereof to be posted on the signboard of the town, also
between 10 and 20 days of the day of the scheduled hearing.
Y. Town Law, §202-c, regarding the dissolution and
diminishing area of certain districts, requires notice to be
published at least once in the official paper, the first
publication thereof to be not less than 10 nor more than 20
days before the day set therein for the hearing as aforesaid,
and shall cause a copy thereof to be posted on the signboard
of the town not less than 10 nor more than 20 days before the
day designated for the hearing.
Z. Town Law,§200 regarding a street improvement district,
requires the town board to adopt an order setting forth a
public hearing regarding the proposed improvement,
estimated cost and benefited property. The town clerk is
required to certify that order and publish a notice at least once
in the official paper,the first publication thereof to be not less
than 10 nor more than 20 days before the day set for the
hearing, and shall cause a copy thereof to be posted on the
signboard of the town and conspicuously in five public places
along the street, highway, private road or right-of-way or
portion thereof to be improved not less than 10 nor more than
20 days before the day designated for the hearing as aforesaid.
2021 TOWN CLERK MANUAL 1282
AA. Town Law,§200-a requires the town clerk to give notice
of a town board order directing a homeowner to build or repair
a sidewalk in accordance with a local law ordinance. Such
notice shall be by certified mail addressed to each such owner
at their address as it appears upon the assessment roll of such
town,or in the alternative,by publication of a notice thereof in
the official paper at least twice,the first publication of which
shall be at least 15 days before the time specified for the
completion of the work.
BB. Town Law,§274-a(8) requires that the authorized board
shall mail notice of said hearing to the applicant at least 10
days before a hearing on a site plan review application and
shall give public notice of said hearing in a newspaper of
general circulation in the town at least five days prior to the
date thereof and shall make a decision on the application
within 62 days after either the hearing, or if no hearing was
held, after the day the application is received. This function
may be performed by another town officer or employee.
CC. Town Law,§274-b(6) requires public notice of a hearing
on a special use permit application to be printed in a
newspaper of general circulation in the town at least five days
prior to the date thereof. In addition, at least 10 days before
such hearing, the authorized board shall mail notices thereof
to the applicant and to the county planning board or agency
or regional planning council, as required by § 239-m of the
General Municipal Law,which notice shall be accompanied by
a full statement of such proposed action, as defined in
subdivision one of§ 239-m of the General Municipal Law.This
function may be performed by another town officer or
employee.
2021 TOWN CLERK MANUAL 1283
DD. Town Law, §276 requires notice of the public hearings
associated with various phases in the subdivision plat review
process. For example, the hearing on the final plat shall be
advertised at least once in a newspaper of general circulation
in the town at least five days before such hearing if no hearing
is held on the draft environmental impact statement, or 14
days before a hearing held jointly therewith.This function may
be performed by another town officer or employee.
2021 TOWN CLERK MANUAL 1284
Chapter 10
THE TOWN CLERK'S
LICENSING AND PERMITTING DUTIES
"The town clerk... shall issue all licenses or permits,
whenever and in the manner required by this chapter or by,
any other law and collect all fees therefor,except as provided
in section one hundred thirty-seven of this chapter," (Town
Law,§30(7)).
§10.1 License Issuing Officer
Sections 130 and 136 of the Town Law authorize the town
board to enact ordinances on a variety of subjects and to
provide for the licensing of certain businesses, trades or
occupations.The Municipal Home Rule Law provides that any
subject on which a town board may act by ordinance may also
be accomplished by local law.
The town clerk is generally the licensing issuing officer unless
otherwise provided by law (Town Law, §30(7)). For example,
state law provides that the town building inspector (code
enforcement officer) issues licenses or permits required under
the provisions of a building code, plumbing code, electrical
code or housing code shall be issued by the town building
inspector(Town Law,§138).
2021 TOWN CLERK MANUAL 285
§10.2 Licenses Issued Pursuant to Town Ordinances or
Local Laws
The license must specify the trade, occupation or use of
premises authorized. It becomes effective from the date of
issuance and continues in force for the term specified therein.
No such license is transferable.A license cannot be issued for a
longer term than one year from its date.The town board may,
however,by resolution,provide for the staggering of licensing
periods.If such action results in a licensing period shorter than
the regular licensing period,the town clerk must adjust the fee
proportionately(Town Law,§137).
The town clerk may refuse to issue a license if the applicant has
been convicted of a misdemeanor or felony, which in the
judgment of the town clerk, renders the applicant unfit or
undesirable to carry on the trade or occupation involved.The
town clerk may also refuse a license to any person,who in their
judgment, is an undesirable person or incapable of properly
conducting the trade or business desired. Any applicant who
has been refused a license by the town clerk may apply to the
town board, which may grant or refuse the same. The town
board may also revoke any license issued to an applicant after
a public hearing at which the licensee must have an
opportunity to be heard.
A. License fees are established by the town board (Article 9
of the Town Law;Municipal Home Rule Law,§10).
Examples of licenses issued under town ordinances include
junk dealers, taxicabs, garbage collection, auctioneers,
hawkers and peddlers, amusements, dance halls, restaurants,
hotels, riding stables,trailer camps, occupations of plumbing,
heating,ventilating and electrical work within the town (Town
Law,§136).
2021 TOWN CLERK MANUAL 1286
Note: Article 39 of the Executive Law creates a state office of
business permits, which among other duties, is to encourage
federal,state and local government permit coordination.
B. Dog Licensing
All dogs reaching the age of four months must be licensed
(Agriculture and Markets Law, §109 (1)(a)). To issue dog
licenses,towns are required to adopt a local dog license law in
accordance with the requirements set forth in Article 7 of the
Agriculture and Markets Law. For information regarding Ag &
Markets dog licensing requirements visit its website
https://agriculture.ny.ciov/ or contact Ag&Markets via phone:
(518)457-3502 or email:DAIC@agriculture.ny.gov.
A town may choose to implement a town dog licensing
program or to participate in a cooperative licensing program
via an intermunicipal agreement with other towns or the
county, (Agriculture and Markets Law, §§107(6); 109; General
Municipal Law, article 5-g). Sample dog licensing local laws
may be obtained from the Association of Towns. The town
clerk must consult the local town dog licensing law for
additional duties or requirements regarding dog licensing
(Agriculture and Markets Law,§109(1)(b)).
The town clerk shall provide a copy of the license to the owner
and retain a record of the license that shall be made available
upon request to the commissioner of Agriculture and Markets
for purposes of rabies and other animal disease control efforts
and actions. In addition, if the town board has authorized a
pound or shelter to issue dog licenses, the authorized pound
or shelter manager shall send,within 48 hours of validation,a
copy of the license to the licensing municipality within which
the dog is to be harbored (Agriculture and Markets Law, §109
(1)(f))•
2021 TOWN CLERK MANUAL 1287
1.Dogs Obtained from County Shelters and Pounds
In the case of a seized dog being redeemed or a dog being
otherwise obtained from a county animal shelter or pound,
application may be made to the county dog control officer in
charge(Agriculture&Markets Law,§109(1)(b)).
2.Dogs Obtained from Other Shelters and Pounds
In the case of a dog being redeemed or a dog being adopted
from a shelter or pound established,maintained or contracted
for, pursuant to Agriculture and Markets Law, §114, such
application may be made to facility manager, provided they
have been authorized by the municipality where the
prospective owner resides to accept such application. Such
authorization shall be requested by the governing body of the
pound or shelter and the granting or denial of such
authorization shall be in the discretion of the municipality in
which the prospective owner resides (Agriculture & Markets
Law,§109(1)(b)).
3.License Fees
Licensing fees are set bythe town board(Agriculture&Markets
Law,§110).The town clerk must consult the town licensing fee
schedule and apply it accordingly.Although the license fee is
left to the judgment of the town board, the law requires that
the fee for u nspayed/u n neutered dogs must be at least $5
more than the license fee for a spayed or neutered dog.The
fees collected may be used to underwrite the town's dog
licensing and control responsibilities. A dog license is an
administrative fee and not a tax, therefore the fee cannot be
greater than the cost of running the dog license and control
program (Agriculture&Markets Law,§§110, 109(1)(d)).
• Optional Exemptions to the Dog License Fee
The town may opt to exempt certain dogs from the dog
license fee. The exemptions would be contained in the
town's dog licensing and control law.See the definitions of
these types of service dogs later on in this chapter.
2021 TOWN CLERK MANUAL 1288
Examples include:
guide dogs hearing dogs
service dogs war dog
working search dogs detection dogs
police work dogs therapy dogs
The town clerk must consult the town dog licensing and
control law to determine what if any dogs have been
exempted from the dog licensing fees (Agriculture& Markets
Law,§110(2)).
4.Dogs Required To Be Licensed
All dogs reaching the age of four months must be licensed
(Agriculture&Markets Law,§109(1)(a)).
5. Dogs Exempted From Licensing Under Article 7 of the
Agriculture&Markets Law
There are a few exceptions to the general rule.Dogs under the
age of four months that are not at large or that reside in a
pound or shelter maintained under contract with the state or
any county, city, town or village or duly incorporated society
for the prevention of cruelty to animals, duly incorporated
humane society or duly incorporated dog protective
association is exempt from dog licensing (Agriculture &
Markets Law,§109(1)(a)).
In addition,any dog confined to the premises of any public or
private hospital devoted solely to the treatment of sick
animals, or confined for the purposes of research to the
premises of any college or other educational or research
institution is exempt from dog licensing(Agriculture&Markets
Law,§107(3)).
Finally, dogs confined to the premises of any person, firm or
corporation engaged in the business of breeding or raising
2021 TOWN CLERK MANUAL 1289
r
dogs for profit and licensed as a class A dealer under the
federal Laboratory Animal Welfare Act are not required to be
licensed under Article 7 of the Agriculture and Markets Law
(Agriculture&Markets Law,§107(4)).
6.Requirements of a Dog License Application
The town must design and procure the town dog license
application.Towns may require additional information to the
statutorily required information. Consult the town local dog ,
licensing law for local application requirements. The statutory
requirements for the dog license application include
(Agriculture&Markets Law,§109(1)(c)):
• the sex
• actual or approximate age
• breed
• color
• other identification marks,if any
• municipal identification number of the dog
• owner's name,address&phone number ;
• owner's county and town/city/village of residence
7.Licensing Cycle and Renewal Periods ;
Towns may offer a one-,two-,or three-year renewal period for
a dog license as long as the rabies vaccination is current.The
town clerk should consult the town local dog licensing and
control law to determine the licensing cycles and renewal
periods(Agriculture&Markets Law,§109(1)(a)).
Except as otherwise provided by law,a license shall be issued
or renewed for a period of at least one year, provided that no
license shall be issued for a period expiring after the last day of
the 11th month following the expiration date of the current
rabies certificate for the dog being licensed (Agriculture &
Markets Law,§109(1)(a)).
2021 TOWN CLERK MANUAL 290
S.Expiration of License
All licenses shall expire on the last day of the last month of the
• period for which they are issued (Agriculture & Markets Law,
§109(1)(a)).
9.Common Renewal Date
Any municipality may establish a common renewal date for all
such licenses(Agriculture&Markets Law,§109(1)(a)).A license
issued by a town that has established a common renewal date
shall expire no later than the common renewal date prior to
the expiration date of the rabies certificate for the dog being
licensed (Agriculture&Markets Law,§109(1)(a)).
10.Exemption to Length of License
In the event an applicant for a license presents, in lieu of a
rabies certificate, a statement certified by a licensed
veterinarian, as provided in Agriculture & Markets Law, §109
(2),a license shall be issued or renewed for a period of one year
from the date of said statement (Agriculture & Markets Law,
§109(1)(a)).
11.Renewal Notices
The town clerk is responsible for sending renewal notices to
dog license holders.The town local dog licensing and control
• law should be consulted for requirements and timeframes. In
the absence of any statutory or local requirements, the town
clerk should develop a renewal notice protocol including
standard language,timing and method.Consultation with the
town attorney is advised to ensure license holders receive
timely notice.
12.Rabies Vaccinations
Every dog is required to be vaccinated against rabies with
' certain limited exceptions (Public Health Law, §2141 (1)).
Exceptions include dogs that are: (a) transported through the
state and remain in the state up to 15 days;(b) confined to the
2021 TOWN CLERK MANUAL 291
premises of an incorporated society devoted to the care of lost,
stray or homeless animals; (c) for which vaccination against
rabies would adversely affect the animal's health, as
determined by a licensed veterinarian; or (d) confined for the
purposes of research to the premises of a college or other
educational or research institution (Public Health Law, §2141
(2))•
The town clerk,at the time of issuing any license,shall require
the applicant to present a statement certified by a licensed
veterinarian showing that the dog or dogs have been
vaccinated to prevent rabies, or in lieu thereof, a statement
that because of old age or another reason,the life of the dog
or dogs would be endangered by the administration of
vaccine.The town clerk shall make or cause to be made from
such statement a record to file with a copy of the license.Such
records shall be made available to the commissioner of
Agriculture and Markets upon request for rabies and other
animal disease control efforts(Agriculture&Markets Law,§109
(2))•
13.Licenses are Non-Transferable
No license shall be transferable. Upon the transfer of
ownership of any dog,the new owner shall immediately apply
for a license for such dog (Agriculture & Markets Law, §109
(1)(g))•
14.Dog Identification Tags
Each dog licensed shall be assigned,at the time the dog is first
licensed,a town identification number,which shall be carried
by the dog on an identification tag affixed to a collar on the
dog at all times,provided that a town may temporarily exempt
dogs that are participating in a dog show (Agriculture &
Markets Law,§111 (1)).
2021 TOWN CLERK MANUAL 292
15.Information on Dog Identification Tag
The dog identification tag must have an identification number,
• the name of the town, the State of New York, contact
information, including telephone number, for the town and
such other information as the licensing town deems
appropriate(Agriculture&Markets Law,§108(11)).
16.Dog Identification Tags are Non-Transferable
No tag carrying an identification number shall be affixed to the
collar of any dog other than the one to which that number has
been assigned (Agriculture&Markets Law,§111 (2)).
17.Purebred Licenses Optional
• The town may opt to provide owners of one or more purebred
dogs registered by a recognized registry association to apply
for a purebred dog license. Provisions of the town local dog
: licensing and control law should be consulted for
• requirements and guidance.A purebred license is subject to an
animal population control surcharge of at least $3.00. Towns
that issue purebred licenses shall remit such surcharge
collected to the commissioner (Agriculture & Markets Law,
§109 (3)).
18.Purebred Dog Identification Tags
• A town offering a purebred license may provide a licensee,at
their expense, any number of tags imprinted with the same
number as the purebred license.One such tag shall be affixed
to the collar of each dog harbored pursuant to the purebred
license at all times, provided that the town may exempt dogs
participating in a dog show during such participation. Such a
tag shall be affixed only to the collar of a dog owned by the
holder of the purebred license and harbored on his premises
r
(Agriculture&Markets Law,§111 (3)).
2021 TOWN CLERK MANUAL 293
19.Optional Dog Identification Tags for Special Dogs
A town offering a license for any guide dog, service dog,
hearing dog,therapy dog or detection dog may issue a special
tag for identifying such dog in addition to the required
identification information (Agriculture & Markets Law, §111
(4)).The town may prescribe the shape,size,color,and form of
imprint of the tag,which shall be a different color and shape
than the standard identification tag. Upon application, the
commissioner of Agriculture and Markets shall furnish such 17
special tags without payment of a fee (Agriculture & Markets
Law,§111 (4)).
20.Special Dogs Defined
• "Guide dog" means any dog that is trained to aid a
person who is blind and is actually used for such
purpose, or any dog during the period such dog is
being trained or bred for such purpose (Agriculture&
Markets Law,§108(9)).
• "Service dog"means any dog that has been or is being
individually trained to do work or perform tasks for the
benefit of a person with a disability (Agriculture &
Markets Law,§108(22)).
• "Hearing dog"means any dog that is trained to aid a
person who is deaf or hard of hearing and is actually
used for such purpose, or any dog during the period
such dog is being trained or bred for such purpose
(Agriculture&Markets Law,§108(21)).
• "Therapy dog"means any dog that is trained to aid the
emotional and physical health of patients in hospitals, '
nursing homes, retirement homes and other settings
and is actually used for such purpose, or any dog
during the period such dog is being trained or bred for
such purpose, and does not qualify under federal or
state law or regulations as a service dog (Agriculture&
Markets Law,§108(26)).
2021 TOWN CLERK MANUAL 294
• 'Detection dog"means any dog that is trained and is
actually used for such purposes or is undergoing
training to be used for the purpose of detecting
controlled substances, explosives, ignitable liquids,
firearms, cadavers, or school or correctional facility
contraband (Agriculture and Markets Law,§108(27)).
21.Lost Dog Identification Tags
The town clerk may issue a replacement dog identification tag.
Consult the town local dog licensing and control law to
determine what, if any, additional fees apply (Agriculture
&Markets Law,§110(4)(b)).
22.Dog Tag Manufacturers.
• Ketchum Manufacturing
https://www.ketchummfci.com/doci-cat-tacis/
1-800-222-0460
• National Band and Tag Co(acquired HASCO)
https://www.nationalband.com/plate-tag-shapes/
859-261-2035 ortaas@nationalband.com
23.Change of Ownership;Lost or Stolen Dog
In the event of a change in the ownership of any dog that has
been licensed or in the address of the owner of record of any
such dog, the owner of record shall, within 10 days of such
change, file with the clerk of the town in which the dog is
licensed, a written report of such change (Agriculture &
Markets Law,§112(1)).
If any dog that has been licensed is lost or stolen,the owner of
record shall, within 10 days of the discovery of such loss or
theft,file with the clerk of the town in which the dog is licensed
a written report of such loss or theft (Agriculture & Markets
Law,§112(2)).
2021 TOWN CLERK MANUAL 1295
In the case of a dog's death,the owner of record shall so notify
the town clerk either prior to renewal of licensure or upon the
time of such renewal as set forth by the town in which the dog
is licensed (Agriculture&Markets Law,§112 (3)).
24.Optional Dog Enumeration Surcharge
The town has the option to charge an enumeration surcharge
for each dog found to be unlicensed during a town dog
enumeration, which is payable at the time the license
application is filed.Consult the town dog licensing and control
law to determine what,if any,dogs have been exempted from
the dog licensing fees. Such additional fee shall be the
property of the licensing municipality and shall be used to pay
the expenses incurred by the municipality in conducting the
enumeration(Agriculture&Markets Law,§110(4)(a)).
25.Animal Population Control Surcharge
The town dog licensing and control law must set an animal
population control surcharge to be collected on all dog
licenses.The surcharge must be at least$1 for altered dogs and
at least$3 for unaltered dogs for the purposes of carrying out
animal population control efforts (Agriculture&Markets Law,
§110(2)). The town clerk must consult the town's local dog
licensing and control law to determine the proper surcharge to
collect. The ASPCA was awarded the contract to manage the
state Animal Population Control Program.
All animal population control surcharges must be remitted to
the Department of Agriculture and Markets unless otherwise
provided by state law (Agriculture & Markets Law, §§109 (3);
110(3)). The Department of Agriculture and Markets has
recommended that the town clerk remit all surcharges
collected on the fifth day of each month. Payments should be
remitted to:NYS Department of Agriculture and Markets Spay
and Neuter--P.O.Box 975--Albany,NY 12201-0975.
2021 TOWN CLERK MANUAL 1296
i
• Purebred Licenses
All animal population control surcharges collected on
purebred licenses must be remitted to the commissioner
of the Department of Agriculture and Markets unless
otherwise provided by state law (Agriculture and Markets
i Law, §109 (3)).Chapter 59 of the Laws of 2010 (Part T) did
not address whether the animal population control
surcharge should be assessed per dog or per license.
Previously,state law required the surcharge to be collected
per dog rather than per license.In the absence of statutory
or regulatory requirements,the Department of Agriculture
and Markets has recommended that the town clerk collect
the surcharge per dog rather than per license.
• Multiyear Licenses
Agriculture and Markets Law, §109 (1) requires the
licensing cycle to be at least one year but does not
specifically state whether the animal population control
surcharge should be applied one time for a multiyear
license or once for every year the license is issued.
Previously,state law required the surcharge to be collected
TI for each year of the license. In the absence of statutory or
regulatory requirements, the Department of Agriculture
and Markets has recommended that the town clerk collect
the surcharge for each year of the multiyear license. For
example,using the default surcharge—the surcharge on a
two-year license would be $2 and $6 respectively, and $3
and $9 on a three-year license.
• Fee-Exempt Dogs
The Agriculture and Markets Law does not address
whether the animal population control surcharge should
be collected on fee-exempt dog licenses(e.g.guide dogs).
In the absence of statutory or regulatory requirements,the
Department of Agriculture and Markets has determined
2021 TOWN CLERK MANUAL 297
that the animal population control surcharge need not be
collected on fee-exempted dog licenses.
Please note:a town may be in a county that has been approved
to host a local animal population control program, in which
case, the county is authorized to receive the locally collected
animal population control surcharge.
§10.3 Licenses Issued Pursuant to State Law
A. Automobile Junkyards
Section 136 of the General Municipal Law requires anyone
operating auto junkyards in towns without local laws,
ordinances or regulations licensing or regulating automobile
junkyards to apply for a license and a certificate of approved
location from such towns. It also sets out certain minimum
standards an applicant must meet before they may be issued a
license.
Although this law does not apply to towns that have any local
law, ordinance or regulation licensing and regulating
junkyards, and although none of its provisions affect or
supersede zoning ordinances or any other ordinance
controlling junkyards either now in effect or hereafter
adopted, it does contain a general prohibition regarding any
junkyard,established after Sept. 1, 1965, being located within
500 feet of a church, school, hospital, public building or place
of public assembly. This latter prohibition applies to all
municipalities whether or not they have any regulations
controlling junkyards.
Violators shall be guilty of an offense punishable by a fine not
exceeding $100, and each week that such violation is carried
on or continues shall constitute a separate violation.
1. The Application
An applicant must apply to the town board for:
2021 TOWN CLERK MANUAL 298
o A license,and
o A certificate of approved location.
In addition, if there is a zoning board, the applicant
must obtain a certificate from such board stating that
the junkyard is not going to be located in a prohibited
district.
2. Public Hearing
The next step is for the town board to hold a public
hearing on the application. This hearing must be held
not less than two nor more than four weeks from the
time the application is received. Notice of the hearing
must be given to the applicant by mail, postage
prepaid, to the address given in the application and
must also be published once in a newspaper having a
circulation within the town not less than seven days
before the date of the hearing.
3. License
Within two weeks after the date of the hearing, the
town board must make a finding whether to grant the
application and tell the applicant thereof by mail,
postage prepaid.
An approved license issued is valid until the following
April 1st. Renewal will depend on how applicant
conducts his business and life and will require
repetition of the application procedure but without a
hearing.Towns normally issue licenses on a calendar-
year basis.If desired,any town could enact a local law
amending this state law to put junkyard licenses on
such a basis instead of April 1 to March 31.
In addition to a $25 application fee, the town board
can assess applicant the cost of advertising and other
"reasonable" incidental expenses of processing the
application. If the application is not approved, the
town must return the $25 fee, but is not required to
give reasons for disapproval.
2021 TOWN CLERK MANUAL 1299
The following minimum standards must be met as to
any junkyard application. It must be entirely fenced in
by either an opaque fence or trees at least 8 feet in
height.If there is a fence,it must have a gate that must
be closed when the yard is not being used.The fence
can be no closer than 50 feet from a public highway.
All junk must be located and work performed within
the fenced area.
A town board may adopt its own junkyard control law,
prescribing the procedure, license, fee and other
requirements, entirely different from GML § 136.The
town's own regulations may require the town clerk to
be the licensing official and to give all public notices.
B. Collateral Loan Brokers
Collateral loan brokers and pawn shops are governed by
Article 5 of the General Business Law and corresponding
regulations(2 NYCRR Part 15).The term"collateral loan broker"
includes any person, partnership, or corporation: (1) involved
in the loaning of money on deposit or pledge of personal
property, other than securities or printed evidence of
indebtedness; or (2) dealing in the purchasing of personal
property on condition of selling it back at a stipulated price;or
(3) designated or doing business as furniture storage
warehousemen, and loaning and advancing money upon
goods, wares or merchandise pledged or deposited as
collateral security(General Business Law,§52).
In order to operate a collateral loan business or pawn shop,the
broker must obtain a license from the town licensing authority
(General Business Law, §40; Town Law, §136(1)). Applicants
must be either U.S. citizens or permanent resident aliens.
Applicants must also provide satisfactory evidence of good
moral character.Article 5 of the General Business Law does not
2021 TOWN CLERK MANUAL 1300
address how to determine whether the applicant is of good
moral character. Therefore, the town licensing authority
should workwith local law enforcement and the town attorney
to determine an applicant's good moral standing. In addition,
the town licensing authority could also consider using an
affidavit of good moral standing similar to those provided by
the New York State Gaming Commission for games of chance
applicants.
The license must designate the business location, and no
person, corporation, partnership or firm may carry on the
business of a collateral loan broker without being duly
licensed,nor in any other location than the one designated in
said license,under a penalty of$100 for each day they exercise
or carry on said business without such license or at any other
location than the one so designated (General Business Law,
§§41,51).
The license is for one year,thereby expiring one year from the
date the license is issued (General Business Law, §41). An
annual application may be filed.Every person so licensed shall,
at the time of receiving such license,file with the local licensing
authority granting the same a bond to the local authorities,to
be executed by the person so licensed and by two responsible
sureties, in the penal sum of$10,000, to be approved by the
local licensing authority,which bond shall be conditioned for
the faithful performance of the duties and obligations
pertaining to the business so licensed,and the local licensing
authority shall have full power and authority to revoke such
license for cause(General Business Law,§41).
Every licensed collateral loan broker shall keep a book in which
shall be fairly written,at the time of such loan,an account and
description of the goods,articles or things pawned or pledged,
2021 TOWN CLERK MANUAL 1301
the amount of money loaned thereon,the time of pledging the
same, the rate of interest to be paid on such loan, the name
and residence of the person pawning or pledging the said
goods,articles or things and a notation of whether the pledgor
claims to be the owner, consignee or agent of the owner
(General Business Law, §43;2 NYCRR 15.1).Said book and any
and all other books and records regularly kept by such
collateral loan broker shall at all reasonable times be open to
the inspection of the local licensing authority. The licensing
authority of any local governing body shall have the power to
administer oaths and to examine under oath any such
collateral loan broker or any officer or agent of such collateral
loan broker and any other person having custody or control of
such books and records. Such books and records shall be
retained in the possession of the collateral loan broker,in good
condition and in an orderly fashion for at least a period of six
years (General Business Law, §45). The authority to review
records is intended to ensure compliance with state and local
collateral loan broker licensing and regulatory requirements.
The town should create standards for inspection that are
consistent with constitutional requirements and should obtain
search warrants when necessary(see EZ Pawn Corp. v. City of
New York, 390 F. Supp. 3d 403 (E.D.N.Y.2019); Gem Fin. Serv.,
Inc. v. City of New York,298 F.Supp.3d 464,(E.D.N.Y.2018),as
amended (June 27, 2018); Collateral Loanbrokers Association
of New York,Inc.v.City of New York,178 A.D.3d 598(1 st Dept.
2019).
C. Hunting,Fishing and Sporting Decals
The town clerk is required to issue sporting permits and
licenses (e.g. hunting, fishing) under the Environmental
Conservation Law unless the town opts out of this program
(Environmental Conservation Law, §11-0713), or DEC has
notified you that you are not required to issue DEC decals.The
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authority and requirements regarding hunting and fishing
permits,licenses and decals are set forth in the Environmental
Conservation Law, Article 11 (title 7) and corresponding
regulations (6 NYCRR Part 183). Each year, DEC provides
information, training and supplies regarding the issuance of
sporting licenses and permits.
Department of Environmental Conservation
Fish, Wildlife&Marine Resources
625 Broadway
Albany NY 12233-4790
Website: www.dec.ny.ciov/permits/365.htmi
DEC website to purchase hunting and fishing licenses
https://decals.licensinci.east.kalkome, .cam
NYSDEC License Sales Unit
Information for Agents(1-800-622-0280)
NYSDEC Revenue Accounting Unit
Information for Agents (1-800-962-5622 or (518) 402-
9343) revenue@dec.ny.gov
D. Going Out of Business Sales
Article 29-F (§§580-596) of the General Business Law makes it
unlawful to advertise a "closing out sale," a "sale of goods
damaged by fire,smoke or water"or a "defunct business sale"
unless a license is first obtained to conduct such sale from the
licensing authority of the appropriate town in which sale is to
be held. "Licensing authority" refers to the town clerk if there
is no department or officer established for the specific purpose
of issuing licenses in the town(General Business Law,§581 (g)).
Note:General Business Law,§584 sets forth a list of exceptions
to this requirement, including but not limited to,alteration or
2021 TOWN CLERK MANUAL 303
remodeling sale, "surplus stock liquidation," "floor sample
sale," and "inventory reduction sale." The town clerk should
review the full text of that statute.
An application must be filed with the town clerk, in writing,
under oath at least 15 days prior to a "closing out sale" or a
"defunct business sale" and if the application is for a "sale of
goods damaged by fire, smoke or water," it may be made at
any time prior to the date on which such sale is to commence
(General Business Law, §583).The application must show the
full name and address of all true owners and people in charge
of the conduct of the sale,the exact address and length of time
the applicant has been engaged in business at the location,the
date the sale begins, the nature of occupancy (lease or
otherwise), the reason for the urgent disposal of goods,
whether the business is to be terminated permanently or
reopened at another location, and an itemized inventory
including the retail value of the goods. The full list of
application requirements are set forth in (General Business
Law, §583). Sample applications may be obtained from the
Association of Towns.
The town clerk is authorized to undertake an investigation of
the facts and to issue the license within 48 hours. A license
shall be denied or refused if any one or more of the following
facts or circumstances is found to exist:
1. That the applicant is not the true owner of the goods,
wares and merchandise to be sold.
2. That the applicant has not been the owner of the
business advertised or described in the application for a
license hereunder for a period of at least six months prior
to the date of the application, or, if the applicant be a
corporation or association, controlling interest in the
corporation or association had been transferred within six
2021 TOWN CLERK MANUAL 1304
months prior to the date of the application for a license
hereunder,except:
(a) Where the application is for a license for a "sale of
goods damaged by fire,smoke,or water;'ora"defunct
business sale," and the inventory listed in the
application contains only those goods, wares or
merchandise that were on the premises at the time of
the occurrence of the circumstances warranting the
granting of a license hereunder;
(b) Upon the death of a person doing business in the
state, the representatives of his estate, or his or her
heirs, distributees, devisees, legatees, or their
successors and assignees,shall have the right to apply
at any time for a license hereunder;
(c) Where a business is required or compelled to be
discontinued because the premises upon which it is
being conducted have been taken by eminent domain
or because the premises must be vacated pursuant to
legal or judicial proceedings.
3. That in the case of a "closing out sale," the applicant,
either as owner, partner, member of an association, or
principal stockholder of a corporation,was granted a prior
license hereunder within one year preceding the date of
the filing of the application, or the applicant, within one
year prior to the date of filing of the application, has
conducted a sale advertising or representing that the
entire business at the particular location for which the
license is sought was to be closed out or terminated.
4. That the inventory contains goods, wares or
merchandise not purchased by the applicant for resale on
bona fide orders without cancellation privileges.
5. That the inventory contains goods,wares or
merchandise purchased by the applicant on
consignment,except if the consigned goods,wares or
2021 TOWN CLERK MANUAL 305
merchandise have been damaged while in the applicant's
actual possession.
6. That the applicant has, within one year prior to the
filing of the application, been convicted of a violation of
this act.
7. That the goods,wares or merchandise as described in
the inventory were transferred or assigned to the applicant
prior to the date of the filing of the application and that
said transfer or assignment was not made for a valuable
and adequate consideration.
8. That in the case of a "closing out sale" or a "defunct
business sale," the inventory contains goods, wares or
merchandise purchased by the applicant or added to their
stock in contemplation of such sale and for the purpose of
selling the same at such sale. Any unusual purchase or
addition shall be presumptive evidence that such
purchase oradditions were made in contemplation of such
sale and for the purpose of selling the same at such sale.
9. That any representation made in the application is
knowingly false.
Any applicant for a license who is aggrieved by the denial or
revocation of a license may apply to the supreme court in the
judicial district in which the place of the proposed sale is
located for a review by a proceeding under Article 78 of the
Civil Practice Law and Rules. Such proceeding shall be
instituted within 30 days of the date of the receipt of such
denial or revocation(General Business Law,§588).
If issued, the license is effective for no longer than 30
consecutive calendar days,with one renewal permitted upon
subsequent application.The license fee is $500, payable upon
submission of the application; and the renewal fee is $50.
These fees are not refundable if the application is subsequently
revoked or the store closes more than 60 days after the date of
2021 TOWN CLERK MANUAL 306
the license.If the business closes within 60 days of the license,
the fees,less$75 to be retained by the town,are refundable.A
statement must be filed with the town clerk at the termination
of the sale indicating the total retail value of the goods
disposed of. Any violation is declared an unclassified
misdemeanor, punishable by a fine of$250 or imprisonment
for one year,or both (General Business Law,§590).
A copy of the application for a license,including the inventory
filed therewith, shall be posted in a conspicuous place in the
sales room or place where the inventoried goods, wares or
merchandise are to be sold,so that the public may be informed
of the facts relating to such goods, wares and merchandise
before purchasing them.Any advertisement or announcement
published in connection with the sale shall conspicuously
show on its face the number of the license, the date of its
expiration,and if applicable,the location where the business is
to be resumed (General Business Law,§589).
Suitable books and records concerning any sale licensed
pursuant to this article shall be kept by the licensee for the
duration of the licensed sale and one year thereafter,and shall
be open for inspection by the licensing authority of the
appropriate city, town or village in which such sale was held
(General Business Law,§592).
Upon the termination of a sale licensed hereunder, the
applicant shall, within 30 days of such termination, file a
statement with the licensing authority of the appropriate city,
town or village in which the sale was held stating the total
retail value of the goods,wares or merchandise not disposed
of during the sale and the ultimate disposition thereof and, if
transferred to another,the name,address and business,if any,
of the transferee(General Business Law,§592).
2021 TOWN CLERK MANUAL 307
The licensing authority shall revoke any license granted under
the provisions of this article if, after investigation, it shall
determine:
1.That any sale by the applicant has been or is being
conducted in violation of any provision of this article, ;
or;
2. That the applicant has made any material
misstatement in his or her application for said license,
or,
3.That the applicant has knowingly failed to include in
the inventory, filed with this application, all goods,
wares or merchandise required to be contained in such
inventory,or;
4. That the applicant has added or permitted to be
added to said sale or offered or permitted to be offered
at said sale, any goods, wares or merchandise not
described in the original application and inventory,or;
5. That the applicant made or permitted to be made
any false, misleading or deceptive statements, ;
whether written or oral, in advertising said sale, or in
displaying, ticketing, or pricing goods, wares or
merchandise offered for sale (General Business Law,
§587).
If the licensing authority shall revoke any license pursuant to
the provisions of subsection (b), it shall serve notice of such
revocation upon the licensee within 24 hours of the
revocation.Notice of revocation shall be served on the licensee
in the same manner as a summons as prescribed by the Civil
Practice Law and Rules or by registered or certified mail,return
receipt requested. The failure of the licensee to discontinue
said sale upon receiptof such notice shall constitute a violation
of this article(General Business Law,§587).
2021 TOWN CLERK MANUAL 308
r
Any complaint filed with the licensing authority concerning
any violation of this article shall be in writing and duly verified
by the complainant(General Business Law,§587).
E. Parking Permits for Persons with Severe Disabilities
The town clerk may be appointed by the town board to serve
as the issuing agent for parking permits for persons with
severe disabilities (Vehicle and Traffic Law, §1203-a[1]).These
• permits allow holders to legally park in spaces reserved for
people with disabilities. A severely disabled individual is
defined in Vehicle and Traffic Law, §404-a and DMV
Regulations(15 NYCRR part 24.2(a)).
The Department of Motor Vehicles issues a guidebook titled
"Guidelines for Issuing Parking Permits" (form MV-664.2),
which may be consulted regarding questions and protocols.In
addition,the DMV program coordinator may also be contacted
for questions(518-474-0614).
Applicants must fill out Department of Motor Vehicle forms
(MV-664.1)and submit proper medical certification.Applicants
do not have to be a driver,or the registered owner of a vehicle,
to get a parking permit.The permits must be issued to a person
with a permanent or temporary disability, to use when the
disabled person drives(or is a passenger in)any vehicle that is
not being used for commercial purposes. For additional
information or forms, visit: https:Hdmv.ny_ciov/more-
info/parking-people-disabilities.
When ordering permits, the Department of Motor Vehicles
recommends ordering the total number of permits estimated
to be issued annually. Typically, the town clerk will receive
permits within five business days of placing an order with the
Department of Motor Vehicles. Extra permits may be issued
with a period of validity that is less than the five-year limit.
2021 TOWN CLERK MANUAL 1309
When issuing a permit, the Department of Motor Vehicles
recommends that the town clerk use the range of years which
are pre-printed on the permit. Permits issued to applicants
with permanent disabilities may be issued for a period
between one to five years; permits issued to applicants with
temporary disabilities may be issued for a period of six months.
Do not write in additional years as law enforcement may
interpret that as potential fraud and issue a ticket to the permit
holder or confiscate the permit.
The town clerk can contact the doctor who signed the
certification regarding any questions about the information
provided from the applicant.
Report issues regarding broken or shattered permits to the
Department of Motor Vehicles Program. Please provide the
document number of the broken or shattered permit to the
program coordinator(518-474-0614).
As the parking permit issuing agent, the town clerk must file
an annual issuing agent parking permit report with the DMV
(form MV-664.5) indicating the total number and type of
permits that were issued during the previous year, including
quantities of all original,renewal and duplicate permits.
F. Charitable Gaming Licenses
Article I,section 9 of the New York State Constitution allows for
licensed operators to conduct bingo and other games of ;
chance for the raising of funds for charitable and other quasi-
public purposes. Information regarding the town clerk's
charitable gaming licensing duties is available from the New
York Gaming Commission (www.gaming.ny.gov_ — (518) 388-
0210). ;
2021 TOWN CLERK MANUAL 310
Local Authorization
Towns must first authorize bingo and/or games of chance to
be played within the town in order for charitable organizations
to apply for charitable gaming licenses.
State Laws and Regulations
The State of New York governs the rules and regulations for
Games of Chance(e.g.raffles,bell jars and casino nights).
• Bingo (Article 14-h of the General Municipal Law;
Article 19-B of the Executive Law and 9 NYCRR
Subchapter C Parts 4800 et seq. and Subchapter D
Parts 4810-4815 et seq.)
• Games of Chance(Article 9-a of the General Municipal
Law and 9 NYCRR Subchapter A - Parts 4600-4611 et
seq.;Subchapter B-Parts 4620-4627 et seq.)
New York Gaming Commission
The New York Gaming Commission regulates bingo and
games of chance. The commission provides training,
compliance guides and assistance,as well as forms, access to
gaming laws and regulations and training manuals. The
Municipal Clerk's Licensing Guide outlines the rules and
requirements for issuing gaming licenses in an easy-to-
understand format. You can find this guide on the
commission's website
(https://qaminci.ny.gov/charitableciaminci/index.php?ID=8)
New York Gaming Commission Charitable Gaming Unit
1 Broadway Center,Suite 600
Schenectady,NY 12305-2553
Telephone(518)388-0210
Fax:(518) 347-1250
Email:cao@gaming.ny.gov
2021 TOWN CLERK MANUAL 1311
Municipal Clerks Portal
The Municipal Clerks Portal (https:Hcao.gaminci.nyaov) was
designed to forego the need to mail games of chance license
applications to municipalities and applications for ;
identification numbers to the commission.Questions or issues
regarding your municipal clerk portal account may be directed
to cao@gaming.ny.aov.
After the town clerk creates a portal account, qualified
charitable organizations may then establish secure accounts
and file all games of chance license applications electronically
with the town clerk.
Key functions include:
• Expediting and centralizing the registration and
licensing process;
• Cutting costs to municipalities by eliminating the need
to mail copies of all licenses issued to the commission;
• Retaining a history of all license applications to the
commission and the municipal clerk;
• The ability to view and print current and/or prior
licenses and applications.
Applications for Games of Chance are available at
https://www.ciaminci.ny.ciov/charitableciaming/
Below is a summary of some of the basic procedures and
requirements for issuing licenses for bingo and games of
chance.The New York Gaming Commission booklettitled "The
Municipal Clerk's Guide to Bingo and Games of Chance
Licensings' is an excellent resource for both. For more
information regarding the administrative duties of the town
clerk,forms and procedures, inquiries should be addressed to
the New York Gaming Commission. Additional information
maybe obtained by calling the Charitable Gaming Unit at(518)
388-0210 or visiting its website at www.gamina^n r..aov.
2021 TOWN CLERK MANUAL 1312
1. Bingo Licenses
Article 14-H of the General Municipal Law grants towns the
power to adopt ordinances or local laws to license bingo
games by authorized organizations within the territorial limits
of the town. Such ordinances or local laws are subject to
approval of the electors of the town before becoming effective
(General Municipal Law, §§478; 496). In most instances, the
town board has designated the town clerk as the town officer
authorized to issue bingo licenses to registered and qualified
applicants(General Municipal Law,§§480,498).
Bingo licenses are issued pursuant to the town's local law,
Article 14-H of the General Municipal Law, Article 19-B of the
Executive Law and the corresponding regulation (9 NYCRR
parts 4811 et seq.,4812 et seq.).An applicant must have a valid
bingo identification issued by the NY Gaming Commission to
apply for a bingo license (General Municipal Law, §480 (1); 9
NYCRR 4811.5).
The applicant must then file an application (Form BC-2) in
triplicate with the town clerk.The town clerk retains one copy
and forwards copies to local law enforcement and the New
York Gaming Commission (General Municipal Law, §480 (1); 9
NYCRR 4811.4).
Before issuing a bingo license, the town board or the town
clerk, if so delegated by the town board, must investigate the
qualifications of each applicant and the merits of each
application (General Municipal Law,§481).
The town is required to determine whether the applicant
qualifies for a bingo license by investigating and determining
the following:
2021 TOWN CLERK MANUAL 1313
a. The applicant is duly qualified to be licensed to
conduct bingo under article 14-H of the General ;
Municipal Law;
b. The member or members designated in the
application to conduct bingo are bona fide active :
members or auxiliary members of the applicant and
• are of good moral character (The NY Gaming
Commission has a sample Members' Affidavit
Of Good Moral Character available for
applicants to file with the application)and
• have never been convicted of a crime if there
is a direct relationship between one or more of
the previous criminal offenses and the
integrity or safety of bingo, considering the
factors set forth in Article 23—A of the
Corrections Law. (Corrections Law, §750
defines a "direct relationship" to mean that
"the nature of criminal conduct for which the
person was convicted has a direct bearing on
his fitness or ability to perform one or more of ,
the duties or responsibilities necessarily
related to the license, opportunity, or job in
question"); `
c. That such games of bingo are to be conducted in
accordance with the provisions of law and the rules
and regulations of the NY Gaming Commission;
d.That the proceeds thereof are to be disposed of as
provided by Article 14-H of the General Municipal Law;
e. That no commission, salary, compensation, reward
or recompense whatsoever will be paid or given to any
person holding,operating or conducting or assisting in
the holding,operation and conduct of any such games
of bingo except as in this article otherwise provided; _
and
2021 TOWN CLERK MANUAL 314
f.That no prize will be offered and given in excess of
the sum or value of what is allowed by law.
Upon the completion of the town's investigation and after the
required waiting period has expired, the town may issue a
Findings and Determination for the bingo license(Form BC-4).
The waiting period begins the day the application is filed with
the town and requires the town to wait at least seven days after
the application is filed to issue the town's Findings and
Determination (9 NYCRR 4812.2).
A bingo license may be issued to qualifying applicants after the
Findings and Determination is made (Form BC-5) (General
Municipal Law,§481;9 NYCRR 4812.5). The license form must
be issued in triplicate — the original license is issued to the
applicant, and copies are filed with the local law enforcement
agency,the New York Gaming Commission and the town clerk.
Copies must be filed at least five days prior to the date of the
first licensed period (9 NYCRR 4812.4).A bingo license is valid
for one year from the date the license is issued (9 NYCRR
4812.7).
Bingo licenses may be amended by filing Form BC-6 with the
town clerk(9 NYCRR 4813.1).
A license fee, along with a check.for $18.75 for each bingo
occasion must accompany an applicant's bingo license
application (9 NYCRR 4812.10). Additional fees might apply
(see 9 NYCRR 4812.2; see State Bingo Guide
www.gaminci.ny.gov/charitableciaminci/bincioguide.php).
If the application is not approved,the clerk of the municipality
shall give due notice to the applicant in writing of a hearing to
be held upon the qualifications of the applicant and the merits
2021 TOWN CLERK MANUAL 1315
of the application.A copy of such notice shall be furnished to
the commission(9 NYCRR 4812.3).
If there has been any bingo occasion during the quarter, the
licensee shall file a copy of the quarterly financial statement
report with the town clerk (see 9 NYCRR 4812.1). License
suspension may result for failure to timely file quarterly
financial reports(see 9 NYCRR 4812.5). '
r
The town clerk must file an annual report with the New York
Gaming Commission by December of each calendar year.
F
The town clerk must keep a license register on Form BC-8 (9
NYCRR 4811.6).
Bingo forms are available on the commission's website:
www.gaminci.ny.aov/charitablegaming/pforms.php?ID=8
2. Games of Chance
Article 9-A(§§185-195-n)of the General Municipal Law permits
towns, by the adoption of a local law or ordinance subject to
mandatory referendum,to authorize the conduct of games of
chance by licensed religious, charitable, educational, service,
veterans or firefighter organizations. Games of chance are
regulated by the New York State Gaming Commission. In
general, the provisions are similar to those guiding bingo
licenses and operations. Statutes are periodically updated to
include new games of chance, which might require an
amendment to a town's authorizing local law or ordinance to
accommodate the most recent games of chance. '
Games of chance include casino nights, raffles and bell jar
games as provided for in General Municipal Law, Article 9-a
and corresponding rules and regulations issued by the New
York Gaming Commission (9 NYCRR 5620.1 et seq.).There are
2021 TOWN CLERK MANUAL 316
rules regarding the times, places, activities and prizes that
apply.Towns with police departments are required to ensure
compliance with laws and regulations and may collect
additional fees to fund such activities (General Municipal Law,
§§ 194; 195-f).This function is performed by the county sheriff
in towns without police departments and in those towns
where the town board has delegated said function to the
county sheriff.The extra fees would then be paid to the county
(9 NYCRR 4624.3).
3. Raffles
There are three categories of authorized raffles:
a. Category 1 — A raffle in which the cumulative net
proceeds for the calendar year exceed $30,000:
• Applicant needs a license(Forms GC-2,GC-2A,GC-213)
• Filed in triplicate
o Town clerk keeps one copy and files a copy
with law enforcement and gaming
commission (9 NYCRR 4602.3)
o License fee is$25
o Town investigates applicant's qualifications
and records a Findings and Determination in
duplicate(Form GC-4) (GML,§191;9 NYCRR
4603.1)
• After reviewing application, seven days must pass in
order to issue a games of chance license on Form GC-5
after review of application (9 NYCRR 4603.2)
• License(Form GC-5) issued in quadruplicate:
o Clerk keeps a copy
o Applicant gets the original license
o Law enforcement gets copies of the license
and application packet(e.g.Forms GC-5,GC-1,
GC-2A,GC-213 and GC-4)
2021 TOWN CLERK MANUAL 1317
o NYS Gaming Commission gets copies of the
license and application packet(e.g.Forms GC-
5,GC-1,GC-2A,GC-213 and GC-4) ,
• License period is January 1 -December 31
• Applicant must maintain a special raffle checking
account(9 NYCRR 4624.21)
• Financial report due:
o GC-713 filed with the clerk by January 30 of the ,
following year
• 2 percent additional license fee is remitted to
municipal clerk or county treasurer with the GC-713 on
profits of$30,000 or more(Note:There is no additional
license fee paid on the first $29,999 derived in net
profits.)
b. Category 2 - A raffle conducted pursuant to General '
Municipal Law §190-a in which the net proceeds
derived from a single raffle will be less than $5,000 or '
the cumulative net proceeds for all raffles conducted
during a calendar year will meet or exceed$20,000 but
will be less than$30,000 per calendar year.
• Applicant must apply for and receive a games of
chance ID number from the New York State Gaming
Commission
• For net proceeds under$30,000:
o Applicant files a verified statement attesting
the cumulative proceeds for the year will not
exceed $30,000(Form GC-VSl)
o No license fee(9 NYCRR 4602.1)
c. Category 3 - The third raffle category, conducted
pursuant to Section 190-a of the GML, is one in which ,
the net proceeds derived from a single raffle will be
less than $5,000 and the cumulative net proceeds for
all raffles conducted during a calendar year will be less
than $20,000.
• Applicant must bean"authorized organization"as that
term is defined in article 9-a of the General Municipal
2021 TOWN CLERK MANUAL 318 ,
Law. An authorized organization includes any bona
fide religious or charitable organization or bona fide
educational, fraternal or service organization or bona
fide organization of veterans,volunteer firefighters or
volunteer ambulance workers.
• Authorized organizations with anticipated net
proceeds under $5,000 for a single raffle or under
$30,000 for cumulative raffles within a calendar year
are not required to have a charitable gaming license or
file a financial report.
4. Bell Jars and Casino Nights
Applicant must file Forms GC-2,2A,2B(General Municipal
Law§190;9 NYCRR 46021.1)
• Forms must be filed in triplicate in the town clerk's
office.Town clerk retains one copy,provides a copy to
the local law enforcement agency in charge of
compliance and files one copy with the New York
Gaming Commission (9NYCRR 5602.3).
• Application must be accompanied by a $25 license fee
(9NYCRR 5602.4).
• Bell jar license period is one calendar year.
• Vegas Night is licensed per occasion.
• The town clerk must issue a Findings and
Determination (Form GC-4) and background checks
(likely done by local law enforcement) must be
complete before issuing license.Seven days must pass
(at least) after the application has been submitted
before filing the Findings and Determination (General
Municipal Law§191,9 NYCRR 5603.1-2).
• Qualified applicants are issued licenses (Form GC-5),
completed bythetown clerk in quadruplicate,with the
applicant getting the original, the clerk retaining a
copy and forwarding remaining copies to local law
enforcement and the New York Gaming Commission
2021 TOWN CLERK MANUAL 1319
at least five days before the date of the first license
period (9 NYCRR 5603.6).
• Applicants wishing to amend a license will submit a
GC-6 in triplicate to the town clerk's office.
• The licensee must file financial reports with the town
clerk and the New York Gaming Commission (Form
GC-7;GC-7b).
• There are also rules regarding denial of applications,
revocation and suspension of licenses see 9 NYCRR
f
Part 4624.13).
Games of Chance License Fees Remitted to the State
On or before the 30th day of each month,the treasurer of the
municipality in which the licensed property is located shall
transmit to the state comptroller a sum equal to 50 percent of
all authorized games of chance lessor license fees and the sum
of$15 per license period for the conduct of games of chance
collected by such clerk or department pursuant to this section
during the preceding calendar month (General Municipal Law
§191 (2).
The forms AC-320 and AC-1810 used for remitting bingo and
games of chance license fees to the state comptroller (Audit
and Control) may be obtained by contacting:
Office of the State Comptroller
Bureau of Justice Court Fund
110 State Street
Albany,NY 12236
Phone:518-473-6438
Completed forms should be mailed directly to the
comptroller's office at the above address. Please do not mail
these to the New York Gaming Commission.
2021 TOWN CLERK MANUAL 320
Annual Report on Bingo and Games of Chance Activities
Forms are on the commission's website at
www.gaming.ny.aov.The form may be completed and mailed
or faxed by February 1 to the attention of the Division of
Charitable Gaming at (518) 347-1469. If your town has no
reportable activity for the past year,the commission instructs
that you write "No Activity" on the form and return it to the
' Division of Charitable Gaming (Executive Law,§439-a).
E. Vital Records
The town clerk is instrumental in the issuance and recording of
vital records.Vital records include:marriage licenses,birth and
death certificates, and burial permits. The town clerk issues
marriage licenses, and the registrar of vital statistics issues
birth certificates,death certificates and burial permits.
1. Birth Certificates, Death Certificates and Burial
Permits—Where a town serves as a primary registration
district(pursuant to Public Health Law,Article 41,Title II),
the town board has the authority to appoint a registrar of
vital statistics.The town clerk may be appointed to serve
as the town's registrar of vital statistics(Public Health Law
(PHL), §4122(3)(a)). Upon appointment, the town clerk
shall appoint a deputy registrar (PHL, §4122.1) and may
appoint as many sub-registrars as needed (PHL,
§14122.2).Notice of appointment should be filed with the
New York State Department of Health and the county
clerk (form DOH-1556; PHL, §4123(4)). Where the town
clerk is appointed to serve as the registrar of vital statistics,
the term of the registrar will track that of the town clerk
(PHL, §4123). The registrar, deputy registrar or sub-
registrar is subject to removal from office for failure or
neglect to perform their duties in accordance with the
provisions of Article 41 of the Public Health Law. The
registrar may receive compensation for vital records
services in accordance with Public Health Law,§4124.
2021 TOWN CLERK MANUAL 1321
a
The registrar of vital statistics duties involve the issuance
and filing of birth certificates (PHL, title III), death
certificates and burial transit permits (PHL, title IV). The
basic duties of the registrar of vital statistics are set forth
in Public Health Law,§4170:
(a) supply blank forms of certificates to whomever
requires them;
(b) examine each certificate of birth or death when
presented for record in order to ascertain whether it
has been made out in accordance with the provisions
of this article and the instructions of the commissioner
of health;
(c) number consecutively the certificates of birth and
death,in two separate series, beginning with No. 1 for
the first birth and the first death,in each calendar year,
and sign their name as registrar in attest of the date of
filing;
(d) make a complete and accurate copy of each birth ;
and death certificate registered by him or her in such
form as approved by the commissioner of health;
(e)file the permit for each burial,or cremation or other
disposition of bodies of deceased persons in his or her
district as the local record, as directed by the
commissioner of health and which shall be subject to
disposition at such time and in such manner as may be
prescribed by rules and regulations promulgated by
the commissioner of health;
(f) at such times as the commissioner of health shall
direct,and as otherwise ordered by the commissioner ;
as provided Public Health Law, §4172 transmit to the
commissioner all original certificates,including reports
of foundlings, and orders relating to parentage
registered by him or her;
2021 TOWN CLERK MANUAL 1322
(g) maintain a count of reports of fetal death with such
reports to be destroyed at the end of each month.
(h) immediately notify the division of criminal justice
services in the event that a copy of a birth certificate or
information concerning the birth records of any
person whose record is flagged pursuant Public Health
Law,§4100(2).
The New York State Department of Health provides training,
forms and a handbook for registrars for assistance in their
duties.Questions regarding vital records may be directed to:
NYS Department of Health,Bureau of Vital Records
Registration Unit,P.O. Box 2602
Albany,NY 12220-2602;Phone:855-322-1022;Website:
https://www.health.ny.gov/vital records/
The Vital Records Registration Unit has set up email addresses
for specific types of questions:
• General Questions:vrPhealth.ny.gov
• Birth and Death Certificate Questions:
registrawhealth.ny.gov
• Electronic Death Registration System:
edrsPhealth.nkaov
• Marriage:clerksPhealth.ny.gov
2. Marriage Licenses—Marriages in New York State are
primarily governed by articles 1-3 of the Domestic Relations
Law. In New York State, marriage is a civil contract requiring
the legal consent of the parties to the contract (Domestic
Relations Law,§10).
All persons who intend to be married in New York State legally
must obtain a marriage license from a town or city clerk in New
2021 TOWN CLERK MANUAL 323
York State in order to have the marriage properly solemnized
and receive a certificate of marriage(DRL,§13).
A. Town Clerk's Duty to Issue Marriage Licenses
Pursuant to Domestic Relations Law, §15 (2) and Town Law,
§30 (7) town clerks and their duly designated deputies act as
agents of the state with respect to the issuance of marriage
licenses and certificates of marriage.The State of New York has
the authority to determine the legal requirements to marry.As
agents of the state and under the general supervision of the
Department of Health, the town clerk has been assigned the
duty to issue marriage licenses to qualified applicants (DRL,
§15(2) and 23;Seymour v.Holcomb, 7 Misc.3d 530, (N.Y.Sup.,
2005)).The town clerk is authorized to ask relevant questions
and review relevant documents to ascertain whether the
couple meets the statutory requirements to be issued a
marriage license (See, Matter of Alzmann v. Maher, 231
App.Div. 139(2"d Dept 1930);Adelman v.Hubbard,60 N.Y.S.2d
387 (Sup.Ct. Kings Co. 1945); Puffer v. City of Binghamton, 59
Misc.2d 856, (Sup. Ct. Broome Co. 1969)). Domestic Relations
Law, §15 specifically empowers the town clerk to administer
oaths and require the applicants to produce witnesses to
identify either or both of them and may examine under oath or
other witnesses as to any material inquiry pertaining to the
issuing of the license. In addition, if an applicant is divorced,
the town clerk may also require a certified copy of the decree
of the divorce,or proof of an existing marriage of parties who
apply for a license to be used for a second or subsequent
ceremony; provided, however, that in towns the verified
statements and affidavits may be made before any regular
clerk or designee of the clerk's office.Once the town clerk has
determined that the applicants meet the statutory
requirements to receive a marriage license, the town clerk
must issue the marriage license (Kellogg v. Kellogg, 122 Misc.
2021 TOWN CLERK MANUAL 1324
734,(1924);Puffer v. CityofBinghamton,59 Misc.2d 856,(Sup.
Ct. Broome Co. 1969); Op.St. Comp. No.63-70), and the town
clerk should not issue the marriage license where the town
clerk has determined that the applicants fail to meet the
statutory requirements (see generally Puffer v. City of
Binghamton, 59 Misc.2d 856, (Sup. Ct. Broome Co. 1969).The
town clerk should consult with the town attorney where it is
not clear if the applicants meet the statutory qualifications.
The town clerk may enlist the assistance of the deputy town
clerk(s), and the town clerk may designate additional
individuals who can verify marriage license application
statements and affidavits(DRL,§15 (1)(a).
B. Applicants for a Marriage License Must Apply in Person
New York State does not permit applicants to apply via proxy
(DRL, §15 (1)). Please note that during states of emergency
declared by the governor,there may be temporary exceptions
to allow town clerks to issue marriage licenses remotely.
C. Gender
Couples of the same sex or different sex may legally marry in
New York State.On June 24, 2011, Gov. Andrew M. Cuomo
signed into law the Marriage Equality Act. Pursuant to the
Marriage Equality Act(CHAPTER 95/96 of the Laws of the State
of New York), couples of the same sex or different sex may
legally marry(DRL,§10-a;DRL,§13).
D. Applicants Related to Each Other
The town clerk must ascertain any familial relationship of the
applicants. Town clerks may not issue a marriage license to
close relatives such as parent and child, sibling and sibling,
uncle and niece,aunt and nephew,whether the relationship is
by whole blood or by half-blood (DRL,§5).
2021 TOWN CLERK MANUAL 1325
Pursuant to the Domestic Relations Law, §5, a marriage is
incestuous and void whether the relatives are legitimate or
illegitimate between either:
An ancestor and a descendant.Although the terms"ancestor"
and"descendant"are not defined in the DRL,these terms have
legal definitions. Black's Law Dictionary defines the term
"descendant" as "one who is descended from another; a
person who proceeds from the body of another, such as a
child, grandchild, great-grandchildren etc., to the remotest
degree. The term "ancestor" is defined as "one who has
preceded another in a direct line of descent; a lineal
ascendant."
A brother and sister of either the whole or the half blood;
An uncle and niece or an aunt and nephew or aunt and niece
or uncle and nephew.
The intent of this provision is to prohibit marriages between
parties who are of within the lineal degrees of consanguinity
or who have a relationship by descent from a common
ancestor;kinship.
First cousins are relatives in the fourth degree and thus lack the
degree of consanguinity intended to be prohibited by
Domestic Relations Law, §5. The town clerk may, therefore,
issue a license to first cousins (1941 Op.Atty. Gen. (1) No.446;
1973 Op.Atty.Gen. (1) No. 136).
E. Applicants'Ages
Both parties shall also be required to present to the town clerk
proof of age(DRL,§15 (1)(a):
• Original or certified copy of a birth record
• Certification of birth
2021 TOWN CLERK MANUAL 326
• Baptismal record
• Passport
• Automobile driver's license
• Life insurance policy
• Employment certificate
• School record
• Immigration record
• Naturalization record
• Court record
Applicants for marriage licenses must be at least 18 years old
(DRL, §15-a). If either applicant is under 18 years of age, the
town clerk may not issue the couple a marriage license (DRC,
§1 5-a) (see Chapter 306 of the Laws of 2021).
F. Marriage after Divorce
Whenever, and whether prior or subsequent to September 1,
1967, a marriage has been dissolved by divorce, either party
may marry again(DRL,§8).
While the law does not mandate that the town clerk review
divorce decrees of previously married persons, it is still the
easiest way to determine if the applicant is eligible to
remarry.The clerk might, however, consider other
documentary evidence, such as an attorney's affidavit clearly
stating that the applicant has a valid divorce decree
recognized in New York State(DRL,§15 (1)).
A town clerk issuing a marriage license is required to accept,as
evidence of dissolution of any prior marriage,a"Certificate of
Disposition" of a matrimonial action issued by a county clerk,
in lieu of a complete copy of findings of fact,conclusions of law
and judgment of dissolution (DRL,§235).
2021 TOWN CLERK MANUAL 13.27
G. Applicants cannot be Legally Married to Another Person
Bigamy is a crime (Penal Law, §§255.15, 255.25), and such
marriages are void under Domestic Relations Law,§6.
H. Inmates in the State Correctional System
The New York State Department of Corrections and
Community Supervision (DOCCS) issued Directive 4201 on
September 11, 2020 outlining the procedures for marriages
during confinement — you can review them here -
(https://doccs.nyoov/system/files/documents/2020/11/4201
O.pdfl, including information regarding application for
marriage licenses.Incarcerated individuals must appear before
a town or city clerk to apply for a marriage license.
Alternatively, the town clerk may designate an official at the
facility who can verify marriage license application statements
and affidavits for incarcerated applicants (DRL, §15 (1)(a)), or
the town clerk may appoint a prison official to sere as a
deputy town clerk for the limited purpose of processing
marriage license applications(Town law,§30(10).
Before issuing a marriage license to an applicant who is
incarcerated, the town clerk should ascertain whether the
individual meets the legal and administrative eligibility criteria
to marry. In addition to the requirements in the Domestic
Relations Law(e.g.age,competency,unmarried),incarcerated
applicants must also be authorized to marry by the proper
correctional facility authorities. For example, an inmate is not
authorized to marry another inmate,or in some circumstances,
when serving a life sentence(Civil Rights Law, §79-a;7 NYCRR
part 711.2).
I. Applicants Need not be Town Residents
It is not necessary that the license be obtained from the town
clerk of the town where either spouse to be married resides.
2021 TOWN CLERK MANUAL 1328
J. Waiting Periods—A couple must wait at least 24 hours after
the marriage license is issued to get married (solemnization)
under the Domestic Relations Law. A couple wishing to get
married during the first 24 hours must get a court order
waiving the 24-hour waiting period.The beginning
solemnization date entered on the license would be the next
day at the same hour the license is issued. The ending
solemnization date is 60 days after the license is issued (DRL,
§13-b). Please note that the license period is extended to 180
days for active military personnel (Executive Law,§354-d (1)).
K. Town Clerks May Issue Marriage Licenses Outside the
Town —The Department of Health's Division of Vital Records
has noted that there are not geographic restrictions upon
where a clerk may issue a marriage license.Moreover,there is
no statutory requirement that the applicants for a marriage
license must appear only in the town clerk's office. For
example,according to the Department of Health's Division of
Vital Records, a town clerk from another town may issue a
marriage license to applicants located in a correctional facility
in another municipality.The license would be returned to the
issuing town clerk following the marriage,and that town clerk
would record the marriage pursuant to section 19 of the
Domestic Relations Law (Peter Carucci, Dir. Vital Records
(fOrmer) NYSDOH, "Signing and Issuing Marriage Licenses,"
Town Recorder,Vol. 13 Issue 2, Summer 2000).While there is
no statutory requirement that the town clerk may only issue
marriage licenses at the town clerk's office;there is likewise no
statutory requirement that the town clerk must issue marriage
licenses at venues other than the town clerk's office.
L. Surname Options of the Applicants (DRL, §15(1)) — Every
application for a marriage license must contain a statement to
the following effect:
2021 TOWN CLERK MANUAL 1329
M. NOTICE TO APPLICANTS
Surname
(1) Every person has the right to adopt any name by which he
or she wishes to be known simply by using that name
consistently and without intent to defraud.
(2) A person's last name (surname) does not automatically
change upon marriage,and neither party to the marriage must
change his or her last name. Parties to a marriage need not
have the same last name.
(3) One or both parties to a marriage may elect to change the
surname by which he or she wishes to be known after the
solemnization of the marriage by entering the new name in
the space below. Such entry shall consist of one of the
following surnames:
(a)the surname of the other spouse;or
(b) any former surname of either spouse;or
(c) a name combining into a single surname all or a
segment of the premarriage surname or any former
surname of each spouse;or
(d) a combination name separated by a hyphen,
provided that each part of such combination surname
is the premarriage surname,or any former surname,of
each of the spouses.
(4) One or both parties to a marriage may elect to change the
middle name by which he or she wishes to be known after the
solemnization of the marriage by entering the new name in
the space below. Such entry shall consist of one of the
following options:
(a) the current surname of the spouse electing to
change his or her name;or
(b) any former surname of the spouse electing to
change his or her name;or
(c)the surname of the other spouse.
2021 TOWN CLERK MANUAL 1330
(5) The use of this option will have the effect of
providing a record of the change of name. The
marriage certificate, containing the new name, if any,
constitutes proof that the use of the new name,or the
retention of the former name,is lawful.
(6) Neither the use of,nor the failure to use,this option
of selecting a new surname or middle name by means
of this application abrogates the right of each person
to adopt a different name through usage at some
future date.
----------------
(Optional—Enter new surname above)
Rubella Information Notice
Each town clerk, or authorized deputy, when issuing a
marriage license,is required to display to the parties a typed or
printed statement containing substantially the following
information:
Rubella, also known as "German measles,"is a
common childhood disease.It is usually not
serious to children who contract it themselves,
but can be a tragic crippler of unborn babies if
transmitted to pregnant women.
Rubella infection poses a grave threat to the
unborn child, especially during the first four
months of pregnancy. It can lead to
miscarriage,stillbirth,or one or all of the tragic
defects such as deafness, blindness, crippling
congenital heart disease, mental retardation
and muscular and bone defects.
In order to be immune to rubella, one must
either receive the rubella vaccine or actually
have had the disease. To see whether you are
susceptible to rubella,you can get a blood test
2021 TOWN CLERK MANUAL 331
from your doctor.Even more important is the
availability of a rubella vaccine, which will
prevent you from ever contracting the
disease.
In order to protect yourself, your family, and
your friends, please take steps to prevent the
tragic effects of rubella.Please contact your
family doctor, health care provider, public
health facility or clinic for further information.
The legislation provides that no cause of action for damages
shall arise in favor of any person or persons yet-to-be-born by
reason of any failure to comply with its provisions(DRL,§13-d).
N. Second Marriage Ceremony
If a couple is already legally married and requires a license for
the purpose of a second or a subsequent ceremony,the town
clerk must note on the license issued the following: "This
license is to be used only for the purpose of a second or
subsequent marriage ceremony,"(DRL,§15).
O.Completing the Marriage License
The marriage documents should be typewritten, printed by
hand, or written legibly in permanent black or blue-black
ink.Colored ink or pencils should not be used.
Proper books for registration and blank forms, certificates,
statements,affidavits are prepared by the State Department of
Health and then furnished to town clerks. There shall also be
stated on the license the exact period during which the
marriage may be solemnized.
The NYS Department of Health provides marriage license
forms(DOH-98)to the town clerk(DRL,§21).The DOH-98 Form
contains three parts:(1)the affidavit;(2)the license;and(3)the
certificate of marriage. In addition to providing marriage
2021 TOWN CLERK MANUAL 1332
license forms, the NYS Department of Health also provides
detailed instruction sheets to assist the town clerk in
performance of this duty. The town clerk must assist the
applicants in filling out the affidavit portion of form DOH-98.
This affidavit portion of form DOH-98 is information about the
applicants regarding their qualifications to apply and other
information sought by the State of New York:
• Name
• Residence
• Age
• Employment
• Place of birth
• Name and residence of applicants'parents
• Number of marriages
• Disposition of said marriages
• Signature of the applicants attesting to the
veracity of the information provided
• Signature of the town clerk or deputy clerk and
the date
It is recommended that the town clerk use a worksheet or
photocopy to ascertain the correct information and then
transfer said information to an official form in order to reduce
errors and omissions.
It is recommended that the town clerk view documents
verifying an applicant's identity and that proof of the
termination an applicant's previous marriage should be
examined. In addition, if an applicant's previous spouse has
died, the town clerk should review death records for said
spouse.
The second portion of Form DOH-98 is the license itself,filled
out by the town clerk or the town clerk's deputy.
2021 TOWN CLERK MANUAL 13.33
The third and final part of Form DOH-98 is the certificate of
marriage.This portion of the form is required to be filled out
and signed by the officiant solemnizing the marriage
ceremony and the witnesses to the marriage ceremony. The
officiant must return the completed Form DOH-98 to the town
clerk within five days of the solemnization of the couple's
ceremony.
Before issuing any license,the clerk is entitled to,and must be
paid a fee,for the license and a fee for a certificate of marriage
registration (DRL§§14-a, 15).
The return address of the town clerk who issued the marriage
license must appear on the license(DRL,§14).
P.Solemnization of Marriage
Individuals authorized to solemnize marriages in New York
State are specified in Domestic Relations Law, §11 and
generally include:clergy,specified governmental officials(e.g.
the governor and mayors), and specified federal, state, local
and tribal court judges. The term "clergyman" or "minister"
includes a duly authorized pastor, rector, priest, rabbi, and a
person having authority from,or in accordance with,the rules
and regulations of the governing ecclesiastical body of the
denomination or order,if any,to which the church belongs,or
otherwise from the church or synagogue to preside over and
direct the spiritual affairs of the church or synagogue, as
defined in the Religious Corporations Law. In addition, each
municipality may appoint one or more marriage officers who
may solemnize marriages within the borders of the appointing
municipality(DRL,§11-c).
No particular form or ceremony is required when a marriage is
solemnized, provided the parties solemnly declare in the
2021 TOWN CLERK MANUAL 1334
presence of an authorized officiant and the attending witness
or witnesses that they take each other as husband and wife'.In
every case, at least one witness beside the officiant must be
present at the ceremony(DRL,§12).
The manner of solemnizing marriages shall not affect
marriages among the people called Friends or Quakers; nor
marriages among the people of any other denominations
having as such any particular mode of solemnizing marriages;
but such marriages must be solemnized in the manner
heretofore used and practiced in their respective societies or
denominations,and marriages so solemnized shall be as valid
as if this article had not been enacted (DRL,§12).
The person who solemnized the marriage must forward the
marriage certificate to the office of the town clerk who issued
the license, with any court order authorizing immediate
solemnization if such is the case,within five days after the date
of the marriage. The marriage certificate should be examined
for completeness and accuracy.
Q. Marriage Certificates
In addition, the State Comptroller's Office has previously
opined that a town clerk must issue a certificate of marriage to
a couple that has been issued a marriage license by such town
clerk, after the town clerk receives the return of such license
properly endorsed and executed by the person who
solemnized such marriage(Op.St Comp. No.63-70 citing DRL,
§14-a(1)).
' Please note that the terms "husband and wife" are required to be
read to be gender-neutral (DRL,§10-a).
2021 TOWN CLERK MANUAL 1335
The marriage certificate issued by the town clerk, after
solemnization of the marriage, must contain information
concerning the first name, new surname, premarital surname
of each of the parties to the marriage.
R. Copies of Marriage Certificates
The town clerk may also issue certificates in connection with
marriages heretofore indexed and recorded in the town clerk's
office upon payment of a fee to be fixed by the town board in
an amount not exceeding $10.No fee may be charged for any
certificate when required by the veterans'administration or by
the New York State Division of Veterans' Services and to be
used in determining the eligibility of any person to participate
in the benefits made available by the veterans'administration
or by the State of New York. Forms for the certificates are
furnished to the clerks by the Department of Health.
Additionally, the town clerk may issue a photograph, micro-
photograph or photocopy of the marriage record on file in the
town clerk's office.Again, the entire fee for such services
belongs to the town and must be turned over by the town
clerks with their monthly reports to the town supervisors(DRL,
§14-a).
S. Marriage License Corrections-Form DOH-98
The town clerk has the authority to make corrections to the
marriage license application if necessary. The DOH furnishes
form DOH-1827 to assist the town clerk in this duty as well as
instructions to properly correct the marriage application form
DOH-98 (DRL, §20). Questions can be addressed to the
Department of Health Correction Unit in Albany ((518)-474-
2013).
2021 TOWN CLERK MANUAL 1336
T. Marriage Records to be Kept by Town Clerk
Each town clerk must keep a book supplied by the Department
of Health in which such town clerk shall record and index such
information as required.The book must be preserved and kept
and is part of the public record (DRL,§19).
Applicants may request copies of the marriage certificate
issued to them for a statutory fee set forth in Domestic
Relations Law,§19.
U. Fees
The fee for a marriage license and certificate of marriage
registration is set by statute.The fee is currently $40 ($30 for
the license and $10 for the certificate of marriage registration)
(DRL, §15). The state portion of the marriage license fee
($22.50)must be waived for active duty members of the Armed
Forces, and the town board may by resolution also decide to
waive the town portion of the fee($7.50)(DRL,§§14-a, 15).The
Armed Forces of the United States means the army, navy,
marine corps, air force and coast guard, including all
components thereof, and the national guard when in the
service of the United States pursuant to call as provided by law
(General Construction Law,§13-a).The statute does not specify
what documentation is needed to qualify for the fee
exemption; therefore, you may accept whatever
documentation is generally provided by active duty military.
The Department of Health has recommended to document the
fee waiver on the license by indicating"DRL 14a(4)." If the
solemnization period is also extended, note: "EXC 354 (d)"on
the license. When noting occupation on line 4A and/or 14A
—enter Regular Occupation followed by"*Active Military" (for
example:4A Accountant*Active Military— 14A Dentist*Active
Military).
2021 TOWN CLERK MANUAL 1337
V. Transmission of Records
On or before the 15th of the month, every town clerk must
send a monthly report of the marriage licenses issued the
previous month to the state health department(DRL,§14-a(1)),
along with a fee of $22.50 for such license issued. The
remaining $7.50 for the marriage license and the$10(or lesser
amount as fixed by the town board) for the certificate of
marriage registration belong to the town and must be paid
over tothe supervisor and included in the town clerk's monthly
report to the supervisor.
The monthly report to the state health department is required
even if no licenses were issued or if the license was not
used.Send the report and fee correctly addressed to the New
York State Department of Health Revenue Unit.
Two shipments of completed marriage records are sent to the
state health department each month. The shipping dates are
the 10th and 25th of the month.A complete marriage record
consists of the affidavit for the marriage license, marriage
license,consents and court orders,if any,issued in connection
with the marriage license. These records should be correctly
addressed to the New York State Department of Health Bureau
of Vital Records.
Notethe differences in the addresses to send yourfiscal report
and the marriage records.Incorrectly addressed reports can
cause delays and loss.
W. Marriage Licenses Numbered Consecutively
Marriage licenses must be numbered consecutively during the
year,starting with No.1 at the beginning of each calendaryear.
Do not include the calendar year.
2021 TOWN CLERK MANUAL 1338
X. Photocopies
The town clerk may have marriage records photocopied,
photographed,micro-photographed or microfilmed and keep
and preserve same with a proper index in lieu of maintaining
such records in a book supplied by the state health
department.
Y. Marriage License Register
The marriage license register must be kept and preserved as a
part of the public records of the town clerk's office.When an
application is made for a search of such records,the town clerk
may make such a search and furnish a certificate of the result
to the applicant upon payment of a fee.Such fee must be paid
in advance of the search and is payable regardless of the
result.The fees are not the personal property of the town clerk,
but belong to the town and must be turned over with the
monthly report to the supervisor.
Section 19 of the Domestic Relations Law specifically states
that marriage records shall be public records and open to
public inspection whenever as may be necessary or required
for judicial or other proper purposes.The Department of
Health maintains its long-standing policy that this provision
means that these records are available for inspection only to
persons who make a showing why they need to see
information in such records.The Committee on Open
Government, however, believes these records, (except for the
affidavits and statements of consent), should be open for
public inspection to anyone.
2021 TOWN CLERK MANUAL 339
Chapter 11
The Town Clerk's
Special Town Improvement
Districts Duties
l
A town may create improvement districts to provide services
to particular areas of the town. Some of the most common '
improvement districts include water, sewer and parks. In
general,improvement districts are created either by petition of
those seeking the establishment of a district or by order of the
town board. Improvement districts are established and
operated in accordance with articles 12 and, 12-a of the Town
Law. A full discussion regarding the creation, extension,
financing and operation of improvement districts is beyond
the scope of this manual, but various administrative duties
assigned to the town clerk regarding the creation, extension,
financing and operation of town improvement districts will be
addressed.For information regarding the proper procedure to
establish,extend and fund special town improvement districts,
please see the Association of Towns' publication Town Law
Manual.
The town clerk has various administrative duties associated
with town improvement districts primarily within the areas of
filing, whether receiving for filing petitions from residents or
orders from the town board and state agencies;publishing and
posting notices associated with various town board actions
and public hearings;and certifying various town board actions,
orders and resolutions. As this is a basic overview of the
general town clerk duties,there may be additional duties not 12
k
2021 TOWN CLERK MANUAL 1340
s-
addressed in this publication. The town clerk should work
closely with the town attorney regarding the town clerk's
- duties associated with improvement districts.
§11.1 Article 12 Districts Established by Petition
Sewer, drainage, water, water quality treatment, park, public
parking, lighting, snow removal, water supply, sidewalk, a
fallout shelter district or refuse and garbage district, aquatic
pljnt growth control district, ambulance district, and
watershed protection improvement districts (Town Law,
§190).
A. Petition Filed with the Town Clerk
Property owners may file a petition seeking the establishment
or extension of an improvement district with the town clerk
(Town Law,§191).
B. Improvement District Petitions*(Town Law,§191)
A petition for the establishment or the extension of an
improvement district (except as otherwise provided in Town
Law, §190-c for water storage and distribution districts,water
quality treatment districts or sewage disposal districts)shall be
signed by the owners of taxable real property situated in the
proposed district or extension thereof, owning in the
aggregate at least one-half of the assessed valuation of all the
taxable real property of the proposed district or extension
thereof, as shown upon the latest completed assessment roll
of said town; provided, however,that if there be any resident
owners, the petition shall include the signatures of resident
owners owning taxable real property aggregating at least one-
half of the assessed valuation of all the taxable real property of
the proposed district or extension owned by resident owners,
according to the latest completed assessment roll.
According to Town Law,§191,the petition must:
2021 TOWN CLERK MANUAL 1341
• Be signed by the petitioners, and acknowledged or
proved in the same manner as a deed to be recorded,
or authenticated in the manner provided by the '
Election Law for the authentication of nominating
petitions.
• Describe the boundaries of the proposed district or
extension in a manner sufficient to identify the lands
included therein as in a deed of conveyance.
• State the maximum amount proposed to be expended
if the petition requests the construction or acquisition
of an improvement.If the petition does not request the
construction or acquisition of an improvement but
proposes the performance or supplying of certain
services, it should state the maximum amount to be
expended annually for such services.
• In the case of a petition for the establishment or
extension of a park or public parking district, describe
the property proposed to be acquired for the purposes
thereof.
*Requirements for Petitions Seeking to
Establish Water Storage and Distribution
District,Water Quality Treatment District or
Sewage Disposal District
A petition to establish a water storage and
distribution district, water quality treatment
district or sewage disposal district must be
filed with the town clerk and be signed and
acknowledged or proved in the same manner
as a deed to be recorded, or authenticated in
the manner provided by the Election Law for
the authentication of nominating petitions,by
at least 25 owners of taxable real property
situated within each water district or water
supply district proposed to be included in a
2021 TOWN CLERK MANUAL 342
water storage and distribution district or by 5
percent of the owners of taxable real property
situated within each such district, whichever
shall be less (Town Law,§190-c(1)).
Water Storage and Distribution Districts
The town clerk is required, upon request, to
provide proper forms to individuals seeking to
petition the town board for the creation of a
water storage and distribution district. The
town clerk should work with the town attorney
and the town engineer regarding the creation
of the proper petition forms(Town Law,§191-
c(4)).
Water Quality Treatment Districts
The town clerk is required to receive for filing
all maps and plans associated with the
establishment and/or extension of a water
quality treatment district (Town Law, §190-g
(2)),as well as the notice of approval or denial
of a water quality treatment district from
NYSDOH (Town Law,§190-g (3)).
The town clerk may be directed by the town
board to publish and post a notice for the
annual estimates prepared by the town board
to fund the expenses associated with
monitoring, testing and operations of a water
quality treatment district. Notice must be
published either in the official newspaper,or if
none has been designated, a newspaper
having general circulation in the town,that the
annual estimates may be examined in the
2021 TOWN CLERK MANUAL 343
town clerk's office and that a public hearing
will be held by the town board,specifying the
time when and the place where such hearing
will be held. Such public hearing may be held
on the same day as the hearing on the
preliminary budget. Such notice shall be
published at least five days before such
hearing(Town Law,§202-a).
The town clerk shall receive for filing the
annual estimates(Town Law,§202-a (8)).
Sewer, Wastewater, Drainage and Water
Districts
The town clerk is required to receive for filing
all maps and plans and amendments thereto
associated with the establishment or
extension of a proposed sewer, wastewater
disposal,drainage or water district(Town Law,
§§191-a; 192).
C.Town Board Order Acknowledging Petition
Whenever a petition has been filed in the town clerk's office
seeking to establish a district under Article 12-A of the Town
Law, the town board must adopt an order setting forth, in
general terms,the filing of such petition,the boundaries of the
proposed district,the improvements proposed,the maximum
amount proposed to be expended for the improvement as
stated in the petition orthe maximum amount to be expended
for the performance or supplying of services.
Town Law, §193 and Town Law, §193 (1) outline the
requirements of the order:
1. The order must set forth the date,time and location of
public hearing on the order.
2021 TOWN CLERK MANUAL 344
2. The order must be included in the town board
minutes.
3. The town clerk must certify the town board order
acknowledging the petition.
4. The town clerk must make available a copy of the town
board order together with an estimate of the cost to
property owners for public inspection in the town
clerk's office.
5. The certified order must be published in the official
town newspaper and posted on the town clerk's
signboard. The order must be published and posted
not less than 10 nor more than 20 days before the date
of the public hearing on the order. If the town
maintains a town website,the certified order must also
be posted on the town's website.
Please note that additional information might be required
depending upon the nature of the district; the town
attorney or town engineer should be consulted regarding
additional requirements.
D.Public Hearing(s)and Town Board Order
The town board must hold one or more public hearings on the
proposed district (Town Law, §193). The town board may
determine that the boundaries need to be altered, in which
case, additional hearings will be required.The town clerk will
need to work with the town attorney regarding proper
notification of the additional hearings(Town Law,§194).
The state comptroller's office notes the following information
should also be included in the public hearing notice:
• a boundary description;
• a description of the proposed improvements;
• the maximum proposed to be expended for the
improvement;
• the estimated cost of hook-up fees,if any,and
2021 TOWN CLERK MANUAL 1345
• the "cost of the district or extension" to the "typical
property," and if different,to the"typical one-or two-
family home."
The town clerk should work with the town attorney and town
engineer regarding the content and procedural steps
associated with such public hearings.
E. Adoption of Resolution not Establishing the District
The town board may decide not to establish the district
requested; where the town board decides not to form the
requested district, the town clerk must enter the order not
establishing the district in the minutes(Town Law,§§194;63).
F. Adoption of Resolution Establishing the District; State
Comptroller Filings
Within 10 days of adoption, the town clerk must file in
duplicate a certified copy of an order establishing a district
with an application for approval with the state comptroller's
office(Town Law,§194(3) (a);Title 2 NYCRR Part 85).The town
attorney and town engineer will compile the information for
the application,which is signed and verified by the supervisor
unless the town board directs another officer to do so.
t
The certified copy must be filed with the state comptroller
even if the state comptroller is not required to approve the
order (Town Law, §194 (3)(a); Op. St. Comp. No. 2000-3).
Submit applications to:
Office of the State Comptroller
Division of Legal Services
110 State Street
14th Floor
Albany,NY 12236
2021 TOWN CLERK MANUAL 346
G. State Comptroller Approval Required in Some Instances
Where state comptroller approval is required,the town clerk is
required to receive for filing from the state comptroller an
order granting or denying the district application (Town Law,
§194 (4)).The town clerk shall present such order to the town
board of the town at the next meeting thereof (Town Law,
§194(4)).
H. Town Board Order Filed in County Clerk's Office
The town clerk shall record in the county clerk's office within
10 days of adoption,a certified copy of the town board order
adopted pursuant to the provisions of Article 12 of the Town
Law(Town Law,§195).
I. Certified Copy Final Town Board Order Filed in State
Comptroller's Office
Within 10 days afterthe adoption of the final order bythe town
board establishing,extending or consolidating a district(s),the
town clerk shall file a certified copy of the order with the state
comptroller(Town Law,§195 (1)).Submit applications to:
Office of the State Comptroller
Division of Legal Services
110 State Street
14th Floor
Albany,NY 12236
§11.2 Article 12-A Districts Established by Town Board
Order
• The town board may establish certain improvement districts
by order (resolution) of the town board (Town Law, §209),
including sewer, wastewater disposal, drainage, water, park,
public parking,lighting,snow removal,water supply,sidewalk,
2021 TOWN CLERK MANUAL 1347
refuse and garbage, aquatic plant growth control, or
watershed protection improvement district or ambulance
district in any town, and, in any town bordering upon or
containing within its boundaries any navigable water of this
state a public dock or beach erosion control district(Town Law,
§209-a (1)).
A.Appropriation for Preparing Maps,Plans and Reports
The town board may adopt a resolution, subject, to a
permissive referendum in the manner provided in Article 7 of
the Town Law,appropriating a specific amount to pay the cost
of preparing a general map, plan,and report for providing the
facilities,improvements,or services(Town Law,§209-b).
The town clerk must publish and post a notice of the resolution
within 10 days of adoption (Town Law,§90).
The electors have 30 days from the date the resolution is
adopted to submit a petition in the town clerk's office
requesting a referendum on the resolution (Town Law, §91).
Alternatively, the town board may adopt a resolution calling
for a referendum on the resolution (Town Law, §94). If a
petition is submitted or a resolution is adopted during the
statutory 30-day period, the town board must call for a
referendum on the resolution (Town Law, §91). The
referendum must be held not less than 65 nor more than 70
days from the date the resolution is adopted or the petition is
submitted (Town Law, §91). The town clerk should work with
the town attorney and the county board of elections regarding
these requirements.
B.Maps and Plans Filed in Town Clerk's Office
The town clerk is required to receive for filing all maps and
plans and amendments thereto associated with the
2021 TOWN CLERK MANUAL 1348 ;
establishment or extension of a proposed district under Article
12-A of the Town Law (Town Law, §209-c). Maps, plans and
reports must be available for public inspection in the town
clerk's office(Town Law,§209-d (1)).
C. Town Board Order Entered into Minutes
A town board order laying out a district and noting the cost for
the district must be entered in the town board minutes(Town
Law,§209-d (1)).
D. Public Hearing
A town board order laying outthe district must also specify the
time when and the place where the town board will meet to
hold a public hearing on the establishment of the district
(Town Law,§209-d (1)).
E. Publish and Post Notice of Town Board Order and Public
Hearing
The town clerk may be directed by the town board to publish
in the official newspaper and to post on the town clerk's
signboard a notice of a town board order adopted pursuant to
Town Law, §209-d.The notice must be posted/published not
less than 10 nor more than 20 days before the date of the
public hearing (Town Law, §209-e). Although not expressly
required under Town Law, §209-d or §209-e, the town clerk
may wish to post the notice on the town's website as well.The
state comptroller's office notes the following information
should also be included in the public hearing notice:
• a boundary description;
• a description of the proposed improvements;
• the maximum amount proposed to be expended for
the improvement;
• the estimated cost of hook-up fees,if any,and
2021 TOWN CLERK MANUAL 1349
• the "cost of the district or extension" to the "typical
property," and if different,to the"typical one-or two- _
family home."
The town clerk should work with the town attorney and town
engineer regarding the content and procedural steps
associated with such public hearings.
F. Town Board Order Calling for Additional Hearings to
Change Proposed Boundaries
Town board is required to hold additional hearings in order to
change the boundaries of the district as originally proposed.
Additional hearings must be held not less than 15 nor more
than 25 days after such determination. Notice of such further
hearing shall be published and posted in the manner provided
in Town Law,§209-d,except that such notice shall also specify
the manner in which it is proposed to alter the boundaries of
the proposed district or extension. Such further hearing shall
be conducted in the same manner as the original hearing
(Town Law,§209-e(2) (b)).
G. Town Board Order Not Establishing District Entered in :
Minutes
The town board order deciding not to establish a district must
be entered in the minutes(Town Law,§209-e).
H. Town Board Order Subject to Permissive Referendum
The town board order establishing a district must be entered
in the minutes.The establishment of an improvement district
by town board order is subject to a permissive referendum.A
proposition must go before the voters in the event a petition ;
is submitted. Upon request, the town clerk is required to
supply petitions and forms to the public to assist them in this :
process (Town Law, §209-e (3)). The town clerk should work
2021 TOWN CLERK MANUAL 350
r
with the town attorney regarding the development of the
proper petition forms for distribution.
I. Petitions Filed with Town Clerk
The petition must be filed with the town clerk within 30 days
of the adoption of the town board order establishing the
district(Town Law,§209-e(3)).
J. Actions Required When No Petition is Filed
Where no petition is submitted during the time permitted,the
town clerk must file a certificate to that effect in the county
clerk's office.In addition,where state comptroller approval is
required, the town clerk must also file a certificate that no
petition was submitted with the state comptroller(Town Law,
§209-e(4) (a)).
K. Actions Required When a Petition is Filed
Where a qualified petition is filed with the town clerk,the town
clerk may be called upon to oversee a special town election
regarding the establishment of an improvement district(Town
Law,§209-e).The referendum must be held in accordance with
Article 6 of the Town Law.The town clerk should work with the
town attorney and the county board of elections for proper
procedures associated with conducting a special town
election.
L. Petition and Referendum Notification
If such a petition is filed,the town clerk must file a certificate in
the county clerk's office stating that a petition was filed, a
referendum was held and the results of the referendum. In
addition,the town clerk must also file the certificate with the
state comptroller where the establishment of the district is
subject to the approval of the state comptroller (Town Law,
§209-e(4)(b)).
2021 TOWN CLERK MANUAL 1351
M. State Comptroller Notification
Within 10 days after the adoption of a resolution by a town
board approving the establishment or extension of a district
and the construction of an improvement or the providing of a
service therein as provided in Town Law Article 12-a, shall file
a certified copy of such resolution,in duplicate,with the state
comptroller, together with an application, in duplicate, for
permission to create or extend such district,as the case may be
(Town Law,§209-f(3)(a)).
N. State Comptroller Order Filed in Town Clerk's Office
The town clerk shall receive for filing an order of the state
comptroller granting or denying permission for the
establishment or extension of the district as set forth in Article
12-a of the Town Law.The town clerk shall present such order
to the town board of the town at the next meeting thereof
(Town Law,§209-f(4)).
O. Certified Copy Final Town Board Order Filed in County
Clerk's Office
The town clerk shall cause a certified copy of the final order of
the town board adopted pursuant to the provisions of Article
12-a of the Town Law,establishing or extending any district,or
increasing the maximum amount proposed to be expended
for the improvement in any district or extension thereof, or
determining to construct any improvement authorized by this
article, to be duly recorded in the office of the clerk of the
county in which the town is located,within 10 days after the
adoption of such order or determination by the town board
(Town Law,§209-g (1)).
2021 TOWN CLERK MANUAL 352
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P. Certified Copy Final Town Board Order Filed in State
Comptroller's Office
Within 10 days after the adoption of the final order by the town
board establishing,extending or consolidating a district(s),the
town clerk shall file a certified copy of the order with the state
comptroller(Town Law,§209-g (1)).
§11.3 Additional Improvement District Duties
The town clerk is required to receive for filing the definite
plans, specifications, estimates of expenses and public
contracts with the town clerk(Town Law,§197).
The town clerk may be directed by the town board to publish
a notice of the bid opening for public works projects
associated with a proposed district.There shall be at least 10
and not more than 30 days between the first publication of the
notice and the time when the proposals will be received, and
during that time,the plans,specifications and estimates for the
work shall be exhibited publicly and available in town clerk's
office for public inspection (Town Law,§197).
A. Statement of Completion Filed in Town Clerk's Office
Upon the completion of any of the improvements authorized
by articles 12 or 12-a of the Town Law,the town board or the
official in charge of the project must file in the town clerk's
office a statement in detail showing the actual and complete
cost of the improvements(Town Law,§236).
B. Statement of Completion Included in Town Board
Minutes
The full text of the statement must be included in the minutes
(Town Law,§236).
2021 TOWN CLERK MANUAL 353
C. Town Clerk Must File a Certified Copy of Statement of
Completion with the Assessor
If the cost of the improvement shall be borne by local
assessment upon the several lots or parcels of land especially
benefited, pursuant to Article 12 of the Town Law, the town
clerk shall file a certified copy with the assessors. The copy
must be accompanied by a certified copy of the resolution of
the town board specifying the property especially benefited by
the improvement and directing the assessors to apportion so
much of the cost thereof upon the several lots and parcels of
land so deemed benefited as shall be in just proportion to the
amount of benefit which the improvement shall have
conferred upon the same(Town Law,§236).
D.Proceedings for Lateral Sewers,Drains or Water Mains
The town clerk is required to certify a town board order calling
for a public hearing for the construction of lateral sewer drains
or water mains(Town Law,§199).
The town clerk may be directed by the town board to publish
a notice of a hearing regarding the construction of lateral
sewer drains or water mains at least once in the official paper.
The first publication must be not less than 10 nor more than 20
days before the date of the hearing.The town clerk must also
post a copy of the notice on the town clerks'signboard not less
than 10 nor more than 20 days before the date of the hearing
(Town Law,§199).
E. Increase of Maximum Expenditures for Article 12-a
Districts
The town board may adopt an order increasing the maximum
amount proposed to be expended in the order establishing
the district (Town Law, §209-h (1)), in which case, a public
hearing is required (Town Law,§209-h (1)).
2021 TOWN CLERK MANUAL 354
In accordance with Town Law §209-d, notice of the public
hearing must be posted on the town clerk's signboard and
published in the official newspaper not less than 10 nor more
than 20 days before the date of the public hearing (Town Law,
§209-h(1);209-h).
F. Increase Subject to Permissive Referendum
The order of the town board increasing the maximum amount
to be expended shall be subject to a permissive referendum in
the manner provided in Town Law, §209-e (3).The town clerk
will be involved in the receipt of petitions, publication of
notices and administration of any required special elections
(Town Law,§209-h(1)).The town clerk should consult with the
town attorney and the county board of elections regarding
these duties.
G. State Comptroller Approval on Proposed Increase
State comptroller approval may be required to increase the
maximum amount proposed to be expended in the order
establishing the district (Town Law, §209-h (1)). The order of
the state comptroller shall be prepared in duplicate, and one
copy thereof filed with the state comptroller and the other
copy in the office of the town clerk of the town (Town Law,
§209-h(1)).
The town clerk shall receive for filing an order of the state
comptroller regarding increasing the maximum amount to be
spent on various improvement districts (Town Law, §202-d;
§209-h).
H.Expense of Maintenance
After the improvement is constructed and completed, the
town clerk shall acceptforfiling from thetown board estimates
and the assessment roll between the first and 15th days of
2021 TOWN CLERK MANUAL 1355
September in each year, (Westchester County towns have
different filing requirements.) (Town Law,§202-a).
I.Sewer Districts
The town clerk is required to receive for filing contracts for the
purchase from any person or corporation, municipal or
otherwise, of any trunk sewer, lateral sewer, sewer system or
disposal plant, rights-of-way and appurtenances, for. the
purpose of supplying the inhabitants of any such district with
sanitary sewer facilities(Town Law,§198(1) (c)).
The town clerk shall annually file with the town board
statements showing the unpaid rates, charges, fees or sewer
rents in such districts(Town Law,§198(1) (k)).
The town clerk shall publish a notice of any town board orders
requiring property owners to perform work associated with
sewer connections in the official paper at least twice.The first
publication must be at least 15 days before the time specified
for the completion of the work(Town Law,§201).
J.Water Districts
The town clerk shall annually file a statement of unpaid water
charges of each district, which have not appeared on
previously filed statements with the town board and with
supervisors of adjoining towns in which permits have been
issued to property owners. The town board should direct the
town clerk to file the statements at the same time estimates or
due as required under Town Law, §104 or November 1 (Town
Law,§198(3) (d)).
The town clerk shall publish a notice of any town board orders
requiring property owners to perform work associated with
water connections in the official paper at least twice.The first
2021 TOWN CLERK MANUAL 1356
publication must be at least 15 days before the time specified
for the completion of the work(Town Law,§201).
K.Lighting Districts
Property owners of a lighting district may file a petition in the
town clerk's office requesting the installation of street lighting
equipment along a street or highway or portion thereof in any
lighting district (Town Law, §198 (6)). The town board shall
adopt an order reciting in general terms the filing of such
petition and its contents and specifying the time and place,
when and where said board will meet to consider said petition
and to hear all persons interested in the subject matter thereof.
The town clerk is required to accept for filing a town board
order calling for a public hearing on the establishment of a
lighting district(Town Law,§198(6)).
A copy of such order, certified by the town clerk, shall be
published at least once in the official paper. The first
publication must be published not less than 10 nor more than
20 days before the date of the public hearing. In addition,the
order must also be posted on the town clerk's signboard of the
town (Town Law,§198(6)).
L. Transition to Benefit Basis Levy of Assessments in
Existing Lighting Districts
The town board may decide that it is in the public interest to
change the means by which a lighting district is funded -
thereby converting the district from an ad valorem levy to a
levying assessment based upon a benefit basis.This resolution
is subject to permissive referendum.The town clerk has several
duties in this process:
• Cause to be prepared and have available for
distribution proper forms for the petition and shall
distribute a supply to any person requesting same
2021 TOWN CLERK MANUAL 1357
(Town Law, §204 (1)). The town clerk should ask the '
town attorney for assistance in locating proper forms.
• If no petition has been filed with the town clerk, the _
town clerk must file a certificate in the office of the
county clerk declaring that no petition was filed in the
town clerk's office(Town Law,§204(2)(a)). ;
• If such petition was filed and a referendum was held,
the town clerk must prepare and file a certificate stating
that a petition was filed and a referendum was held and
certifying the result of the vote on the proposition
submitted at such referendum in the office,'of the
county clerk(Town Law,§204(2)(b)). ,
M.Park Districts
The town clerk shall present the state comptroller's order
regarding acquisition and improvement of park district
property to the town board at the next meeting thereof(Town
Law,§202-e).
N.Refuse and Garbage Districts
The town clerk shall annually file with the town board
statements showing unpaid rates,charges or fees in refuse and
garbage districts. Such statements shall contain a brief
description of the property for which or in connection with
which the refuse and garbage collection service was provided,
the names of the persons or corporations liable to pay the
same and the amount chargeable to each(Town Law,§198(9)).
O.Petition for Street Improvement and Proceedings
The town clerk shall receive for filing a town board-ordered
survey and profile of any street, highway, or private right-of-
way which is the subject of a Town Law, §200 street
improvement district(Town Law,§200(4)).
2021 TOWN CLERK MANUAL 1358
The town clerk shall certify the town board order,which recites
in general terms the filing of such petition or adoption of such
resolution as the case may be,the improvement proposed,the
maximum amount proposed to be expended for the
improvement and the area benefited as stated in the petition
or the resolution,and specifying the time when and the place
where said board will meet to consider the petition or
resolution and to hear all persons interested in the subject
thereof concerning the same(Town Law,§200(7)).
The town clerk may be directed by the town board to publish
a certified copy of the town board order regarding the
proposed street improvement in the town's official
newspaper.The order must be published at least once in the
official paper.The first publication must be not less than 10 nor
more than 20 days before the date of the public hearing. In
addition,a copy must be posted on the town clerk's signboard
and conspicuously in five public places along the street or
highway or private road or right-of-way or portion thereof to
be improved not less than 10 nor more than 20 days before the
day designated for the hearing (Town Law, §200 (7)).
Additional hearings may be required, and the town clerk may
be directed to furnish additional notices associated therewith.
The town clerk shall receive for filing a certificate of necessity
from the commissioner of the Department of Transportation
for a road less than three-rods in width (Town Law,§200(13)).
P.Construction and Repair of Sidewalks Pursuant to Town
1.. Board Order
- The town clerk is required to provide notice of town board
orders regarding sidewalks by certified mail addressed to each
such owner at their address as it appears upon the assessment
roll of such town, or in the alternative, by publication of a
2021 TOWN CLERK MANUAL 359
r
z.
notice thereof in the official paper at least twice, the first
publication of which shall be at least 15 days before the time
specified for the completion of the work(Town Law,§200-a).
Q.Public Hearing on the Sale or Lease of District Property _
A public hearing is required to sell or lease district property
that has a value in excess of$1,000 (Town Law, §198(12)'(a)).
Notice of such hearing must be published in the official'town
newspaper, not less than 10 nor more than 20 days prior to
date of public hearing and shall specify the time when and
place where such hearing will be held and describe the
property proposed to be sold or leased and the proposed -
terms of the sale or lease(Town Law,§198(12) (a)).
R. Mandatory Referendum Required to Sell District
Property to a County, City, Village, Town, or Public
Authority
District property may be sold to a county,city,village,town,or
public authority subject to a mandatory referendum of the
voters of the district. Such referendum shall be held in the
manner prescribed in Article 6 of Town Law (Town Law,
§198(12) (b)). The town clerk should consult with the town
attorney and the county board of elections regarding the
proper election procedures.
S. Permissive Referendum Required to Lease District
Property to a County, City, Village, Town, or Public
Authority
A lease not to exceed 40 years of district property to a county,
city,village,town or public authority is subject to a permissive
referendum held in the manner prescribed in Article 7 of the ,S
Town Law (Town Law, §198(12)(b)). The town clerk should
work with town attorney and the town clerk regarding proper
procedures.
2021 TOWN CLERK MANUAL 360
`t
T.Change of Name
The town board may adopt a resolution changing the name of
an improvement district.Within 10 days after the adoption of
such resolution, a certified copy thereof shall be filed in the
offices of the town clerk,the county clerk in which the town is
located and the state comptroller(Town Law,§198(13)).
U.Dissolution and Diminishing Area of Certain Districts
The town clerk shall certify town board orders dissolving or
diminishing the boundaries of various districts (Town Law,
§202-c).
V.Public Hearing on District Dissolution or Boundary
Reductions
The town clerk may be directed by the town board to post and
publish a notice for a hearing on the dissolution or diminishing
the boundaries of various districts. The notice must be
published in the official paper and posted on the town clerk's
signboard not less than 10 nor more than 20 days before the
date of the public hearing(Town Law,§202-c).
W. Dissolution and Consolidation Districts under Article
17-A of the General Municipal Law
Improvement districts may be consolidated or dissolved under
Article 17-A of the General Municipal Law.The town clerk has
several duties in this process.The Department of State offers
several publications regarding the procedures to dissolve or
consolidate improvement districts pursuant to Article 17-A of
the General Municipal Law that can be consulted.
X.Funding Improvement Districts by Special Ad Valorem
Levy
Where the cost of a district is charged by ad valorem levy (in
the same manner and at the same time as other town charges),
2021 TOWN CLERK MANUAL 1361
the budget process follows closely to that of the general town
budget (Town Law, §§104; 202-a (1)).The town board or the
commissioners (if there are separate commissioners) prepare
estimates of the revenues and expenses of the district, and
submit them to the budget officer on or before September 20
(Town Law,§104).
Y.Improvement Districts Funded by Special Assessment
Where the expense of a special improvement district (outside
Westchester County) is raised by a special assessment (in
proportion to the amount of benefit the parcel receives), a
special assessment roll is required. The town board (or
commissioners, if the district is operated by a separate board
of commissioners) prepares detailed budget estimates for
maintaining these districts for the ensuing year (Town Law,
§202-a(3)).After these estimates are prepared,the town board
or the commissioners assess the costs against the real property
in the district benefited in proportion to the benefits it
determines each will derive and then prepares an assessment
roll listing the properties,their owners and the assessment so
levied on each(Town Law,§202-a (4)).
Z. Improvement District Filing of Estimates and Benefit
Assessment Roll;Public Hearing
The estimates and assessment roll are then filed by the town
board with the town clerk between September 1 and 15 each
year (Town Law, §202-a (4)).Thereafter,the town board must
hold a public hearing on the question of the adoption of the
assessment roll and to hear objections from property owners
in the district (Town Law, §239). Notice of such hearing must
be published at least 10 and not more than 20 days before the
date specified for the hearing.In addition,due process requires
that direct notice must also be provided to each property
owner unless there is a compelling reason not to do so, most
2021 TOWN CLERK MANUAL 1362
often accomplished by mailing notice to the property owners
at the name and address that appear on the special assessment
roll informing them of the time, place and nature of the
hearing.The town clerk should consult with the town attorney
regarding proper procedures for direct notice(Garden Homes
Woodland Company v.Town of Dover,95 N.Y.2d 516(2000)).
• AA. Adoption of Assessment Roll;Filing
The assessment roll must be adopted (whether amended,
changed or prepared anew)at least 30 days before the annual
meeting of the board of supervisors (or county legislative
body),at which taxes are levied in the county(Town Law,§202-
a (5)).When finally adopted,it must be filed in the office of the
town clerk. The town clerk prepares and certifies duplicate
copies at the time this duty is performed in connection with
the annual budget.One copy is filed in the town clerk's office,
R
and the other copy is delivered to the supervisor, who
transmits the roll to the board of supervisors (or county
legislative body),along with the town's annual budget,for levy
of taxes against the properties benefited (Town Law,§115).
The Office of Real Tax Property Tax Services has more
information on the requirements of special assessment rolls.
www.tax.ny.ciov/research/propeM/reciional/orpts.htm
/regional/orpts.htm
` BB.Tax Levy
The town clerk is required to prepare and certify in duplicate
the annual budget as adopted by the town board, together
with the estimates for special improvement districts. Within
five days thereof, the town clerk is required to deliver two
copies to the supervisor,who must present such copies to the
county legislature within 10 days after receipt thereof from the
town clerk,for levy with county taxes(Town Law,§115).
2021 TOWN CLERK MANUAL 363
CC. Delivery of Assessment Roll to Collector; Warrant for
Collection
When the assessment roll shall have been finally approved and
adopted by the town board, the town board shall annex
thereto a warrant,which shall be signed by the supervisor and
countersigned by the town clerk commanding the town tax
collector or the receiver of taxes and assessments to collect
from the several persons named therein the sum or sums
opposite their respective names and to pay the same to the
supervisor of the town(Town Law,§240(1)).
There is authority to file the assessment roll electronically
when it has been prepared by means of electronic data
processing equipment.The warrant may be filed therewith, in
accordance with the provisions of article 15-C of the Real
Property Tax Law(Town Law,§240(2)).
s
o.
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2021 TOWN CLERK MANUAL 364
INDEX
A status, 173;assessor, 17-
ABSTRACT: 18,84,93, 142, 171-173,
audited claims,66,101-108; 194,222-223,278,354;
audited vouchers, 106-108; special assessment, 128-
local laws,78-79,219; 129;
ordinances,70-71,280;
resolutions,202,219; attorney-client
communications,35, 165-
ACCOUNTING: 166;
annual accounting,48,59,
109-110;cash books,115- AUDITS:
118;depositing monies, abstract for, 106-108;
116-117, 174;financial annual audits, 109-110; by
reports,47, 110-111, 142, auditing authority, 101;
181, 318-321;payments, town clerk duties, 101;of
100-120;payroll, 116; claims,66,101-108;help
receipts, 104, 109,114-117; with,103-105;monthly
ad valorem levy, 128,357; reports for, 109;of
361;ag district maps,196; vouchers, 106-108;
ambulance service, 194,
222,319,341,348;animal automobile junkyards,
population control,293, 298-300;
296-298;
B
ASSESSING: banking duties, 116-119;
ad valorem levy,128,357; bids,66, 181, 187,353;
361;assessment records, birth certificates, 137, 195,
171-173;assessment roll, 321-323;
128-129, 142, 171-173, bond records,112, 182;
190,207,269,278,283, bond resolutions,61-62;
341,355,362-364;BAR,
18;village assessment
i
INDEX
BOOKS: 36,47 124-25,262-263,
cash books, 115-118, 174; 280;improvement district
collateral loan,301-302, budgets, 128-129,344,
307;custodian of,15; 142- 362;minutes for,43,46-
143;filing,174;FOIL, 145; 48;officer, 121;
lien books, 174;local law preliminary budget, 124-
book, 16,81, 174; 125, 181,344; salary,4-5;
marriage license book, tax cap reporting, 122,
195,332,337,339; 125,130; tax levy limits,
minutes books,42-43,46, 122-123 125-126,363;
48,54,60,64, 107, 174; tentative budget, 123-124,
notice of claims Book,21; 142,181;transfers,61;
notice of defects,184; See also fiscal duties
personnel handbook, 178;
poll book,255;ordinance burial permits,321-322;
book, 16,41,71-72, 174,
192;recover from prior C
officer,141-142; CASH CONTROL:
supervisor's,181; cash books, 115-118, 174;
depositing monies, 116-
BUDGET: 117, 174;payments,66,
adopting, 126; assessment 100-120, 134, 147, 156,
roll filing,363;budget 296,336,339;payroll, 116;
process, 121;calendar for, petty cash funds, 118-119;
130;delivery of, 127; preventing thefts,113,
equipment, 10,43; 118;procedures for, 113-
estimate submissions, 119; receipts for,59, 104-
122;exemption impact 105, 109, 114-115;
report, 123, 173;final cemetery plot inscriptions,
budget,48, 126; fire 195-196;
district budgets, 126-127, census statement, 175;
182, 183,281; hearing on,
ii
INDEX
citizen advisory overs,98;prior to audit,
committees,33; 100;town clerk,4-5;
civil service affirmation,
87; computer-tampering, 141;
confidential records,35,
CLAIMS: 161, 165;
abstract of, 106-108;audit construction bids, 187;
of,66, 105-106;claim construction contracts,
forms, 102-103;definition 187;
of, 102;help with, 103- conveyances,deeds of,
105;prior to audit, 100- 196,205,342;
101;processing, 18, 101- corporate seal,23-24;
• 108;record of, 112, 181; countersignatures,99,
vouchers, 102-108;written 264;
notices of,21, 190-191; court records, 137,327;
See also vouchers; See also records
management;
code of ethics, 11-12,21, criminal convictions,89,
179; 240,242;
collateral loan brokers,
300-302; D
collection duties, 19, 116, dangerous condition
172; notices,21, 184;
communications, de facto officers,99;
handling,58-59; death certificates, 137,
compatibility of office,91- 195,321-323;
92, 120-121; deeds of conveyances, 196,
205,342;
COMPENSATION:
board of registration,235;
deputies, 14-15; hold-
iii
INDEX
DEPUTIES: board of registration,234-
appointing, 13;civil 236;Election Day
service classification of, procedures,249-260; ;
13;compensation for, 14; general elections,24-260;
duties of, 14;eligibility of, military ballots,250;paper
14;employment rules for, ballots,250;personal
13;number of, 13; registration for,234-235,
qualifications of,14 239,250;polling places,
232,240,23,246-260;
director of purchasing, 12, propositions,77-79, 174,
86, 194; 176-177, 199, 201,218-
disabilities,26, 237,239- 222;registered voter list,
240,244,247-248,256, 236-237;special town
294,309-310; elections, 177-178,226-
257;voter qualification,
dog licenses, 19,109, 115, 233-234;voting machines,
171,287-298; 250-251;
E electronic banking, 120;
educational seminars,34; electronic records, 132-
election ballots,250-252; 133, 135, 138, 154, 157;
Election Day procedures, See also records
249-260; management
election districts, 177,229,
244,251,259-260; eligibility,of deputies, 14; ;
eligibility,of town clerk,2;
ELECTION DUTIES: employee handbooks, 178;
absentee ballots, 176,227, employment policies, 178-
237,238-249;ballot box, 179;
249,254,256;biennial Environmental
elections,2, 198-199,219- Conservation Law, 19, ;
221,225-228,232,279; 179-180,302;
iv
INDEX
environmental records, records,184-188;
179-180; improvement district
ethics, 11-12,21, 179; records, 188-190;legal
executive sessions,37-39, services processes, 191;
49-53; liquor license, 190;local
exemption impact report, laws, 174;miscellaneous
123, 173; notices, 195-197;notice of
exotic animal registry, claims, 190-191;petitions
=„ 171; records,178;planning,
192-193;public officer
F records, 193-195;school
federal census, 175; district records, 176,197;
felony convictions,3-4,90, town classifications,175;
241-242,286; vital records, 195;zoning
fence disputes, 196; ordinances, 192;
FILING DUTIES: filing officer, 16;
' annexation, 171;
assessment records, 171- FISCAL DUTIES:
173; bond records, 182; abstract, 106-108 annual
books, 174; cannabis audits,59, 109-111; audit
licenses, 175;cemetery of claims, 105-106; bank
-w
plots inscriptions, 195; deposits, 116-118; budget
consolidation, 175; process, 121; cash control,
�- creating system for, 170; 113-118; compatibility,
dissolution, 175-176 91, 121;countersignature,
election records, 176-178; 99; electronic banking,
employment policies, 178- 120;financial reports, 109-
179;environmental 111, 142, 181; fiscal
records, 179-180;finance examinations, 111;
records, 181-182;fire monthly reports, 109, 115,
records, 182-184;highway 181, 336,339;petty cash
—�s v
INDEX
funds,118-119; preventing historical records,41,46, •�
thefts, 113-116, 118; 131, 134, 139;
processing claims,18,66, See also records
101-108;record of claims, management
181;record of obligations, history of town,42;
112, 181;franchise Home Rule petitions, 177, -
assessment,22, 173; 199-200,201-202,208, -�
Freedom of Information 210;
Law(FOIL), 145-169; Home Rule powers,71;
G I -.
games of chance licensing, IMPROVEMENT DISTRICT
222,310-321; RECORDS: _
games of chance reports, annual estimates, 190;
197,322; board of health approval,
garbage districts, 341, 189;business districts,
348,358; 188;establishing district,
grant funding, 139-140; 190;maintenance
expenses, 190;maps of -
H districts, 189;name
health,board of,41; changes, 190;plans for
health insurance,5; districts, 189;purchase
highway defects record, contracts, 189;by .�
184; suburban class towns, 188;
highway records: improvement district
all, 187; commissioners, 194; —
abandonment,186-187; •'
discontinuance, 187; IMPROVEMENT DISTRICT
mileage report,186; DUTIES:
orders, 185-186; ad valorem levy,357,361; T
street names, 185;
Vi
INDEX
Article 12 districts,341- increases,354-355;
347;Article 12-A districts, recording minutes,349-
347-353;assessment roll, 350,353;selling district
362-364;boundary property,360;sewage
changes,350,361; disposal district 341-342;
certification of order,354; sewer districts,356;sewer
consolidating districts, drains,282,354;tax levy,
361;dissolution of,282, 363;sidewalk
361;election,234; construction,359;special
establishing districts,346; assessment for,362;street
expense estimates,362; improvement,282,358;
filing estimates,354;filing warrant,364;wastewater
• petitions, 342-344,351; districts,344,347;water
filing records,353; distribution districts,341-
statement of completion, 342;water districts,282,
353;garbage districts,358; 341,347,356;water
hearings,345,349;leasing mains,282,354;water
district property,360; quality treatment districts,
lighting districts,347,281, 341,343;water storage
357;maps of districts,348; districts,343;
name changes,361;
notifying OSC,347,352- indebtedness records, 182;
353;order,344,346,349- indexes,filing,21, 145,
350;park districts,282, 170, 184, 191,336-339;
347,358;permissive infrastructure records,
• referendum,350-351,355, 184;
360;petitions for,206-207, See also highway records
341-344,351;plans for insurance benefits,5;
districts,348; posting inter-agency documents,
notices,349-350;proposed 163;
Vii
INDEX
intra-agency documents, local employment rules,
163; 13-14;
local ethics requirements,
L 11-12,21;
leasing district properties,
360; LOCAL GOVERNMENT
leave allowances,5-6, 178; RECORDS:
legal services processes, access,8-9,45,51, 114,
191; 131-145,170;custody,
142-145;grant funding,
LICENSING DUTIES: 139;tampering, 141;
automobile junkyards, responsibility for, 132, +
298-300;bingo licenses, 140; retention of, 134-141; _
311,313-316;collateral types of, 145;
loan brokers,300-302;dog See also records
licenses,287-298;hunting management
and fishing,302-303;
games of chance,316-317; LOCAL LAWS:
going out of business sales, abstract of,218-219;
303-309; license-issuing adoption of,48; aging,75-
officer,285;marriage 76;amendments to,76;
licenses,323-339;parking, book of, 16,81, 174;
309-310;raffle licenses certification of,79;
317-320;responsibility documenting steps of,81;
r-
for,285; effectiveness of,81;filing
See also permitting duties copy of,80-81; .,
introduction,72; '-
lien books, 174; numbering,80;petitions
lighting districts,347,281, 77-78, 177,200-201;
357; proposition for,78,220;
viii
INDEX
public hearing on,73-75; petitions,58;preparing
referendum on,77-79; for,44;prior meeting
town clerk's role in,72; minutes,56-57;posting,
voting on,76;zoning laws, 53;resolutions,59-62;
74-75; recording orders,62;
review of,50-51,56;
local option petitions,210; signing,51;software for,
43;statement in,49;
M subscription for,52;tips
management officer, 132; for,53-54;verbatim
marriage licenses,323- minutes,48-49;voting,25,
339; 31,37,49,63;
meeting facilities,26;
meeting packets,37; motions,recording,59-62;
municipal consolidation
MINUTES: petitions, 176;
accuracy,44-45; municipal dissolution
amending,51;books of, petitions,176;
42-43, 174;completion of,
53;content of,45-48; N
correcting,51; NYS Register,21, 196;
discussions,64;duty to
take, 16,24,41;equipment NOTICES:
for,43; examples of,54- of claims,21, 112, 190;
66; executive session,39, content of,4,29-30,262-
52; format of,45; 263; direct notices,268-
improvement district,345- 269;elections,229-232,
346,349-353;indexing,45; 236;hearings,68,73,124,
for local laws,48;marginal 126, 129, 188, 193, 197,
notes,57-58;official 262,269,275-284,299,
record of,42;for 349;highway, 184-185,
ordinances,48;for 187;improvement district,
ix
INDEX
349;meetings,26-29,36- OFFICE OF TOWN CLERK:
37;newspaper,265-268; access to,8;compatibility
posting, 16,202,264; of office,91-92, 120;
proof of,67, 195;272-275; equipment for, 10-11,57;
publishing, 111,202,265- hours for,8-10;location
268;tax notices, 10, 172; of,7;qualifying for,3,83,
types of,261,275-284; 88;resigning from,4,18,
89,95-96;signboard for,
O 16,28, 124, 126, 145,230,
OATHS: 264,272,276-282,345,
administered by,85;audit 349,254-361;supplies for,
of claims, 103;civil service 10-11;term of, 1-2;
affirmations,87,194; vacating,3,91-95;
election inspectors,87,
246;failure of filing,3,14, OPEN MEETINGS LAW:
87,90,98-99;fees for citizen advisory
administering,87;filing, committees,34;
86-87,170, 193,235;fire educational seminars,34;
officials oaths,85;license enforcing,40;executive
applicants,302-304, 324; sessions,37-39;
public office oaths,85; exemptions from,35-36;
qualifying for office,3, 14, meeting facilities,26;
83;undertaking of,88-89; meeting packets,37;notice
of meetings,36-37;public
obligations,record of, 112, participation,39-40;
136, 181; recording,40;site visits,
office equipment, 10-11, 34;social gatherings,34;
57; subcommittees,33;
office hours,8-10, 101,
209,245,280; ORDINANCES:
office location,7; abstract of,70,280;
X
INDEX
adopting,67,70-71;book personal service, 20, 191;
of, 16,41,71, 174, 192; personnel policies, 178;
changes to,70;inspection
of 9;introduction of,67; PETITIONS:
licenses pursuant to, 19, certification of,216-217;
285-286,298,313-316; checklist for,202-203;
minutes for,46,48,70; clerk duties,201,20;
proof of map,70; public content of,205;filing,
hearing on,67-69,267- 209-211;forms for,203,
268; statutory authority 206;judicial review,217;
for,67;stamped town seal, objecting to,217-218;
23;summary of,70;taking receipt of,9, 18,204,212;
effect,70;town clerk's role requirements of,211-216;
in,67-712;zoning signatures for,206-209,
ordinances,67,74-75; 192- 213-216;types of,222-224;
193,263,267-268; advisory/nonbinding,201;
alcohol,sale,209,210,221;
P consolidation or
parcel records, 172,354; dissolution,176;
park districts,205,347, improvement districts,62,
358,282; 178, 188; local laws, 177,
parking permits,309-310; 201,218;protest petitions,
payroll, 116; 201; public opinion,200,
permitting duties: 201;resolutions,202,218,
burial permits,321; 220;voter initiative,200;
parking permits,309-310;
responsibility for, 19-20; petty cash funds, 118-119;
See also licensing duties
personal injury,notice of PLANNING BOARD:
claim, 190; certificates of training,
personal property 195;comprehensive plan,
damages, 196; 193;records, 144;removal
A
INDEX
from office,89;site plan public inspection of
review, 193,283;special records,21,101, 111, 124,
use permit, 193,283; 127, 142, 145, 177, 181,
subdivisions, 193,283; 183, 190, 192,238,245,
vacancies,95; 339,345,349,353;
police squad,86,194; PUBLIC OFFICERS:
poll clerks,232,251,252, appointing, 1,13,16,83-
260; 95,98,121, 146,194,232,
population changes, 175; 234,321,334;
procurement policies, 10- characteristics of,82-83;
11,43, 182; criminal conviction of,90;
property damage, 190; de facto officers,99;death
property owner disputes, of,89;holding over,98-99;
196; incompetency of,90;
property tax maps, 171; nonresident of town,89;
propositions,41,78-79, notifications of,87,92-93;
174,219-222; oaths of,3, 14,83,85-87,
90,98-99, 103, 193,235,
PUBLIC HEARINGS: 246,274;official
boundary line,278; undertakings, 17,88-89;
budget,4, 124-125,280; qualifications of,3, 14,83-
improvement district, 128, 84;removing from office,
188,345,349-350,354, 89;resignation of,4, 18,
357,360,362;licenses, 89,95-97;vacancies for,3,
286,299;local laws,73-76; 17,89-95;
minutes,65;ordinances,
67-71,263,268;planning PUBLIC RECORDS:
and zoning, 193;veteran access to, 131, 144-145;
memorials,276; custodian, 15, 142;
xii
INDEX
importance of, 131; records, 163;index, 145;
record-tampering, 141; police personnel records,
• See also records 166-169;privacy concerns,
management 161-163;redacting
records, 160;reasonably
purchasing director, 12, described, 153;rights
86, 194; regarding, 145;trade
• secret documents, 164-
Q 165;volume of request,
QUALIFICATIONS: 159;
of deputies, 14;for public
d
office,83-84;of town RECORDS MANAGEMENT:
clerk,3;of voters,233-234; access to records,8-9,45,
51, 114, 131-145;
quorum requirements,24, conserving records,138-
• 25,30,33; 139;custody issues,142-
145;disposing of records,
R 134-136;electronic
real property tax services, records, 138;grant
17,22,93, 194-195,363; funding, 139;historical
• records, 139;imaging of
RECORDS ACCESS: records, 138;index of
access officer, 146-147; records, 145;leaving office
access to town records, of, 141-142;location for,
• 145;attorney-client 142-144;microfilming
records,165-166;denials, records, 138;officer for,
150-151;exemptions to 132-133;record-
FOIL, 159;FOIL fees, 156- tampering, 141;
158;FOIL requests, 147- responsibility for, 132,
153;FOIL response time, 140;retention of records,
154-155;inter-agency 134-141;
records, 163;intra-agency See also filing duties
xiii
INDEX
REFERENDUM: improvement districts,
advisory referendum,200; 340;minutes,45-48,51,
checklist for,202-203; 59-62;referendum,5, 178,
clerk duties,201-202; 199,200,202, 206-207,
definition of,199-200; 209;
election referendum,221-
222;improvement district, S
178;341-344,351,358, SCHOOL DISTRICTS:
360;issues subject to, 177- consolidation, 176; -
178 222-224;local laws, descriptions, 197;road
77-79;mandatory abandonment, 186;tax
referendum, 1-2,5,9, 19, records, 172;
77,79, 199;permissive
referendum,5,77, 177, selling improvement
178,200;propositions, district land,360;
219-221;types of petitions, sewer districts, 188,205,
201;voter initiative,200; 281,342,344,347,356;
sewer main,trunks, 189,
RESIGNATION: 282,354;
effective date of,97;filed, sewer rents collections, 19;
95, 193;legal criteria for, sexual harassment, 178;
96;notification of, 18,97; shared services records,
town clerk,4,96;town 175,287;
justice,96;town officers, sidewalk construction,
18,95;vacancy created,3, 359;
89;written,96;withdrawal signboard, 16,28, 124,
of,97; 126, 146,230,264,272,
276,278,270-282,345, a
RESOLUTIONS: 349,354,355,357,359,
adopting,59-62;copies in 361; ,
advance of meeting,37, snowmobile operation,
44;defined,32-33,59; 184;
xiv
INDEX
social gatherings,34; town assessor, 17-18,84,
social security, 6, 15, 158, 92-93, 142, 171-172, 185,
163, 168; 194,222-223,278,354;
SPDES discharge
monitoring, 179; TOWN BOARD:
special town elections, duties of,22,23;local
226-257; laws,72-81;
See also election duties subcommittees of,33;
state ethics requirements, town ordinances,67-71;
11-12,21, 179;
state of emergency orders, TOWN BOARD MEETINGS:
196; access to,26;attending,
State Register,21, 196; 24;calling meetings,27;
calling to order,55;
STREETS: cancelling,27;
improvement petition, communications,58;
282,358;naming, 185; committee reports,59;
numbering, 185;profiles, executive sessions,37-39,
185;street records, 184- 52;facilities,26;location
188;street signs, 185; for,25;minutes for,16,
41-66;motions by,32,59;
T notice of,27-30,36;Open
TAXES: Meetings Law,33-41;
tax cap reporting, 122, orders,62-63;order of
125;tax collection duties, business,55;postponing,
19;tax collector, 10, 19, 30;preparation,44;
88, 118, 194;tax levy presiding over,31-32;
limits, 125,363;tax public documents for,37;
notices, 172; public participation,39-
405 49;quorum,25,31;
thefts,preventing, 113- recording,40;resolutions,
115, 117; 323 59-62;regular meeting
xv
INDEX
schedule,27;rules of budget, 123;reviewing
procedure,30;special budget, 123;tax cap
meetings,28;statutes reporting, 122, 125;tax
governing,24; levy limits, 122-123, 125,
videoconferencing,25-26; 363;tentative budget, 123-
voting,31,63; 124, 181;See also fiscal
duties
town boundary
alterations, 175; TOWN CLERK:
compensation,4-5;
TOWN BUDGET PROCESS: deputies, 13-15; duties,
ad valorem levy,127; 15-22;election duties,226-
adopting budget,48, 126; 260;eligibility,2;filing
assessment roll filing, duties, 170-197;fiscal
129,173,2785 362-364; duties, 100-130;health
budget officer, 121; insurance,5;improvement
calendar for, 130;delivery districts,340-365;leave
of budget, 127;estimate allowances for,5-6;
submissions, 122; licensing duties, 19,285- „
exemption impact 339;management,131-
report,123,127;final 135;minutes,24,41-66;
budget,48, 126;fire notice duties,261-284; r
district budgets, 126-127, permitting duties, 19-20;
182,183;hearing on,47, petitions duties, 198-224;
124-125,2625 280; procurements by, 10-12;
improvement district public officer duties,82-
budgets, 128-130,355, 99;qualifications,3; '
363;minutes for,43,45- records access duties, 146-
48;modifying budget,125; 147;referendum duties,
preliminary budget, 124- 201-204;resignation of,4,
125, 181;preparing 89;retirement system,6;
budget, 123; presenting term of office, 1-2;town
xvi
INDEX
board duties,23-81; village assessment status,
vacating,3,89-98; 173;
TOWN CLERK OFFICE: VITAL RECORDS:
access to,8;compatibility birth certificates,321-323;
of,91-92,120;equipment, death certificates,321-323;
10-12,57;hours,8-10, filing, 195;maintaining,
101,245,280;location of, 137;marriage licenses,
7;qualifying for,3,83,86- 323-339;
90,235;resigning from,4,
18,89,95-97;signboard, VOTING:
16,28, 124, 126, 146,230, absentee ballots, 176,2273.
264,272,276,278,270- 237,238-249;ballot box,
282,345,349,354,355, 249,254,256;canvassing
357,359,361;supplies for, votes,227,246,249,256;
10-12;term of, 1-2; certifying votes,256;
vacating,3,89-90; emergency ballots,260;
military ballots,250;
town corporate seal,23-24; minutes for,49,63;paper
town history,42; ballots,250;propositions,
town justices,86; on 238;qualifications for,
town meeting Dutch, 198- 233-234,247;registered
199; voter list,236-237;roll call
training,34,40, 139, 145, voting,31;town board
194-195,303,311,323; meetings,31,49;voting
areas and booths,251,254;
V voting machines,250-251;
VACANCIES: See also election duties
duties regarding, 17;
filling,93-95;notification VOUCHERS:
of,94;vacating office,89- abstract of, 106-108;
95;vacation time,5-6; auditing,66, 105-106;
xvi i
4
INDEX
i�
certifying, 101-104; zoning laws extra notice,
correcting deficiencies, 74-75; f
106;form, 102-103;help zoning maps, 192; II
with,103-105;itemizing, zoning ordinances,67-68,
104; 70-71, 192-193,268,298;
See also claims zoning records,192-193;
W
wastewater districts, 189,
281,344,347;
water damage,GOB sales,
304-305;
water districts,189,205,
281,282,340,341,344,
347,356;
water interconnection
plan, 176;
water mains,282,354;
water navigable,348;
water quality treatment f
districts, 189,282,341-
343;
water rates collections, 19;
water storage districts,
343; r
workplace violence, 178-
179; `
Z
ZBA decision, 193;
zoning board of appeals,
35,89, 195,275,299;
j
xviii