Opinion 2006-6

This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

PUBLIC OFFICERS AND EMPLOYEES -- Leave Time Generally (authority to provide leave of absence to elected official)
TOWN BOARD -- Powers and Duties (authority to provide leave of absence to town supervisor)
TOWNS -- Powers and Duties (authority to provide leave of absence to town supervisor)
TOWN SUPERVISOR -- Compensation (leave of absence)

GENERAL MUNICIPAL LAW §92(1): A town board may not grant a leave of absence to the town supervisor. Rather, the supervisor generally may determine to take time off for personal reasons in his or her discretion.

You ask whether a town supervisor may be granted a leave of absence by the town board pursuant to section 92 of the General Municipal Law.1

Section 92(1) of the General Municipal Law provides that the governing board of certain entities, such as a town, may grant vacations, sick leaves and leaves of absence, with or without pay, to its “officers or employees,” and adopt rules and regulations in relation thereto. Section 92 does not, on its face, distinguish between elective and appointive officers. It is well-established, however, that an elected officer receives the salary fixed for the office as an incident of the office, and the absence of the elected officer from his or her duties on account of sickness, vacation or personal reasons generally will not deprive the officer of his or her salary (see, e.g., Bookhout v Levitt, 43 NY2d 612, 403 NYS2d 200; 1980 Opns St Comp No. 80-416, p 121; compare 1991 Opns St Comp No. 91-39, p 115, discussing the waiver of salary by a public officer). Further, an incumbent elected officer holds that office until the occurrence of an event that creates a vacancy (see Public Officers Law §30[1], [3]; NY Const, art. XIII, §6; Bookhout, supra).

Based on these principles, the Court of Appeals has held that retired elected officials were not entitled to receive additional retirement service credit for accumulated unused sick leave pursuant to section 41-j of the Retirement and Social Security Law. The Court noted that “the subject of unused sick leave is inimical and not relevant to elected holders of public office such as petitioners who are heads of their own departments or offices and are permitted within broad limits to determine their own hours of work” (43 NY2d at 618, 403 NYS2d at 203-204; citation omitted). Further, the Court, stated that:

Sick leave … is not an attribute of or applicable to public offices held by elected officials. The very nature of petitioners’ offices contemplate that the occupants generally were free to take as much or as little time off as they might wish under a schedule they controlled (see 24 Opns St Comp, 1968, pp 88, 450; 17 Opns St Comp, 1961, pp 16, 148). (43 NY2d at 619, 403 NYS2d at 204).2

We believe the Court’s reasoning applies equally to leaves of absence. As is the case with time off for illness, an elected town officer may determine to take time off for personal reasons. The decision to take such time off lies with the elected official, not the town board.

Accordingly, based on the rationale in Bookhout, supra, it is our opinion that the leave of absence provision in section 92 of the General Municipal Law, which authorizes a town board to grant leaves of absence with or without pay, does not pertain to elected officials, such as the town supervisor. Rather, the town supervisor, as an elected official, generally may determine to take time off for personal reasons in his or her discretion.

August 21, 2006

John M. Sipos, Esq., Town Attorney
Town of Varick

1 We note that the issue here arises because the individual in question has been advised that in order to transfer her membership from the New York State and Local Retirement System to the New York State Teachers Retirement System she must resign or be given an authorized leave of absence (see Retirement and Social Security Law §43). For the reasons set forth in this opinion, we do not believe that, as an elected official, she may be given a leave of absence.

2 The Court, however, noted the possibility that there could be such gross neglect of duties as to warrant removal from office ( Bookhout, supra, 43 NY2d at 619, 403 NYS2d at 204; see also Public Officers Law §36; Williams v Travis, 194 AD2d 969, 599 NYS2d 187; Baker v Baker, 87 Misc 2d 592, 386 NYS2d 313).