Opinion 90-21

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

CLAIMS -- Audit (procedure in town)
LOCAL LAWS -- Transfer of Function (town clerk's function in connection with preparation and custody of claims)
TOWN CLERK -- Powers and Duties (preparation and custody of claims)

TOWN LAW, §119; MUNICIPAL HOME RULE LAW, §10(1)(ii)(a)(1): A town, by local law subject to mandatory referendum, may transfer to another town official the town clerk's power with respect to the preparation and custody of claims.

This is in reply to your letter and a related one from the town clerk concerning the proper procedures for the preparation of claims for audit and for retention of audited claims in a town of the second class which has not established the office of town comptroller. You ask whether claims may be prepared and presented to the town board for audit by the secretary to the supervisor and may be retained in the supervisor's office after audit and payment.

Subdivision 1 of Town Law, §119 provides that, in a town in which there is no town comptroller, the town clerk "shall cause each claim presented to the town board for audit to be numbered consecutively ... and to be stamped or otherwise marked with the date of presentation". Those claims must be available for public inspection at all times during office hours. Town Law, §119(1) further provides that when a claim has been audited by the town board, the town clerk must file the claim in numerical order as a public record in his or her office. In addition, the town clerk must prepare an abstract of the audited claims directed to the town supervisor authorizing and directing him to pay to the claimant the amount allowed upon his claim.

Except as otherwise provided with respect to the audit of claims by a town comptroller (see Town Law, §§34, 119[2]), there is no provision in the Town Law authorizing the transfer of the clerk's functions with respect to presentation and custody of claims to any other town officer. It is necessary to determine, however, whether the town may accomplish such a transfer pursuant to its home rule powers.

Municipal Home Rule Law, §10(1)(ii)(a)(1) provides that a local government may adopt local laws, not inconsistent with the Constitution or general laws, relating to, among other things, the powers and duties of its officers and employees. In addition, section 10(1)(ii)(d)(3) authorizes towns to supersede any provision of the Town Law, with certain exceptions, relating to its property, affairs or government or other matters of the town to the extent to which it is authorized to adopt local laws (1987 Opns St Comp No. 87-43, p 66; 1985 Opns St Comp No. 85-46, p 62). One of the exceptions stated in section 10(1)(ii)(d)(3) prohibits a town from superseding the provisions of Article 8 of the Town Law relating to town finances. Article 8 includes section 119 which, as noted above, requires the town clerk to prepare a claim for audit and have custody of audited claims. It is further provided in section 10(1)(ii)(d)(3), however, that nothing in that provision shall preclude the adoption of a local law transferring or assigning the functions, powers, and duties of one town officer to another. Therefore, based on the home rule authority granted by the Municipal Home Rule Law, in our opinion, a town, by local law, may transfer these functions of the town clerk to another town officer (see 1989 Opns St Comp No. 89-35, p 82). It must be emphasized, however, that a local law which transfers any of the powers of the clerk to another official would be subject to a mandatory referendum (Municipal Home Rule Law, §23[2][f]).

We note in this regard that the segregation of duties relative to the audit and payment of claims between the town clerk and the town supervisor is intended to provide a check or balance upon the powers and duties of the supervisor (12 Opns St Comp, 1956, p 52; see also 1989 Atty Gen [Inf Opns] 65, and 1986 Atty Gen [Inf Opns] 30 concluding that the positions of the clerk and confidential secretary or bookkeeper to the supervisor are incompatible). Thus, even though it may be possible to transfer the clerk's functions in connection with the preparation and custody of claims to another town officer by local law, the town, by doing so, may be eliminating certain important internal controls provided under the current statutory scheme and, therefore, the town board should carefully consider the increased risks resulting from the loss of such controls.

June 15, 1990
Thomas Savage, Town Supervisor
Town of Palermo