Opinion 91-46

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

COUNTY CLERK-- Compensation (increase during term of office)
PUBLIC OFFICERS AND EMPLOYEES -- Compensation (increase or decrease for county clerk during term of office)

COUNTY LAW, §201; STATE CONSTITUTION, ARTICLE XIII, §7: A county clerk is not a State officer for purposes of the State Constitution's prohibition against in-term changes in compensation payable to state officers named in the Constitution. Compensation payable to the county clerk may be increased during his or her term of office, subject to the provisions of County Law, §201.

You ask whether 1984 Opns St Comp No. 84-45, p 55 still represents our views in light of the decision of the Court of Appeals in National Westminister Bank v New York, 76 NY2d 507, 561 NYS2d 541.

In Opn No. 84-45, supra, we concluded that the county clerk is not a "state officer" for purposes of article XIII, §7 of the New York Constitution, which prohibits changes in compensation during the term of office of "[e]ach of the state officers named" in the Constitution. Therefore, a county, subject to the provisions of County Law, §201, would not be precluded from increasing the salary of a county clerk during his or her term of office. That opinion was based upon the decision of the Court of Appeals in Kelley v McGee, 57 NY2d 522, 457 NYS2d 434, holding that the district attorney may no longer be considered as a "state officer" for purposes of article XIII, §7. Subsequent to that opinion, the Court of Appeals in National Westminister Bank, supra, held a county clerk to be a "state officer" when acting as clerk of the courts.

Article XIII, §7 of the State Constitution provides that "[e]ach of the state officers named in this constitution shall, during his continuance in office, receive a compensation, to be fixed by law, which shall not be increased or diminished during the term for which he shall have been elected or appointed ...". As explained in Opn No. 84-45, supra, in Kelley v McGee, supra, the Court of Appeals concluded that this constitutional limitation did not prohibit the salaries of district attorneys from being increased during their terms of office. The Court noted that early judicial decisions had determined that the district attorney was a State officer within the meaning of article XIII, §7, even though, for other purposes, the office was deemed to be local in nature. The Court went on to state, however, that more recent constitutional developments had operated to remove this office from its previous constitutional status and concluded that the district attorney may no longer properly be considered to be a State officer for purposes of article XIII, §7.

In reaching its conclusion, the Court discussed the home rule powers conferred upon counties by article IX of the Constitution and stated that the characterization of a district attorney as a State officer is conceptually incompatible with the broad authority afforded counties over an "essentially" local office. Of particular note, the Court cited the former Optional County Government Law and stated as follows:

In connection with those options, counties were empowered to adopt certain variations concerning the offices of District Attorney, county clerk and Sheriff [citation omitted]. The Alternative County Government Law, enacted in 1952 to supersede the former law, provided even greater power in county governments over those essentially county offices, including the power to designate them as elective or appointive [citation omitted]. (57 NY2d at 535, 457 NYS2d at 438; emphasis added).

Further, the Court referred to its "determination herein that the constitutional role of county government has evolved to a point at which its officers may no longer be deemed State officers for purposes of the Constitution's ban on midterm salary increases ..." (id. at 539, 457 NYS2d at 440; emphasis added). Although the Court's references to the county clerk and the county sheriff are dicta in the context of the case, we believe the clear import of the opinion is that each of the county officers identified therein, including the county clerk, though each may at times serve both county and State functions, is not to be considered a "State officer" for purposes of article XIII, §7.

We reached our conclusion in Opn No. 84-45, supra, notwithstanding the lower court holding in Levy v Evans, 118 Misc 2d 1, 459 NYS2d 990, affd 103 AD2d 681, 477 NYS2d 177. The issue in Levy, supra, was whether the salaries of the five county clerks of the City of New York, who as officers or employees of the Unified Court System are paid as "State employees", could be "lagged"; that is, whether one day's pay for each of ten consecutive pay periods could be withheld until such time as the clerks left their employment. The lower court concluded that the salaries of the county clerks could not be lagged because, in the opinion of the court, county clerks generally were State officers for purposes of article XIII, §7 of the Constitution. However, in Opn No. 84-45, supra, we concluded that the Court of Appeals decision in Kelley, not Levy, was controlling as to whether county clerks are local officers to whom article XIII, §7 does not apply.

The Appellate Division decision in Levy, supra, supports this view. On appeal, the order of the lower court was affirmed, but on the ground that County Law, §908(2) guarantees those county clerks an annual salary not less than the compensation received by the civil court judges of the city of New York. The court concluded that deferral of part of the clerk's compensation amounted to a denial of the equal compensation provided by section 908(2). With respect to the constitutional limitation, the dissenting justices noted that "[a]ll parties agreed that Special Term was in error in holding section 7 of article XIII of the State Constitution applicable" (103 AD2d at 682, 477 NYS2d at 178; see 1984 Opns St Comp No. 84-53, p 65).

Moreover, we believe that National Westminister Bank, supra, is distinguishable from Kelley v McGee because the court in this later case was considering the role of the county clerk for purposes other than "the Constitution's ban on midterm salary increases" (Kelley v McGee, supra). In fact, National Westminister Bank, supra, recognizes the bifurcated nature of the office.

In National Westminister Bank, supra, the Court upheld a claim against the State for damages arising out of the failure of a county clerk to properly record a judgment. The Court stated that:

The County Clerk serves both the State and local governments (Olmsted v. Meahl, 219 NY 270, 114 N.E. 393). As a clerk of the courts, the County Clerk is a State officer for whom the State is responsible. But when performing general duties the County Clerk acts as a local officer, and the local government must answer for actions taken. (76 NY2d at 509, 561 NYS2d at 542).

The Court indicated that the characterization of the county clerk as a local or State officer "in a suit challenging his conduct depends upon the nature of the act which is the subject of the suit" (id).

Similarly, in Blass v Cuomo, _____ AD2d _____, 570 NYS2d 326, the Appellate Division, Second Department, held that the Governor, pursuant to County Law, §400(7), rather than the Suffolk County Executive under local law, held the power of appointment to fill a vacancy in the office of county clerk. The court stated "[w]e find the office of County Clerk to be a quasi-state office" (____ AD2d ____, 570 NYS2d at 328). Nothing in the opinion suggests, however, that the court intended its conclusion to extend to matters other than the power of appointment to fill a vacancy. Indeed, in none of the cases discussed above did the court declare that for all purposes, the office of county clerk was either a local or a state office.

Therefore, it is our opinion that the characterization of the office of county clerk as a local or state office must be determined on a case-by-case basis and that the context of the inquiry will be dispositive. We would reiterate, however, that for purposes of article XIII, §7 of the State Constitution, we believe that based on Kelley, supra, the county clerk is a "local officer" not subject to the Constitution's ban on in-term changes in compensation. Therefore, we hereby reaffirm our opinion expressed in Opinion No. 84-45, supra.

October 28, 1991
Courtenay W. Hall, Esq., County Attorney
County of Saratoga