Mayor Ron Kim will be submitting a resolution for Council action on Tuesday, January 18, 2022, regarding the hiring of a City Attorney. The resolution has multiple problems but all of them pale before the fact that it asserts that the City Attorney is not a public officer as defined in the New York State Public Officers Statute.
Here is the relevant text. The full resolution can be found at the bottom of this post.
The purpose of this clause appears to be an attempt to circumvent the New York State Public Officers Law which would require that the City Attorney reside in the municipality in which they would serve. Mayor Kim has previously announced that he plans to hire an attorney who, like him, specializes in bankruptcy law but who does not live in Saratoga Springs.
On January 15, 2022, I wrote to Mayor Kim and copied the other members of the Council:
In the resolution regarding a City Attorney that will come before the Council Tuesday, you claim “the City Attorney is not a local officer as defined by New York Public Officers Law 3.” I am familiar with section 3 and I do not find the language that would support your determination.
You also allege that someone from NYSCOM told you that the city attorney is not a public officer.
If, as I believe, the city attorney is a public officer, and you were to hire someone who does not reside in Saratoga Springs, you would potentially create numerous liabilities for our city.
As you have stated that transparency is of utmost importance to you, I hope you will respond to the following questions:
- Could you provide a written opinion to me, your colleagues on the Council, and the public identifying the specific language in section 3 upon which you based your determination that the City Attorney is not a local public officer?
- Could you identify who at NYSCOM told you the city attorney is not a public officer? If there is some kind of documentation such as an email, could you please provide it?
Thank you for your attention to this matter.
Mayor Kim responded later that day:
“This information will be provided at the City Council meeting.”
“Great. I look forward to it”
On January 16, 2022, I followed up with this email:
This is a follow-up to our earlier email exchange regarding your proposal for a City Attorney. I was very pleased to learn from you that you would be addressing my two questions at Tuesday night’s Council meeting.
As background for you and the other Council members, I am including references supporting my contention that the City Attorney is a public officer.
From an opinion from the New York State Attorney General:
“While there is a lack of uniformity in judicial decisions as to whether municipal attorneys are public officers, in our view, a municipal attorney who is the head of the municipality’s law department, serves as the chief legal officer of the municipality, and is responsible for offering advice to municipal officials and defending and commencing actions on behalf of the municipality is a public officer.”
The following is from the Public Officers Law 3. Note, you cited this section in your resolution claiming that the City Attorney is not a public officer. The section includes some seventy exemptions made to the requirement that a particular, local position requires local residency. These were all home rule bills.
11. In the city of Salamanca the provisions of this section requiring a person to be a resident of the political subdivision or municipal corporation of the state for which he shall be chosen or within which his official functions are required to be exercised, shall not prevent a person regularly admitted to practice as an attorney or counsellor in the courts of record of this state from holding the office of city attorney or city justice of the city of Salamanca, if such person resides in the county in which such city is located.
The simple logic here is that Salamanca would not have had to be granted an exemption for its city attorney regarding his/her residency were this position not a public office.
The individual becoming the City Attorney has always taken the same oath of office as the members of the City Council. This is because, in order to take public office, Public Officers Law requires this oath to be taken. (see item #4)
The following text is from the Comptroller’s office addressing who is a public officer:
Public officers are eligible for membership in NYSLRS. This applies regardless of whether individuals are elected or appointed as public officers. You must give them the opportunity to join NYSLRS.
A public officer is a person either elected or appointed to a governmental position with the following general characteristics:
- 1. The position is authorized by statute, resolution or charter to exercise part of the sovereign power of the governmental entity.
- 2. The duties of the position involve the exercise of discretion on behalf of the governmental entity. If the duties of the position are routine, subordinate, advisory, or directed, then the position is more likely to be a position of employment, rather than a public office.
- 3. The State or local enactment creating the position refers to it as an “office.”
- 4. The position has a fixed or definite term.
- 5. The person holding the position files an oath of office. [my emphasis]
- 6. The compensation for the position does not depend on the number of hours worked.
- 7. Incumbents of the position may be compensated either through the employer’s payroll system or by voucher.
- 8. Incumbents of the position generally must reside in the jurisdiction they are serving.
Section 10 of the Public Officer’s Law requires every public officer to take and file an oath or affirmation prior to the discharge of any of their official duties. Public officers are authorized to act in their capacity as an officer for their established term. Any public officer who is re-appointed should take and file an oath or affirmation at the beginning of each new term. In addition, these oaths of office shall be provided to the Office of the State Comptroller if requested as part of an employee/independent contractor review.
Some positions considered public offices are members of planning boards, Town or Village Justice, County Attorney and District Attorney. Other positions that may be considered public offices are Town, Village, and City Attorney. [my emphasis]—————————————I
I have spoken to a number of attorneys who have extensive knowledge of municipal-related law and every one of them was unequivocal that the City Attorney is a public officer.
I am always willing to acknowledge points that I have missed. It all seems clear to me, but your answer to my questions in the previous email would be helpful in better understanding how you arrived at your determination that the City Attorney is not a public officer.
[JK: The best solution to resolving this issue would be to table the resolution and seek an opinion from the New York State Comptroller’s office.]