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Town Clerk Duties and Legal Responsibilities

Town Clerk Duties and Legal Responsibilities

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Town Clerk Duties and Legal Responsibilities

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  1. Town Clerk Duties and Legal Responsibilities Michael Kenneally, Esq. Association of Towns of the State of New York Lori Mithen-DeMasi Association of Towns of the State of New York

  2. Town Clerk Duties • Office Management • Town Board Meetings and Minutes • Public Officers • Records Management • Public Notices • Local Laws

  3. Town Clerk Office Location • Town Board generally provides the Town Clerk with an office at town hall or in another town owned facility • Rent and reasonable office expenses may be charged to town for office space not provided by the town

  4. Town Clerk’s Office Hours

  5. Town Clerk Office Hours • No statutory office hours • Generally set by Town Clerk • Reasonable hours to service public • Town Board may set office hours but cannot require an elected Town Clerk to be physically present unless the hours are set by local law approved by the voters

  6. Town Clerk’s Compensation

  7. Salary • Set in the town budget • Published in notice of public hearing on preliminary budget • Decrease during term • Local Law Mandatory Referendum • Increase above noticed amount published in the notice for the hearing on the preliminary budget • Local Law Permissive Referendum

  8. Benefits • Town Board Sets • Health Insurance • Vacation • Sick Leave • Personal Leave • Retirement

  9. Purchasing Supplies • The town budget will provide funding for office supplies and equipment • Purchases must be made in accordance with State Bidding Laws and Local Procurement Policies • Sufficient funds must be in place prior making a purchase • Prior Town Board authorization maybe required unless otherwise provided in the town’s procurement policy

  10. Additional Duties • Town Board may expand the Town Clerk’s duties by resolution • Compatible with statutory duties • Resources Available • Does not conflict with statutory duties • Examples: • Selling Transfer Station Permits • Taking Planning Board Minutes

  11. Deputy Town Clerks

  12. Town Clerk Deputies • Up to three (3) deputies • Appointed by Town Clerk • Serve at pleasure of Town Clerk • Town Clerk sets first deputy’s duties • Town Board sets duties for other deputies • Compensation set by Town Board

  13. Town Board Meetings

  14. Town Board Meetings • Town Clerk is required to attend Town Board meetings • Town Board meetings include: • Regularly Scheduled Meetings • Specially Scheduled Meetings • Workshop Sessions • Agenda Meetings • Budget Sessions

  15. Regular Monthly Meetings & Workshops • Scheduling • Town Board Resolution • Notice • Post on the Town Clerk Sign Board; • Town Website; • Other Sign Boards Designated for Public Notice • Publish Notice (optional)

  16. Special Town Board Meetings • Scheduling • Called by Town Board or Town Supervisor • Notice • Call/Email/Fax News Media • Post on town clerk sign board • Post on other sign boards designated for public notice • Post on town website • Written notice hand delivered to each Town Board Member

  17. Town Board Agenda • No statutory requirement • Varies by town • Could be determined by Town Board rules of procedure

  18. New Agenda Rules Agenda and related documents scheduled to be discussed at a Town Board meeting must be made available prior to the meeting to the extent practicable • Upon request • Posted on town website

  19. Town Board Rules of Procedure • Formal (Resolution) or Informal (Past Practice) • Quorum Required • Supervisor Presides • Votes by Ayes and Noes • Three Votes Needed • Town Clerk records minutes • Procedures vary by town

  20. Minutes • Historical record of Town Board meeting • Good faith and accurate accounting of meeting • Town Clerk records minutes • No prescribed statutory format • Town Board approval optional

  21. Minutes Must include: • Names of Town Board Members present • Actions • Motions • Proposals • Resolutions • Vote recorded by ayes and noes

  22. Minutes May Include: • Statements for the record • Debate & discussion (verbatim or summarized) • Correspondence • Presentation materials • Public comments

  23. Recording Votes • Each Town Board Member’s vote must be recorded • Town Board Members may not be compelled to vote • Record abstentions as abstentions • Record absences as absences • Determine whether a matter has passed by counting the “Yes” or “Aye” votes

  24. Vote on Matter # 1 Supervisor A  Yes No  Abstain  Absent Councilperson B  Yes  No  Abstain  Absent Councilperson C  Yes No  Abstain  Absent Councilperson D  Yes  No  Abstain  Absent Councilperson E  Yes  No  Abstain  Absent Vote Totals 2 Yes 1 No 1 Abstain 1 Absent Majority of Full Board required (3 out of 5) Result: Vote Fails

  25. Vote on Matter # 2 Supervisor A  Yes No  Abstain  Absent Councilperson B  Yes  No  Abstain  Absent Councilperson C  Yes No  Abstain  Absent Councilperson D  Yes  No  Abstain  Absent Councilperson E  Yes  No  Abstain  Absent Vote Totals 2 Yes 1 No 0 Abstain 2 Absent 2 Yes 1 No 0 Abstain 2 Absent Majority of Full Board required (3 out of 5) Result: Vote Fails Fails

  26. Vote on Matter #3 Supervisor A  Yes No  Abstain  Absent Councilperson B  Yes  No  Abstain  Absent Councilperson C  Yes No  Abstain  Absent Councilperson D  Yes  No  Abstain  Absent Councilperson E  Yes No  Abstain  Absent Vote Totals 3 Yes 1 No 1 Abstain 0 Absent Majority of Full Board required (3 out of 5) Result: Vote Passes

  27. Minutes Available to Public Open Meetings Law • Copies for the Public • 1 week from executivesession where minutes were taken • 2 weeks from regular or specialmeeting • Stamp “Draft” or “Subject to board approval” to indicate that Town Board approval is pending

  28. Public Officers

  29. What is a Public Office? • Statute or Local law creating the position established it as a “public office” • Duties involve some exercise of sovereign powers • Administration of duties involves a high degree of initiative & independent judgment • Receipt of an official seal or commission of office

  30. Appointments • Town Board makes most appointments by resolution • Some statutory exceptions: • Bookkeeper/confidential Secretary • Deputies • Town Historian • Planning Board Staff

  31. What is the Town Clerk’s Role in Appointments? • Town Clerk records appointments in the minutes • Town Clerk notifies State and County agencies of appointments • Notice within 5 days of appointment/election • Office; Name; Address; Term of Office

  32. How do Vacancies Occur? • Vacancies occur by State Law • Some Examples • Resignation • Conviction of a felony during office • Failure to timely take & file oath/undertaking • Permanently moving out of town • Accepting an incompatible position

  33. Vacancies • Town Board • Fills vacancies • Town Clerk • Records vacancies • Notifies State & County Agencies (County Clerk and Bd. of Elections) • Within 3 days of Occuringfor elected offices • Position, Date office became vacant

  34. What is the Town Clerk’s Role Regarding Resignations? • Resignation must be in accordance with State law • Written • Addressed to Town clerk • Filed with Town clerk • Resignation Date up to 30 days after resignation filed or immediately if no date specified

  35. What is the Clerk’s Role regarding Oaths of Office?

  36. Oaths of Office • All town officers must take and file an oath of office within 30 days of taking office • Oaths must be filed in the Town Clerk’s office with additional requirements for Town Justices (county clerk & office of court administration) • Town Clerk notifies Town Board when officer fails to timely file oath

  37. Who can Administer Oaths? • Town Clerk or Deputy Town Clerk • Notary public • Court of Appeals or Supreme Court Judge • Town Supervisor, but only to other members of the town board • Town Board Member • Town justice

  38. Oaths are required to be filed in the Town Clerk’s office • Town officers • Fire district commissioners • Fire police squads of fire departments and fire companies

  39. Special Considerations Town Justices Must file their oath with: • Town clerk • County clerk • Office Court Administration

  40. Official Undertaking Faithful Performance Insurance Policy protects the taxpayers against lost or stolen funds

  41. Officers Required to be Covered • Town Clerk • Town Supervisor • Highway Superintendent • Tax Collector/Receiver • Constable • Town Justice • Anyone else the Town Board requires

  42. Official Undertaking • Individual Undertaking approved by town board • Blanket Bond procured by town board • Filed in Town Clerk’s office with additional filing requirements for Town Justices in the County Clerk’s office and Office of Court Administration • Town Clerk notifies Town Board of pending expiration of bonds • Town Clerk notifies Town Board where there is failure to timely file undertaking or bond

  43. Records Management

  44. Role / Responsibility of Town Clerk • Town Filing Officer • Record Access Officer • Record Management Officer

  45. Clerk of the Municipal Board • Town Law, §30 • Keep record of proceedings of the Town Board • Keep record of all resolutions ordinances and local laws • Prepare abstracts for board audits

  46. Filing Officer • Town Law, §30 / Public Officers Law, §10 • All certificates, oaths and other papers required by law are Filed in the Town Clerk’s Office

  47. Records Access Officer • Town Clerk charged with custody of all books, records and papers of the town • May be designated Records Access Officer

  48. Records Access Officer • Responsible for coordinating responses to public requests for access to records (FOIL) • Designated by the Town Board • Does not have to be Town Clerk, but often is • Town Board may Designate More than One Record Access Officer

  49. Records Access Officer • Maintain up to date subject matter list • Assist person seeking records to identify the records sought and assist them in reasonably describing them • Contact person when a request is voluminous or requires substantial efforts to help reasonably reduce the records requested • Make records available / deny access • Make copies or allow copies to be made • Certify true copies upon request • Failure to locate -- Certify that RAC is not custodian / records cannot be found after diligent search

  50. Records Access Officer • Subject Matter List • Current • Must Update Annually • Sufficiently Detailed • MU1 Record Retention Schedule as Guide • Additional Local Rules • Always check local records access law for additional duties and responsibilities