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
Town Clerk Duties
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Office Management
Town Board Meetings and Minutes
Public Officers
Records Management
Public Notices
Local Laws
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
Town Clerk’s Office Hours
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
Town Clerk’s Compensation
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
Benefits
• Town Board Sets
 Health Insurance
 Vacation
 Sick Leave
 Personal Leave
• Retirement
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
Additional Duties
• Town Board may expand the Town Clerk’s duties by
resolution
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Compatible with statutory duties
Resources Available
Does not conflict with statutory duties
Examples:
• Selling Transfer Station Permits
• Taking Planning Board Minutes
Deputy Town Clerks
Town Clerk Deputies
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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
Town Board Meetings
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
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)
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
Town Board Agenda
• No statutory requirement
• Varies by town
• Could be determined by
Town Board rules of
procedure
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
Town Board Rules of Procedure
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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
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
Minutes Must include:
– Names of Town Board Members present
– Actions
– Motions
– Proposals
– Resolutions
– Vote recorded by ayes and noes
Minutes May Include:
• Statements for the record
• Debate & discussion (verbatim or
summarized)
• Correspondence
• Presentation materials
• Public comments
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
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
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
1 No
2 Yes
0 Abstain
1 No
0 Abstain
2 Absent
Majority of Full Board required (3 out of 5)
Result: Vote Fails
Fails
2 Absent 2 Yes
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
Minutes Available to Public
Open Meetings Law
• Copies for the Public
– 1 week from executive session where
minutes were taken
– 2 weeks from regular or special meeting
• Stamp “Draft” or “Subject to board
approval” to indicate that Town Board
approval is pending
Public Officers
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
Appointments
• Town Board makes most appointments by resolution
• Some statutory exceptions:
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Bookkeeper/confidential Secretary
Deputies
Town Historian
Planning Board Staff
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
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
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
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
What is the Clerk’s Role regarding Oaths of
Office?
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
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
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
Special Considerations
Town Justices
Must file their oath with:
– Town clerk
– County clerk
– Office Court Administration
Official Undertaking
Faithful Performance
Insurance Policy protects the
taxpayers against lost or stolen funds
Officers Required to be Covered
– Town Clerk
– Town Supervisor
– Highway Superintendent
– Tax Collector/Receiver
– Constable
– Town Justice
– Anyone else the Town Board requires
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
Records Management
Role / Responsibility of Town Clerk
• Town Filing Officer
• Record Access Officer
• Record Management
Officer
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
Filing Officer
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Town Law, §30 / Public Officers Law, §10
All certificates, oaths and other papers
required by law are Filed in the Town Clerk’s
Office
Records Access Officer
• Town Clerk charged with custody of all
books, records and papers of the town
• May be designated Records Access Officer
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
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
Records Access Officer
• Subject Matter List
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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
Records Management Officer
• Arts & Cultural Affairs Law, §57.19
– “Each local government shall have one officer who
is designated as records management officer.
– In towns, the Town Clerk shall be the records
management officer
Records Management Officer
• Duties of the Records Management Officer
– “This officer shall coordinate the development of
and oversee such program and shall coordinate
legal disposition, including destruction of obsolete
records.”
Records Management Officer
• Arts & Cultural Affairs Law, §57.25:
– Local officers retain custody of records so long as
they are needed for the conduct of business
– Protect, cooperate and pass on
– In towns, records no longer needed for the
conduct of the business of the office shall be
transferred to the custody of the Town Clerk for
their safekeeping and ultimate disposal
Records Management Officer
• Disposition of Records
– Records Retention Schedule (MU1) sets forth the
minimum length of time that records must be kept
on file with the Town Clerk’s office
– Schedule constitutes consent to dispose of
records in excess of retention period
– If local law sets forth longer periods – local law
controls
Custody
• Who has custody of town records?
– Town Law, §30: Town Clerk has custody of all
books, papers and records of the municipality
– Arts & Cultural Affairs Law, §57.25: local officers
(not town clerks) have custody of records needed
for the conduct of business
• Are these provisions in conflict?
Custody Defined
• The care and control of a thing or person for
inspection, preservation or security
– Care and control, not physical possession
– Possible that multiple people can have custody
over the same things
– All officers with custody of records share the same
responsibilities with respect to those records
Public Notices
Elements of Notices
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Who
What
Where
When
How
Who Typically Gets Notice?
The Public
The Media
What: Typical Content For
Public Hearings
• Time
• Date
• Location
• Purpose
• Summary of Local Law, Ordinance etc.
• Contact for more information
• ADA Compliance
Summary of Action
Must be sufficiently clear to an average
person, so as to inform them that pending
legislation may affect their interests
Where Do You Typically Provide Notice?
• Town Clerk’s Signboard
• Community Bulletin
Boards
• Newspapers
• The Media
How Do You Typically Provide Public
Notice?
• Legal Notice in Newspaper
• Post Conspicuously
• Personal Delivery
What is a Newspaper?
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Be in general circulation,
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Be established and ordinarily
printed and distributed at least
weekly for at least one year,
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Contain news, editorials and other
matters of “current interest”,
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Have a paid circulation and
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Be entered as second class mail
matter
When Do You Typically Provide Notice?
• Local Law Public Hearing
• Ordinance Public Hearing and Adoption
• Franchise Public Hearing
• Town Budget Hearing
• Fire Protection Contracts
• Board Meetings
• Resolutions Subject to Referenda
Town Board Meetings
– Regular Monthly Meeting
• Legal Notice in Official Newspaper
• Publicly Post
– Special Town Board Meeting
• Written Notice to Each town board member
• Call/Fax/Email Media
• Post on town clerk and community sign boards
Local Law Public Hearing
– Typically Published in Newspaper of General
Circulation
– At least 5 days prior to hearing
– Date, Time, Place & Clear Description of Local
Law
Ordinance Public Hearing
– Legal Notice in Newspaper
– At least 10 days prior to hearing
– Date, Time, Place & General Description of Ordinance
Zoning Ordinance Public Hearing
• Legal Notice published at least 10 days before hearing
• Additional Notices
– personally served or mailed to city, village, town, county, state park or
parkway or a housing project owned by a housing authority within 500
feet of property zoned
• Possible Additional Local Notices
– personally served or mailed to abutting or neighboring property owners
Town Budget Public Hearing
• Publication/Posting
– Legal Notice published in official town
newspaper
– At least 5 days prior to hearing
– Post on Town Clerk’s signboard
• Content
– Time, Date, Location & Availability of
copies for review in clerk’s office
– Salaries of elected, clerk, town board &
superintendent of highways
How Do You Count Days for Public Notices?
Defining a Day
General Construction Law, §19
define a calendar day as:
“A calendar day includes the time
from midnight to midnight.
Sunday or any day of the week
specifically mentioned means a
calendar day” (Op. Atty. Gen. Formal No.
2001-F2)
Counting Days
General Construction Law, §20 –
Don’t Count the Day the Notice is Posted or
Published but Count Every Day Including
Saturdays, Sundays, & Public Holidays, Unless
a statute tells you to do otherwise
Counting Days
Example:
• If a notice of a public hearing on a proposed local
law is published on a Wednesday, to determine
the earliest day when the public hearing may be
held, do not count that Wednesday.
• The Thursday, Friday, Saturday, Sunday, and
Monday, count toward the five days.
• Thus, the earliest day on which the public hearing
may be held is Tuesday.
Local Legislation
• Resolution
• Ordinance
• Local Law
Ordinances, Rules & Regulations
Moderate Means of Legislating –
• Use to Regulate Conduct
– Business Licenses
– Zoning
– Traffic and Use of
• Need Specific Statutory Authority
– Town Law, article 9
– Town Law, article 16
– Vehicle & Traffic Law, §1660
Resolutions
Least Formal Means of Legislating
Use for Everyday actions:
• Appointments
• Budget Transfers
• Contract Approvals
• Expression of Praise or Mourning
Motions
Town board action comes in the form of
a motion which is a proposal to
entertain a particular contemplated
action followed by a resolution which
is the action to be taken (Op. State Comp. 79-109).
Local Laws
Local Laws
Most Formal Means of Legislating
Use for Permanent actions such as
– Structure of Government
– Transfer of Power From One Official or Body to
Another
– Change From a Statewide Standard or Rule
– Everything you do by Ordinance
– Don’t need Specific Statutory Authority
Adopting a Local Law
Local Law
Introduced
Aging
Requirement
Public
Hearing
Vote on Proposed
Local Law
Local Law Format
–Title
–Enacting Clause
–Body of the Law
–Effective Date
–Covers Only One Subject Matter
Local Law Form & Content
• Introduced by Town
Board Member
• Use “introductory”
numbers
• Record distribution
method in minutes
(e.g. hand delivered,
mailed, placed on
member’s desks or in
mail-boxes)
Local Laws
Public Hearing
• Scheduled by town
board resolution
• Record resolution in
minutes
Public Hearing Notices
• Generally Published in a Newspaper of
general circulation
• At least five (5) days prior to the date of
the public hearing
• Time, Date & Location
• Brief description of proposed local law
Adoption of Local Law
• Properly Aged
(7 days excluding Sundays if hand delivered (in person or
electronically) to each board member or 10 days excluding
Sundays if mailed to each board member)
• Adopted at a board meeting by majority vote
• Vote by “ayes” and “noes” recorded in minutes
Referendum
Local Laws subject to Mandatory Referendum
(Municipal Home Rule Law, §23)
• Local Laws subject to Permissive Referendum
(Municipal Home Rule Law, §24)
Local Laws
 File with Secretary of
State
 Fill out DOS Forms
 Town Clerk certifies
Local Laws Filing
• Follow DOS Rules
• File Consecutively in numerical order
• File Within 20 days of adoption unless subject to
referendum – then file after approved by voters
Local Laws Filing
Department of State
State Records & Law Bureau
41 State Street
Albany, NY 12231
Questions: (518) 474-4770
Local Laws
Local Laws filed in Town
Clerk’s office
• Record adopted local laws in
separate book
• Numbered as filed
• Index
Hopefully You are Now Feeling
Comfortable with your duties
Call AOTSNY with Your FAQs
150 State Street Albany
NY 12207
P: (518) 465-7933
F: (518) 465-0724
www.nytowns.org