Can a New York county attorney deputize social services department lawyers to handle Family Court cases, and do those lawyers have to be sworn in?

Plain-English summary

A county attorney in Seneca County asked the New York AG whether the county attorney could "deputize" lawyers working in the county Department of Social Services to handle Family Court Act work, and whether those lawyers needed to be separately appointed and sworn in. The AG's answer was straightforward: Social Services Law § 66(1) lets the county legislature authorize DSS attorneys for that work, and once authorized, the deputization process is simpler than appointing an assistant county attorney. The DSS lawyers do not need a separate appointment by the county attorney, and they do not have to take an oath of office under County Law § 502.

The opinion drew a clean line between two different statutory tracks for county lawyers. Assistant county attorneys, appointed under County Law § 502, are full backups to the county attorney, they have to be appointed in writing on file with the county clerk, they take an oath, and they step into the county attorney's shoes during any absence. DSS attorneys deputized under Social Services Law § 66 are narrower: they assist the county attorney with social-services work only, the legislature authorizes the slot, and the formalities of § 502 do not apply.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is Social Services Law § 66 about?
At the time of this opinion, Social Services Law § 66(1) permitted the county legislature to authorize the appointment of attorneys in the social services department to perform duties the legislature considered necessary to carry out the chapter. It also let the legislature authorize those attorneys to be deputized by the county attorney to perform social-services duties on the county attorney's behalf.

Why is this different from being an assistant county attorney?
Assistant county attorneys are appointed under County Law § 502 by the county attorney, and the statute requires the appointment be in writing on file with the county clerk, the appointee take an oath of office, and the appointee carry out the county attorney's duties in the event of the county attorney's absence or incapacity. DSS attorneys deputized under Social Services Law § 66(1) are not standing in for the county attorney generally. They are assisting with a specific category of work (social services), so the § 502 formalities did not apply.

Does the deputized attorney still answer to the county attorney?
At the time of the opinion, yes, within the scope of the deputization. The county attorney was the one authorized to deputize the DSS attorney for social-services work, and the duties were the ones being delegated by the county attorney. The DSS commissioner could also assign duties to the attorney under § 66(1), so the attorney could end up answering to both.

What kind of Family Court work was being deputized?
The opinion mentions Family Court Act § 254 (the duty of a county attorney or corporation counsel to appear in support of a petition when requested by a Family Court judge), and Articles 3 and 7 (juvenile delinquency, persons in need of supervision), and § 756-a (extension hearings).

Did the AG say the deputized attorneys did not need to file an oath at all?
The AG said they did not need to take the oath required of assistant county attorneys under County Law § 502. Whether some other oath requirement might apply (for example, the general Public Officers Law oath, depending on whether the position is treated as a public office) was not separately analyzed in the opinion. A county weighing the same question today should check current law and the position's specific classification.

Background and statutory framework

The opinion sits at the intersection of three statutes:

County Law § 501(1) gave the county attorney the duty to prosecute and defend civil actions brought by or against the county.

County Law § 502 governed the appointment of assistant county attorneys. The county attorney made the appointment in writing, the writing was filed with the county clerk, the appointee took the prescribed oath of office, and the appointee carried out the county attorney's duties in the county attorney's absence.

Social Services Law § 66(1) gave the county legislature the power to authorize the appointment of attorneys in the social services department. The legislature could authorize the county attorney to deputize those attorneys for social-services work.

The AG's reasoning was that these are two parallel tracks. County Law § 502 is the full-stand-in track. Social Services Law § 66(1) is the limited-deputization track. The two statutes do not overlap, and the formalities of § 502 should not be read into § 66(1) by implication.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-8_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Opn. No. 96-8
COUNTY LAW §§ 501(1), 502; FAMILY COURT ACT ART 2, 3, and 7, §§ 245(a), 254, 756-a;
SOCIAL SERVICES LAW § 66(1).

Social Services Law § 66 gives the county legislature the authority to appoint department of social services attorneys who will assist the county attorney in undertaking certain social service responsibilities under the Family Court Act. These attorneys are not separately appointed by the county attorney and need not take an oath of office.

March 4, 1996

Steven J. Getman, Esq.
Seneca County
Department of Social Services
P.O. Box 690
Waterloo, New York 13165-0690

Informal Opinion No. 96-8

Dear Mr. Getman:

You ask whether a county attorney may deputize attorneys under Social Services Law § 66(1) to help perform his or her duties related to Family Court Act § 254. You also ask whether the process of "deputization" under section 66(1) requires a separate appointment by the county attorney and an administration of the oath of office.

Family Court Act Article 2 establishes the statutory framework for providing legal assistance to family court petitioners. Section 254 of the Family Court Act requires the appropriate county attorney or corporation counsel to appear in support of any petition brought under the Family Court Act when "requested" to do so by a Family Court judge or the appropriate Appellate Division. Family Court Act § 245(a); 1975 Op Atty Gen (Inf) 92.

Section 66 of the Social Services Law deals with the appointment of attorneys to perform duties associated with social services matters and states in relevant part:

The legislative body of the county may authorize the appointment of any number of . . . attorneys to perform duties it considers necessary to carry out the provisions of this chapter. However, such legislative body may also authorize that such attorneys, in addition to performing the duties assigned to them by the county commissioner, may be deputized by the county attorney to perform duties on his behalf in connection with the work of the social services department.

Social Services Law § 66(1). This section empowers a county legislature to authorize appointment of attorneys in the county's department of social services and vest them with certain Family Court Act responsibilities. See, 1987 Op Atty Gen (Inf) 89 concluding that a county's legislative body may assign to attorneys in its department of social services the responsibility to represent the county's interest in an extension hearing pursuant to Family Court Act § 756-a. Section 66(1) also permits the county's social services commissioner to assign duties to these attorneys and authorizes the county's legislative body to allow the county attorney to deputize these attorneys to perform social services duties on his behalf. In the absence of a delegation of authority to attorneys in the county's department of social services, the office of county attorney would be responsible for presenting a case in support of a petition at the request of the family court judge. Id. This conclusion is predicated upon a county attorney's statutory duty to "prosecute and defend all civil actions and proceedings brought by or against the county, the board of supervisors and any officer whose compensation is paid from county funds for any official act". County Law § 501(1).

Therefore, Social Services Law § 66 permits the county legislature to authorize the appointment of department of social services attorneys and the deputizing of these attorneys to assist the county attorney in undertaking certain social service responsibilities such as Family Court Act Articles 3 and 7 (juvenile delinquency and persons in need of supervision) undertakings. See, 1987 Op Atty Gen (Inf) 89; cf. 1970 Op Atty Gen (Inf) 103.

Second, you ask whether use of the term "deputize" in section 66(1) requires a separate appointment by the county attorney and an administration of the oath of office. We note that in a telephone conversation, you indicated that Seneca County Department of Social Services attorneys do not take or file an oath of office with the county clerk.

As we stated above, County Law § 501 requires a county attorney to prosecute and defend all civil actions and proceedings brought by or against the county. Assistant county attorneys may be appointed at the discretion of the county attorney, with each appointment recorded in a writing filed at the office of the county clerk. County Law § 502(1). "The person so appointed shall take the prescribed oath of office and furnish any required official undertaking". Id. An assistant county attorney must perform such of the official duties of the county attorney as may be directed by that official. County Law § 502(2). In the absence or incapacity of the county attorney, the assistant county attorney carries out the duties of the office of county attorney. County Law § 502(3). If there is more than one assistant county attorney, the county attorney must designate the order in which the assistant county attorneys are to carry out the duties of the county attorney in the event of his absence or incapacity. County Law § 502(5).

In contrast, section 66(1) of the Social Services Law authorizes the appointment of attorneys in the county's department of social services who may be given specific duties by the legislative body, the county commissioner of social services, or by the county attorney through the deputizing of these attorneys. These social services department attorneys are not assistant county attorneys appointed under section 502 of the County Law who would carry out the duties of the county attorney in the event of his or her absence or incapacity. They are not separately appointed by the county attorney and their responsibilities are limited to those social services duties they are directed to perform. Since they are not assistant county attorneys, they are not required to take an oath of office under section 502 of the County Law. They are deputized for the narrow purpose of assisting the county attorney with the work of the social services department.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.

Sincerely,
JOSEPH CONWAY
Assistant Attorney General