Can a New York town pass a local law that lets its town attorney live anywhere in the county, instead of having to live inside the town itself?

Plain-English summary

The Town of Beekmantown wanted to broaden the residency requirement for its town attorney from the town to the county. The town attorney asked whether a local law could do that.

The AG worked through three overlapping rules. Town Law § 23(1) requires an appointive town officer to be an elector of the town (a resident eligible to vote in town elections) at appointment and throughout the term. The statute provides an exception if there is no resident attorney in the town. The Town of Beekmantown had resident attorneys, so § 23(1) did not authorize relaxation. Public Officers Law § 3(1) is the general rule requiring local appointees to reside in the locality. Town Law § 20(2)(a) establishes the office of town attorney and makes them a public officer.

The interesting move came next. The state Legislature amended Public Officers Law § 3 (at § 3(24)) to let an appointed public officer in the Town of Greenburgh reside anywhere in New York State. For home-rule purposes, a "general law" applies to all towns alike. Once Greenburgh got its own special residency rule, § 3's coverage of town residency was no longer applying alike to all towns. The AG concluded that this made § 3 a special rather than general law with respect to appointed town officers' residency. Towns can supersede non-general state laws through home rule.

Article IX, § 2(c)(1) of the State Constitution and Municipal Home Rule Law § 10(1)(ii)(a)(1) authorize local governments to adopt local laws relating to the qualifications of their officers and employees, consistent with the Constitution and general state laws. Residency requirements are qualifications. Because § 3 is no longer a general law on town residency, Beekmantown may enact a local law setting county residency for the town attorney. The town must specify the state provision it intends to change or supersede (Municipal Home Rule Law § 22(1); Kamhi v Town of Yorktown).

The opinion also notes that Town Law § 23 can be superseded by local law under Municipal Home Rule Law § 10(1)(ii)(d)(3), reinforcing the same conclusion. And if a town abolishes the office of town attorney and just contracts with an attorney as an independent contractor under § 20(2)(b), the residency rule does not apply at all.

Currency note

This opinion was issued in 1997. 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 does "general law" versus "special law" mean for home rule purposes?

Municipal Home Rule Law § 2(5) defines "general law" as a state statute that applies in terms and in effect alike to all counties, all counties other than those wholly included within a city, all cities, all towns, or all villages. A local government can supersede a state statute that is not a general law (and that addresses a home-rule subject). Once a statute carves out one specific town, it stops being a general law on that subject for those purposes.

Could a town shrink residency below what § 3 contemplates?

The opinion concerns broadening, not narrowing. A town could not, for example, require the town attorney to live in a specific neighborhood, since the home-rule grant is to adopt laws on qualifications consistent with the Constitution and general state laws. The Greenburgh exception opened the door to broader residency (county-of-location at least, possibly broader still). Anything more restrictive than the existing town-residency requirement would not need a home-rule workaround.

What happens to a town attorney already in office when the local law passes?

The opinion does not directly address grandfathering. Town Law § 23(1) speaks to the requirement "at the time of his or her appointment and throughout his or her term of office," so a local law broadening residency would typically apply to both incumbents and new appointees, eliminating a continuing-eligibility problem. Local counsel should confirm by reference to the local law's terms.

What if the town wants to drop the office entirely and just contract with an attorney?

Town Law § 20(2)(b) lets the town board retain an attorney to perform specific legal services on a contract basis if the town has not established (or has abolished) the office of town attorney. That attorney is an independent contractor and is not required to be a town resident (1988 Op Atty Gen (Inf) 49). It is a different legal arrangement from the town attorney as a public officer.

How does a town actually supersede a state statute?

Municipal Home Rule Law § 22(1) requires the local law to specify the state law it intends to change or supersede. The Court of Appeals in Kamhi v Town of Yorktown reinforced that requirement. The local law must say which provision is being superseded, not simply enact a contrary rule and leave the relationship implicit.

Background and statutory framework

NY Const Art IX, § 2(c)(1) and Municipal Home Rule Law § 10(1)(ii)(a)(1) grant local governments authority to adopt local laws relating to the qualifications of their officers and employees, consistent with the Constitution and general state laws. The AG has repeatedly treated residency requirements as qualifications under those provisions (e.g., 1983 Op Atty Gen (Inf) 116).

Town Law § 20(2)(a) establishes the office of town attorney and treats the town attorney as a public officer. Town Law § 23(1) requires appointive town officers to be electors of the town at appointment and throughout their term, except that in towns with no resident attorney the town attorney need not be an elector of the town. Town Law § 20(2)(b) authorizes the town board to retain an attorney as an independent contractor if the town has not established or has abolished the town-attorney office.

Public Officers Law § 3(1) requires local appointive officers to reside in their locality. Section 30(1)(d) makes nonresidence a basis for vacating office. Section 3(24) (first subset) carves out the Town of Greenburgh, letting an appointed public officer there reside anywhere in the state.

Municipal Home Rule Law § 10(1)(ii)(d)(3) lets a town supersede provisions of the Town Law when acting within home-rule scope. Section 22(1) requires a local law that changes or supersedes a state statute to specify the state law it is changing.

Citations

• NY Const Art IX, § 2(c)(1) (local laws on qualifications of officers).
• Municipal Home Rule Law § 2(5) (definition of "general law"); § 10(1)(ii)(a)(1), § 10(1)(ii)(d)(3) (home-rule grants); § 22(1) (specifying state law being superseded).
• Public Officers Law § 3(1), § 3(24) (general residency rule, Greenburgh carve-out); § 30(1)(d) (vacancy on nonresidence).
• Town Law § 20(2)(a), (b) (town attorney office; independent contractor alternative); § 23(1) (residency for appointive officers).
• Kamhi v Town of Yorktown, 74 NY2d 423 (1989) (local law must specify state law being superseded).
• 1988 Op Atty Gen (Inf) 49; 1983 Op Atty Gen (Inf) 116; Op Atty Gen (Inf) Nos. 91-37, 89-14, 88-27, 87-32.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-11_pw.pdf

Original opinion text

NY CONST, ART IX, § 2(c)(1); MUNICIPAL HOME RULE LAW §§ 2(5),
10(1)(ii)(d)(3), 22(1); PUBLIC OFFICERS LAW §§ 3(1), 30(1)(d);
TOWN LAW §§ 20(2)(a) and 23(1).
A town by local law may broaden the required residency for
the town attorney to the county in which the town is located.

March 10, 1997
Timothy J. Lawliss, Esq.
Town Attorney
Town of Beekmantown
162 Margaret Street
Plattsburgh, NY 12901-1838

Informal Opinion
No. 97-11

Dear Mr. Lawliss:
You have asked whether a town may pass a local law requiring
that the town attorney be a resident of the county, rather than a
resident of the town.
In responding to your inquiry, we start with Town Law
provisions which provide that the town board of any town may
establish the office of town attorney. Town Law § 20(2)(a).
Every appointive officer of a town at the time of his or her
appointment and throughout his or her term of office must be an
elector of the town. Id., § 23(1). An elector of the town is a
resident of the town who is eligible to register to vote in town
elections. Id. In towns having no resident attorney, however,
the town attorney need not be an elector of the town. Id.
You have informed us that there are resident attorneys in
the Town of Beekmantown. Therefore, Town Law § 23(1) may not be
used to authorize the appointment of a person to the office of
town attorney who is not a resident of the Town of Beekmantown.
We next note that section 3(1) of the Public Officers Law
establishes qualifications for holding public office and includes
a requirement that a person holding a local appointed office
reside within the locality at the time of his or her appointment
and during his or her tenure in office. See also, Public
Officers Law § 30(1)(d). The town attorney is a public officer.
Town Law § 20(2)(a). We note also that if a town abolishes the
office of town attorney or has not established that office, the
town board may retain an attorney to perform specific legal
services on a contract basis. Id., § 20(2)(b). In these
circumstances, the attorney would be an independent contractor

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and would not be required to be a town resident.
Gen (Inf) 49.

1988 Op Atty

You have indicated that your town has established the office
of town attorney and your inquiry is whether the town board may
enact a local law broadening the required residency for this
office from the town to the county in which the town is located.
In our view, your town may enact such a local law. Local
governments are authorized to adopt and amend local laws,
consistent with the Constitution and general State laws, in
relation to the qualifications of their officers and employees.
NY Const, Art IX, § 2(c)(1); Municipal Home Rule Law
§ 10(1)(ii)(a)(1). Residency requirements are qualifications
within the meaning of these provisions. 1983 Op Atty Gen (Inf)
116.
For home rule purposes, a "general law" is a State statute
which in terms and in effect applies alike to all counties, all
counties other than those wholly included within a city, all
cities, all towns or all villages. Municipal Home Rule Law
§ 2(5). It is thus significant that the Legislature has amended
section 3 of the Public Officers Law to establish a special
residency requirement for any appointed public officer in the
Town of Greenburgh. Public Officers Law § 3(24) (first subset).
An appointed public officer in the Town of Greenburgh now may
reside anywhere in the State of New York. This exception for the
Town of Greenburgh has rendered section 3 of the Public Officers
Law, in its coverage of appointed town officers, a special,
rather than a general law. In establishing residency
requirements for appointed town officers, section 3 no longer
applies in terms and in effect alike to all towns of the State.
Under home rule authority, since section 3 no longer is a
general law with respect to the residency of appointed town
officers, any other town may enact a local law inconsistent with
its provisions establishing a residency for an appointed town
office at least as broad as the residency established for
appointed officers of the Town of Greenburgh.
Therefore, your town may enact a local law establishing the
county in which the town is located as the required residency for
the town attorney. We have applied this reasoning in several
prior opinions of this office. Op Atty Gen (Inf) Nos. 91-37;
89-14; 88-27; 87-32. In adopting a local law changing or
superseding any State statute, the local legislative body should
keep in mind that it is required to specify the provision it
intends to change or supersede. Municipal Home Rule Law § 22(1);
Kamhi v Town of Yorktown, 74 NY2d 423 (1989).

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We note that section 23 of the Town Law, which again
establishes a residency requirement for the town attorney, also
may be superseded by local law. Municipal Home Rule Law
§ 10(1)(ii)(d)(3). Under the Municipal Home Rule Law § 10 grant
of authority, any town may supersede a provision of the Town Law
when acting within the scope of its home rule authority. As
indicated above, the grant of home rule powers extends to the
establishment of qualifications for town offices, including
residency requirements.
We conclude that a town by local law may broaden the
required residency for the town attorney to the county in which
the town is located.
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.
Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions