001
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STATE OF NEW YORK
DEPARTMENT OF AUDIT AND CONTROL
ALBANY
October 2., 1963
ARTHUR LEVITT
STATE COMPTROLLER
IN REPLYING REFER TO
63-~9
JIr. 'R. H. LinCe, Superviaor
'l'OWll ot Wapp1qer, 'R. D.
Wapp1l1sera Palla, lie. York
Be: '1'oWll ot Wappmger
Dear 1Ir. L1nge:
fte Coaptroller haa rendered the attached opinion
(Ko. 63-5.9) in cormection with ,.our 1nqu1rJ' ot Jul,. 16, 1963.
We hope it .i11 ~e ot aasistanee to ,.ou.
Ve1'1' truly JOUl'a,
ARTHUR LEVIft
By a:Z:~
~Oclore Spatz \ ..--i
COUDael to the Co.,troller
pn,/hJ
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STATE OF NEW YORK
DEPARTMENT OF AUDIT AND CONTROL
ALBANY
ARTHUR LEVITT
STATE COMPTROLLER
IN REPLYING REFER TO
Opinion No. 63-549
To~rn LAW, 5~20 (2(a), (b)), 24, 90: A town of the second class
which has established the office of town attorney may abolish such
office upon the resignation of the incumbent and it may then employ
an attorney to render such legal services as are required.
Inquiry
May a town of the second class which has established the office
of town attorney abolish such office upon the resignation of the
present office-holder and employ an attorney to render such legal
services as are required?
Statement of Law
Since the incumbent is resigning, the prov~s~ons of Town Law,
~24 as to the duration of his term of office do not apply.
Paragraph (a) of subdivision 2 of section 20 of the Town Law
provides, in part, as follows:
"2. (a) The town board of every town may
establish the office of town attorney ****."
We note that no statutory provision has been made as to the
method whereby the town board may establish such office.
Accordin~ly, we assume that such office was established by
resolution of the tOvID board.
A review of the pertinent statutes discloses that such
resolution is not subject to referendum (see Town Law, ~~90 through
94 and cases thereunder).
The power to adopt a resolution carries with it the power to
rescind the same, unless irrevocable rights have been created by
the original resolution. (see 4 Mcquillin, ~1unicipal Corporations,
3d ed, ~13 .49) .
~
-2-
63-549
Accordingly, such resolution creating the office of town
attorney may be rescinded by the town board and the office of town
attorney abolished, by resolution ndopted in the same manner
as the original resolution, not subject to referendum (see 7 Ope
State Compt. 253 (1951)).
The town board may then employ an attorney to give it such
professional service and advice as it may require. {Town Law, ~20
(2(b}).
There is no requirement that such attorney be either an
elector (see 7 Ope State Compt. 253 (1951)) or a resident of the
town.
Conclusion
A town of the second class which has established the office
of town attorney may abolish such office upon the resignation of
the incumbent and it may then employ an attorney to render such
legal services as are required.
October 21, 1963