HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.nyscompop/nyscomo1993 and id is 1 raw text is: Opinion 93-1
Opinion 93-1
This opinion represents the views of the Office of the State Comptroller at the time it was
rendered. The opinion may no longer represent those views if, among other things, there have
been subsequent court cases or statutory amendments that bear on the issues discussed in
the opinion.
COUNTY ATTORNEY -- Assistant (entitlement to salary fixed for county attorney in the event of a
vacancy)
COUNTY CLERK -- Deputy (entitlement to salary fixed for clerk in the event of a vacancy)
COUNTY TREASURER -- Deputy (entitlement to salary fixed for treasurer in the event of a vacancy)
PUBLIC OFFICERS AND EMPLOYEES -- Compensation (for deputy acting in the event of a
vacancy) -- Deputy (entitlement to salary of principal in the event of a vacancy)
COUNTY LAW, §§401 (3), 502, 526(1): An assistant county attorney or a deputy county clerk,
treasurer or commissioner of public works is entitled to the salary fixed for the office of the principal
when acting in the case of a vacancy in the office of the principal.
You ask whether 17 Opns St Comp, 1961, p 240 still represents the views of this Office. In that
opinion, we concluded that an assistant county attorney, who becomes acting county attorney due to
a vacancy in the office of county attorney, is entitled to the salary of county attorney when so acting. If
that opinion does still represent our views, you also ask whether our conclusion applies equally to an
acting county clerk, treasurer and commissioner of public works.
County Law, §502(1) authorizes the county legislative board to authorize the county attorney to
appoint one or more assistant county attorneys. The assistant, during the absence or inability of the
county attorney, shall perform the powers and duties of the office of county attorney (County Law,
§502[3]). Further, subdivision 4 of section 502 provides that, in the event of a vacancy in the office of
county attorney, the assistant shall perform the powers and duties of the office of county attorney
until a successor is appointed and has qualified. If more than one assistant is appointed, the county
attorney must designate the order in which the assistants shall exercise the powers and duties of the
office in the event of a vacancy in the office of county attorney, or the absence or inability of the
county attorney (County Law, §502[5]).
In 17 Opns St Comp, 1961, p 240, supra, we concluded that, because the acts of the assistant county
attorney, in the event of a vacancy, are considered as those of the county attorney, the assistant is
entitled to the salary fixed for the office of county attorney while acting as county attorney (see also
1962 Atty Gen [Inf Opns] 80; 1928 Opns Atty Gen 229). In support of our conclusion, we cited the
Court of Appeals case of PeoDle ex rel Church v Hopkins, 55 NY 74, which involved a clerk who had
been appointed as deputy to the State Superintendent of Insurance.
The pertinent statute in PeoDle ex rel Church, supra, contained provisions similar to County Law,
§502(4) and (5). It provided, among other things, that the deputy shall possess the powers and
perform the duties attached by law to the office of principal during a vacancy in such office and during
the absence or inability of his principal (L 1859, ch 366, §2). On the issue of whether the deputy was
entitled to the salary set for the Superintendent after the resignation of the Superintendent, the Court
of Appeals distinguished between situations when the deputy temporarily acts in the absence or
inability of the Superintendent and when he or she acts in the case of a vacancy, stating as follows:
... the powers conferred and duties imposed upon the deputy, in
the case of absence or inability of the principal, are limited to
such as are thereby made necessary for the transaction of
business .... But in case of a vacancy in the office, all its powers
and duties at once devolve upon the deputy. There remains no
Opinion 93-1](ViewImageLocal?handle=hein.nyscompop/nyscomo1993&div=1&collection=&method=preview&ext=.png&size=3)