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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

LOCAL LAWS -- Compensation (fixed amount plus hourly rate for attorney employed as counsel to zoning board of appeals)
ZONING AND PLANNING -- Zoning Board of Appeals (paying fixed amount plus hourly rate for attorney employed as counsel to zoning board of appeals)
PUBLIC OFFICERS AND EMPLOYEES -- Compensation (fixed amount plus hourly rate for attorney employed as counsel to zoning board of appeals)

TOWN LAW, §§27(1), 267(1); MUNICIPAL HOME RULE LAW, §10(1)(ii)(d)(3): A town, by local law, may provide that an attorney employed as counsel to the zoning board of appeals be paid by a fixed annual amount for specified services plus a designated hourly rate for specified additional services.

You ask whether a town may pay an attorney employed as counsel to the zoning board of appeals a fixed annual amount for certain specified services plus an hourly fee for services in connection with defending proceedings commenced under Article 78 of the Civil Practice Law and Rules (CPLR).

Town Law, §267 authorizes town boards to provide for "compensation" to be paid to "experts, clerks and a secretary" providing services on behalf of a town zoning board of appeals (Town Law, §267[1]). This Office has expressed the opinion that section 267(1) is sufficiently broad to authorize either appointing an attorney as an employee of the town or engaging the services of an attorney as an independent contractor to assist the zoning board of appeals (24 Opns St Comp, 1968, p 109; 19 Opns St Comp, 1963, pps 108 and 182).

The word "compensation" as used in section 267, for municipal law purposes, generally connotes the total consideration paid to a municipal officer or employee, and is not necessarily limited to fixed salary (see, e.g., 1989 Opns St Comp No. 89-27, p 63). However, if an attorney for the zoning board of appeals is appointed as an employee, section 267 must be read in conjunction with Town Law, §27(1). Section 27(1), which provides for the town board, from time to time, to fix salaries for all town officers and employees, also states that salaries of officers and employees "shall be in lieu of all fees, charges and compensation for all services rendered to the town ..." Thus, Town Law, §27(1) precludes an attorney appointed as an employee to assist the zoning board of appeals from being paid compensation other than a fixed salary (19 Opns St Comp, 1963, p 108).

However, with certain exceptions not applicable here, towns are authorized, by local law, to supersede provisions of the Town Law in their application to the town (Municipal Home Rule Law, §10[1][ii][d][3]). Based on this grant of authority, we have concluded that, pursuant to a duly adopted local law, a town may supersede the quoted provision of Town Law, §27(1) and provide that its town attorney be compensated by both a fixed annual amount for certain specified services and by a designated hourly rate for specified additional services (1980 Opns St Comp No. 80-356, p 108; see also 1980 Opns St Comp No. 80-792, p 218). It is our opinion that a town, by local law, similarly may provide that an attorney employed as counsel for the zoning board of appeals also may be compensated in this manner. Therefore, a town may enact a local law which provides that the zoning board attorney shall be paid a fixed amount for certain enumerated services and an additional hourly fee in connection with defending proceedings commenced under Article 78 of the CPLR.

We note that when compensation is paid in this manner, the services to be performed for the fixed amount and those to be performed at the hourly rate must be clearly specified in advance so that entitlement to the hourly compensation may be determined. Further, the additional services actually performed and the amount of time devoted thereto must be properly documented before any payment is approved. Also, where possible, payment should be made pursuant to the payroll method to permit more efficient accounting for the various deductions from gross compensation which may be required.

November 8, 1989
Peter G. Crummey, Esq., Counsel, Zoning Board of Appeals
Town of Colonie