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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

PUBLIC OFFICERS AND EMPLOYEES -- Compensation (additional compensation for the board of assessment review for extra meeting)

REAL PROPERTY TAX LAW, §523[1][g]; Town Law, §27[1]: A town board may not pay the members of the board of assessment review compensation in excess of their salaries for meeting twice in one year to hear complaints in relation to assessments.

You ask whether a town is required to pay the members of its board of assessment review compensation in excess of their salaries because the board of assessment review was required to meet twice in one year to hear complaints with respect to the assessments on the town's tentative assessment roll, pursuant to a consent order entered into by the town board.

The Real Property Tax Law requires most towns to have a board of assessment review (see Real Property Tax Law, §§522[5], 523[1][a], 528[3]). The primary function of the board of assessment review is to meet annually, generally on the third Tuesday in May and so many days thereafter as the board deems necessary, to hear complaints in relation to assessments on the town's tentative assessment roll (see Real Property Tax Law, §§512; 525[2][a]). Thereafter, the board of assessment review must determine the complaints before it (Real Property Tax Law, §525[3]), deliver to the assessor a verified statement showing the changes in assessments determined by the board (id.), and mail to each complainant a notice of the board's determination (Real Property Tax Law, §525[4]).

A town board, by resolution, may provide that the members of the board of assessment review shall be paid for their respective services (see Real Property Tax Law, §523[1][g]). Such resolution, if adopted, must fix the amount of compensation (id.; see also Town Law, §27[1]).

Article VIII, §1 of the State Constitution prohibits gifts and loans of municipal funds to private individuals. This Office has expressed the opinion that payment of additional compensation to a public officer beyond the amount fixed when the services were performed would constitute a gift in contravention of Article VIII, §1 (1983 Opns St Comp, No. 83-158, p 199; see Timmerman v City of New York, 69 NYS2d 102, affd 272 App Div 758, 70 NYS2d 140; cf. AFSCME v City of Plattsburgh, 72 Misc 2d 744, 340 NYS2d 18, relative to retroactive pay increases under collective bargaining agreement). Such additional compensation for services already fully recompensed is distinguishable from a prospective increase in compensation effected prior to the performance of services (see 1985 Opns St Comp, No. 85-44, p 59). Accordingly, in the instant situation, we believe that the town board may not pay the members of the board of assessment review compensation in excess of their salaries fixed at the time of performance of the additional duties required by the consent order.

March 15, 1989
Richard E. Tompkins, Supervisor
Town of Ashland