| Matter of Rubeor v Town of Wright |
| 2015 NY Slip Op 08895 [134 AD3d 1211] |
| December 3, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Steven Rubeor, Respondent, v Town ofWright et al., Appellants. |
Lemire, Johnson & Higgins, LLC, Malta (Bradley J. Stevens of counsel), forappellants.
Gleason, Dunn, Walsh & O'Shea, Albany (Daniel A. Jacobs of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the Supreme Court (Connolly, J.), enteredOctober 10, 2014 in Schoharie County, which partially granted petitioner's application, ina combined proceeding pursuant to CPLR article 78 and action pursuant to 42 USC§ 1983, to annul a determination of respondent Town Board of the Town ofWright to remove petitioner from the office of Assessor of the Town of Wright.
In September 2008, petitioner was appointed to fill the unexpired term of hispredecessor as Assessor of respondent Town of Wright (hereinafter the Town), the Townof Esperance and the Town of Schoharie, each town having entered into a municipalcooperative agreement establishing a coordinated assessment program (hereinafter CAP).Under a CAP, "a single assessor [is] appointed to hold the office of assessor in all theparticipating assessing units" (RPTL 579 [2] [b]). In December 2012, prior to theexpiration of petitioner's term, respondent Town Board of the Town of Wright(hereinafter the Board) resolved to withdraw from the CAP and appointed respondentSusan Crosby as the Town's interim Assessor. Petitioner then commenced this combinedCPLR article 78 proceeding and action pursuant to 42 USC § 1983,asserting that respondents improperly removed him from office, depriving him of avested property right.[FN1]
[*2]Supreme Court granted the petition to the extent ofannulling the Board's determination to remove petitioner as the Assessor of the Town,concluding that he was entitled to complete the term, which ended on September 30,2013.[FN2]Respondents appeal.
We affirm. This dispute raises an issue of first impression as to whether a town'swithdrawal from a CAP truncates an assessor's term of office (see RPTL 579 [3][a]; [4] [b]). There is no dispute here that the Town is required to appoint an assessor,whose term of office shall be six years (see RPTL 310 [1], [2]), and that anassessor is a public officer who ordinarily may only be removed from office for causeunder Public Officers Law § 36. The question presented is whether a CAPchanges this structure. The governing statute, RPTL 579, seemingly has conflictingprovisions. Specifically, the statute provides that an assessor's term shall be as defined inRPTL 310, i.e., six years (see RPTL 579 [3] [a]). However, the statute furtherprovides that a member may withdraw from a CAP at any time, provided that it does soat least 45 days before the next taxable status date (see RPTL 579 [4] [b]). Theonly defined statutory consequence of withdrawal is that "the agreement between oramong the remaining participants shall be deemed amended to remove any references tothe assessing unit that has withdrawn" (RPTL 579 [4] [b]). The statute is otherwise silentas to what happens to an assessor's term when, as here, a CAP member opts to withdrawprior to the expiration of the term.
In construing a statute, our primary objective is to determine the Legislature'sintention, giving due effect to the plain meaning of unambiguous statutory language (see Matter of Albany Law School vNew York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d106, 120 [2012]). Where, as here, we having competing provisions, it is instructiveto keep in mind that "a statute must be construed as a whole and that its various sectionsmust be considered with reference to one another" (id.), while recognizing that "astatutory construction which renders one part meaningless should be avoided"(Rocovich v Consolidated Edison Co., 78 NY2d 509, 515 [1991]). With theseprinciples in mind, we find it telling that RPTL 579 was amended in 2009 to, amongother things, clarify that an assessor appointed in a CAP receives a six-year term and toshorten the notice period for a member to withdraw (see L 2009, ch 46,§§ 1-3 [eff May 29, 2009]). The adoption of these companionprovisions leads us to conclude that the Legislature intended an assessor's six-year termto remain intact, even where a CAP member opts to withdraw. Insofar as the assessor isconcerned, the effect of withdrawal is merely delayed until the assessor's term expires, atwhich time the assessing unit is free to choose a new assessor, without approval from anyother assessing unit. We are mindful that the Department of Taxation and Finance held,in an opinion of counsel issued in 1997, that the adoption of a CAP "may truncate theterm of office of an incumbent appointed assessor," but that is not the situation presentedhere. Nor is that letter opinion binding, particularly in view of the 2009 amendment toRPTL 579 (see Matter of Batti vTown of Austerlitz, 71 AD3d 1260, 1261-1262 [2010]).
We conclude that petitioner's term of office did not end when the Town withdrewfrom the CAP and that petitioner held a right to continued employment until theexpiration of his term.
[*3] Lahtinen, J.P.,McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, withcosts.
Footnote 1:After respondentsremoved the case to federal court, the United States District Court for the NorthernDistrict of New York abstained from exercising jurisdiction pending the resolution of theunderlying statutory dispute in state court, while staying petitioner's claims pursuant to42 USC § 1983.
Footnote 2:Since petitioner's termhad already ended, Supreme Court declined to reinstate petitioner to his position as TownAssessor. Given that petitioner did not appeal from the determination and expressly seeksto affirm the judgment in his brief, we do not address the corollary issue of back pay.