Charles J. Werger, Esq. Attorney for Town of Sand Lake
We acknowledge receipt of your letter stating that your town board, by resolution, increased the duties of the town attorney to require legal services in connection with the creation of a town sewer district and increased the salary of that officer based upon the consequent increase in the work load which would be involved. You inquired whether the town board may subsequently remove those duties from the town attorney after the work in connection with the sewer district has been commenced, whether the office of town attorney must be filled by an attorney who is a resident of the town, if there is one, and whether the attorney for the sewer district must be a resident of the town.
A town attorney is an officer of the town whose term of office expires with the life of the town board and who is required to be a resident of the town unless there is no resident attorney, in which case a nonresident may be appointed to the office of town attorney (Town Law §§ 23, 24).
A town improvement district may have an attorney to perform its necessary legal work. The town board may authorize the town attorney to perform those legal services and to be paid by the improvement district for doing so (Town Law §§ 215[22], 206[12], 61 and 20[2(a)]). There is no reason why a town board, after having passed a resolution authorizing the town attorney to perform legal services for an improvement district, cannot, by the same process, remove that authorization and appoint someone else. An attorney for an improvement district is not a town officer or an officer of the improvement district and is not subject to a residency requirement. Such an attorney has no fixed statutory term but is retained as a professional and, in the absence of contrary statutory provision may be removed at any time and replaced by another attorney.
In our opinion, if there is a resident attorney in a town the town board has no option but to appoint a resident of the town as the town attorney.
In our opinion, an attorney for a town improvement district is neither a town nor an improvement district officer and is not subject to a residency requirement to hold that position, has no fixed term and the appointment or retainer agreement does not continue beyond the life of the appointing authority.