Hon. Charles P. Caputo County Attorney, Fulton County
This is in response to your letter wherein you ask for an opinion of the Attorney General whether the County Clerk of Fulton County may be paid additional compensation by the County for taking over additional duties; namely, the licensing of snowmobiles and motorboats, normally a function of the Department of Motor Vehicles.
Section 7 (formerly section 12) of Article XIII of the New York State Constitution, provides in part:
"Each of the state officers named in this constitution shall, during his continuance in office, receive a compensation, to be fixed by law, which shall not be increased or diminished during the term for which he shall have been elected or appointed; nor shall he receive to his use any fees or perquisites of office or other compensation."
County Law, § 201, provides in part:
"* * * each board of supervisors shall fix the salary of all officers paid from county funds * * *.
"All fees, percentages, emoluments or other compensation received by any such officer by virtue of his office from whatever source shall belong to the county and be paid into the county treasury * * *. This chapter shall not authorize any increase or decrease in compensation prohibited by section twelve of article thirteen of the state constitution. * * *" (Emphasis supplied.)
A county clerk is specifically mentioned in the New York State Constitution (Article XIII, section 13 [a]), and he is also a clerk of the Supreme Court (Article VI, section 6 [e]). A county clerk is a constitutional State officer within the meaning of section 12 (now 7) of Article XIII of the New York State Constitution and it would therefore follow that his salary may not be increased or diminished during his term of office (Eberhard v City of New York, 163 Misc. 370 [Supreme Court, Bronx County, 1936]).
1959 Atty Gen [Inf Opns] 211, states that additional compensation may be paid to a county clerk in situations where he undertakes duties apart from those normally performed in the course of his employment as county clerk. However, the licensing of snowmobiles and motorboats, when directed by the Commissioner of Motor Vehicles is a function of the county clerk's office. Vehicle and Traffic Law, § 205(1) mandates that the clerk of each county, with certain exceptions not pertinent here, act as the agent of the commissioner in registering "motor vehicles, motor cycles, and when directed by the Commissioner, snowmobiles and motorboats * * *."
From all the foregoing we conclude that the County Clerk of Fulton County may not be paid an additional salary or compensation by said County for registering snowmobiles and motorboats when directed to do so by the Commissioner of Motor Vehicles.