Opn. No. ( 1994 )

Requestor: Charles J. Naughton, Esq., Town Attorney Town of Wheatfield 904 Center Street Lewiston, N Y 14092-0732

Written by: James D. Cole, Assistant Attorney General in Charge of Opinions

You have inquired as to the procedure that must be followed in order to substitute an attorney for the town attorney or the town prosecutor in the event one of these officers is unavailable to perform his or her duties.

The town board is authorized to establish the office of town attorney and may appoint deputies to the town attorney. Town Law § 20(2)(a). In addition, a town board may employ counsel to the town attorney regarding any particular subject matter, proceeding or litigation. Ibid. We note that the town board of any town that has not established the office of town attorney may hire an attorney to provide such legal services that may be required. Id., § 20(2)(b).

Your town has utilized the above authority to establish the positions of town attorney and town prosecutor. In our view, under the above provision it is necessary that the town board enact a resolution to name deputies who may serve in the event that the town attorney or the town prosecutor is unavailable. Further, we note that no officer of a town may employ legal counsel in instituting or defending an action on behalf of the town unless directed to do so by the town board. Id., § 65(1).

We conclude that the town board must designate deputies to serve in the event that the town attorney or the town prosecutor is unavailable.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.