Opn. No. ( 1979 )

Hon. F. Jay Juracka Acting County Attorney, Schenectady County

We acknowledge receipt of your letter inquiring whether the salaries of your county clerk, sheriff, district attorney and members of the county legislative body may be increased and, if so, whether the increase may be made retroactive.

By legislation adopted in 1968, County Law § 150-a was added to provide that county legislative boards established in place of the board of supervisors of a county shall be deemed to be included in the term "board of supervisors" whenever used in any statute.

County Law § 200 relates to compensation of supervisors. In interpreting this section of the law in an informal opinion reported in 1976 Atty Gen 291, we concluded that the compensation of members and the chairman of the board of supervisors may be increased during their terms of office subject to the maximum amount specified in the notice of public hearing on the county's tentative budget prepared for the fiscal year as such hearing is provided for in County Law § 359. We also concluded that no increase could be effective retroactively. A copy of that opinion is enclosed for your information.

The New York Constitution Article XIII § 7 provides:

"§ 7. [Compensation of Officers]

"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."

The office of county clerk is contemplated within the above prohibition(Finn v City of New York 282 N.Y. 153 [1940]), as is sheriff (Hanley vCity of New York 250 App. Div. 552, affirmed 275 N.Y. 482 [1937]) and district attorney (Dodge v City of New York 252 App. Div. 631, reversed on other grounds 278 N.Y. 25 [1938]).

In our opinion, the salaries of county clerk, sheriff and district attorney may not be increased during the term for which those officers were elected. Making an increase retroactive would violate the provision.

In our opinion, the salaries of the members and chairman of the county board of representatives may be increased through action by the board during the term for which the members were elected but only to an amount equal to the amount of the maximum salary or rate of per diem compensation shown in the notice of public hearing on the tentative budget. The increase may not be effective retroactively.