Opn. No. ( 1980 )

Peter A. Harris, Esq. Antell, Harris Calleri, Esqs.

As attorney for the Town of Victor you have requested an opinion whether your town board is required to give prior approval or consent to the commencement of a proceeding under Public Officers Law § 80 for the recovery by a newly elected town supervisor of books, papers, money and/or other property appertaining to that office.

Public Officers Law § 80 authorizes a public officer to demand from his predecessor in office the books, papers, money and property belonging or appertaining to such office and, if such demand is refused, authorizes the new officer to bring a proceeding to obtain such items and directs the court under circumstances therein mentioned to commit the former officer to the county jail until delivery is made. Among the books and papers of a town supervisor are books of account that Town Law § 29 subd 4 requires him to keep. That subdivision specifically directs that when his term expires the books of account are to be filed in the office of the town clerk. This means that the books of account are not among the items that the successor supervisor may demand be turned over to him.

In our opinion, the proceeding authorized by Public Officers Law §80 is personal to a public officer and no action by the town board is required before a new town officer may bring the proceeding. However, the relief does not include the right of a town supervisor to obtain the books of account contemplated in Town Law § 29 subd 4. If they have not been filed with the town clerk we suggest that the district attorney be consulted concerning the matter, particularly the applicability of Penal Law § 175.20, 175.25 and 195.05 and the possible applicability of Penal Law § 195.00.