Norman Kellar, Esq. Town Attorney, Gardiner

You have asked whether a town that has not established the office of town attorney may contract with non-resident attorneys for the provision of legal services on an hourly basis.

The town board may establish the office of town attorney (Town Law, § 20 [2]). Every town officer at the time of his appointment and throughout his term of office is required to be a resident of the town (id., § 23). In towns having no resident attorney, however, the town attorney need not be a resident of the town (ibid.).

Under these provisions, if a town has established the office of town attorney, the occupant of the office must be a resident of the town unless there is no attorney residing in the town (1977 Op Atty Gen [Inf] 82). If, however, the town abolishes the office of town attorney or, as in this case, has not established the office of town attorney, the town board may retain an attorney to perform specified legal services (ibid.;Crotty v Town of New Windsor, 106 Misc.2d 223 [Sup Ct, Orange Co, 1980]). Under these circumstances, the attorney would be an independent contractor paid for actual legal services rendered and would not have to be a town resident (ibid.).

We conclude that a town that has not established the office of town attorney may employ non-resident attorneys to provide legal services on a contractual basis.