IN THE MATTER OF JONATHAN P. HARVEY, AS SPECIAL DISTRICT ATTORNEY v. COUNTY
OF RENSSELAER,
83 N.Y.2d 917 (1994).
June 9, 1994
3 No. 112 (1994 NY Int. 098)
Decided June 9, 1994
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
MEMORANDUM:
The Appellate Division order, insofar as appealed from, should be
reversed, with costs, and the matter remitted to County Court for
recalculation of compensation due petitioner.
When a district attorney is disqualified from conducting an
investigation or prosecution, County Law § 701 authorizes appointment
of a special district attorney. Once appointed, the special district
attorney possesses all the powers, and must discharge all the duties,
of the district attorney as to that matter (County Law § 701(4)).
The district attorney has only limited power, however, to hire staff.
Section 700(5) provides that the county board of supervisors alone may
create the position of "confidential secretary" to the district
attorney. Section 702, governing the hiring of assistant district
attorneys, requires authorization of the position by the board of
supervisors, and filing of the appointment with the county clerk. The
assistant must take an oath of office. Lastly, as we recognized in In
re Knight (191 NY 286), section 703 requires a district attorney faced
with a particularly demanding case to seek the approval of the county
judge prior to employing counsel to assist in the trial. These
provisions establish that a district attorney requires the approval of
the county court or board of supervisors (depending on the position to
be created or filled) in order to hire legal staff at public expense.
Here, the attorney appointed to act as special district attorney
sought compensation for hours billed by associates in his law firm, as
well as for the services of a law clerk. Although county court
authorized payment, petitioner had failed to obtain prior approval for
compensation to members of his staff. The county attorney objected to
payment for the services of any attorney other than the special
district attorney himself on the grounds that the statute permits
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
The Appellate Division order, insofar as appealed from, should be reversed, with costs, and
When a district attorney is disqualified from conducting an investigation or prosecution,
Once appointed, the special district attorney possesses all the powers, and must discharge
Section 702, governing the hiring of assistant district attorneys, requires authorization of
Lastly, as we recognized in In re Knight, section 703 requires a district attorney faced with
These provisions establish that a district attorney requires the approval of the county court
Although county court authorized payment, petitioner had failed to obtain prior approval for
Although the Appellate Division rejected the county's contention, it nevertheless reduced the
Because a special district attorney's powers are co- extensive with those of a district
We therefore decline petitioner's sole request that we recognize broader hiring powers for an
Order, insofar as appealed from, reversed, with costs, and matter remitted to Rensselaer
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