McDonough v. Murphy

— Appeals from that part of a [1023] judgment of the Supreme Court at Special Term (Bradley, J.), entered October 27,1982 in Rensselaer County, which, inter alia, granted plaintiffs’ motion for summary judgment declaring certain resolutions of the Rensselaer County Legislature to be null and void. On July 1,1982, defendant Rensselaer County Legislature enacted Resolutions G-217-82 through G-220-82. These resolutions declared the four positions on the Board of Trustees of Hudson Valley Community College (board) held by plaintiffs to be vacant. At the same time, these resolutions appointed four new members to the board. As regards three of the four board positions in question (McDonough, Davison, and Denio), the basis for the Legislature’s declaration was that these plaintiffs failed to file their oaths of office with the Rensselaer County Clerk within 30 days of their appointment, as required by section 30 (subd 1, par h) of the Public Officers Law. The basis for declaring plaintiff Fleming’s position vacant was that he was not a resident of Rensselaer County as required by section 30 (subd 1, par d) of the Public Officers Law. Plaintiffs, the former members of the board, commenced this declaratory judgment action seeking a declaration that the action of the Legislature was invalid and that they are the lawful members of the board. Special Term granted plaintiffs’ motion for summary judgment declaring the resolutions of the Legislature void and directing a trial on the factual issue of plaintiff Fleming’s residence. This appeal ensued. We first turn to the issue of whether plaintiffs McDonough, Davison and Denio filed the required oaths of office (see Public Officers Law, § 10) within the time limitations prescribed by section 30 (subd 1, par h) of the Public Officers Law. The facts show that plaintiffs McDonough and Davison were reappointed to their positions as trustees on June 10,1980 and September 8,1981, respectively, for nine-year terms. However, not until November 16, 1981 were said plaintiffs given written notification by the Rensselaer County Clerk of their appointments. Within 30 days after said notice both plaintiffs filed their official oaths of office. Plaintiff Denio was appointed by the county legislature to his position on July 9, 1976. Although Denio never received written notice of his appointment, he duly executed the oath of office for said position on April 15, 1977. Section 30 (subd 1, par h) of the Public Officers Law provides that a vacancy is created in a public office upon an officer’s “refusal or neglect to file his official oath * * * before or within thirty days after the commencement of the term of office for which he is chosen, if an elective office, of if an appointive office, within thirty days after notice of his appointment, or within thirty days after the commencement of such term”. Plaintiffs contend that there has been compliance with the statutory requirements of section 30 in that Davison and McDonough filed their oaths within 30 days of receiving written notice. Plaintiff Denio contends that he received no written notice of his appointment at all, but that his oath was timely filed. Plaintiffs base these contentions upon the fact that in the case of an appointive office, section 30 (subd 1, par h) of the Public Officers Law provides alternative time periods within which to file an oath and, therefore, plaintiffs were not required to file their oaths of office until notified in writing of their appointments. Plaintiffs further claim that the condition of “whichever shall last occur” is implied in the statutory language. Defendants, on the other hand, argue that the statute does not require written notice, but that constructive or implied notice is sufficient to satisfy the statute. Special Term did not pass on this issue, holding that the filing of the oath of office by these three plaintiffs validated their appointment nunc pro tune. However, this rationale has been rejected by this court (Matter ofComins v County of Delaware, 66 AD2d 966). Accordingly, we must construe section 30 (subd 1, par h) of the Public Officers Law. In this regard, the construction offered by plaintiffs must be rejected. One reason plaintiffs give for implying [1024] the condition of “whichever shall last occur” is their mistaken belief that an oath of office cannot be filed until the term commences. Contrary to plaintiffs’ position, the pertinent statute simply does not make such a statement, but only requires that the oath of office be filed “before he shall be entitled to enter upon the discharge of any of his official duties” (Public Officers Law, § 10). In addition, there is no requirement in the Public Officers Law that an appointee be given notice of appointment in written form. Finally, plaintiffs point to subdivision 5 of section 400 of the County Law to prove their contention that the Public Officers Law requires written notice before an appointee has to file his oath. In referring to that statute, plaintiffs have failed to realize that not until the appointed officer has filed an oath of office must the county clerk “execute and deliver to such officer a certificate stating that he has duly qualified and is entitled to assume the duties of his office” (County Law, § 400, subd 5). The statute in question (Public Officers Law, § 30, subd 1, par- h) makes a distinction between those persons elected to office and those persons appointed to office. While an elected officer has no choice as to when to file his oath, the appointed officer is given an alternative. The logical conclusion drawn from this distinction is that in certain circumstances, a person appointed to a position may not have knowledge of said appointment unless given notice by the appropriate officials. However, when by one’s own actions it is clear that a person knows of his appointment, he should not be allowed to wait indefinitely before filing an oath of office. This interpretation is mandated by the necessity to file an oath of office, which is intended to be part of the requirements making an officer fully qualified to carry out the duties of his office (see Public Officers Law, § 10). Thus, once plaintiffs have taken actions as official members of the board, as has been done here, they cannot be heard to claim that they had no notice of their appointments, for without a doubt the contrary is true.* This being the case, plaintiffs McDonough, Davison and Denio failed to comply with the requirements of section 30 (subd 1, par h) of the Public Officers Law. Since such a failure creates a vacancy in office (Ginsberg v City of Long Beach, 286 NY 400, 403), the resolutions replacing these plaintiffs as members of the board were valid. We now turn to the issue concerning Resolution G-219-82 which replaced plaintiff Fleming on the ground that he was not a resident of Rensselaer County. A vacancy is not created until the officer “ceasefs] to be an inhabitant * * * of the political subdivision, or municipal corporation of which he is required to be a resident” (Public Officers Law, § 30, subd 1, par d). It is conceded that a question of fact exists as to whether plaintiff Fleming is a resident of Rensselaer County. Accordingly, Special Term acted prematurely in declaring Resolution G-219-82 invalid before holding a hearing and making a finding of fact on the issue of plaintiff Fleming’s residency. The matter should, therefore, be remitted to Special Term for a hearing on this issue. Judgment modified, on the law and the facts, by reversing so much thereof as declared Resolutions G-217-82 through G-22Q-82 null and void, and Resolutions G-217-82, G-218-82 and G-220-82 declared valid, and matter remitted to Special Term for further proceedings not inconsistent herewith, and, as so modified, affirmed, without costs. Sweeney, J. P., Kane, Main and Casey, JJ., concur; Weiss, J., dissents and votes to affirm in the following memorandum. Footnotes [*] We note that under plaintiffs’ reasoning, an officer has two time periods in which to file an oath of office, either within 30 days after commencement of the term or within 30 days after receiving written notice. Plaintiff Denio did not file his oath of office within either of these time limitations. First, he waited 10 months after appointment before filing, and second, he never received written notice. Accordingly, plaintiffs cannot contend, as they do, that Denio has satisfied the filing requirements of the statute.