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Volume 9 - Opinions of Counsel SBEA No. 44

Opinions of Counsel index

Oath of office (reappointment to new term) - Public Officers Law, § 10; Real Property Tax Law, §§ 310, 1530:

Upon reappointment to the office of assessor or county director, an individual must file a new oath of office.

We have been asked whether an assessor or county director, who is appointed to a new term of office, must take and file a new oath of office.

Sections 310(2) and 1530(1) of the Real Property Tax Law establish six-year terms of office for appointed assessors and county directors of real property tax services, respectively. Those initial terms commenced on October 1, 1971. The third complete term ended September 30, 1989, and a new six-year term began the following day (see, 5 Op.Counsel SBEA No. 76). The question is whether an assessor or director reappointed to the same office for a new six-year term must file a new oath of office.

Section 10 of the Public Officers Law is quite specific: “Every officer shall take and file the oath of office required by law . . . before he shall be entitled to enter upon the discharge of any of his official duties.” Section 30(1)(h) of that statute is likewise quite specific as to the effect of not taking and filing the oath:

Every office shall be vacant upon the happening of one of the following events before the expiration of the term thereof:

[the] refusal or neglect to file his official oath or undertaking, if one is required, before or within thirty days after the commencement of the term of office for which he is chosen, if an elective office, or if an appointive office, within thirty days after notice of his appointment, or within thirty days after the commencement of such term. . . .

In construing these statutes, the Attorney General has concluded that zoning boards of appeal members must take new oaths upon reappointment (1979, Op.Atty.Gen. (Inf.) 266). Similarly, in our opinion, upon the start of a new term, each assessor and county director has 30 days to take and file the required oath.

Both the Attorney General (1976, Op.Atty. Gen. (Inf.) 336) and the State Comptroller (10 Op.State Compt. 332) have issued opinions that the failure of a public officer to file an oath is not correctable, because the statute specifically creates the vacancy without providing a remedy. The provisions of Public Officers Law § 30(1)(h) create a vacancy which the appointing authority (e.g., town board, county executive, county legislature) may fill at any time (Public Officers Law, § 38).

The appointive assessor or county director who fails to file the oath of office within 30 days is in the same position as any de facto officer: his or her actions are valid, but employment is subject to immediate termination (Williamson v. Fermoile, 31 A.D.2d 438, 298 N.Y.S.2d 557 (4th Dept. 1969), aff’d, 26 N.Y.2d 731, 257 N.E.2d 285, 309 N.Y.S.2d 35 (1970); Vescio v. City Manager, City of Yonkers, 69 Misc.2d 68, 329 N.Y.S.2d 357 (Sup. Ct. Westchester Co. 1972), aff’d, 41 A.D.2d 833, 342 N.Y.S.2d 376 (2d Dept. 1973); 1979, Op.Atty.Gen. 198). Although the failure to file the oath cannot be remedied, the Attorney General has concluded that there is no bar to the appointment of the same individual to the same office (1978, Op.Atty.Gen. (Inf.) 833). Presumably, such reappointed official would be sure to timely file the oath the second time.

The same rationale applies to elected assessors. A reelected assessor must take and file a new oath for each new term. However, should an elected assessor not timely take and file an oath, the town board has no authority to remedy the situation by appointing that individual for the entire term. Section 42 of the Public Officers Law contains provisions on filling appointments in elective offices. Among these is a provision that authorizes the town board to appoint an individual to serve in an elective vacancy only until the end of the calendar year. The unexpired portion of the term must be filled at the next general election.

The provisions of Town Law, § 25 and Public Officers Law, § 30 are inconsistent. The Town Law provision requires town officials to file their oaths within fifteen days of the start of their terms; the Public Officers Law provision requires that the oath be filed within thirty days. The Court of Appeals| has held that the thirty day limit of the Public Officers Law applies and that a town official may take the oath before any official authorized by the Public Officers Law to administer the oath of office. “It was not, we think, the intention of the Legislature to set a trap for the unwary” (Entwistle v. Murtaugh, 17 N.Y.2d 6, 214 N.E.2d 153, 266 N.Y.S.2d 969, 970 (1966)).

In sum, each county director and assessor must take and file an oath of office upon appointment or reappointment within thirty days of the beginning of an initial or subsequent term of office.

November 19, 1990