Opinion 88-49


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


PUBLIC OFFICERS AND EMPLOYEES -- Criteria For Determining Public Office (description of) -- Removal (of officer or employee appointed for fixed term)

LOCAL LAWS -- Procedural Requirements (effect of failure to comply with)

VILLAGE MAYOR -- Powers and Duties (authority to make motions at board meetings)

MUNICIPAL HOME RULE LAW, §23: Generally, the courts will interpret local laws in a manner which will sustain to the greatest extent the validity of the local law.

PUBLIC OFFICERS LAW, §36: A public officer appointed for fixed statutory term may be removed prior to the expiration of the term only by proceedings under this section. Whether an individual is a public officer or employee depends on a number of factors including whether, in carrying out the duties of the position, the individual exercises some part of the sovereign power.

NY CONST, ART 1, §6: An employee appointed for a fixed term is generally subject to dismissal only for cause and is entitled to due process protection prior to dismissal.

VILLAGE LAW, §§3-301(4); 4-400(1)(a): A village mayor may make motions in the same manner as any other member of the board of trustees.

This is in reply to your letter concerning the authority of the village mayor to remove members of boards or commissions. In a related question, you ask whether the mayor may make a motion at a meeting of the board of trustees.

You indicate that the village established, by local law, a board of country club management commissioners. The local law provides that the members of the board are to be appointed by the board of trustees, rather than by the mayor subject to the approval of the board of trustees. The local law also provides that the commissioners, except those first appointed, shall have a term of three years. You note, however, that the local law establishing the board of commissioners was not submitted to a referendum. You indicate that you believe that, due to the failure to submit the local law to mandatory referendum, the local law did not effectively grant the power of appointment to the village board and, therefore, that the power of appointment of members of the board of commissioners lies with the mayor. You have further indicated that the village mayor has made appointments to the commission. You ask whether themayor may dismiss a member of the board of commissioners before the expiration of the member's term and without a hearing.

Initially, we note that under section 23(2) of the Municipal Home Rule Law, a local law is subject to a mandatory referendum if it abolishes, transfers or curtails any power of an elective officer. Under the Village Law, the power to appoint non-elected officers and employees, including members of boards of commissioners, is vested in the mayor, subject to the approval of the board of trustees (Village Law, §§3-301[3], 3-308[5], 4-400[1][c]; cf. General Municipal Law, §243 providing for the appointment of members of a recreation commission, established under that section of law, by the village board). It is clear, therefore, that a local law establishing a board of commissioners which intends to vest the power of appointment in the board of trustees, rather than the mayor, must be submitted to a mandatory referendum.

Generally, the courts will interpret local laws in a manner which will sustain to the greatest extent the validity of the local law (McKinney's Statutes, §§96, 97, 150). Thus, several courts which have examined local laws which were adopted without compliance with referendum procedures have invalidated only the provisions of the local law which would have required its submission to referendum (see, e.g., Hampton Heights Development Corporation v Board of Water Supply, _____ AD2d _____, 531 NYS2d 421; Doherty v Sanvidge, 58 Misc 2d 347, 295 NYS2d 368; also see Parkchester v Yoswein, 79 Misc 2d 859, 361 NYS2d 519 relative to the effect of the lack of a separability clause). On the other hand, a court might invalidate the entire provisions of a local law for failure to comply with State law requirements, such as the conduct a referendum, or upon finding that the provisions subject to referendum are not severable from the other provisions of a local law (see Freeman v Lamb, 63 Misc 2d 231, 311 NYS2d 731). It is not entirely certain, therefore, whether a court would invalidate only those provisions of the instant local law which would have required its submission to referendum. However, since it is our policy generally not to render opinions on the validity of local laws already enacted by local governments, we will, for purposes of responding to your inquiry, accept your assumption that those provisions of the local law which are unrelated to the appointment of members of the commission are valid, notwithstanding the failure to conduct a mandatory referendum.

With respect to the mayor's power to remove, we note that, in the absence of statutory provisions to the contrary, the appointing authority generally has the power to remove (see Beers v Nyquist, 72 Misc 2d 210, 338 NYS2d 745; 1976 Opns St Comp No. 76-581, unreported; 3 McQuillin, Municipal Corporations, §12.112). As previously noted, section 4-400(1)(c) of the Village Law authorizes the mayor "to appoint all department and non-elected officers and employees subject to the approval of the board of trustees...." Based on this authority, this Office has expressed the opinion that the mayor has the authority, subject to applicable civil service requirements, to remove employees and that his authority is not subject to the consent or approval of the board of trustees (Opn No. 76-581, supra).

Here, neither the Village Law nor the local law make any specific provision for the removal of a member of the board of commissioners. The local law does, however, fix terms for the members of the board of commissioners. The courts in this state have held that once a public officer is appointed to an office with a fixed statutory term, the officer can be removed from office prior to the expiration of his term only by proceedings under section 36 of the Public Officers Law (Sullivan v Taylor, 279 NY 364, 18 NE2d 531; see also Betanzos v Green, 95 Misc 2d 89, 407 NYS2d 385; Sheldon v Stabile, 57 Misc 2d 407, 293 NYS2d 3; Collins v City of Schenectady, 256 AD 389, 10 NYS2d 203). Although none of the cited cases discuss the removal of an appointed officer from an office established by local law prior to the expiration of the term fixed by the local law, it is our opinion that the same rule would be applicable. Accordingly, if the commissioner is a public officer, it is our opinion that he may be removed only in accordance with Public Officers Law, §36.

With respect to whether the commissioner is a public officer, we note that the courts have cited a number of factors as relevant to the determination of whether a position is one of employment or a public office. These include whether the incumbent is entitled to compensation as an incident of the position and without regard to the number of hours actually spent on the job; whether there is any tenure attached to the position; whether the incumbent is required to be bonded; the title of the position assigned by the local governing body; whether it is referred to as an office by such body in the legislation creating it; and most importantly, whether the incumbent, in carrying out the duties of the position, exercises some part of the sovereign power. If the duties are routine, subordinate, advisory, or directed, then it is most likely that the position is one of employment rather than an office (Application of Barber, 198 Misc 135, 100 NYS2d 668, affd 278 App Div 600, 101 NYS2d 924, 278 App Div 727; 103 NYS2d 661; Kingston Associates v La Guardia, 156 Misc 116, 281 NYS 390, affd 246 App Div 803 285 NYS 19; Rappel v Roberts, 79 Misc 2d 201, 359 NYS2d 133; Gallagher v Griffen, 93 Misc 2d 174, 402 NYS2d 516; Halley v Carlson, 42 AD2d 839, 346 NYS2d 108).

It is unclear whether the position of commissioner here was established as a public office. The board of commissioners is empowered to, inter alia, supervise and control all facilities comprising the country club; plan and implement recreational programs; and audit the accounts and records of the facilities and employ qualified parties to assist when necessary. These powers are generally considered discretionary, sovereign powers, indicative of a public office. Also, we note that the local law fixes "terms of office" for the commissioners and establishes the same age and residency requirement applicable to public officers (see Public Officers Law, §3; Village Law, §3-300). The local law, however, also specifically states that these powers shall be performed and discharged subject to the approval of the village board of trustees. This provision may indicate that the board is intended to be solely advisory in nature, with no authority to independently exercise any discretion. In that case, it appears the commissioners would be considered to hold positions of public employment rather than public offices (see Kingston Associates, supra).

Clearly, the determination of whether the commissioners hold public offices or positions of employment depends on the meaning and intent of the local law. Since we believe local enactments should be interpreted, in the first instance, by local officials who are responsible for their enactment and administration, it is our policy not to interpret such enactments. Therefore, we cannot make a determination with respect to whether the local law establishes positions of employment or public offices. As noted, however, if the board member is determined to hold a public office, he may be removed only pursuant to Public Officers Law, §36.

It should be noted that, if the commissioners are determined to be public officers, they are required to take and file oaths of office before entering upon the duties of office (Public Officers Law, §10; Village Law, §§3-300, 4-402[h]). Further, it is also generally held that the failure to timely file an oath of office creates an automatic vacancy in the office (Commins v County of Delaware, 66 AD2d 966, 412 NYS2d 428 on remand 73 AD2d 698, 422 NYS2d 533). It is also well-settled, however, that the failure of an officer to take the prescribed oath will not prevent him or her from discharging his or her duties as a de facto officer (Application of Delehanty, 202 Misc 33, 115 NYS2d 602, affd 280 App Div 542, 115 NYS2d 614, affd 304 NY 725).

With respect to the right to hearing if the position is determined to be one of public employment, it would appear that the board member is not entitled to a hearing under Civil Service Law, §75 or any other statute. Thus, his right to a hearing must derive from the due process clause of the Constitution (NY Const, art 1, §6; US Const, 14th Amendment). In this regard, the courts have held that a public employee threatened with dismissal is entitled to due process protections if he has acquired a liberty or property interest in his employment; that is, a legitimate entitlement to continued employment (Economico v Village of Pelham, 50 NY2d 120, 428 NYS2d 213; Elrod v Burns, 427 US 347, 96 S Ct 2673, 49 L ed 2d 547; Board of Regents v Roth, 408 US 564, 92 S Ct 2701, 33 L ed 2d 548). The U.S. Supreme Court has stated that the sufficiency of a claim of entitlement must be made by reference to appropriate State or local laws (Bishop v Wood, 426 US 341, 96 S Ct 2014, 48 L ed 2d 684).

In this instance, the local law prescribes a fixed three-year term for the commissioner. We believe the import of setting a term is that, once appointed, the commissioner would serve for a fixed and definite period of time, rather than at the pleasure of the appointing body or official. Thus, in our opinion, the employee would acquire an entitlement to continued employment throughout the term (cf. Tyson v Hess 109 AD2d 1068, 487 NYS2d 206 affd 66 NY2d 943, 498 NYS2d 778). Further, it is our opinion that, if the commissioner is an employee, he would be entitled to due process protection prior to dismissal, and subject to dismissal only for cause (see 1985 Opns St Comp No. 85-49, p 67). Whether such protection includes both a notice and a hearing would depend on the particular circumstances giving rise to the dismissal. In general, a hearing would be required if the operative facts are in dispute (Economico, supra). We are not in a position to make the necessary determination in this regard.

You also ask whether the mayor has the authority to make motions at meetings of the board of trustees. Under section 3-301(4) of the Village Law, the mayor and the trustees of the village constitute the board of trustees of the village. The mayor presides at the meetings of the board of trustees (Village Law, §4-400[1][a]). The mayor has the authority to vote on all matters and questions coming before the board and is required to vote in the case of a tie (Village Law, §4-400[1][a]). In interpreting sections 87 and 88 of the former Village Law, the language of which was carried over in sections 3-301(4) and 4-400(1)(a) of the current Village Law, this Office found that the mayor, as a member of the board of trustees, was a member of the board for all purposes (10 Opns St Comp, 1954, p 347; see also 4 McQuillin, Municipal Corporations, 3d Ed., §13.19). Although our earlier opinion dealt only with the mayor's authority to second a motion and vote upon the motion, we believe that under the same rationale the mayor would be authorized to make motions in the same manner as any other member of the board of trustees.

October 28, 1988
Robert J. Moore, Esq, Village Attorney
Village of Port Jefferson