Opinion 90-33


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


VILLAGE MAYOR -- Deputy (power to appoint officers and employees)

VILLAGE LAW, §4-400(1)(c), (h): In the absence of the village mayor at a village board meeting, the deputy mayor has the power to appoint village officers and employees, subject to village board approval.

You ask whether, under the Village Law, in the absence of the village mayor at the meeting of the village board of trustees, the deputy village mayor may recommend appointments of village officers and employees.

Village Law, §4-400(1)(c) grants to the village mayor the power to appoint all non-elected officers and employees of the village, subject to approval of the village board of trustees (see Briggs v Harmin, 96 AD2d 616, 464 NYS2d 594; cf. Village Law, §3-312[3] relative to the mayor's authority to fill vacancies in village offices caused by other than the expiration of the term of office). Section 4-400(1)(c) also authorizes the mayor to delegate the power to appoint certain employees to other village officers and employees.

Paragraph h of subdivision 1 of section 4-400 makes it the responsibility of the mayor to appoint one of the village trustees as deputy mayor at the annual meeting. That paragraph further provides that the deputy mayor, "during the absence or inability of the mayor, is vested with all the powers and may perform all the duties of the mayor" (see also Public Officers Law, §9 which provides, in part, that, unless otherwise prescribed by law, a deputy possesses the powers and perform the duties of the principal during the absence or inability to act of the principal).

Accordingly, the deputy mayor possesses all the powers and duties of the mayor during the mayor's absence or disability. Therefore, it is our opinion that, at a village board meeting from which the mayor is absent, the deputy mayor has the power to appoint officers and employees, subject to village board approval and applicable civil service requirements (see Montero v Lum, 68 NY2d 253, 508 NYS2d 397). It is also our opinion, however, that the deputy mayor's authority would not extend to those positions of employment with respect to which the mayor may have delegated the power to appoint to another village officer or employee.

September 4, 1990
Jack L. Libert, Esq., Deputy Village Attorney
Village of Lynbrook