Opinion 90-40

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 (right to vote as trustee and deputy mayor)
PUBLIC MEETINGS AND HEARINGS -- Voting Procedure (right of village deputy mayor to vote as deputy and as trustee)

VILLAGE LAW, §4-400(1)(a): A village trustee who is also deputy mayor does not vote both in his or her capacities as trustee and deputy mayor during the absence or inability of the mayor.

You ask whether a village trustee, when serving as deputy mayor during the absence or inability of the mayor to attend a meeting of the board of trustees, may cast two votes, one in his or her capacity as trustee and the other in his or her capacity as deputy mayor.

Village Law, §4-400(1)(h) makes it the responsibility of the village mayor to appoint a member of the board of trustees as deputy mayor. 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). The mayor presides at meetings of the board of trustees, "and may have a vote upon all matters and questions coming before the board and he shall vote in case of a tie, however on all matters and questions, he shall vote only in his capacity as mayor of the village and his vote shall be considered as one vote" (Village Law, §4-400[1][a] [emphasis added]).

The quoted paragraph from section 4-400(1)(a) is identical to language in section 88 of the former Village Law. In Anson v Starr, 198 Misc 982, 101 NYS2d 948, the court considered the question of whether, under former Village Law, §88, a village trustee who also was the "acting village mayor" could vote both as trustee and acting mayor on the filling of a vacancy in the position of mayor.

Relying on the underscored language quoted above, the court stated that:

The underscored portion ... was added by Chapter 280 of the Laws of 1947. In view of that amendment there can now be no doubt that the mayor has but one vote. He need not always vote. He is obligated to vote only when there is a tie. In all other instances, he may vote or not as he pleases. But if he does vote, whether voluntarily or by mandate, he has only one vote to cast. (101 NYS2d at 949-950).

The court held, therefore, that a trustee serving as acting mayor had but one vote and could not vote both in his capacity as trustee and in his capacity as acting mayor. We note that the title to the position of "acting village mayor" was re-designated as "deputy village mayor" by chapter 60 of the Laws of 1966.

Accordingly, based on the foregoing, we conclude that a village trustee who is also the deputy mayor does not vote both in his or her capacity as trustee and deputy mayor during the absence or inability of the mayor (see also 14 Opns St Comp, 1958, p 210; 21 Opns St Comp, 1965, p 486; 1969 Atty Gen [Inf Opns] 124).

October 16, 1990
Helen N. Petruccione, Village Clerk
Village of Yorkville