Opinion 90-62


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Removal (of elected official physically unable to perform the duties of office)
SUPERINTENDENT OF HIGHWAYS -- Removal (physical inability to perform duties)

PUBLIC OFFICERS LAW, §§30, 36; TOWN LAW, §32: An elected town superintendent of highways who is physically unable to perform the duties of his office is entitled to continue in office and receive his salary, unless the superintendent is removed from office pursuant to Public Officers Law, §36, or a vacancy in the office is created under Public Officers Law, §30 or another provision of law.

You ask whether an elected town highway superintendent who is physically unable to perform his duties is entitled to remain in office and receive the salary fixed by the town board for his office for the balance of his term of office.

Public Officers Law, §30 sets forth events which create a vacancy in office. These include, among other things, resignation or removal of the incumbent; an incumbent's ceasing to comply with residency requirements fixed for the office; an entry of a judgment or order of a court of competent jurisdiction declaring the incumbent to be incompetent; and an incumbent's conviction of a felony or crime involving a violation of the oath of office (Public Officers Law, §30[1][b] - [f]). Physical inability to perform the duties of office, however, is not listed as an event creating a vacancy in office (17 Opns St Comp, 1961, p 448; cf. Town Law, §32[2], providing that a deputy town superintendent of highways shall act and be vested with all the powers of the town superintendent during the absence or inability of the superintendent to act).

Public Officers Law, §36 provides statutory procedures for removal of a town highway superintendent duly elected to and holding office (see Sullivan v Taylor, 279 NY 364, 18 NE2d 531; cf. former Highway Law, §160, repealed by L 1981, ch 183, which prescribed procedures for removal of town highway superintendents for malfeasance or misfeasance in office by the New York State Department of Transportation, upon written charges preferred by the town board or county highway superintendent). Section 36 provides that any town officer, except a town justice, may be removed from office by the Supreme Court for any misconduct, maladministration, malfeasance or malversation in office. An application for such removal may be made by any citizen resident of the town or by the county district attorney, and shall be made to the Appellate Division of the Supreme Court held within the judicial department embracing the town (see also Executive Law, §63-a authorizing the Attorney General to maintain an action against a public officer who has performed an act which by law works a forfeiture of his office). In this regard, we note that it has been stated by one court, as dicta, that the continued incapacitation of a public officer due to illness, with the consequent inability to perform the duties of office, might constitute maladministration in office (Application of Baker, 87 Misc 2d 592, 386 NYS2d 313, citing 17 Opns St Comp, 1961, supra). However, whether the continued non-performance of the duties imposed on the office of highway superintendent as a result of a superintendent's physical inability to perform, in any given situation, constitutes maladministration in office is a question which can only be resolved by the courts in the context of a removal proceeding (id.).

Based on the foregoing, therefore, as a general rule, a superintendent who is physically unable to perform the duties of his office, is entitled to continue in office for the remainder of his term unless: (1) the superintendent is removed from office pursuant to Public Officers Law, §36; or (2) a vacancy in the office is created by the occurrence of one of the other events listed in Public Officers Law, §30 or pursuant to another provision of law.

With respect to the superintendent's entitlement to continue to receive his salary, it is well-settled that the salary of an elected public officer is an incident of his office and, therefore, unless otherwise provided by statute, such an officer is entitled to receive the salary fixed for the office so long as he or she holds that office (Matter of Bookhout v Levitt, 43 NY2d 612, 403 NYS2d 200; Fitzsimmons v Brooklyn, 102 NY 536; O'Leary v Board of Education, 93 NY 1; Periconi v State, 91 Misc 2d 823, 398 NYS2d 959, 963; 1980 Opns St Comp No. 80-555, p 158). We are aware of no provision of law authorizing the withholding of a highway superintendent's salary solely because the superintendent is physically unable to perform his duties (cf. Town Law, §27[1], providing for the withholding of salary of certain town officers and employees, including a highway superintendent, for the failure to submit to the town supervisor monthly reports of moneys received). Accordingly, the salary fixed for the office of highway superintendent may not be withheld solely because he is physically unable to perform the duties of his office.

February 22, 1990
Cornelius F. Healy
Deputy State Comptroller