Opinion 2000 - 11


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 deputy highway superintendent appointed by town board)

SUPERINTENDENT OF HIGHWAYS -- Powers and Duties (removal of deputy appointed by town board)

TOWN BOARD -- Powers and Duties (removal of deputy appointed by town board)

TOWN LAW 32(2): A deputy town superintendent of highways, whether appointed pursuant to Town Law 32(2) by the superintendent of highways or by the town board, serves at the pleasure of the superintendent.

You ask whether a deputy town highway superintendent appointed by a town board pursuant to Town Law 32(2) serves at the pleasure of the highway superintendent or the town board.

Town Law 32(2), as amended by chapter 621 of the Laws of 1952, provides that the town board may at any time establish the office of deputy superintendent of highways. It further provides as follows:

The deputy town superintendent of highways shall be appointed by and serve at the pleasure of the town superintendent of highways. If the town superintendent of highways shall fail to appoint such deputy within five days after the establishment of the office of deputy or within five days after a vacancy occurs in the office of deputy, the town board shall have power to appoint such deputy town superintendent of highways (emphasis added).

In 1978 Opns St Comp No. 78-388, unreported, we expressed the opinion that a deputy superintendent appointed by the town board pursuant to section 32(2) serves at the pleasure of the board rather than at the pleasure of the superintendent. We based our conclusion primarily on: (a) the general principle that absent a contrary statutory provision, the power to appoint officers and employees implies the power to dismiss; and (b) the provision in Town Law 24 stating that, "except as otherwise provided by law," all appointed officers for which a term of office is not fixed in that section serve at the pleasure of the town board. We also raised the practical concern of a superintendent frustrating the board's appointment power by continually terminating the board's appointees and, in effect, leaving the position vacant. Upon reconsideration, we believe the express language of section 32(2) and the legislative history of that provision indicate that a deputy appointed by the town board serves at the pleasure of the superintendent, not the town board.

As noted, section 32(2) provides that "(t)he deputy town superintendent of highways shall be appointed by and serve at the pleasure of the town superintendent of highways." If the superintendent fails to appoint "such" deputy within five days after the office of deputy is established or becomes vacant, the board has the power to appoint "such" deputy. By use of the word "such" in connection with the board's appointing power, we believe the statute is referring back to the deputy that otherwise would be appointed by the superintendent and serve at the pleasure of the superintendent. There is no indication that, once appointed by the board, the deputy achieves a status different than one appointed by the superintendent.

Further, we note that present Town Law 32(2) replaced an earlier version that was added by chapter 419 of the Laws of 1936 and repealed by chapter 621 of Laws of 1952. Section 32(2), as added by chapter 419, provided that the town board, in its discretion, upon written recommendation by the superintendent, could appoint a deputy to be nominated by the superintendent, to assist the superintendent in the performance of his or her duties. It further stated that "[s]uch deputy superintendent shall act as such during the pleasure of the town
superintendent." Thus, although appointed by the town board, the deputy, under the express language of former section 32(2), served at the pleasure of the superintendent.

Memoranda in the bill jacket for chapter 621 of the Laws of 1952 indicate that the intent of the 1952 amendment was to remedy the situation where a superintendent, due to illness or other incapacitation, did not make a nomination and recommendation to the board and, therefore, no deputy could be appointed. Authorizing the town board to make the appointment after five days would ensure that the business of the highway department could continue to be carried out in an orderly fashion (Memorandum to the Governor Department of Audit and Control, March 25, 1952; Memorandum to the Governor NYS Association of Towns, April 4, 1952). There is nothing in these memoranda, however, that suggests any intent to change the status of the deputy from that of serving at the pleasure of the superintendent, even when appointed by the board (compare Town Law 30[10], which provides that a deputy town clerk appointed by the board in the event that the clerk is absent or unable to act and there is no qualified deputy present and able to act, holds office at the pleasure of the board, but in no event longer than the duration of such absence or inability of the clerk).

Finally, while, as noted in Opn No. 78-388, supra, a superintendent could frustrate the appointment process by dismissing board appointees, we believe the primary intent of the 1952 amendment -- to ensure that a deputy is in place when a superintendent is incapacitated -- would still be furthered by our conclusion here. Moreover, our prior conclusion leads to a different and perhaps more serious practical concern. Under our previous conclusion, a deputy appointed by the board could serve at the board's sole discretion through terms of office of successor superintendents. It is unlikely the State Legislature, in enacting section 32(2) as a measure to ensure there is no gap in leadership in the highway department, intended to restrict the appointing authority of subsequent office holders. The conclusion we now reach preserves the right of a subsequently elected or appointed superintendents to appoint his or her own deputy.1

Accordingly, it is our opinion that a deputy town superintendent, whether appointed pursuant to Town Law 32(2) by the superintendent or by the town board, serves at the pleasure of the superintendent. Opn No. 78-388, supra, is hereby superseded to the extent inconsistent with this opinion.2

August 18, 2000
Michael P. DeGroat, Esq., Town Attorney
Town of Colchester

1 We note also that the conclusion herein is consistent with 33 Opns St Comp, 1977, p 133, in which we interpreted analogous language in Town Law 42, relative to a deputy supervisor.

2 In Opn No. 78-388, supra, we suggested that article XIII 2 of the State Constitution also supported the conclusion reached in that opinion. That provision states that when the duration of an office is not "declared by law", a public officer serves at the pleasure of the appointing authority. Since we now conclude that the duration of the tenure of a deputy superintendent appointed by the town board is "declared by law" in section 32(2), the constitutional directive in article XIII, 2 as to an officer serving at the pleasure of the appointing authority, in our opinion, does not apply.