| Matter of Ricket v Mahan |
| 2011 NY Slip Op 02520 [82 AD3d 1565] |
| March 31, 2011 |
| Appellate Division, Third Department |
| In the Matter of Theodore W. Ricket, Appellant-Respondent, vPaula A. Mahan, as a Member of the Town Board of the Town of Colonie, et al.,Respondents-Appellants. |
—[*1] Michael C. Magguilli, Town Attorney, Newtonville (Rebekah Nellis Kennedy of counsel),for respondents-appellants.
Kavanagh, J. Cross appeals from a judgment of the Supreme Court (McNamara, J.), renderedAugust 26, 2010 in Albany County, which, among other things, dismissed petitioner'sapplication, in a combined proceeding pursuant to CPLR article 78 and action for declaratoryjudgment, to, among other things, review two resolutions of respondent Town Board of the Townof Colonie appointing respondents John H. Cunningham and Michael M. Burick to certain publicoffices.
On January 7, 2010, respondent Town Board of the Town of Colonie passed tworesolutions—one appointing respondent John H. Cunningham to a two-year term asCommissioner of Public Works and another appointing respondent Michael M. Burick to asix-year term as Personnel Officer. Petitioner, a resident of the Town of Colonie, commencedthis combined CPLR article 78 proceeding and action for a declaratory judgment seeking adetermination that Cunningham's appointment was invalid because he did not reside in the Town,nor did he possess the qualifications established for this position by the Town in its local law.Petitioner also sought a declaration that the salary and benefits paid to Cunningham while he[*2]served as Commissioner constituted "an unconstitutional giftof public funds" that must be returned to the Town. In addition, petitioner sought a declarationthat Burick's appointment as Personnel Officer was invalid because, under the Town Law, theTown Board was only authorized to appoint him for the remainder of his predecessor's unexpiredterm. Supreme Court denied all of the relief sought by petitioner, except that it found that Burickcould only be appointed by the Town Board for the unexpired portion of his predecessor's term,and so modified his appointment to this position. Both petitioner and respondents now appeal.
After it abolished the Office of Superintendent of Highways—an elected position thatcould only be held by a Town resident—the Town Board enacted a local law creating theposition of Commissioner of Public Works (see Town of Colonie Code § 34-3).While the local law, among other things, made this an appointed position with a definite term,and set forth a description of the position's official responsibilities and the qualifications neededto be appointed to this position, it was silent as to whether the appointee had to be a Townresident (see Town of Colonie Code § 34-3). Petitioner contends that since theCommissioner of Public Works, in effect, replaced the Superintendent of Highways, itnecessarily followed that whomever was appointed to this position must also be a Town resident(see Town Law § 20 [1]; § 23). Respondents argue that the responsibilitiesassumed by the Commissioner of Public Works are not limited to those previously exercised bythe Superintendent of Highways and, therefore, the requirements for this position should not bedetermined by those that existed for that elected position. In addition, respondents claim that thelocal law set forth requirements for the Commissioner of Public Works position and, by its terms,did not provide that the appointee must be a Town resident.[FN1]
Since the local law is silent as to whether the Commissioner of Public Works must be aTown resident, the issue presented is whether state law serves to impose such a requirement. Inthat regard, we reject respondents' claim that the local law creating this position supercedes anystate statute that would otherwise require that the Commissioner of Public Works be a Townresident (see Municipal Home Rule Law § 2 [5], [12]; § 10 [1] [ii] [a] [1];[d] [3]; 1997 Ops Atty Gen No. 97-11). A municipality may enact a local law that supercedes astate statute if the state statute is a special, as opposed to a general, law (see MunicipalHome Rule Law § 10 [1] [ii] [a] [1]; [d] [3]; 1997 Ops Atty Gen No. 97-11), but must doso in explicit terms and specifically identify in the local law the state statute that it intends tosupercede (see Municipal Home Rule Law § 22 [1]; Kamhi v Town ofYorktown, 74 NY2d 423, 434 [1989]). Here, we need not decide whether the state statutes atissue are special laws because the Town, when it enacted this local law, made no reference to anystate statute, nor did it identify in the local law any state statute that it intended to supercede(see Municipal Home Rule Law § 22 [1]; Kamhi v Town of Yorktown, 74NY2d at 434).
Two state statutes are implicated by this proceeding. The first, Public Officers Law § 3(1), provides that "[n]o person shall be capable of holding a civil office who shall not, at the timehe [or she] shall be chosen thereto, . . . be a citizen of the United States, a residentof the state, [*3]and if it be a local office, a resident of thepolitical subdivision or municipal corporation of the state for which he [or she] shall be chosen,or within which the electors electing him [or her] reside" (emphasis added). The second,Town Law § 23 (1), states that all "elective officer[s] of the town" and "[e]very otherofficer of the town at the time of his [or her] appointment and throughout his [or her] term ofoffice shall be an elector of the town" (emphasis added).[FN2]An elector of a town is an individual who may register as a voter therein regardless of whetherthat person has actually registered (see 1985 Ops Atty Gen No. 85-59). While the TownLaw identifies some town officers that must be town residents, such as town supervisor andsuperintendent of highways, this listing is not exhaustive and specifically provides that "[a]llother officers and employees in such a town shall be appointed by the town board" (TownLaw § 20 [1] [a] [emphasis added]; see Town Law § 23 [1]; Matter ofGaylord Disposal Serv. v Zoning Bd. of Appeals of Town of Kinderhook, 175 AD2d 543,544-545 [1991], lv denied 78 NY2d 863 [1991]). Put another way, state law provides thatif a town enacts a local law creating a public or civil office and the person appointed to it is atown officer, the appointee must be a town resident. Since neither the Public Officers Law northe Town Law defines what constitutes a public or civil office or who qualifies as a town officer,that determination must of necessity depend upon the nature of the position, its role in towngovernance and whether the position involved has responsibilities that require a "high degree ofinitiative and independent judgment" (Matter of Lake v Binghamton Hous. Auth., 130AD2d 913, 914 [1987]) and, to some extent, the exercise of sovereign power (see 2000Ops Atty Gen No. 2000-5). Other factors to be considered are whether an oath of office isrequired and whether the appointment is for a definite term (see 2006 Ops Atty Gen No.2006-7).
Here, the Commissioner of Public Works takes an oath of office (see Town ofColonie Code § 34-10), serves a two-year term and, according to the Town Code, is "theprincipal executive officer and administrative head of the Department of Public Works. . . with such powers as shall be necessary for the proper administration of theDepartment of Public Works consistent with applicable laws" (Town of Colonie Code §34-3 [A]). Given the nature of this position—and the crucial role it plays providingessential services for the Town—we conclude that the Commissioner of Public Works is atown officer who must be a town resident. Since Cunningham has acknowledged that he was nota Town resident when he was appointed to this position, and does not intend to become one inthe future, his appointment as Commissioner of Public Works does not comport with relevantstate law and is invalid.[FN3]
As for petitioner's claim that the salary and benefits paid to Cunningham as Commissioner ofPublic Works constituted an "unconstitutional gift of public funds" (NY Const, art VIII, §1), we note that no one has claimed during this proceeding that these payments were not made forservices rendered. As such, the conclusion reached herein does not serve to alter the fact thatCunningham earned the compensation for which he was paid and, as such, the salary and benefitshe earned while serving in this position did not constitute an illegal gift of public funds.
As for Burick's appointment as Personnel Officer, the Town Law specifically provides [*4]that "[w]henever a vacancy shall occur or exist in any town office,the town board or a majority of the members thereof, may appoint a qualified person to fill thevacancy" and that when "the appointment [is] made to fill a vacancy in an appointive office,the person so appointed shall hold office for the remainder of the unexpired term" (TownLaw § 64 [5] [emphasis added]). This provision is controlling and, thus, as Supreme Courtfound, Burick's appointment as Personnel Officer must be limited to the remainder of hispredecessor's unexpired term (see Civil Service Law § 15 [1] [b]).[FN4]
Mercure, J.P., Peters and Stein, JJ., concur. Ordered that the judgment is modified, on thelaw, without costs, by reversing so much thereof as dismissed that part of the petition/complaintseeking a declaration that the resolution appointing respondent John H. Cunningham asCommissioner of Public Works was void; petition granted to said extent; and, as so modified,affirmed.
Footnote 1: We note that, contrary torespondents' contention, petitioner preserved this issue by alleging in the petition/complaint thatthe Commissioner of Public Works "is required to satisfy the requirements and qualifications tobe a 'town officer' and be an 'elector.' "
Footnote 2: There are certain exceptions tothis rule that are not applicable here.
Footnote 3: As a result, we need not reachpetitioner's remaining arguments regarding Cunningham's appointment.
Footnote 4: We disagree with petitioner thatthis conclusion required a determination that the entirety of Burick's appointment be declarednull and void.