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Public officer entitled to compensation despite his or her failure to file his or her oath of office

Public officer entitled to compensation despite his or her failure to file his or her oath of office
Whitman v City of Troy, 3 Misc 3d 794, Justice George B. Ceresia, Jr.

Cases in which the failure of a public officer to file his or her oath of office in a timely manner is an issue are somewhat rare. In the Whitman case, however, the filing requirements mandated by Section 30.1(h) of the Public Officers Law became a significant element in the court?s reaching its decision.

The major issue in this lawsuit was Mark Whitman?s complaint that the City of Troy breached his employment contract with the City when it failed to honor the provisions of General Municipal Law §207-m. Whitman alleged that the City did not adjust his compensation as required by such law.

One of the defenses advanced by the City in support of its failure to provide Whitman with the salary increase he claimed was Whitman?s failure to file his oath of office. Such failure, the city argued, resulted in Whitman?s position ?became vacant by operation of law,? citing Section 30.1(h) of the Public Officers Law and thus GML Section 207-m did not apply in his case.

Public Officers Law §30.1(h) provides, in relevant part, that "Every office shall be vacant upon the happening of one of the following events before the expiration of the term thereof: . . . "His refusal or neglect to file his official oath or undertaking, if one is required, before or within thirty days after the commencement of the term of office for which he is chosen, if an elective office, or if an appointive office, within thirty days after notice of his appointment, or within thirty days after the commencement of such term?."

Justice Ceresia said that even had Whitman failed to take and file his oath of office in a timely fashion, he nonetheless was entitled to compensation pursuant to General Municipal Law §207-m as the de facto, permanent head of the Troy police department.

The court noted that Public Officers Law §15 declares that the acts of a public officer done without his or her taking or filing an official oath are valid and that this section has been interpreted to confer a right to "the statutory compensation therefor," citing two opinions of the Attorney General, 1903 Ops Atty Gen 487; and 1979 Ops Atty Gen 29.*

Justice Ceresia concluded that ?It stands to reason that a public official performing valid acts ought to be compensated for his service in accordance with any statutory entitlements for the period of time served.?

According to the court, Whitman served as the de facto head of the Troy police department as City had not been declared the position ?vacant? by operation of law during his tenure in the position.

Another failure to file the required oath of office case is Lombino v Town Board, Town of Rye, 206 A.D.2d 462, leave to appeal denied, 84 N.Y.2d 807.

The Lombino decision indicates that the mandates of Section 30.1(h) are to be strictly construed in the event the jurisdiction declares a public office vacant because of the failure of the incumbent to file his or her oath of office in a timely manner.

John V. Lombino was advised that he had been appointed as Assessor in November 1990. He began working on December 3, 1990. The Town later declared the office of Assessor vacant "by operation of law" on the grounds that Lombino had not filed his oath of office within the 30-day period allowed for this purpose by Section 30.1(h) of the Public Officers Law.

Lombino sought a court order declaring that he had filed a timely oath of office, contending that he had filed his oath on January 3, 1991. The Town, on the other hand, asked the court to dismiss Lombino's action on the grounds that as a matter of law, he had not filed a timely oath of office.

According to the Appellate Division's ruling, Lombino had been advised of his appointment in November 1990. Even if Lombino had filed his oath of office on January 3, 1991, it was more than 30 after being notified of the appointment.

In the alternative, the Appellate Division said that even if Lombino had filed his oath of office on January 3, 1991 as he claimed, this was more than 30 days after he had commenced work. As it appears that it was conceded that Lombino started work on December 3, 1990, he failed to satisfy the alternative requirement for a timely filing of the oath of office permitted by Section 30.1(h) - filing the oath within 30 days after beginning work.

* See, also, Formal Opinion of the Attorney General, 98-F6 concerning the inter-relationship of the eligibility of a candidate to assume elective office and the filing of his or her required oath of office.

The Whitman opinion is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2004/2004_24086.htm

Full post as published by New York Public Personnel Law on April 02, 2009 (boomark / email).