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Filling an unexpired term to an appointed office

Filling an unexpired term to an appointed office
Informal Opinions of the Attorney General, 2008-12

The City Council appointed a new member to a board effective January 1, 2008 to replace an individual whose term of office ran from October 1, 2007 through and including September 30, 2012.

In this instance the member of the board whose term had expired continued in the position until a successor was chosen and qualified to serve. Under the circumstances, explained the Attorney General, the term of office is shortened with respect to the new appointee because of his or her predecessor?s ?holding over.? Accordingly, the new appointee will serve only ?for the residue of the term.? In other words, the successor?s term of office is for the balance of the unexpired term, and in this instance, through September 30, 2012.

With respect to ?holding over" after the expiration of the term of office, Section 5 of the Public Officers Law provides that except a judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the constitution, the incumbent shall hold over and continue to discharge the duties of his or her office after the expiration of his or her term of officer until his or her successor is chosen and qualified, unless the office is abolished. Further, Section 5 provides that an appointment for a term shortened by reason of a predecessor holding over shall be "for the residue of the term only.?

In addition, §38 of the Public Officers Law, in pertinent part, provides: ?the person so appointed to such vacancy shall hold office for the balance of the unexpired term.?

Insofar as filling a vacancy by appointment to an elective office, in contrast to filling a vacancy during the unexpired term of an ?appointed office,? is concerned, Section 38 provides that the term of office of an officer appointed to fill a vacancy in an elective office shall be:

1. "until the commencement of the political year next succeeding the first annual election after the happening of the vacancy, if the office be made elective by the constitution," or

2. "at which the vacancy can be filled by election, if the office be otherwise made elective.?

Full post as published by New York Public Personnel Law on November 14, 2008 (boomark / email).