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Public Officers, Beware
New York State Bar Journal
See below for footnotes
Public Officers, Beware! No Excuses Accepted
By Carolyn H. Mann
Vetere v. Ponce, (1) emanating from the jurisdiction of the Town/Village of Harrison, has recently cast significant public opinion on § 30, Public Officers Law. (2) Although surrounded by political mischief, the case ultimately concerns the perceived right of a duly elected public official to retain his elected post, even though not in strict compliance with a qualifying section of Public Officers Law. The New York Law Journal
(3) has headlined its piece on this case (and its most curious sequence of political events) with the words, "Technical Omission Costs Official His Post." We question here whether noncompliance with this statute is properly characterized as a "technical" omission. We submit that the failure to timely file an oath of office is an important and justifiable disqualification for holding public office. Those who are hurt by the consequences of failure to strictly comply, must resignedly accept their fate because, as we intend to show, the purpose of the statute is to secure a trust rather than to punish the careless.
Briefly, § 30(1)(h) obligates a public official, whether elected or appointed, to file an oath of office, within 30 days of the commencement or notification of his term. The New York Courts have heard several cases pleading relief from a direct reading of this section, yet all pleas have been to no avail. In each and every case, the courts have read the clear and undisputed language of the statute finding no latitude to permit any exceptions. This piece brings to light the cases of the various officeholders whose positions were properly declared vacant by operation of law for noncompliance with the mandate to timely file an oath of office. We will probe why this law, with its seemingly harsh results, is set so firmly into New York Law and whether such law and its consequences should continue undisturbed.
Let us first examine the pleas of the various petitioners asking that their particular set of circumstances be judged worthy of exception when the statute clearly leaves room for none.
In 1913, in People v. Keator, (4) the relator filed his oath 17 days after commencement of his duties and in spite of the fact that the relator received the highest number of votes, the Board passed a resolution reciting the existence of a vacancy and properly proceeded to fill the vacancy by appointing another individual. The relator pleaded relief from the Board's action appointing someone other than himself, the duly elected official. The Court concluded:
Taking the constitutional oath of office being a condition precedent to relator being entitled to enter upon the duties of the office,and hence to his right to maintain an action to oust defendant and to recover possession of the office, we conclude that the relator is not entitled tosucceed in this action... It would be unfortunate, if the refusal or neglectof a person elected to such office to qualify, as required by the Constitution of the state, could deprive a town of such an officer, as the position is one of importance, and particularly so in certain contingencies.
In the Matter of Comins v. County of Delaware, (5) a public officer entered upon his duties and performed them for some time only to find his position declared vacant. He pleaded before the court that his removal must be annulled for surely his service for such an extended period surely conferred rights of legitimacy to his claim to office. The court disagreed, repeated the clear words of § 30 and continued:
The fact that the Board did not earlier move to dismiss petitioner, does not, in our view,constitute an appointment of petitioner to his position. When a person appointed to office fails totimely file his oath of office, neither notice nor judicial procedure is necessary, the office is automatically vacant and may be filled by the proper appointive power. Consequently,... no hearing on charges was required in order to dismiss him from office.
Perhaps the circumstances set forth in McDonough v. Murphy (6) would lead one to expect the court to annul the declaration of a vacancy. Here, two appointed members of the College Board entered upon their official duties and subsequently were officially notified of the appointments. Both filed the oath within 30 days of that official notification, but the Court allowed the vacancy to stand, stating:
. . . when by one's own actions it is clear that a person knows
of his appointment, he should not be allowed to wait indefinitely
before filing an oath of office. This interpretation is mandated
by the necessity to file an oath of office, which is intended to
be part of the requirements making an officer fully qualified to
carry out the duties of his office. . . Thus, once plaintiffs
have taken actions as official members of the board, as has been
done here, they cannot be heard to claim that they had no notice
of their appointments, for without a doubt the contrary is true.
Neither is ignorance of the law an excuse for noncompliance with the requirement for a timely
filing, as the Court declared in Boisvert v. County of Ontario, (7) where petitioner pleaded he
was unaware of § 30 Public Officers Law. The court ruled:
The obligation imposed by the Public Officers Law statute is personal to
plaintiff, it is an act he is required to do and the office became vacant
by the mere failure to file the oath, whether or not the defendants knew or
were chargeable with notice that plaintiff had failed to file his oath, and
they are not required to make any declaration or give any notice. On his
default in filing his official oath "the appointment was vitiated and the
office * * * became vacant"
[citing Ginsberg v. City of Long Beach, 286 N.Y. 400, 36 N.E.2d 637; and also People ex rel.
Walton v. Hicks, infra].
That the statute leads to an unambiguous reading is probably nowhere better stated than in
Walton v. Hicks, (8) where the Court ruled:
This statute is emphatic and unequivocal. It does not seem
possible that it can be misunderstood. In case a person appointed to office
neglects to file his official oath within 15 [now 30] days after notice of
appointment or within 15 [now 30] days after the commencement of the term of
office, the office becomes vacant ipso facto. That is all there is to it. No
judicial procedure is necessary; no notice is necessary; nothing is
necessary. The office is vacant, as much so as though the appointee were dead;
there is no incumbent, and the vacancy may be filled by the proper appointive
power. Certainly, no further explanations of § 30 were necessary. Yet,
in 1990 in response to a request, the State Board of Equalization and
Assessment (9) clarified the "emphatic and unequivocal" words of the statute:
Both the Attorney General (1976, Op. Atty. Gen. (Inf.) 336) and the State Comptroller (10 Op. State Compt. 332) have issued opinions that the failure of a public officer to file an oath is not correctable, because the statute specifically creates the vacancy without providing a remedy. The provisions of Public Officers Law § 30 creates a vacancy which the appointing authority (e.g., town board, county executive, county legislature) may fill at any time (Public Officers Law, § 38).
The appointive assessor or county director who fails to file the oath of office within 30 days is in the same position as any de facto officer; his or her actions are valid, but employment is subject to immediate termination (Williamson v. Fermaille, 31 A.D. 438, 298 N.Y.S. 2d 557 (4th Dept. 1969), aff'd 26 N.Y. 2d 731, 257 N.E. 2d 285, 309 N.Y.S. 2d 35 (1970); Vescio v. City Manager, City of Yonkers, 69 Misc. 2d 68, 389 N.Y.S. 2d 357 (Sup. Ct. Westchester Co. 1972), aff'd 41 A.D. 2d 833, 342 N.Y.S. 2d 376 (2d Dept. 1973); 1979, Op. Atty. Gen. 198). Although the failure to file the oath cannot be remedied, the Attorney General has concluded that
there is no bar to the appointment of the same individual to the same office (1978, Op. Atty. Gen. (Inf.) 833). Presumably, such reappointed official would be sure to timely file the oath the second time.
It is important to note that nowhere in the opinion is any mention or reference made to any exceptions to strict compliance with § 30; clearly the legislature intended none.
The administrative explanation of § 30 has been exhaustive and the reiteration of the statute's words frequent. Nevertheless, additional cases managed to find their way into New York courtrooms. In Lombino v. Town Board of the Town of Rye (10) petitioner claimed compliance with § 30 pleading his filing was only one day late. The Court was unimpressed and the Appellate Division stated:
The Supreme Court denied the defendants' motion for summary judgment on the ground that there is a factual issue of whether the plaintiff filed his oath of office on January 3, 1991. However, contrary to plaintiff's contention, even if he filed his oath of office on January 3, 1991, the filing was still untimely. Public Officers Law § 30 provides that an appointive office shall become vacant for failure to file an official oath "within thirty days after [the] [sic] appointment,or within thirty days after the commencement of such term." Here, the plaintiff was notified of his appointment as Assessor in November 1990, and began working on December 3, 1990. Thus, even if he filed his oath of office on January 3, 1991, the filing was more than 30 days after the notification and commencement of his term. Thus, the Town Board properlydeclared the Office of Assessor vacant.
Proper Judicial Role: Declaring What the Law is, Not What it Should Be In the most recent case, Vetere v. Ponce, supra, the case which catapulted § 30 onto a red-hot front burner, petitioner sought to be excused from strict compliance with the statute by arguing first, that petitioner was not notified by the Town/Village Clerk to timely file, as required by Law, (11)claiming, in effect, ignorance of a legal duty and second, that petitioner was justifiably distracted from his duty because of the concurrent illness and death of his spouse.
Politics takes center stage here. As set forth in the decision, the Town/Village Clerk of Harrison arranged to have all the Republican elected officials report to Town Hall to sign and file the official oaths. Curiously, however, no one reminded or told petitioner, the sole Democrat on the Board, to be in attendance. On February 16, seventeen days after the expiration of the 30-day period, the Town Clerk issued a Certificate of Vacancy and declared Mr. Vetere's position vacant because of the failure to timely file his oath. The Board then proceeded, as is its right under law, to appoint another (Republican) to fill the vacancy. This action caused great public outcry, however, urging the appointee to resign. Mr. Vetere was promptly thereafter appointed to fill his own vacancy until the next annual election, at which time he would have to run to
fulfill the balance of his term.
Mr. Vetere sought to be reinstated and reclaim his original position and term and pleaded with the Court to be excused from strict compliance with § 30 due to these particular circumstances. The Court, however, found itself compelled by a clear reading of the statute and appropriate case law to find petitioner's elected position vacant indeed, stating:
Notwithstanding equitable considerations and respondent's consent to
reinstatement, the court can only direct reinstatement in the event it finds petitioner
was improperly removed as a matter of law. Whether respondents acted unfairly or
took advantage of petitioner during a period of personal crisis, therefore, is
irrelevant. If this result is harsh, as it is in this case, the remedy lies with the
Legislature.... In this case, since petitioner did not file within 30 days of
commencement of his term, the office became vacant on Feb. 1, 1996.... The
Town Board and Village Trustees were entitled, in turn, to declare a vacancy and to
fill it. (12)
The situation presented in Vetere is illustrative of the problems faced when considering how to avoid equity considerations, and is instructive. Both the Election Law and the Village Law seek to minimize potentially harsh results imposed by § 30 by requiring the Village Clerk to notify officials of the § 30 mandate. The difficulty here lies with enforcement, however. If meeting one's official duty is paramount, enforcement of a law requiring a clerk to notify others of their duty might result in the removal of said clerk for onperformance or nonfeasance. This produces a harsh result in itself, and neither does it eliminate, ameliorate or excuse the duty of the official to timely file. There are simply too many possible equity considerations to statutorily exempt some and not others. No excuses, therefore, can be deemed worthy as exceptions.
Finally, Supreme Court Justice Nicholas Colabella, who delivered the opinion in Vetere, made a truly correct observation. If § 30 can produce a popularly perceived harsh result by not permitting any exceptions to its mandate, the remedy lies not with the Court but with the Legislature. Members of the New York Bar must agree, for it is surely the proper role of the judiciary to declare what the law is, and not what it ought to be.
Since no exceptions can be accepted by the courts to relieve the demands of the "emphatic and unequivocal" language of the statute, (13) Public Officer, Beware! No excuses under New York
Law can remedy your unenviable situation.
Noncompliance is Not a "Technical Omission"
Is the law acceptable? If not, what ought it to be? Is the law too harsh in its result by not permitting exceptions to the 30-day limit for filing the qualifying oath? We know that the limit was already extended from 15 to 30 days. Should the limit be two months? Is a limit necessary at all? Why should the office become vacant by operation of law "so much so as though the appointee were dead"? (14) What is all this fuss about an oath of office not being timely filed? Is it merely a "technical" bugaboo that should be significantly eased? Or, is the demand for strict compliance rational and wise? This author believes the latter.
The New York Legislature apparently believes the taking of the oath of office to be a critical qualification for those in public office accepting the public trust. An oath, we are all aware, is a solemn promise the taking of which is described as "burdening the conscience" where something is present to distinguish between an oath and a bare assertion. (15)
An oath, and its required accompanying and distinguishing act, is what can hopefully establish trust between people. Through this device in a public setting, the people are offered some assurance that the words and actions of public officers are possibly being carefully guided by something other than the official's own set of self serving principles. The swearing-in ceremony is visual and psychologically binding; the filing is written and legally binding. Is there another act which could as simply convey a solemn promise to behave with a full measure of integrity? How else might the public accept the offer of honest public service if not with a solemn, believable offer being made, by way of oath, to create a contract with all the rights and responsibilities we assume are contained in it?
The public must be offered something which fosters confidence in the official's moral responsibility. The official's conscience must be seen to be sufficiently burdened by something to help assure that the desired devotion to the public's trust might reach broadly into the official's public relations and daily decision-making. It is this promise, this oath of office, which helps to hold a civil society together.
Certainly, it is an easy task to file an oath of office within 30 days of the commencement or notification of one's term, and no one in public administration should be statutorily charged with informing another official of his or her duties. This is more properly the job of the official and his legal counsel. The purpose of the requirement reflects wise reasoning and speaks to the act being most critical for the health of the compact among the governed and the governors and, therefore, can permit
The "emphatic and unequivocal" language of § 30, Public Officers Law represents one of the important links in the web of our representative democracy and is on the far other side of a mere "technical" nuisance. To reiterate, Public Officer, Beware! The law as it is presently set forth is there to protect, not to punish. No excuses will save a public term of office without taking and timely filing a solemn promise to the people served.
1 New York Law Journal, April 23, 1996, p. 29, col. 6.
2 Section 30, entitled Creation of vacancies, provides, in part:
1. Every office shall be vacant upon the happening of one of the following events before the
expiration of the term thereof:...
h. 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...
Personnel on Active Duty with the Armed Forces have a 90 day limit imposed for filing, after
which time a vacancy may be declared by operation of law.
3 Cerisse Anderson, "Technical Omission Costs Official His Post," New York
Law Journal, April 22, 1996, p. 1.
4 People v. Keator, 166 App. Div. 368, 154 N.Y.S. 1007.
5 66 A.D. 2d 966, 412 N.Y.S. 2d 428.
6 92 A.D. 2d 1022, 461 N.Y.S. 2d 439.
7 89 Misc. 2d 183, 391 N.Y.S. 2d 49, aff'd 57 A.D. 2d 1051, 395 N.Y.S. 2d 617.
8 173 App. Div. 338, 158 N.Y.S. 757, aff'd 221 N.Y. 503, 116 N.E. 1069.
9 Opinion, November 19, 1990.
10 1994; 206 A.D. 2d 462, 614 N.Y.S. 2d 564, leave to appeal denied 84 N.Y.
2d 807, 621 N.Y.S. 2d 516, 645 N.E. 2d 1216.
11 Section15-128 Election Law: "The clerk of the village shall, within three days after the
election of a village officer, notify each person elected of his election, and of the date thereof,
and that, in order to qualify: he is required to file his oath of office... and that upon his
failure so to do he will be deemed to have declined the office."
12 The Court, citing the Lombino case and others, observed that the failure to file constitutes an
automatic vacancy and is not subject to a cure nunc pro tunc by a belated filing.
13 Walton v. Hicks, supra.
14 Walton v. Hicks, supra.
15 O'Reilly v. People of the State of New York, 86 N.Y. 154, 1881. Judge
Finch of the Court of
Appeals further stated:
Some form of an oath has always been required, for the double reason that
only by some unequivocal form could the sworn be distinguished from the unsworn
averment, and the sanctions of religion add their solemn and binding force to the act.
(Pandects, xii, 2; 3 Coke's Inst. 165; 1 Phil. on
Ev. 15; 1 Starkie on Ev. 23; Lord HARDWICKE, in Omychund v. Barker, 1 Atkyns, 21; Tyler
on Oaths, 15; 1 Greenleaf on Ev., §§ 328, 371; 1 Alison's
Crim. Law, 474; 3 Wharton's Am. Crim. Law, § 2205; 2 Arch. Crim. Pl., 1723.)... [T]hese
sanctions have grown elastic, and gradually accommodated themselves to differences of creed,
and varieties of belief, so that, as the Christian is sworn upon the Gospels, and invokes the
Divine help to the
truth of his testimony, the Jew also may be sworn upon the Pentateuch, the Quaker solemnly
affirm without invoking the anger or aid of Deity, and the Gentoo kneel before his Brahmin
priest with peculiar ceremonies... The changes of form incident to the growth of nations and of
commerce have been serious, but have not dispensed with a form entirely. . . A wide scope, a
large liberty, is thus given to the form of the oath, but some form remains essential. Something
must be present to distinguish between the oath and the bare assertion. An act must be done, and
clothed in such form as to characterize and evidence it. . .
* Carolyn H. Mann was admitted to the NYS Bar in 1994, and is partner with Mann & Mann of
Port Chester. She holds a BA in Art History and went on to NYU and received a Master of
Urban Planning degree.
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Subject: Fw: OATHS-Schoharie County
THE NORTH COUNTRY GAZETTE
Box 408Chestertown, NY 12817 June 20, 2003
E. David Hallock
Schoharie County Clerk
PO Box 549 Schoharie, NY 12157
RE: FOIL REQUEST Dear Mr. Hallock:
The letter of June 19, 2003 from Karen Miller, clerk of the Schoharie County Board of Supervisors has confirmed and certified that none of the town and village court justices in the entire county of Schoharie have filed their oaths of office AND undertakings in the county clerk’s office as required by the NYS Constitution and Uniform Justice Court Act 104.
Further, it has been confirmed and certified by Ms. Miller that neither has George Bartlett III, county/surrogate and family court judge of Schoharie County, filed his undertaking in the county clerk’s office as required by Judiciary Law 184.
Further, it has been confirmed and certified by Ms. Muller that Sheriff John S. Bates Jr. has not filed an undertaking in the office of county clerk as required by law.
Therefore, I regretfully inform you that immediate vacancies exist in every town and village court in your county, in the office of sheriff and in the office of the county/surrogate and family court judge, ipso facto, for their failure to comply with the provisions of the Consolidated Laws of New York and the NYS Constitution.
I further must inform you that if your office and the offices of the town and village clerks throughout the county do not comply with the law in addressing the existing vacancies, legal action to compel compliance will be coming forthwith.
Public Officers Law 30(1)(h) prescribes that every “office SHALL (mandatory) be vacant upon the refusal or neglect of a public officer to file his official oath or undertaking before or within 30 days of the commencement of the term of office for which he is chosen”. The applicable statutes in addition to Article XIII, Section 1 of the NYS Constitution are POL 10-13, 30(1)(h); Executive Law 63, UJCA104, County Law 400-403, Town Law 25 and 30.
Tardy, belated filings are not retroactively binding, the courts have consistently held, i.e. Vetere v. Ponce (1996) Westchester County Supreme Court. The courts have also held that the failure of the county clerk to fail to give notice to the town or village justice of his failure to file his official oath and undertaking does not excuse the town or village justice for not having done so.
If any official shall neglect within the time required by law to take and file an official oath, or execute and file an official undertaking, the officer with whom or in whose office such oath and undertaking is required to be filed SHALL forthwith give notice of such neglect of an elective officer to the official board or body authorized to fill a vacancy in such office. The town clerk under Town Law 30 must give notice of the vacancy and place it on the ballot for the next election.
The Schoharie County sheriff has no legal authority to act or collect his personal compensation, and the county court, town and village courts are effectively shut down immediately until this matter is addressed and vacancies filled. No hearing or judicial proceeding is necessary to declare the ipso facto vacancies nor no notice but by this letter you have been legally placed on notice.
Any further action by these individuals will be without lawful authority and will subject both the county and the individual towns and villages in the county with serious legal liability and subject them to a class action lawsuit.
The office of sheriff is immediately vacant and has been since Jan. 1, 2002. It is required that you as county clerk immediately fulfill your duties as per POL 13 and County law 400(6) and give notice to the governor of the vacancy due to Bates having failed to qualify for office by failing to file his undertaking. POL 11, 30(1)(h), County Law 403 and Executive Law 63 as well as the NYS Constitution mandate the vacancy and that you so notify the governor of the vacancy.
I further formally advise that as per UJCA 104, POL 10, 30(1)(h), County Law 400-403, that a vacancy exists in each and every judicial office in the county.
In regard to the sheriff, statutory law is very specific that “until the sheriff shall execute and file the required undertaking he shall not perform any duties of the office nor be entitled to any compensation”.
The county had no legal authority to compensate Bates as sheriff since Jan. 1, 2002, and all monies collected must be repaid to the taxpayers. He is legally an usurper in office acting in absence of color of law. POL 13 and 30(h) requires the county clerk to forthwith give notice of the sheriff’s failure to file the undertaking and resulting vacancy of office to the governor.
County Law 400(5) mandates that upon filing in the office of the county clerk a certificate of election or appointment of any officer, together with the oath of office and official undertaking prescribed by law, the county clerk shall execute and deliver to such office a certificate saying he has qualified and is entitled to assume the duties of his office. Bates did not qualify for office and could and cannot assume the duties of sheriff nor can he be compensated.
By usurping the office even with the knowledge that no undertaking had been filed, he is not a de facto officer and therefore none of his acts while usurping in the office are legal. Ignorance of the law is no excuse.
Due to the alleged town and village justices, county court judge and sheriff having failed to comply with the Constitution, the law and having vacated their offices ipso facto, each town and village in the county as well as the county itself is subject to a class action suit from individuals having been illegally fined, illegally incarcerated and illegally arrested by the sheriff and alleged justices/judge.
In effect, the criminal justice system of Schoharie County is shut down due to its officers having failed to comply with the law. Should you have any questions relating to this matter, I would suggest you contact Kevin Crawford and counsel Jaros of the NYS Association of Towns.
I would ask that you comply with the law.
Very truly yours,
CC: Karen Miller, Clerkbcc