Opn. No. ( 1979 )

Hon. Edward V. Regan State Comptroller

This is in reply to your inquiry as to whether a State Officer is entitled to his statutory rate of compensation from the first day of his term of office where such officer has failed to take and file his oath of office, or where he has filed it after the day he assumed office but within the first 30 days of his term.

Section 10 of the Public Officers law requires that an oath of office be filed with the Secretary of State before an officer "shall be entitled to enter upon the discharge of any of his official duties." However, section 15 provides that:

"If a public officer, duly chosen, has heretofore entered, or shall hereafter enter on the performance of the duties of his office, without taking or filing an official oath, or executing or filing an official undertaking, as required by the constitution, or by any general or special law, his acts as such officer, so performed, shall be as valid and of as full force and effect as if such oath had been duly taken and filed, and as if such undertaking had been duly executed and filed, notwithstanding the provisions of any general or special law declaring any such office vacant, or authorizing it to be declared vacant, or to be filled as in case of vacancy, or imposing any other forfeiture or penalty for omission to take or file any such oath, or to execute or file any such undertaking."

Citing this section, the Attorney General has previously issued an opinion that officials who began to perform their duties before taking and filing their oaths are entitled to payment for the period prior to the time they actually filed. The Attorney General reasoned that, since the services rendered by the officers constituted valid, lawful and official acts, the officers were entitled to be paid. 1903 Atty. Gen. 487.

This conclusion is consistent with sec. 30.1. h of the Public Officers Law, which provides that a vacancy is created 30 days after the commencement of the term of office where there is the refusal or neglect to file an oath. Reading sections 15 and 30 together, it is my opinion that a State officer who has assumed his duties on the first day of his term of office is entitled to be paid from this date until at least the 30th day of his term, whether or not he has taken and filed his oath of office within this period.