Opn. No. ( 1994 )

Requestor: Gerald S. Jacobs, Esq., Town Attorney Town of Eastchester Town Hall 40 Mill Road Eastchester, N Y 10709

Written by: James D. Cole, Assistant Attorney General in Charge of Opinions

In a telephone conversation elaborating on your request for an opinion, you have asked whether the town attorney holds over in office beyond the expiration of his or her term until a new town attorney has been appointed and has qualified for office.

The town board may establish the office of town attorney. Town Law §20(2)(a). The town attorney holds office until the first day of January next succeeding the first biennial town election held after the time of his or her appointment. Id., § 24.

Should the town board fail to appoint a town attorney upon the expiration of the term of that office, in our view the current town attorney would hold over under section 5 of the Public Officers Law. Matter ofRiester v Reilly, 138 Misc.2d 68 (Sup Ct Albany Co 1988). Under section 5, every officer, with exceptions not relevant here, having duly entered upon the duties of his or her office, holds over and continues to discharge the duties of the office after the expiration of his or her term until his or her successor is chosen and has qualified. The office is deemed vacant for the purpose of choosing a successor. The obvious purpose of section 5 of the Public Officers Law is to provide for the continuity of governmental operations.

We conclude that the town attorney holds over beyond the expiration of his or her term of office until his or her successor has been chosen and has qualified.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.