Opn. No. ( 1978 )

James D. Warren, Esq. Town Attorney, Boonville

We acknowledge receipt of your letter stating that a member of your town board whose term of office will expire on December 31, 1979, resigned subsequent to the date when a successor could have been selected at the general election in 1977 and that the remaining town board members have been unable to agree upon an appointee to fill the vacancy. You request our opinion as to how the vacancy can be filled if the town board fails to make the appointment as authorized by Town Law § 64 subd. 5, the statute which provides for such an appointment by the town board.

There is no statutory authority for filling a vacancy on a town board by an appointment other than that contained in Town Law § 64 subd. 5.

Public Officers Law § 42 subd. 5 provides:

"5. Whenever the authority to fill any vacancy is vested in a board and such board is unable to fill such vacancy in an elective office by reason of a tie vote, or such board neglects to fill such vacancy for any other reason, the governor may, in his discretion, make proclamation of a special election to fill the vacancy."

If the Governor is notified of the existence of the vacancy he may, in his discretion, proclaim a special election to fill it but this is a matter which is solely within his discretion (Matter of Howard v Rockefeller, 22 A.D.2d 479, modified on other ground, 15 N.Y.2d 927 [1965]; Matter of Roher v Dinkins, 32 N.Y.2d 180 [1973]).

Any resident of the town may bring a proceeding under Article 78 of the Civil Practice Law and Rules to compel the town board to appoint to fill the vacancy and could ask, as alternate or additional relief, that the court order a special election in the event the town board fails to appoint (Matter of Roher v Dinkins, supra).

If an appointment is made by the town board to fill the vacancy, the appointee will hold office by virtue of the appointment through December 31, 1978 and at the general election in 1978 a successor must be elected, to take office on January 1, 1979, to fill the remaining unexpired portion of the term. If an appointment is made by the town board to fill the vacancy, the Governor will not have authority to call a special election. In the event no appointment is made and a special election is proclaimed by the Governor or ordered by the court, the successful candidate will take office immediately upon election and will hold office for the unexpired portion of the term.