Informal Opinion No.

Aldo V. Vitagliano, Esq. Town Attorney, Rye

You have inquired, in the event of a vacancy in the elected office of town receiver of taxes, whether the town board may make an appointment to fill the vacancy. Further, you ask whether a current employee of the tax department may be appointed to this position.

The procedure for filling vacancies in elective town offices is defined by law. Under Article XIII, section 3 of the State Constitution, the Legislature is required to provide for the filling of vacancies in office and with respect to elective officers:

"no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy" (NY Const, Art XIII, § 3).

The town board has been given responsibility for filling vacancies in town offices (Town Law, § 64[5]). If the appointment is to fill a vacancy in an elective office, section 64(5) parallels the requirement in Article XIII, section 3 of the Constitution, concerning the duration of the appointment. Under section 42(1) of the Public Officers Law, as to vacancies occurring prior to September 20 in an elective office that is filled at a general election (here the case), the vacancy is to be filled for the balance, if any, of the unexpired term at the general election next held after the occurrence of the vacancy. The appointee serves until the end of the current year. If the vacancy occurs on or after September 20, the appointee may serve beyond the end of the current year and to the end of the next year (ibid.). If the term does not expire in the following year, an election must be held in November of that year to fill the office for the balance of the unexpired term (ibid.) The September 20 cut-off date has been set to allow time for nominations before the November election. Thus, in answer to your question, you may appoint an individual to fill the position of receiver of taxes temporarily until an election can be held, as set forth above.

You also ask whether an individual currently employed in the tax department may be appointed by the town board to temporarily serve as receiver of taxes. In previous opinions of this office, we have concluded, based on the common law doctrine of compatibility of office, that one person may not hold two positions where one is subordinate to the other (Informal Opinion No. 86-73; 1984 Op Atty Gen [Inf] 84). These opinions are enclosed for your review. We note in these opinions that under certain circumstances the town board, by local law, may supersede the common law doctrine of compatibility of office. Such a local law must, however, serve the public interest.

We conclude that upon the occurrence of a vacancy in an elective office the town board may fill the vacancy by appointment until an election can be held.