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February 24, 2010
Removal and appointment of an individual to the position of Election Commissioner by a county legislature
Matter of Wood v County of Cortland, 23 Misc 3d 913
The general rule is that the power to appoint implies the power to remove. The Wood case demonstrates an exception to this rule: The power to appoint does not support a claim of the power to remove an incumbent when removal from the position in question is provided for by statute.
William J. Wood, Chair of the County Democratic Committee, sued Cortland County and Thomas Brown contending that he was wrongfully removed as Democratic Election Commissioner effective December 10, 2008 and that Thomas Brown was not properly appointed to that office for a term commencing January 1, 2009 in his stead.
The authority relied upon by the County Legislature for Wood from his position: The County's Code of Ethics (Local Law 2 of 2008) prohibits an individual from concurrently holding the offices of Election Commissioner and "Chairman of any Political Party."*
In a memorandum dated December 10, 2008, the Chair of the County Legislature, John Daniels, declared the office of Election Commissioner vacant for the term ending December 31, 2008 because Wood then admittedly simultaneously held the offices of Election Commissioner and Chair of the County Democratic Committee.
As framed by Supreme Court Justice Phillip R. Rumsey, the issue to be resolved is whether the County Legislature may declare a vacancy in the office of Election Commissioner, upon an admission by the incumbent of dual office-holding in violation of a local ethics law without prosecution or conviction under local or State law effectively removing him or her from office.
The court commenced its analysis by noted that “State law that is applicable to this office supersedes any conflicting local legislation.”
Of relevance in this action was the fact that “In Public Officers Law §30, the State Legislature has specified the grounds by which a vacancy is created in a public office, including the office of election commissioner, and the enumerated grounds do not include violations of a local ethics law in respect to dual office-holding.” In addition, said Justice Rumsey, the State Legislature has provided that an election commissioner may be removed "by the governor for cause in the same manner as a sheriff," citing Election Law §3-200.
Concluding that “As applied to the office of election commissioner,” the Cortland County Code provision relied upon for removing Wood from his position as an Election Commissioner was inconsistent with, and is superseded by, these State statutes.
Accordingly, the court decided that the County Legislature lacked the authority to declare a vacancy as a result of an apparent violation of the prohibition against dual office holding under its local ethics law (without prosecution or conviction) in the office of Election Commissioner for the term of office ending December 31, 2008.
However, Wood’s term otherwise expired on December 31, 2008. Although he could not be reinstated to that term of office as it had expired, the court ruled that he was entitled to compensation for the remainder of his term ending December 31, 2008.
Justice Rumsey then explored the County Legislature’s authority to appoint an individual to the position of Election Commissioner.
* An element not discussed in this opinion is the standard set Ryan v Green, 58 NY 295, with respect to the issue of one person holding two public offices simultaneously. Except where prohibited by law, such dual-office holding is permitted unless they are "incompatible." What constitutes incompatibility for the purposes of dual office holding? Two offices are incompatible if one office is subordinate to the other or if there is an inherent inconsistency between the duties of the two offices. For an example of dual-office holding barred by statute see Civil Service Law §27 which section prohibits holding certain public employment and serving as an officer of a political part simultaneously.
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