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Friday, May 05, 2017

Failure of the individual to timely execute his or her oath of office upon election to a public office results in the position becoming vacant by operation of law


Failure of the individual to timely execute his or her oath of office upon election to his or her  public office results in the position becoming vacant by operation of law
Appeal of Oscar Cohen, Decisions of the Commissioner of Education, Decision No. 17,075

§30(1)(h) of the Public Officers Law provides that an incumbent’s office “shall be vacant upon ... [an incumbent’s] refusal or neglect to file his [or her] official oath ... before or within thirty days after the commencement of the term of office for which he [or she] is chosen, if an elective office ....”1

§2108 of the Education Law provides that a district clerk is obligated to inform a successful electoral candidate of his or her election in writing and further provides that  “[t]he presence of any such person at the meeting which elects him [or her] to office, shall be deemed a sufficient notice to him [or her] of his [or her] election.”

Sabrina Charles-Pierre ran for, as was elected to, membership on the Board of Education of the East Ramapo Central School District [Board]. She was present at a Board meeting on May 17, 2016 at which the unofficial "election results" revealed that she had won election to the Board.

Ms. Charles-Pierre subsequently attended a June 7, 2016 Board meeting at which the final election results were certified and accepted by the Board. At the Board's reorganization meeting on July 14, 2016, the district clerk administered the oath of office to Ms. Charles-Pierre.  Shortly thereafter the Board determined that at the result of  "an administrative timing error,” Ms. Charles-Pierre’s oath of office had been administered to her more than 30 days after she had been elected to her position and, consequently, by operation of law her seat was deemed vacant.2

On July 26, 2016, the Board held a special meeting and appointed Ms. Charles-Pierre to the seat it had earlier declared vacant until the Board’s next annual meeting and election in May 2017.

Oscar Cohen appealed the Board's action contending that its determination that Ms. Charles-Pierre’s position became vacant was arbitrary and capricious. Mr. Cohen claimed that the 30-day time period for taking and filing the oath of office imposed by Public Officers Law §30(1)(h) did not commence “until Ms. Charles-Pierre receive[d] formal notice of the election results.”3 Mr. Cohen, "upon information and belief," argued that Ms. Charles-Pierre never received such written notice.  The remedy sought by Mr. Cohen: an order by the Commissioner "restoring" Ms. Charles-Pierre to her two-year elected term, which would run through June 30, 2018.

While the Board admitted that it failed to provide Ms. Charles-Pierre with written notice of her election, it pointed out that she was present at the May 17, 2016 and June 7, 2016 Board meetings “where the election results were announced and confirmed, respectively.”  Notwithstanding this defense, the Board had “joined” Mr. Cohen in his request to reinstate Ms. Charles-Pierre to her elected term.

However, the Commissioner dismissed Mr. Cohen's appeal as moot, taking "judicial notice"4 that Chapter 5 of the Laws of 2017, effective February 1, 2017, excused Ms. Charles-Pierre’s failure to file her official oath within the statutorily prescribed period, provided that she filed her oath of office within 30 calendar days of the effective date of that act. Ms. Charles-Pierre had, in fact, timely filed her oath of office on February 7, 2017, which is within the 30-day period specified in Chapter 5.

1 Section 30 excuses the failure to file the oath within the 30-day period if the individual “was on active duty in the armed forces of the United States and absent from the county of his [or her] residence at the time of his [or her] election or appointment....”

2 The failure to file a timely oath cannot be cured by subsequently filing the required oath, Informal Opinion of the Attorney General, 86-41.

3 "Where ... the individual was present at the board meeting at which he was appointed and thus had actual notice of his appointment, written notice thereof was not required to commence the 30-day period," McDonough v Murphy, 92 AD2d 1022, affirmed 59 NY2d 941.

4 Judicial notice is the recognition by a judicial body or an individual acting in a judicial capacity of a fact that is not reasonably disputable and without the introduction of supporting evidence.

The decision is posted on the Internet at:

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