Opn. No. ( 1976 )

HON. ROBERT P. GALLOWAY Town Attorney, Hanover

We acknowledge receipt of your letter in which you state that yours is a town of the second class in which the office of superintendent of highways is an elected office and that the term of the incumbent expires on December 31, 1977. You inquire about the mode of selection and term of office of a successor to the present town superintendent of highways in the event of his resignation either prior or subsequent to September 20, 1976.

Town Law, § 64, subdivision 5, provides, in part:

"5. Vacancies. Whenever a vacancy shall occur or exist in any town office, the town board or a majority of the members thereof, may appoint a qualified person to fill the vacancy. * * * If the appointment be made to fill a vacancy in an elective office, the person so appointed shall hold office until the commencement of the calendar year next succeeding the first annual election at which the vacancy may be filled. A person, otherwise qualified, who is a member of the town board at the time the vacancy occurs may be appointed to fill the vacancy provided that he shall have resigned prior to such appointment."

Public Officers Law, § 42, subdivision 1, provides:

"1. A vacancy occurring before September twentieth of any year in any office authorized to be filled at a general election, except in the offices of governor or lieutenant-governor, shall be filled at the general election held next thereafter, unless otherwise provided by the constitution, or unless previously filled at a special election."

In our opinion, if the elected town superintendent of highways, whose term of office expires on December 31, 1977, resignsprior to September 20, 1976, the town board should act to fill the vacancy by appointment. The appointee will hold office until December 31, 1976. In the meantime, in November, 1976, a successor must be elected, whose term will commence on January 1, 1977 and end on December 31, 1977. In November, 1977, there must be another election and the successful candidate will serve for the statutory term, commencing January 1, 1978.

In our opinion, based upon the conclusion of the Court of Appeals in Howard v. Rockefeller, 15 N.Y.2d 927, if the elected town superintendent of highways, whose term of office expires on December 31, 1977, resigns subsequent to September 20, 1976, the town board should act to fill the vacancy by appointment. The appointee will hold office until December 31, 1977 and in November, 1977, a successor will have to be elected whose term will commence on January 1, 1978 and run for the usual statutory period.