Opn. No. ( 1976 )

HON. HENRY J. LOGAN Town Attorney, Mount Pleasant

This is in reply to your inquiry of December 8, 1976, concerning residency requirements imposed upon a town engineer by Town Law, § 23 and Public Officers Law, § 3.

You advise us that in 1968, the Town of Mount Pleasant created the position of town engineer and appointed an individual who was not a resident of the town at that time and who, to the best of your knowledge, is not a town resident at the present time. Further, you state that there are qualified engineers, resident electors, of the Town of Mount Pleasant.

Town Law, § 23, as added by the Laws of 1949, chapter 382, states in part "* * * in towns having no resident engineer, the town engineer and such consultant engineers as may be employed need not be electors." The amendment to Town Law, § 23, effected by the Laws of 1968, chapter 767, paragraph 1, did not change the above language.

Public Officers Law, § 3, in pertinent part, reads as follows:

"§ 3. Qualifications for holding office

"1. No person shall be capable of holding a civil office who shall not, at the time he shall be chosen thereto, have attained the age of eighteen years, * * * be a citizen of the United States, a resident of the state, and if it be a local office, a resident of the political subdivision or municipal corporation of the state for which he shall be chosen, or within which the electors electing him reside, or within which his official functions are required to be exercised, * * *"

It does not appear that the present nonresident incumbent may retain his position as town engineer so long as there are resident engineers who are electors of the town.

The fact that prior to 1973 the position of town engineer was in the exempt class of the municipal civil service and since that time has been considered to be in the competitive class, in no way affects the residency requirements specified by law. For your further information I am enclosing a copy of a prior opinion of this office, 71 Op. Atty. Gen. 154, which may also be helpful to you.