Informal Opinion No. ( 1989 )

Charles A. Marangola, Esq. Village Attorney, Moravia

You have asked whether a village may enact a local law which allows only the acting village justice to reside within the county in which the village is located while requiring that the village justice reside within the village.

Villages are authorized to have two village justices and, in the event that a village has only one justice, it is required to also have an acting justice who serves when requested by the village justice or when the village justice is absent or unable to serve (Village Law, §3-301[2][a]). The village justice is an elective officer (id., § 3-301 [3]). The acting justice is an appointive officer (ibid.; 1976 Op Atty Gen [Inf] 141).

The general requirement is that village officers must be residents of the village (Village Law, § 3-300[2]). The board of trustees of a village may provide, however, that "any appointed village officer may reside within a county in which the village is wholly or partially situated" (id., § 3-300[2] [a]). A board of trustees of a village with a population under 3,000 may provide that the village justice may reside within a county in which the village is wholly or partially located (id., § 3 300[2][b]). You inquire whether this latter provision would authorize expanded residency only for the acting justice.

In our view, the acting justice is covered under paragraph a of subdivision 2 rather than under paragraph b of that subdivision. By its terms, paragraph b refers to "village justice" not "acting justice" which are terms given separate meanings under provisions of the Village Law. Further, paragraph a applies to "any appointed village officer". Certainly, the acting justice is an appointed village officer. Thus, the authorization for the board of trustees to permit any appointive village officer to reside in a county in which the village is wholly or partially located would enable the trustees to extend this expanded residency to the office of acting justice only.

We conclude that the village board of trustees may provide that the acting justice may reside within the county in which the village is wholly or partially located.