Informal Opinion No. ( 1989 )

Edwin F. Steffan, Esq. Town Attorney, Alden

You have asked whether a member of a town board who has tendered his resignation, effective at some future date, may vote at a town board meeting on the appointment of his replacement on the town board.

Section 31 of the Public Officers Law governs the resignation of town officials. A town board member is required to resign to the town clerk (id., § 31[1][g]). Resignations must be in writing and, if an effective date for the resignation is specified, it takes effect upon that date (id., § 31[2]).

Thus, it is clear that the town board member's resignation does not become effective until the date specified in his letter of resignation. A vacancy does not exist until the resignation becomes effective. The town board has no authority to fill a prospective vacancy but may act only when a vacancy actually occurs or exists (Town Law, § 64[5]; Mtr. ofRoberts v Allen, 54 Misc.2d 746 [Sup Ct, Albany Co, 1962]). It follows that a town officer who has tendered a letter of resignation effective at some future date may not participate in the appointment of his successor in that the authority to fill the vacancy does not arise until the resignation is effective, at which time he has ceased to be a member of the appointing body.

We conclude that a member of a town board who has tendered a letter of resignation, effective at some future date, may not participate in the appointment of his successor. The appointment may not be made until the vacancy actually occurs.