Informal Opinion No. ( 1988 )

Daniel A. Rybak, Esq. Town Attorney, Bethany

You have informed us that your town assessor was appointed for a six-year term at a meeting of the town board on September 23, 1983. She took an oath of office and signed the oath before the town clerk on October 25, 1983 and left an original of the oath with the town clerk. You believe that the assessor filed a duplicate original in the county clerk's office on September 15, 1984. You have asked whether the assessor followed the provisions of law governing the taking of the oath of office.

There are two provisions governing the taking and filing of an oath of office by town officials. Under section 25 of the Town Law, town officers, prior to performing the duties of their offices and within 15 days after the commencement of their terms of office, must take and subscribe to the constitutional oath of office and within eight days must file the oath in the office of the county clerk. By contrast, under section 30 of the Public Officers Law an appointive office becomes vacant upon an incumbent's refusal or neglect to file his oath of office within 30 days of notice of his appointment or within 30 days of the commencement of his term of office (id., § 30 [1] [h]). Under the Public Officers Law, the oath of every municipal officer is to be filed with the clerk of the municipality (id., § 10).

The Court of Appeals has decided that it was not the intention of the Legislature in the enactment of these provisions "to set a trap for the unwary by confusing the proper office in which the qualifying oath of office of a town officer should be filed" (Entwistle v Murtaugh,17 N.Y.2d 6 [1966]). Thus, the Court held that the oath may be filed within the 30 day period in either of the two offices.

We conclude that the filing by the town assessor of her oath of office within 30 days of her appointment, in the office of the town clerk, complied with the requirements of law for the filing of the oath.