McDonough v. Murphy

judgment of the Supreme Court at Special Term (Bradley, J.), entered October 27,1982 in Rensselaer County, which, inter alia, granted plaintiffs’ motion for summary judgment declaring certain resolutions of the Rensselaer County Legislature to be null and void. On July 1,1982, defendant Rensselaer County Legislature enacted Resolutions G-217-82 through G-220-82. These resolutions declared the four positions on the Board of Trustees of Hudson Valley Community College (board) held by plaintiffs to be vacant. At the same time, these resolutions appointed four new members to the board. As regards three of the four board positions in question (McDonough, Davison, and Denio), the basis for the Legislature’s declaration was that these plaintiffs failed to file their oaths of office with the Rensselaer County Clerk within 30 days of their appointment, as required by section 30 (subd 1, par h) of the Public Officers Law. The basis for declaring plaintiff Fleming’s position vacant was that he was not a resident of Rensselaer County as required by section 30 (subd 1, par d) of the Public Officers Law. Plaintiffs, the former members of the board, commenced this declaratory judgment action seeking a declaration that the action of the Legislature was invalid and that they are the lawful members of the board. Special Term granted plaintiffs’ motion for summary judgment declaring the resolutions of the Legislature void and directing a trial on the factual issue of plaintiff Fleming’s residence. This appeal ensued. We first turn to the issue of whether plaintiffs McDonough, Davison and Denio filed the required oaths of office (see Public Officers Law, § 10) within the time limitations prescribed by section 30 (subd 1, par h) of the Public Officers Law. The facts show that plaintiffs McDonough and Davison were reappointed to their positions as trustees on June 10,1980 and September 8,1981, respectively, for nine-year terms. However, not until November 16, 1981 were said plaintiffs given written notification by the Rensselaer County Clerk of their appointments. Within 30 days after said notice both plaintiffs filed their official oaths of office. Plaintiff Denio was appointed by the county legislature to his position on July 9, 1976. Although Denio never received written notice of his appointment, he duly executed the oath of office for said position on April 15, 1977. Section 30 (subd 1, par h) of the Public Officers Law provides that a vacancy is created in a public office upon an officer’s “refusal or neglect to file his official oath * * * before or within thirty days after the commencement of the term of office for which he is chosen, if an elective office, of if an appointive office, within thirty days after notice of his appointment, or within thirty days after the commencement of such term”. Plaintiffs contend that there has been compliance with the statutory requirements of section 30 in that Davison and McDonough filed their oaths within 30 days of receiving written notice. Plaintiff Denio contends that he received no written notice of his appointment at all, but that his oath was timely filed. Plaintiffs base these contentions upon the fact that in the case of an appointive office, section 30 (subd 1, par h) of the Public Officers Law provides alternative time periods within which to file an oath and, therefore, plaintiffs were not required to file their oaths of office until notified in writing of their appointments. Plaintiffs further claim that the condition of “whichever shall last occur” is implied in the statutory language. Defendants, on the other hand, argue that the statute does not require written notice, but that constructive or implied notice is sufficient to satisfy the statute. Special Term did not pass on this issue, holding that the filing of the oath of office by these three plaintiffs validated their appointment nunc pro tune. However, this rationale has been rejected by this court (Matter ofComins v County of Delaware, 66 AD2d 966 ). Accordingly, we must construe section 30 (subd 1, par h) of the Public Officers Law. In this regard, the construction offered by plaintiffs must be rejected. One reason plaintiffs give for implying

resolution of the county legislature adopted September 8, 1981. The record further shows that one Susan Steele assumed the position as Clerk of the Rensselaer County Legislature in August, 1981, and that on November 16, 1981, while reviewing the files, she ascertained that the legislature had never given written notice of reappointment to McDonough, Davison and Fleming. On that day, she sent a letter to these three plaintiffs, enclosing a copy of the respective resolution appointing each, approved by the county executive, and requesting each to “bring the letter and Resolution to the County Clerk’s Office and to sign the book”. McDonough did so on November 17, and Davison on November 18. It appears Fleming had signed the oath on July 10,1978, but believing he might have neglected to do so, he also resigned an oath on November 19, 1981 in response to the Steele letter. It is clear from the record that defendant Buono, as county clerk, never gave the notice required by subdivisions 4 and 6 of section 400 of the County Law of a vacancy in the case of plaintiff Fleming’s position by reason of the nonresidency proscribed in section 37 of the Public Officers Law, nor did Buono ever give notices of appointment to the other plaintiffs described in subdivision 5 of section 400 of the County Law. Defendants rely upon section 30 (subd 1, par h) of the Public Officers Law which provides that a vacancy is created in a public office upon an officer’s “refusal or neglect to file his official oath * * * before or within thirty days after the commencement of the term of office for which he is chosen, if an elective office, or if an appointive office, within thirty days after notice of his appointment, or within thirty days after the commencement of such term”. Plaintiffs McDonough and Davison contend that they have complied with section 30 by filing their oaths within 30 days after receipt of the notice given in the Steele letter, while plaintiff Denio contends that he filed his oath despite lack of any notice at all. Central to their argument is the contention that section 30 specifies two separate and distinct events which trigger the 30-day limitation of time within which to file oaths and that the statute, although devoid of specific words, implies the condition “whichever shall last occur”. Defendants argue that no written notice is required and that constructive or implied notice is sufficient to satisfy the statute. Special Term failed to consider or pass upon these arguments, but instead validated the late filings nunc pro tune and declared the resolutions null and void because no vacancies in said offices existed at the time of their adoption. While it may be argued that this rationale was rejected by this court in Matter of Comins v County of Delaware ( 66 AD2d 966 ), and that noncompliance with the time limitations for filing oaths prescribed by section 30 of the Public Officers Law absolutely creates a vacancy in office (Ginsberg v City of Long Beach, 286 NY 400 ; 1975 Atty Gen [Inf Opns] 237), I am not persuaded that the same result is compelled in this case. In order to determine whether there has been noncompliance with the statute, this court must not only interpret the intent of the legislature in its use of the word “notice” in the statute, but also determine what kind of notice is sufficient to satisfy the statute. A glaring ambiguity appears to exist in section 30 (subd 1, par h). The paragraph mentions the refusal or neglect to file an official oath or undertaking “before or within thirty days after the commencement of the term of office for which he is chosen, if an elective office, or if an appointive office, within thirty days after notice of his appointment, or within thirty days after the commencement of such term” (emphasis added). Clearly two types of offices are identified: the first elective and the second appointive. In the case of appointive office, two separate and distinct events specified are separated by the disjunctive “or”, itself preceded by a comma. In construing a sentence in a statute, the use of a disjunctive so separated ordinarily indicates an intention to discriminate the first half of the sentence

from the second half (McKinney’s Cons Laws of NY, Book 1, Statutes, § 253). In my view, in the case of an appointive officer, the intent of the legislature was to specify that the 30-day time limitation within which to file the oath of office is triggered by either of the two events. Conspicuous by its absence is any indication of legislative intent as to whether the limitation of time is the shorter or longer of the two possible time periods. In this case, the omission mandates the longer of such times, here, after notice of appointment. Since the only notice given was the November 16, 1981 Steele letter, and McDonough and Davison filed within the ensuing 30 days, such filing was timely. Denio concededly never received notice, but nevertheless filed his oath which similarly was timely. Further support for this determination can be found in section 13 of the Public Officers Law which, parenthetically, is entitled “Notice of neglect to file oath or undertaking”. That section states “[t]he officer or body making the appointment * * * shall, if the officer be required to give an official undertaking * * * forthwith give written notice of such appointment or election to the officer in whose office the undertaking is to be filed. If any officer shall neglect, within the time required by law, to take and file an official oath” (emphasis added). It is obvious the legislature intended to require that written notice of appointment or election be given to memorialize or document the date for the commencement of the 30-day period within which the oath (or undertaking) must be filed. In section 13, the language specifically provides for written notice. It would be erroneous to speculate that section 30 should be read to mean that less formal notice than that required by section 13 was intended by the Legislature. In Matter of Cosgrove (Walsh) ( 292 NY 50 ), the Court of Appeals held that the time within which to file the oath under section 30 of the Public Officers Law commenced not when one is elected, but when he receives his certificate of election, clearly demonstrating that a written instrument is required. In Matter ofComins (supra), this court held that filing of the oath must have been made within 30 days after notice of appointment, or within 30 days after commencement of the term pursuant to section 30 of the Public Officers Law, quoting the statute verbatim. In doing so, we recognized that there are two alternative time periods provided by use of the punctuation comma to separate and distinguish the existence of two alternative events. In my view, the later of the two alternate events, i.e., receipt of written notice, triggers the 30-day time period within which to file an oath. We do not legislate. We interpret that which the Legislature has set down as law. Certainly, it is plausible to hold that there are two separate events, the later here being written notice which served to trigger the time period in question, rather than to select just one of the two events, i.e., commencement of the term of office, and decide that the three plaintiffs have failed to timely file their oaths. “It is not to be supposed that the Legislature will deliberately place words or phrases in a statute without any purpose in view. On the contrary, it is said that in the attempt to ascertain the intention of the legislature, it is a just rule, always to be observed, that the court shall assume that every provision of the statute was intended to serve some useful purpose, and it is broadly held that every word, phrase, clause and paragraph must be presumed to have a meaning and to have been inserted in a statute for a purpose” (McKinney’s Cons Laws of NY, Book 1, Statutes, § 231). The judgment should be affirmed.