Can a sitting NY town board member resign and then be appointed by his fellow board members to a paid town position like zoning enforcement officer?

Subject

Town Law § 64(5) carves out a statutory exception letting a town board appoint one of its own resigning members to fill a vacancy

Plain-English summary

Cazenovia's zoning enforcement officer was planning to retire in March 1996. A sitting town board member (third year of a four-year term) wanted to be appointed to the position. The town attorney asked whether the board member could resign and then be appointed by the same board.

The AG said yes, but only because Town Law § 64(5) specifically authorizes this. The default common-law rule would block it.

The common-law rule comes from Wood v Town of Whitehall, 120 Misc 124 (Sup Ct Washington Co), aff'd, 206 App Div 786 (3d Dept 1923). When a board appoints one of its own members to a public office or position of employment, the appointment is void at common law. The Whitehall court explained why:

When public officers, such as the members of a town board, are vested by the legislature with power of appointment to office, a genuine responsibility is imposed. It must be exercised impartially, with freedom from a suspicion of taint or bias which may be against the public interest. An appointing board cannot absolve itself from the charge of ulterior motives when it appoints one of its own members to an office.

The court added that even if the candidate's own vote was not necessary to the appointment, the opportunity to influence other members improperly is present. Who knows what motivated the other members? The appointment may have been impartial, but it may have been driven by reciprocal-favors expectations.

The Whitehall rule applies even to a board member who resigns first. The reasoning still holds: the prospective appointee, still a board member at the time of the appointment vote, had the opportunity to influence the other members improperly. The public can reasonably question whether the appointment was made on merit (Op Atty Gen (Inf) 87-4 makes this point).

Town Law § 64(5) creates an exception:

A person, otherwise qualified, who is a member of the town board at the time the vacancy occurs may be appointed to fill the vacancy provided that he shall have resigned prior to such appointment.

The statutory text overrides the common-law Whitehall bar for town board members. The Legislature decided that for towns, the practical value of allowing such appointments (continuity, experienced candidates with knowledge of the town's operations) outweighed the abstract risk of improper influence. The statute imposes the resignation-before-appointment requirement as a procedural safeguard.

The opinion confirmed (per Op Atty Gen (Inf) 87-79) that § 64(5) covers any town office vacancy, including the zoning enforcement officer position. So the Cazenovia board member could resign, and the board could then appoint him to the zoning role.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why doesn't the statute let the board member vote on his own appointment?

The statute requires resignation before appointment. Once resigned, the former member is not on the board to cast a vote. The other board members vote on the appointment. The resignation timing matters: it must be effective before the appointment vote.

What if no one else applies for the position?

That is one of the practical realities the statute likely accommodates. Small towns often have shallow candidate pools. A board member who is qualified for a vacancy might be a strong candidate, and the statute lets the board take advantage of that without running afoul of Whitehall. But the board should still consider other candidates if available, document the merit-based reasoning, and be ready to defend the choice.

Does this work for county legislators or city councilmembers too?

The statute is Town Law § 64(5). It specifically authorizes town board appointments. Similar exceptions may exist for counties (under the County Law) or cities (under their charters or general state law), but each jurisdiction needs to be checked separately. The Whitehall rule is the default; statutory authority is needed to override it.

What kinds of positions count as a "vacancy" under § 64(5)?

Any vacant town office or position. The 1987 informal opinion (87-79) extended this to zoning enforcement officer. Other town positions (highway superintendent, town clerk if vacated, building inspector, planning board) presumably fit similarly, though specific authorizing statutes for each position should be checked for any conflicting requirements.

What if the board pre-arranges the appointment before the resignation?

That puts the situation squarely within Whitehall's concerns. The AG opinion suggests pre-arrangement creates "the key elements of the Whitehall decision" because the still-sitting board member has the opportunity to influence colleagues. Best practice: the board should not formally commit to the appointment until after the resignation is effective and the position has been advertised through normal channels.

Statutory framework

Town Law § 64(5) authorizes a town board to appoint a person, otherwise qualified, who was a board member at the time the vacancy occurred, to fill that vacancy, provided the person has resigned from the board prior to the appointment.

Wood v Town of Whitehall, 120 Misc 124 (1923), states the common-law rule that an appointing board may not appoint one of its own members to office. The rule rests on the impartiality and appearance-of-propriety concerns.

Op Atty Gen (Inf) 87-79 confirmed that § 64(5) applies to filling a town office vacancy, including zoning enforcement officer.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-3_pw.pdf

Original opinion text

TOWN LAW § 64(5).

A member of the town board may resign from the board in order to be appointed to fill a vacancy in the position of zoning enforcement officer.

February 21, 1996

David P. O'Hara, Esq.
Town Attorney
Town of Cazenovia
9 Albany Street
Cazenovia, NY 13035

Informal Opinion
No. 96-3

Dear Mr. O'Hara:

You have informed us that your zoning enforcement officer is planning to retire around March of 1996 and that one of the current town board members, who at that time will be in the third year of his four-year term on the board, is interested in becoming the new zoning enforcement officer. You have indicated that this individual, in addition to his experience on the town board, has also been a member of the town planning board. You have inquired whether the town board member may resign from the board and then be appointed by the town board to the position of zoning enforcement officer once the vacancy has occurred.

While the Town Law has established an exception, it is necessary to set forth the general rule of law applicable to such appointments. Common law voids the appointment by a board of a member of that board to a public office or position of employment. Wood v Town of Whitehall, 120 Misc 124 (Sup Ct Washington Co), affd, 206 App Div 786 (3d Dept 1923). While the rule in Whitehall applies to the appointment of a current board member by that board, the reasoning of the Court is relevant here:

When public officers, such as the members of a town board, are vested by the legislature with power of appointment to office, a genuine responsibility is imposed. It must be exercised impartially, with freedom from a suspicion of taint or bias which may be against the public interest. An appointing board cannot absolve itself from the charge of ulterior motives when it appoints one of its own members to an office. It cannot make a difference whether or not his own vote was necessary to the appointment. The opportunity improperly to influence the other members of the board is there. No one can say in a given case that the opportunity is or is not exercised. What influenced the other members to vote as they did, no one knows except themselves. Were their motives proper, based solely on the fitness of the appointee? They may have been. Were they improper, based on the promise or expectation of reciprocal favors?

Id., p 125.

Thus, the Court in Whitehall reasoned that the power of appointment must be exercised impartially with freedom from a suspicion of taint or bias. That standard cannot be met where there is the opportunity improperly to influence the other members of the board. The Court found that the opportunity is present when a member of the board is appointed to a position.

Returning to your inquiry, the town board member would resign prior to the appointment by the town board to fill the vacancy in the office of zoning enforcement officer. While these facts distinguish your inquiry from those in Whitehall, one can envision circumstances under which the reasoning of the Whitehall case would apply to appointment of a former board member. Op Atty Gen (Inf) 87-4. For example, if a board decides to appoint one of its current members to fill a vacancy at a future date, following his resignation from the board, the key elements of the Whitehall decision will be present. Id. The prospective appointee, as a member of the board, would have an opportunity improperly to influence fellow board members. The public reasonably may question whether the appointment was made solely in the public interest after consideration of other interested candidates.

We have found, however, that section 64(5) of the Town Law authorizes such an appointment. Op Atty Gen (Inf) No. 87-79.

A person, otherwise qualified, who is a member of the town board at the time the vacancy occurs may be appointed to fill the vacancy provided that he shall have resigned prior to such appointment.

Town Law § 64(5). We found that this provision is applicable to filling of a vacancy in a town office and, therefore, can be applied to the position of zoning enforcement officer. Id., Op Atty Gen (Inf) No. 87-79.

We conclude that a member of the town board may resign from the board in order to be appointed to fill a vacancy in the position of zoning enforcement officer.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.

Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions