If a New York city mayor resigns on August 1, when does the city hold an election to fill the seat?

Plain-English summary

The City of Watervliet's mayor resigned effective August 1, 1996. His term was scheduled to run from January 1, 1996 through December 31, 1999. The city council made an interim appointment to fill the vacancy. The deputy corporation counsel asked the AG how long the appointee could serve and when an election for the balance of the term had to be held.

The AG said the election had to be held at the next general election, in November 1996, with the winner taking office January 1, 1997. The interim appointee could serve only through December 31, 1996.

The legal sources are constitutional and statutory. N.Y. Const. art. XIII, § 3 provides that an appointee filling a vacancy in an elective office holds the office "no longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy." Public Officers Law § 42(1) implements that constitutional rule and adds a September 20 cutoff: a vacancy occurring before September 20 in any year in any office authorized to be filled at a general election must be filled at the general election held next thereafter (unless the Constitution provides otherwise or the office was previously filled at a special election). The August 1 vacancy in Watervliet was well before September 20, so the November 1996 election was the next election required to fill it.

The September 20 cutoff exists to give time for nomination of candidates under the Election Law. Vacancies that occur after September 20 are not filled at the upcoming election (there is not enough time to nominate candidates), and the interim appointee serves longer until the next year's election.

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 does the Constitution care about how long an interim appointee serves?
Because elective offices are reserved to the electorate. The constitutional rule that an appointee holds the office only until the next political year after the first annual election following the vacancy is designed to limit the interim appointment's duration. The point is to get the office back to the voters as quickly as practical.

What is the role of the September 20 cutoff?
The September 20 cutoff balances the constitutional preference for prompt election against the practical reality that candidates need time to be nominated. The Election Law requires party caucuses, conventions, designating petitions, and the like, which take weeks. The Legislature picked September 20 as the dividing line: vacancies before that date get filled at the November general election; vacancies after that date have to wait for the next year.

Who served as mayor between August 1 and December 31?
The city council's interim appointee. The AG opinion does not address how the city council made the appointment or which charter provision authorized it. Most New York city charters provide that the city council fills vacancies on its own membership and in the office of mayor by appointment.

What happens to the rest of the term after the November 1996 winner takes office?
The winner serves the balance of the unexpired term (from January 1, 1997 to December 31, 1999). At the end of that period, the regular election cycle applies.

Does the same rule apply to other elective city offices?
Yes, generally, for offices authorized to be filled at a general election. Public Officers Law § 42(1) is not limited to mayors. It applies to "any office authorized to be filled at a general election." So city council seats, judgeships, and similar elective offices would follow the same calendar rule, subject to any specific charter provisions or constitutional provisions for particular offices.

Background and statutory framework

The two-tier rule:

N.Y. Const. art. XIII, § 3 provides that an appointee filling a vacancy in an elective office holds the office "no longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy." This is the constitutional ceiling on interim appointee tenure.

Public Officers Law § 42(1) implements that constitutional rule with statutory specificity. It provides that a vacancy occurring before September 20 of any year in any office authorized to be filled at a general election must be filled at the general election held next thereafter (unless the Constitution provides otherwise or unless previously filled at a special election).

The combination produces the timing: an August 1 vacancy is before September 20, so the November general election fills the office. The political year for city mayor begins on January 1, so the appointee serves through December 31 and the election winner takes office on January 1 of the following year.

The AG's prior Informal Opinion 83-36 reaches the same conclusion on similar facts.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-34_pw.pdf

Original opinion text

NY CONST, ART XIII, § 3; PUBLIC OFFICERS LAW § 42.

A vacancy in the office of mayor of the City of Watervliet occurring on August 1, 1996 must be filled for the balance of the unexpired term by the voters at the November 1996 election. Therefore, the person appointed to fill temporarily the vacancy may serve only through December 31, 1996.

September 30, 1996

Peter M. Torncello, Esq.
Deputy Corporation Counsel
City of Watervliet
Watervliet, NY 12189

Informal Opinion No. 96-34

Dear Mr. Torncello:

You have requested our opinion concerning the procedure for filling the elective office of mayor of the City of Watervliet. Your letter states that on August 1, 1996 the mayor resigned from his office, which has a term extending from January 1, 1996 until December 31, 1999. Upon his resignation, the city council made an appointment to fill the vacancy. Specifically, you inquire as to when an election must be held to fill the vacancy for the balance of the unexpired term and the length of time that the appointee may serve as mayor.

Under Article XIII, section 3 of the State Constitution and the city's charter, no person appointed to fill a vacancy in an elective office

shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy.

This provision is effectuated by section 42(1) of the Public Officers Law which provides that:

A vacancy occurring before September twentieth of any year in any office authorized to be filled at a general election, . . . shall be filled at the general election held next thereafter, unless otherwise provided by the constitution, or unless previously filled at a special election.

The vacancy in the city's office of mayor occurred on August 1, 1996. Since it occurred prior to September 20th, under section 42(1) of the Public Officers Law the vacancy must be filled for the balance of the unexpired term at the next general election, which occurs in November of 1996. Therefore, the appointee will serve only until the end of the current year, December 31, 1996, and the victor in the election will take office on January 1, 1997. The obvious purpose of the September 20th cut-off date is to implement the constitutional requirement that elections take place as soon as possible to fill vacancies in elective offices, while allowing time for the nomination of candidates under provisions of the Election Law. See, Op Atty Gen (Inf) No. 83-36.

We conclude that a vacancy in the office of mayor of the City of Watervliet occurring on August 1, 1996 must be filled for the balance of the unexpired term by the voters at the November 1996 election. Therefore, the person appointed to fill the vacancy may serve only through December 31, 1996.

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