If a town board appointed a Deputy Supervisor by resolution but never separately created the office, was the office still validly established?

Plain-English summary

Town Law § 42 sets out a two-step procedure for creating a Deputy Supervisor position. First, the Town Board passes a resolution establishing the office. Second, the Supervisor appoints the Deputy, who serves at the Supervisor's pleasure. If the Supervisor fails to appoint within five days after the office is established or after a vacancy occurs, the Town Board may make the appointment. The statute also specifies the Deputy Supervisor's duties.

In 1992, the Town of Forestburgh Town Board passed a resolution that named a particular individual to the position of Deputy Supervisor. The board collapsed both steps (creating the office and filling it) into a single resolution and bypassed the Supervisor's appointment role. From 1992 onward, the Supervisor appointed a Deputy each year, which is what § 42 contemplates. The Town Attorney asked whether the original 1992 resolution had actually established the office, given the procedural mix-up.

The AG concluded the office had been created. The reasoning was practical, not strict. The 1992 resolution showed clear intent to establish the office; calling out a specific person as Deputy Supervisor presupposed that there was an office to fill. The Board's failure to first pass a separate creation resolution did not erase that intent. Then, year after year from 1992 forward, the Supervisor made the annual Deputy Supervisor appointment, and the Town Board continued to recognize the position. That course of conduct confirmed the Board's continuing approval of the office's existence.

The AG did not address whether the initial 1992 appointment was itself valid (which might be questionable, since the Supervisor should have made it). The opinion focuses on the office, not the individual appointment, and concludes the office was effectively created.

Currency note

This opinion was issued in 1998. 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

What is a Deputy Supervisor's role?

Town Law § 42 specifies the Deputy Supervisor's duties. The Deputy generally acts for the Supervisor in the Supervisor's absence or disability and exercises particular functions assigned by the Supervisor. The position serves at the Supervisor's pleasure.

Who normally appoints the Deputy Supervisor?

The Supervisor, under § 42. The Town Board's role is to establish the office; the Supervisor selects the person. A backup rule lets the Town Board appoint if the Supervisor has not done so within five days of the office being established or a vacancy occurring.

Could the Town Board now appoint someone other than the Supervisor's pick?

Once the office exists and the Supervisor has appointed a Deputy, the Town Board cannot displace the Supervisor's choice; the Deputy serves at the Supervisor's pleasure, not the Board's. The Board has no continuing appointment power so long as the Supervisor exercises the appointment timely.

What about formalism in establishing other town positions?

The AG's reasoning here, ratification by course of conduct, has natural limits. It works because the statute does not impose specific formalities (like a separate vote, a public hearing, or notice) on the creation of the Deputy Supervisor office. A statute that does require specific formalities cannot be satisfied by years of consistent practice; the formalities have to be followed. Town attorneys analyzing other irregularly created positions should check whether the underlying statute has specific creation requirements before assuming ratification cures the problem.

Was the 1992 individual appointment valid?

The opinion does not directly address that. It concludes the office was created. Whether the original 1992 appointee was lawfully serving until the Supervisor's later annual appointments would be a separate question on standard appointment-validity doctrine. Since each subsequent year the Supervisor made a fresh appointment, the question is largely academic.

Background and statutory framework

Town Law § 42 is a permissive provision; it does not require a town to have a Deputy Supervisor, but it gives towns the option. The split structure (Board creates, Supervisor appoints) is typical of New York town government, which divides authority between the legislative body (Board) and the chief executive (Supervisor).

The AG's reasoning in this opinion draws on a long municipal-law tradition of treating substance over form where the statute does not impose strict formalities and where the public has had no reason to be misled. The Town Board's intent was clear, the Supervisor's later acts ratified the office, and no third party was prejudiced by the procedural irregularity. In that situation, voiding the office after six years of operation would be both impractical and contrary to the evident legislative intent of § 42, which is to facilitate, not obstruct, the creation of deputy positions.

Citations

• Town Law § 42 (establishment of Deputy Supervisor office and appointment procedure).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-42_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Page 1 of 2

Opn. 98-42
TOWN LAW § 42.
While the Town Board, in appointing a Deputy Supervisor in 1992, in part did not follow the provisions
of section 42 of the Town Law which calls for the establishment of the office by the Town Board and
the appointment of a Deputy by the Supervisor, it seems clear that the intent of the Board was to
establish the office.
November 2, 1998
Kenneth C. Klein, Esq.
Town Attorney
Town of Forestburgh
P. O. Box 670
Liberty, NY 12754-0670

Informal Opinion
No. 98-42

Dear Mr. Klein:
You have asked whether your Town has established the position of Deputy Supervisor in
accordance with provisions of law.
Under section 42 of the Town Law, a town may at any time establish the office of Deputy
Supervisor. The Deputy Supervisor is appointed by the Supervisor and serves at his or her pleasure. If
the Supervisor fails to appoint a Deputy within five days after establishment of the office or within five
days after a vacancy occurs in such office, the Town Board may appoint the Deputy Supervisor. Section
42 also specifies the duties of the Deputy Supervisor.
You have inquired whether the position of Deputy Supervisor was established properly in your
Town. In a telephone conversation, you have explained that in 1992 the Town Board enacted a
resolution appointing a particular individual to the position of Deputy Supervisor. The question is
whether this action effectively established the position. Since 1992, the Supervisor has appointed a
Deputy as required under State law.
In our view, the position of Deputy Supervisor has been created. While the Town Board, in
appointing a Deputy Supervisor in 1992, in part did not follow the provisions of section 42 of the Town
Law which calls for the establishment of the office by the Town Board and the appointment of a Deputy
by the Supervisor, it seems clear that the intent of the Board was to establish the office. Even though the
Board did not follow section 42 in making the initial appointment, we believe that the Board created the
office. Further, since 1992 the Supervisor has appointed the Deputy every year, indicating the Town
Board's continued approval of this position.
We conclude that the Town Board effectively established the position of Deputy Supervisor.
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,

http://www.oag.state.ny.us/lawyers/opinions/1998/informal/98_42.html

4/20/2006

OPINIONS OF THE ATTORNEY GENERAL

Page 2 of 2

JAMES D. COLE
Assistant Attorney General
In Charge of Opinions
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4/20/2006