What happens to a fire commissioner election if the incumbent runs for a new term when his current term still has a year left?

Plain-English summary

The Florida Fire District had a small but tangled mess after its December 1998 election. Two incumbent commissioners (A and B) each thought one of their terms was expiring. Petitioners filed nominating papers for A, treating his seat as the open one. Nobody filed for B. Just before the election, B realized it was actually his term that was expiring, not A's. The election went forward anyway: A got 17 votes; B got 9 write-ins.

After the vote, A discovered he still had a year left on his current term. At the January 5, 1999 board meeting, A orally resigned from his pre-existing seat and accepted the new term. The board then appointed B to fill A's resulting vacancy. The district attorney asked the AG to sort out who legally held what.

The AG took the situation apart layer by layer:

A's election was a nullity. Under a 1970 AG opinion citing People v Purdy, an incumbent fire commissioner with more than a year left on his current term cannot be elected to a new term. The policy concern is term extension via election: a sitting commissioner could leverage his board's appointment power (Town Law § 176(3)) to fill the vacancy he himself creates, effectively extending himself. A's good-faith mistake about his term length did not save the election; the disqualification is structural.

A's oral resignation was also a nullity. Public Officers Law § 31(2) requires every resignation in writing addressed to the proper officer or body. Burke v Van Buskirk holds the statutory method is exclusive. So A never validly resigned. He continues to serve out his pre-existing term, which ends December 31, 1999.

B did not win the election either. The rule in New York is that a candidate with fewer than a majority or plurality of legal votes cannot be declared elected even if the apparent winner was ineligible. Matter of Foley v McNab and People ex rel. Furman v Clute say votes cast for an ineligible candidate are not redistributed to the runner-up. B received only 9 of 26 votes.

B's appointment to fill A's "vacancy" was also a nullity, because A never created a vacancy by resigning.

Net result: A holds his original seat until December 31, 1999. B's term, which actually was the one expiring December 31, 1998, became vacant on January 1, 1999. Under Public Officers Law § 5 and Town Law § 176(3), B holds over until the board appoints a successor. The board can appoint a qualified person to serve through December 31, 1999. The December 1999 election must include two ballots: one to fill the balance of A's term (now ending) and one to fill B's term.

Currency note

This opinion was issued in 1999. 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 can't an incumbent fire commissioner run for a new term while his current term has time left?

The AG's policy concern (rooted in the 1970 opinion and People v Purdy) is that the board has appointment power over vacancies. If A wins a new term and resigns the old one, the remaining commissioners (including A himself in his new role) fill the vacancy A created. The structure rewards term extension; the rule prevents that maneuver.

What about the voters' intent?

Voters cast 17 ballots for A. The rule is that votes for an ineligible candidate cannot validate his election. People v Purdy says public-officer qualification statutes should not be construed to make voter action abortive, but here the construction is built into the statute itself: a candidate who is ineligible was not lawfully on the ballot.

Why does the runner-up not win?

Same election-law tradition. New York courts have consistently held that votes for an ineligible candidate are not redistributed. The remedy is a fresh election or a holdover-plus-appointment, not a default win for second place.

What is a "holdover"?

Under Public Officers Law § 5, when a term ends and no successor has qualified, the incumbent continues to perform the duties of the office until a successor takes over. The holdover position is real and lawful, just temporary.

How does the board fix this for the next cycle?

Both seats need to be on the December 1999 ballot: one for the balance of A's term (ending now), one for B's full new term. Going forward, the district should confirm term expirations against actual filings and certificates before nominating petitions go out.

Background and statutory framework

Town Law Article 11 governs fire districts, including the election and appointment provisions for fire commissioners. § 176(3) gives the board authority to fill vacancies by appointment until the next election.

Public Officers Law § 5 (holdover provisions) and § 31(2) (form of resignation) are the statewide rules. The strict written-resignation requirement is one of the more rigid procedural rules in New York public officer law; the Third Department's decision in Burke v Van Buskirk is the canonical citation for the proposition that no other form of resignation will do.

The 1970 AG opinion the AG built on is part of a long tradition of "term extension" cases that read public-policy constraints into the eligibility rules for elective office. People v Purdy is the Court of Appeals foundation.

Citations

• Public Officers Law § 5 (holdover in office until successor qualifies).
• Public Officers Law § 31(2) (written resignation requirement).
• Town Law § 176(3) (fire district board appointment of vacancies).
• Town Law Article 11 (fire district governance).
• Burke v Van Buskirk, 47 AD2d 965 (3d Dept 1975) (statutory resignation method is exclusive).
• People v Purdy, 154 NY 439 (1897) (qualification statutes; voter action; public mischief).
• Matter of Foley v McNab, 42 Misc 2d 460 (Sup Ct Suffolk Co 1964) (runner-up does not win when winner is ineligible).
• People ex rel. Furman v Clute, 50 NY 451 (1872) (votes for ineligible candidate not redistributed).
• 1970 Op Atty Gen 52 (incumbent fire commissioner cannot be nominated for new term during current term).
• 1961 Op Atty Gen 215 (holdover doctrine application).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_99-28_pw.pdf

Original opinion text

Opn. No. 99-28
PUBLIC OFFICERS LAW §§ 5, 31(2); TOWN LAW, ART 11, § 176(3).
A fire commissioner who is serving a term which will not expire for more than a year is not eligible to
be nominated for the office of fire commissioner for a five-year term and his election under such
circumstances is nugatory. A candidate who received less than a majority or plurality of the vote may
not be declared the winner of an election.
September 30, 1999
John D. Bollenbach, Esq.
Florida Fire District Attorney
757 Seward Highway
Florida, New York 11509

Informal Opinion
No. 99-28

Dear Mr. Bollenbach:
You have inquired as to the status of the Florida Fire District's Fire Commissioners following an
election held on December 8, 1998. You have provided us with the following facts.
On November 18, 1998, nominating petitions were filed naming Commissioner A as a candidate
for election to a five-year term of office commencing January 1, 1999 and ending December 31, 2003.
At the time of the nomination, Commissioner A, an incumbent, believed, as did the other Fire District
officials, that his term was expiring December 31, 1998. Commissioner A was the only candidate for
whom nominating petitions were filed. Shortly before the election, another incumbent, Commissioner B,
discovered correctly that it was his term which expired December 31, 1998 and that Commissioner A's
term did not expire until December 31, 1999. At the election, 17 ballots were cast for Commissioner A,
and 9 write-in ballots were cast for Commissioner B.
After the election, Commissioner A learned that he had one year remaining on his term. At the
District's meeting held on January 5, 1999, Commissioner A orally resigned from the Commissionership
in which he had been an incumbent and accepted the Commissionership to which he had been elected at
the December 1998 election. He did not file a written resignation. Commissioner B was then appointed
by the District's Board of Fire Commissioners to fill the balance of Commissioner A's prior term, which
will expire on December 31, 1999. We conclude that the election was a nullity; Commissioner A should
complete his term and Commissioner B is a holdover.
It will be assumed in rendering this opinion that all procedural elements of Town Law article 11
relevant to the election of fire district commissioners were complied with.
Commissioner A had no right to be a candidate at the December 1998 election. The Attorney
General previously has concluded that a member of a board of fire commissioners who is serving a term
which will not expire for more than a year is not eligible to be nominated for office for a five-year term
and his election under such circumstances is a nullity. 1970 Op Atty Gen 52. The rationale for this
conclusion is that it is against public policy to permit an incumbent commissioner to be elected to
another board position for the purpose of extending his term of office and, upon assuming such office,
thereby acquire the power along with the other commissioners pursuant to Town Law § 176(3) to fill the
vacancy created by his action. In that opinion, the Attorney General cited People v Purdy, 154 NY 439
(1897), for the principle that
a public statute relating to the qualifications of public officers should never be so construed
as to produce inconvenience or to promote a public mischief or to render an action of the
voters at the election abortive. 154 NY at 442.
In our view, it is irrelevant that Commissioner A became a candidate upon the erroneous assumption
that his term of office had expired. The basis for the prohibition is not affected by this factor.
Accordingly, we conclude that Commissioner A was not eligible to run for a new five-year term at the
December 1998 election when his current term was not due to expire for more than one year and that his
election was a nullity.
Commissioner A should complete his term. The oral resignation by Commissioner A was
ineffective. Public Officers Law § 31(2) requires that "[e]very resignation shall be in writing addressed
to the officer or body to whom it is made." The method of resigning prescribed in the statute is
exclusive. Burke v Van Buskirk, 47 AD2d 965, 966 (3d Dept 1975). Therefore, Commissioner A's
purported resignation was ineffective, and he continues to serve as a Commissioner in the term which
expires December 31, 1999.
We further conclude that Commissioner B also was not elected to the position of Commissioner in
the December 1998 election. Commissioner B received 9 votes to Commissioner A's 17 votes. Although
Commissioner A was ineligible to run for the position, Commissioner B did not win merely because he
was the only remaining eligible candidate. It is the rule in this State that
no one may be declared elected unless he receives a majority or plurality of the legal votes
cast at an election. That such a plurality or majority of the votes were cast for an ineligible
candidate does not result in the election of the candidate receiving the next highest number
of votes. Matter of Foley v McNab, 42 Misc 2d 460, 462 (Sup Ct Suffolk Co 1964), citing
People ex rel. Furman v Clute, 50 NY 451, 465 (1872).
Further, Commissioner B's appointment to the remaining year of Commissioner A's term was a nullity,
because Commissioner A never validly resigned from that position.
Therefore, the December 1998 election must be deemed a nullity, and Commissioner B's office
became vacant on January 1, 1999. As incumbent, Commissioner B holds over in office until the District
board chooses a successor pursuant to Town Law § 176(3). Public Officers Law § 5; see, 1961 Op Atty
Gen 215. Pursuant to section 176(3), the District Board may appoint a qualified person to fill that
position, who will serve until December 31, 1999. At the December 1999 election, the voters must elect
a candidate for the balance of the five-year term. A second ballot must also be held in December 1999 to
fill Commissioner A's position, because his term expires on December 31, 1999.
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,
WILLIAM E. STORRS
Assistant Solicitor General