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Holding two elective offices in the same county simultaneously barred absent adoption of appropriate action to permit such dual office-holding

Holding two elective offices in the same county simultaneously barred absent adoption of appropriate action to permit such dual office-holding
Spencer v Cristo, 2010 NY Slip Op 01603, decided on February 25, 2010, Appellate Division, Third Department

Supreme Court declared that Michael P. Cristo Jr., Philip J. Danaher and Louis Desso could not simultaneously serve as Rensselaer County Legislators and Town Council Members and having filed their respective oaths of office after being elected to the county legislature, vacated their office as members of a town council by operation of law.

Michael P. Cristo Jr. and Philip J. Danaher had been elected to the East Greenbush Town Council and, in January 2008, sworn into office as Town Council Members. Louis Desso was elected to the North Greenbush Town Council and sworn into office as Town Council Member in January 2008.

In November 2009, Cristo, Danaher and Desso were all elected to the Rensselaer County Legislature. Supreme Court held that pursuant to Rensselaer County Law §411, the three individuals were ineligible to hold both offices at the same time* and their respective Town Councils became vacant by operation of law upon their filing their respective oaths of oath of office for the position with County Legislature to which they had been elected.

The Appellate Division affirmed the Supreme Court?s ruling noting that ?? County Law §411 generally prohibits "two hat" representation at the local level, providing that no "elective county officer shall be eligible to hold at the same time any other elective county or town office"

Pointing out that this prohibition is not absolute, and "two hat" representation is permitted provided as proper action is taken permit such dual office holding, the court concluded that although Rensselaer County?s charter form of government could have authorized dual representation, it did not specifically provide for such representation. The Appellate Division ?decline to read such a provision into the charter by implication or otherwise.?

* Supreme Court held that although an avenue existed for the Rensselaer County Legislature to override the mandates of County Law §411 and permitted elected officials in the county to sit on both Town Boards and the County Legislature, it had never properly done so.

Full post as published by New York Public Personnel Law on March 02, 2010 (boomark / email).