Ask Joe Eisner: “Residency and Office Eligibility”

Featured Question and Answer by Joe Eisner

This topic is broken down into three Q&A sections:  eligibility and villages, eligibility and municipalities, and eligibility and school district public libraries.

Questions & Answers

1) Village Public Library
If a village library board member moves out of the village is he or she eligible to serve out their term of office?

A public library board member is a public officer, and in accordance with the appropriate provisions of the Public Officers Law must continue to be domiciled  within the jurisdiction in which he was appointed or elected to serve. “While ‘residence means living in a particular locality …Domicile means living in that locality with intent to make it a fixed and permanent home. To establish a residence, bodily presence as an inhabitant [is a prerequisite], while domicile requires bodily presence in that place and also an intention to make it one’s domicile’ (Matter of Newcomb, 192 NY 316, 320)”, as quoted in Appeal of Stewart and Shirley Reifler,….., 1992, Commissioner’s Decision 12,629, 31 Ed Dept Rept 235, at p. 237)

While a public officer can own property in two or more jurisdictions, if
he/she takes up residence in another jurisdiction with intent to make it
permanent, the office is forfeited.  Since it is the incumbent trustee who decides where he/she will be domiciled,  if a library board has reason to suspect that a member has taken up residence in another jurisdiction it
would be prudent to determine that trustee’s intention regarding  whether
the new property would become his/her fixed and permanent home, and if so, when.

2) Municipal Public Library 
In the event that a municipal public library trustee vacates his office prior to expiration of term, who has the authority to appoint a replacement?

The library board, but the person so appointed  may serve only until
the expiration of the vacated trustee’s term. ” …In an unreported
decision, in Supreme Court, Rockland  County, it was held in the case of Roujansky v Town Board, Town of  Orangetown (July 30, 1973; file #1915/75) that [Education Law] section  260 applied only to initial appointments to the library board and that it does not apply to the filling of vacancies on such boards.

Accordingly, the court concluded that [Education Law] section 226(4)
was applicable and that, therefore, the library board of trustees has
the power to fill such vacancies” (31 Op State Compt 57, 1974).
Although the above judicial decision dated July 30, 1973) involved a
town public library, the reasoning therein applies also to the powers
of a village public library board, superseding an opinion by the
Attorney General dated February 16, 1973 which stated that the village
board, not the village library board, had the power to make an
appointment to an unexpired term.

Upon the expiration of the term to which the library board appointed a
replacement, the  municipal body has the authority to name a replacement, and is under no obligation to appoint the person serving as the replacement in the vacated seat.

3) School District Public Library
Are the same conditions regarding residency applicable to school district public library trustees?

Yes. School district public library trustees are also public officers, and
must maintain a residence or be domiciled  in the school district in which
they were elected to office. However, in the event that a vacancy on a
school district public library board occurs prior to expiration of term, the library board may appoint a replacement to serve only until the  next annual election of trustees (Education Law s226(4)).

The foregoing should not be construed as legal advice, for which the services of counsel should be obtained.

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Questions posted within Joe’s Q&A articles are simply those which come up frequently and are kept to generalities.

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