Mark G. Gebo, Esq. Town Attorney, Southeast
You have informed us that a member of the town board of your town for several months has been residing in a condominium located outside the town while her new house is being constructed. Further, you have indicated that during this period, she has always intended to move back to the town once her new house is completed. During this period, she and her husband have owned land in the town. You are aware of the provisions of the Public Officers Law requiring that local officers be residents of the municipalities they serve and of an opinion of this office construing these provisions (1983 Op Atty Gen [Inf] 144). You note, however, that section 23 of the Town Law requires that an elective town officer, at the time of his election and throughout his term of office, must be an "elector of the town". You inquire as to the meaning, of the term "elector" as used in this provision.
As you know, section 3 of the Public Officers Law provides that no person may hold a local office unless he is a resident of the political subdivision of the State for which he shall be chosen or within which his official functions are required to be exercised. A local office becomes vacant by operation of law should the occupant cease to meet the residency requirements of section 3 (id., § 30[1][d]).
In previous opinions, this office has construed "resident" as used in these provisions to mean "domicile" (1977 Op Atty Gen [Inf] 271; 1983 Op Atty Gen [Inf] 144). We have at some length described the meaning of the term domicile for these purposes (ibid.).
Under section 23 of the Town Law, an elective town officer, at the time of his election and throughout his term of office, must be an elector of the town. We have construed the term elector as used in section 23 of the Town Law to mean a person who, if he wished, could register as a voter whether he has or has not in fact registered (1970 Op Atty Gen [Inf] 67; 1975 Op Atty Gen [Inf] 236, 238). The qualifications of voters are set forth in the Election Law:
"No person shall be qualified to register for and vote at any election unless he is a citizen of the United States and is or will be, on the day of such election, eighteen years of age or over, and a resident of this state and of the county, city or village for a minimum of thirty days next preceding such election" (§ 5-102[1]).
Like the definition of "resident" for purposes of sections 3 and 30 of the Public Officers Law, we have construed the term "resident" for purposes of qualifying to vote to mean "domicile" (1977 Op Atty Gen [Inf] 271). We described the meaning of domicile in that opinion:
"The existing domicile, whether of origin or selection, continues until a new one is acquired and the burden of proof rests upon the party who alleges a change. The question is one of fact rather than law, and it frequently depends upon a variety of circumstances, which differ as widely as the peculiarities of individuals. * * * In order to acquire a new domicile there must be a union of residence and intention. Residence without intention, or intention without residence is of no avail. Mere change of residence although continued for a long time does not effect a change of domicile, while a change of residence even for a short time with the intention in good faith to change the domicile, has that effect. * * * There must be a present, definite and honest purpose to give up the old and take up the new place as the domicile of the person whose status is under consideration. * * * A temporary residence for a temporary purpose, with intent to return to the old home when that purpose has been accomplished, leaves the domicile unchanged."
Thus, the determination of domicile is a question of fact. A determination must be made based upon the facts of each case. It is necessary that you locally determine the facts in relation to the town board member's residence to determine whether she continues to be domiciled in the town.
We conclude that the term "elector" as used in section 23 of the Town Law, means a person who, if he wished, could register as a voter, whether he has or has not in fact registered. Residency for purposes of qualifications to vote means domicile.