Informal Opinion No.

Patrick H. NeMoyer, Esq. County Attorney, Erie

You have requested an opinion of the Attorney General as to the term of office of a district attorney for Erie County who is elected to fill a vacancy in that office caused other than by the expiration of the term.

You have informed us that the district attorney resigned on May 31, 1988 and the Governor appointed a district attorney on June 1, 1988. Under the State Constitution, no person appointed to fill a vacancy in an elective office may hold the office longer than the commencement of the political year next succeeding the first annual election after the occurence of the vacancy (NY Const, Art XIII, § 3). An election is scheduled for November 8, 1988 to fill the vacancy in the office of Erie County district attorney (see Public Officers Law, § 42 [1]). The question presented is whether the person elected will serve a full four year term or only the remaining one year of the four year term which began January 1, 1986.

Under the State Constitution, district attorneys are to be chosen once in every three or four years as the Legislature shall direct (Art XIII, § 13 [a]). The Legislature has provided the terms of district attorneys in section 400 of the County Law. Subdivision 1-c provides that "[t]he term of the district attorney of the county of Erie shall be four years". This provision was added by section 2 of chapter 346 of the Laws of 1975. Section 1 of chapter 346 establishes the Legislature's intent and is enlightening concerning the term of the person elected to fill a vacancy in this office.

"Section 1. The legislature of Erie county having provided in its charter a four year term for the district attorney pursuant to what it believed to be valid authority, and the electors of Erie county having in the general election held in November of nineteen hundred seventy-three elected a district attorney for a term of four years in accordance with the provisions of the county charter; however, the court of appeals having determined subsequent to such election that an act of the legislature is necessary to fix the term of a district attorney at four years, the legislature finds that it was the manifest intent of the electors of the county of Erie to elect their district attorney for a term of four years commencing January first, nineteen hundred seventy-four, and every four years thereafter" (emphasis added).

Thus, the Legislature intended to carry out the intent of the county charter and of the electors of the County of Erie and authorize the election of the district attorney for terms of four years beginning January 1, 1974 and every four years thereafter. This language would appear to establish a four year cycle for the term of the Erie County district attorney. The relevant provisions of the county charter in effect at the time of the 1973 election confirm that a four year cycle had been established locally and, therefore, was implemented by the State Legislature through chapter 346 of the Laws of 1975. Section 1905 of the county charter provided for an election to be held to fill a vacancy in the office of district attorney for the balance, if any, of the unexpired four year term. This indicates that chapter 346 of the Laws of 1975 established a four year cycle for the election of the Erie County district attorney. The legislative bill jacket for this chapter also confirms this finding (Memorandum by Assemblyman Tills and Senator Volker, Re: Senate 6429). We believe that the office of Erie County district attorney has been placed on a four year cycle and, consistent with this cycle, any elections to fill vacancies would be for the balance of the four year term.

We note that establishing the term of Erie County district attorney on a four year cycle commencing with the November, 1973 election ensures the continued odd numbered year election of district attorneys. This is an election year cycle consistent with the time of election for the office of the county comptroller, the county sheriff, the county legislators and the county clerk.*

We conclude that the person elected on November 8, 1988 to fill the vacancy in the office of Erie County district attorney will serve for the remainder of the current four year term.

* We note that with the exception of several counties, including Erie, the terms of district attorneys are set forth in subdivision 1-d of section 400 of the County Law. Under that provision, in the event of a vacancy occurring in an even numbered year the election would be for a three year term to return the office to a four year odd numbered year cycle. Vacancies occurring in odd numbered years are filled by election for a four year term (see 1983 Op Atty Gen [Inf] 194).