Stanley E. Esposito, Esq. Amawalk-Shenorock Water District Attorney
You have related in your request for an opinion that a person elected to the position of commissioner of a local water district was a resident of the district at the time of his election. Subsequently, during his tenure in office, a change in family circumstances caused him to reside outside the district and outside the town in which the district is located. The commissioner, however, continues to share ownership with his former wife in a piece of real property located within the water district. You have asked whether under these circumstances the commissioner remains qualified to serve as a commissioner of the water district.
Under the Town Law, any resident of a district who is qualified to vote for a town officer is eligible to hold the office of improvement district commissioner (Town Law, § 211). See also, sections 3 and30 of the Public Officers Law which require residence in the municipality as a condition of being elected to a local office and continued residency in the local government while serving in the local office.
In previous opinions of this office, we have found that "residency" for purposes of eligibility to hold public office means "domicile" (1983 Op Atty Gen [Inf] 144; 1977 Op Atty Gen [Inf] 271). Domicile requires an intention to make a residence a permanent and fixed home (ibid.). A temporary residence, accompanied by an intention to return to a former home when a temporary purpose has been accomplished leaves the domicile unchanged (ibid.). A person may have several residences but only one domicile (1983 Op Atty Gen [Inf] 144; 1974 Op Atty Gen [Inf] 213).
Under these guidelines, domicile can only be determined based upon the facts of each case (1983 Op Atty Gen [Inf] 144). Thus, it is necessary that you determine whether the commissioner continues to be domiciled within the boundaries of the improvement district. This is a determination of fact that is beyond the scope of our opinion rendering process.
We conclude that a commissioner of an improvement district must remain domiciled in the district during his tenure in office.