Joseph B. Liccardi, Esq. Corporation Council, Rensselaer
Your city charter directs the common council to fill by appointment a vacancy in an elective office (Rensselaer City Charter, § 23). Under the charter provision, the appointee would serve until the end of the official year in which the vacancy occurred, and at the next annual election following the occurrence of the vacancy, a person would be elected to serve the balance, if any, of the unexpired term (ibid.). You have asked whether this provision controls the filling of a vacancy in the office of president of the common council or whether there exists another statutory provision that is applicable. You informed us that under your city's charter there is no provision for succession to the office of president of the common council.
The Constitution provides that no person appointed to fill a vacancy in an elective office
"shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy." (Art XIII, § 3.)
This provision is effectuated by section 42(1) of the Public Officers Law which provides that:
"A vacancy occurring before September twentieth of any year in any office authorized to be filled at a general election, * * * shall be filled at the general election held next thereafter, unless otherwise provided by the constitution, or unless previously filled at a special election."
The Election Law establishes a procedure for nominations and elections to fill vacancies in elective offices (Election Law, §§ 6-116,6-158[6]). Your city charter provision is consistent with the above provisions of the Constitution and State law dealing with the filling of vacancies in elective offices. We are aware of no other applicable provisions.
We conclude that a vacancy in the office of president of the common council occurring prior to September 20 of any year is to be filled by appointment of the city council until the end of the official year. At the next general election after the occurrence of such vacancy, an election is to be held to fill the vacancy for the remainder, if any, of the unexpired term.