North Country Gazette

Oath Issue And Chester Officials Heading To Court

Posted on Wednesday, 28 of October , 2009 at 12:22 pm

CHESTERTOWN—Apparently the chairman of the Warren County Board of Supervisors thinks he and his fellow public officers are above the law.

Frederick Monroe was supervisor of the Town of Chester when he and the town were the defendants in an Article 78 proceeding brought to in 2003 remove the Chester town justice James McDermott from office for failing to properly file his oath of office.

The town thumbed their noses at the law, just as Monroe has done with the Open Meetings Law and Freedom of Information Law and the town justice arrogantly continued in office in violation of law. That’s only one of the issues concerning McDermott and he’s seeking reelection unopposed on Nov. 3.

Monroe’s attitude seems to be if you ignore the problem long enough and do nothing, not even acknowledge the issue, it’ll go away.

It won’t and it won’t cure itself.

During the issue of the magic sign of chronic zoning violator Charles W. Redmond, numerous issues came to light including the fact that two members of the Chester Zoning Board of Appeals have never taken or filed their oath of office as required.

http://www.northcountrygazette.org/2009/08/02/magic_sign/

http://www.northcountrygazette.org/2009/09/06/zba_oath/

A plethora of such sticky issues involving zoning and the ZBA were presented to Monroe and the Chester Town Board by June Maxam, publisher of The North Country Gazette and the coordinator of the NYS Oaths Project in writing for their Sept. 8 meeting including the oath issue involving two ZBA “members” who have been serving on the ZBA, collecting compensation and voting on land use issues for at least four years after having legally vacated the office.

But Monroe and the board decided not to even give the courtesy of a reply, apparently hoping that the issue would go away. Of course there’s also the issue that Councilman Michael Packer is one of the two members comprising the board’s zoning committee.

Packer’s mother, Elizabeth Morris is one of the two ZBA members who has never taken and filed her oath of office. The other one who failed to do so is Mary Jane Dower.

It’s an obvious conflict of interest for Packer to serve on the zoning committee but the town board has taken no action to address that issue either.

Morris, who is in her 80s, was reappointed to a five year term on Dec. 31, 2005 and Dower was appointed on Dec. 31, 2004.

On Sept. 18, Monroe and the town board were informed in writing by the town clerk of the vacancies which exist on the ZBA by matter of law due to the failure of Morris and Dower to take and file their oath. Once again, at the October meeting, the board failed to address the issue and Morris continued to act without authority at Tuesday’s (Oct. 27) meeting of the Chester Zoning Board of Appeals.

The law is specific. There can be no belated or nunc pro tunc filings. In that neither Morris nor Dower hold legal title to the office of zoning board member, neither qualified for the office and can not perform the duties of the office or collect compensation for same.

State Constitution Article XIII § 1 states that all public officers shall take and subscribe the oath of public office before entering on the duties of their respective offices. Public Officers Law 10 similarly provides that every public officer must take and file the oath of office before discharging any official duties. This requirement applies equally to an individual taking office for the first time and one who is reappointed or reelected to public office.

Section 13 of Public Officers Law states” If any officer shall neglect, within the time required by law, to take and file an official oath, or execute and file an official undertaking, the officer with whom or in whose office such oath or undertaking is required to be filed, shall forthwith give notice of such neglect….if of an elective officer, to the officer, board or body authorized to fill a vacancy in such office, if any, or if none and a vacancy in the office may be filled by a special election, to the officer, board or body authorized to call or give notice of special election to fill such vacancy, except that the notice of failure of a justice of the peace to file his official oath shall be given to the town clerk of the town for which the justice was elected.

Section 30(1)(h) of Public Officers Law specifically states “Every office shall be vacant upon the happening of one of the following events before the expiration of the term thereof:…..[the] refusal or neglect to file his official oath or undertaking, if one is required, before or within 30 days after the commencement of the term of office for which he is chosen, if an elective office, or if an appointive office, within 30 days after notice of his appointment, or within 30 days after the commencement of such term…

In the case of Morris, she vacated the position as ZBA member on Jan. 31, 2006 as she has never even taken the oath of office to say nothing about filing it as required by law. Dower vacated her office on Jan. 31, 2005. Neither have legally been able to serve as zoning board members since those dates and the town has no legal authority to compensate them.

Both the Attorney General and the State Comptroller’s Office have issued opinions that the failure of a public officer to file an oath is not correctable, because the statute specifically creates a vacancy without providing a remedy.

Town officers are required to file their oath of office required by the Constitution (Town Law 25). Upon the refusal or neglect of a public officer to file the oath of office within the time period established by law, the office becomes vacant automatically by operation of law.

The courts have steadfastly held that when a person appointed (or elected) to office fails to timely file his oath, neither notice nor judicial procedure is necessary, the office is automatically vacant and may be filled by the proper appointive power. Consequently, if neither Morris nor Dower timely filed their oath of office, no hearing on charges was required in order to dismiss him from office.

The failure timely to file an oath creates a vacancy by operation of law which cannot be cured by late filing. The issue of his prior rulings becomes a sticky issue because the U.S. Supreme Court has held if the officer did not have legal title to the office, he can not be deemed a de facto officer.

A March/April 1997 article appearing in the New York Law Journal stated, “The ‘emphatic and unequivocal’ language of Public Officers Law 30 represents one of the important links in the web of our representative democracy and is on the far other side of a mere ‘technical’ nuisance….no excuses will save a public term of office without taking and timely filing a solemn promise to the people served”.

Mandamus lies to compel the performance of a nondiscretionary ministerial duty where there has been a showing of a clear legal right to the relief sought.

And so, with Fred Monroe and the Chester Board refusing to perform their duties as required by law, the issue of oath of office will once again be heading into the state Supreme Court to compel them to address the issue. 10-28-09

STOP! READ! Avoid A Forbidden Notice.  First time visitors are welcome at no charge.  Thereafter, readers who wish to read additional articles or plan on returning at a later time will need to be an advertiser or have a paid subscription to the NCG Daily Digest in order to gain access.  This policy will be strictly enforced and access will be denied to those who abuse it.  To sign up, see the subscription ad and PayPal button to the right of this page or at www.northcountrygazette.org  If you have questions, contact us at news@northcountrygazette.org

 Special subscription rate through Nov. 11, 2009.  See http://www.northcountrygazette.org/2009/10/11/changes_coming/

Category: Adirondacks, Constitution, Courts, Government, New York State, Warren County

• Add this post to
• Del.icio.us -
• Meneame -
• Digg