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NORTH GREENBUSH---When a public officer fails to file their oath of office, it's not just a clerical or ministerial error.
By statutory law, consistently upheld by the state courts, if a public officer fails to file their oath of office in the proper place within 30 days of the commencement of their term, not only have their vacated their office but they cannot legally perform the duties of that office nor be compensated.
Action by the North Greenbush Town Board Monday night has not only officially acknowledged that town clerk Kathryn Connolly had vacated her office by failing to file her oath in the town's oath book when she took office for her seventh two-year term on Jan. 1, 2004, but it may set the stage for opponents to the incorporation of the village of DeFreestville to challenge results of an election held Sept. 27.
The election still hasn't been officially decided with 741 people voting no and 695 people voting in favor of creating the village. Dozens of absentee and affidavit ballots are still unopened because of challenges made to the vote and both sides are awaiting a decision by state Supreme Court justice James Canfield.
If the opponents lose the election, it is likely they would then legally challenge Connolly's role in conducting the election as with the town board's action in acknowledging the vacant position, the acts that Connolly took performing the duties of town clerk from Jan. 1, 2004 until now, and particularly from Sept. 22 until Monday night, are questionably legal.
Connolly's appointment only lasts until Dec. 31 and she has to seek election to the position. She is on the November ballot and upon election and the commencement of a new term on Jan. 1, she would have 30 days to file her oath of office---an act it is likely she will do without delay.
A group known as the DeFreestville Village Incorporation Committee (VIC) has been trying to form a village in order to stop what they say is rampant development in the town. Incorporation is opposed by a group known as United North Greenbush led by James Reid. They are joined in their opposition to incorporation by town supervisor Paul Tazbir. The group also opposes the way that Connolly conducted the incorporation vote and on Sept. 22, the issue of Connolly's oath of office was raised.
Reid says that during the court battle regarding the incorporation vote, he learned through a filing made by the VIC attorney that the town clerk had met in an alleged unauthorized secret meeting on Sept. 8 with members of VIC without notification to town attorney Linda Mandel-Clemente. Reid says that the court papers revealed that Connolly had agreed to give VIC a list of residents eligible to vote in the Sept. 27 election by Sept. 13 or 14 although legal notices had already been published saying that such a list would not be available until Sept. 20. Connolly also told VIC members that they could add or remove people from the list, Reid says.
But Reid says not only was the meeting illegal and that Connolly lacked authority to enter into any agreement with VIC, that she wasn't legally in office, an argument the Department of State upheld.
According to Reid, Supervisor Tazbir has indicated that Connolly, town clerk for the past 14 years who is seeking reelection in November, did not sign the town oath book for her current term as required by law and Reid provided copies of the oath book absent Connolly's oath.
She says it's an oversight but the courts have consistently held that if there is no oath filed, the official cannot claim title to the office and that ignorance of the law or oversights are not an excuse.
State law specifically provides that every public officer must take and file a constitutional oath of office within 30 days of the commencement of their term and failure to do so constitutes a refusal to serve and vacancy in the office by operation of law. No court challenge is necessary, the position is automatically vacant.
Even though the law provides that the town clerk's position has been vacant, Connolly has continued to perform the duties of clerk since the oath issue was raised on Sept. 22 and since the Department of State confirmed that she had legally vacated the office.
According to reports, Connolly immediately signed the oath book after being appointed to the position to fill the remainder of the term--til Dec. 31.
10-25-05
© 2005 North
Country Gazette
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