NYCL AGO 95-4.

Case DateFebruary 02, 1995
CourtNew York
New York Attorney General Opinions 1995. AGO 95-4. February 2, 1995Informal Opinion No. 95-4Paul Riordan, Esq. Informal Opinion Town Attorney No. 95-4 Town of Mendon 16 West Main Street Honeoye Falls, NY 14472-1199PUBLIC OFFICERS LAW § 3.The members of the Town of Mendon's conservation board need not reside within the town since the board is strictly advisory in nature.Dear Mr. Riordan: You have asked whether a member of a town conservation board is required to reside in the town. Under section 3 of the Public Officers Law, no person may hold a local public office who is not a resident of the locality. The determination of your inquiry, therefore, depends upon whether the members of the board are public officers. A determination as to whether an appointee is an officer rather than an employee requires a review of the powers, duties, qualifications and other characteristics of the job. The distinction between a public office and public employment is not always clear. Matter of Dawson v Knox, 231 App Div 490, 492 (3d Dept 1931). The duties of a public official involve some exercise of sovereign power while those of a public employee do not. Ibid.; Matter of Haller v Carlson, 42 AD2d 829 (4th Dept 1973). The statutory designation of a position as an office is some indication that the legislative body intended to treat its occupant as a public officer. Cf., Matter of MacDonald v Ordway, 219 NY 328, 332 (1916); Matter of Haller v Carlson, supra, p 830. Other indicia of a public office are the requirement to take an oath of office or file bonds, appointment for a definite term and receipt of a commission of office or official seal. Macrum v Hawkins, 261 NY 193, 200-201 (1933). A public office is created by statute and its powers and duties are prescribed by statute. Matter of Lake v Binghamton Housing Authority, 130 AD2d 913, 914 (3d Dept...

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