NYCL AGO 95-40.

• Case Date: July 31, 1995
• Court: New York

New York Attorney General Opinions 1995. AGO 95-40. July 31, 1995Informal Opinion No. 95-40Paul D. Weiss, Esq. Village Attorney Village of Depew Municipal Building 85 Manitou Street Depew, NY 14043CIVIL SERVICE LAW § 42(1); PUBLIC OFFICERS LAW § 3; VILLAGE LAW §§ 3-300, 3-301.The building inspector of the Village of Depew is a public officer and, therefore, must reside within the village. The board of trustees may, however, enact a resolution to authorize the building inspector to reside anywhere in the county within which the village is wholly or partially located.Dear Mr. Weiss: You have asked whether the position of building inspector is a village office in the Village of Depew within the meaning of Village Law § 3-300(2) and whether a person residing outside the village is eligible, if otherwise qualified, to be appointed to hold the position of building inspector. Under section 3-300(2), among other requirements, a person may not hold a village office, except as may otherwise be provided by law, who is not a resident of the village. The language "except as may otherwise be provided by law" in the provision is apparently a reference to the numerous special laws enacted by the Legislature to permit outside residence. See, Village Law § 3-300(6 - 13). Thus, under section 3-300(2), if the powers and duties of the building inspector in your village give the position public officer status, residency in the village would be required. A determination as to whether an appointee is an officer rather than an employee requires a judgment whether the powers, duties, qualifications and other characteristics of the job make him an officer rather than an employee. 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 powers 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. 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...