BILL NUMBER:S6705

TITLE OF BILL:  An act extending the time within which certain elected
officers may file their oaths of office

PURPOSE:

This bill would allow for those duly elected officials in the Town of
Smithtown in the most recent town-wide election (November 2013), who
failed to timely file their oaths of office within the statutory
deadline, to properly cure that ministerial defect and serve out their
full four-year terms.

SUMMARY OF PROVISIONS:

Section 1: The first section provides that for any duly elected
official in a town-wide race in the Town of Smithtown who failed to
timely take or file their respective oath of office, such officials
will have an additional thirty day time frame from enactment of this
legislation to take and file their respective oaths of office. If such
elected officials take and file their respective oaths of office in
the new thirty day timeframe, they will be deemed to have been in
their elected office since the commencement of their term (January 1,
2014) and shall remain in their respective office until the conclusion
of their term (December 31, 2017).

              

Section 2: The second section sets forth an immediate effective date.

JUSTIFICATION:

Under current law, once the term of a duly elected official begins,
such elected official has thirty days from commencement of their term
to take and file an oath of office. Failure to take and file an oath
of office in the thirty day time frame disqualifies the duly elected
official from serving in their office, thereby leaving the office
vacant. Pursuant to existing law, once a vacancy occurs, the serving
town board members may appoint someone to fill the vacancy.  However,
the appointment is merely temporary until an election can be held in
the next-occurring November to fill the remaining balance of that term
of office.

On November 5th, 2013, the voters of the Town of Smithtown
overwhelmingly elected a town supervisor and two council members to
the Smithtown Town Board. On January 1st, 2014, Supervisor Patrick
Vecchio and Councilwoman Lynne C. Nowick took their respective oaths
of office before a judge and dozens of witnesses on the front steps of
Town Hall and thereafter assumed their official duties.  Unfortunately
however, they failed to properly file their oaths of office in the
Town Clerk's Office within the thirty day time frame required by law.
In the absence of such filing, an opinion of the town attorney
concluded that Supervisor Vecchio and Councilwoman Nowick could not
legally hold the offices they had just been elected to by the voters.

On February 13, 2014, in a spirit of collegiality, cooperation and out
of respect for the decision of Smithtown voters on Election Day, the
serving Town Board Members appointed both Supervisor Vecchio and
Councilwoman Nowick to their elected positions until December 31st,


2014, as permitted by law. As previously stated, however, without this
legislation Supervisor Vecchio and Councilwoman Nowick would need to
run again for these elected offices this coming November in order to
serve out the remaining balance of a four-year term. This is an
unforeseen, unintended consequence of existing state law that should
be immediately corrected.

Had the Town Board appointed persons other than Supervisor Vecchio and
Councilwoman Nowick to fill these vacancies, then it would be fair and
reasonable to argue that a separate election is justified and needed
since those appointees had not been duly elected by the Smithtown
voters. But, that was not the case. Instead, the Town Board properly
appointed Supervisor Vecchio and Councilwoman Nowick who had just been
elected by Smithtown voters on the preceding Election Day in November.

In addition, current law specifically states that an elected official
must "take and file" an oath of office within 30 days of beginning
their term or it shall be deemed a refusal to serve the office. At no
time did Supervisor Vecchio and Councilwoman Nowick take any actions
that would lead one to believe they intended to refuse to serve in
office. To the contrary, on New Year's Day, 2014, Supervisor Vecchio
and Councilwoman Nowick publicly "took" their oaths of office before a
judge and dozens of witnesses on the front steps of Town Hall clearly
manifesting their intent to assume the duties and responsibilities of
the offices they had been elected to in November.  The only obstacle
to serving a full four-year term is their failure to "file" an oath of
office with the Town Clerk in a timely manner - which was an
inadvertent clerical defect.

To now require Supervisor Vecchio and Councilwoman Nowick to run in
another election for the remaining balance of a four-year term that
seemingly has already been granted by the Smithtown voters is unjust,
unfair and an unnecessary waste of taxpayers' time and money. Most
importantly, it has the potential to nullify the results of a fairly
held election for these two offices. Enacting this legislation would
uphold the decision of Smithtown voters, cure the ministerial defect
made in Smithtown and preserve the integrity of the electoral process.

LEGISLATIVE HISTORY:

New bill.

FISCAL IMPLICATIONS:

None. This bill would result in savings to the taxpayers of the Town
of Smithtown.

EFFECTIVE DATE:

This act shall take effect immediately.