In New York, can a village mayor fill a mid-term vacancy in an appointed office without board of trustees approval?

Plain-English summary

In Informal Opinion 95-26, the New York Attorney General's office told the Village of Solvay that when its previous superintendent of public works resigned mid-term, the mayor could appoint a successor for the balance of the term without going to the board of trustees for approval. The trick is the type of vacancy. Filling a vacancy created by resignation, death, or removal is governed by Village Law § 3-312(3), which gives that appointment power to the mayor alone. The normal full-term appointment power, under Village Law § 3-301(3), is shared: the mayor proposes, the trustees approve. When the unexpired term runs out, the next appointment falls back under § 3-301(3) and the board has to sign off.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why was board approval required for the previous superintendent but not the replacement?
A: The opinion turned on which statute governed the appointment. A full-term appointment to an appointive office comes under Village Law § 3-301(3), which requires trustee approval. A mid-term vacancy filled by the mayor comes under § 3-312(3), which does not.

Q: How long could the replacement serve under this opinion?
A: Only until the end of the predecessor's original term. After that, a new appointment had to be made under § 3-301(3) with board approval.

Q: Did this apply only to the superintendent of public works?
A: No. The opinion's reasoning applied to any appointive office in a New York village. The board-approval requirement attaches to the full-term appointment; the mayor's solo mid-term appointment power applies to filling unexpired terms generally.

Q: What happened to a prior opinion the village had relied on?
A: The office cited 1978 Op Atty Gen (Inf) 247, which reached the same result for a superintendent of public works appointed to fill an unexpired term. The 1995 opinion was consistent with that earlier guidance.

Background and statutory framework

New York Village Law splits the mayor's appointment power between two statutes. Section 3-301(3) lists the elective village offices (mayor, trustee, village justice) and provides that all other officers are appointed by the mayor subject to the approval of the board of trustees. That is the standard full-term appointment process.

Section 3-312(3) handles vacancies. When a vacancy arises in an appointed office for any reason other than expiration of the prior incumbent's term (resignation, death, removal, refusal to serve), the mayor fills the unexpired term unilaterally. Trustee approval is not required because the appointment is temporary and tied to the original term the trustees already authorized.

The Solvay superintendent had resigned before his term ended. That triggered § 3-312(3), not § 3-301(3), and the mayor's unilateral appointment was lawful.

Citations and references

Statutes:

• N.Y. Village Law § 3-301 (full-term appointments require trustee approval)
• N.Y. Village Law § 3-312 (vacancies filled by mayor without board approval)

Prior AG opinions:

• 1978 Op Atty Gen (Inf) 247, 248 (mayor may appoint to fill unexpired term of superintendent of public works without board approval)
• Informal Opinion No. 88-79 (full-term appointment of superintendent of public works requires board approval)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-26_pw.pdf

Original opinion text

VILLAGE LAW §§ 3-301(3), 3-312(3).
It is not necessary that an appointment by the mayor to fill
the unexpired term of the superintendent of public works be
approved by the board of trustees.

May 5, 1995

Thomas J. Lynch, Esq.
Village Attorney
Village of Solvay
Winkworth Professional Building
2700 Bellevue Avenue
Syracuse, NY 13219

Informal Opinion
No. 95-26

Dear Mr. Lynch:
You have asked whether the superintendent of public works of
the Village of Solvay was properly appointed. You state that the
former superintendent resigned prior to the expiration of his
term. The mayor then appointed a new superintendent in the
absence of village board approval after conferring with the
New York Conference of Mayors. You ask whether the mayor had the
authority to fill the vacancy without board approval.
Village Law § 3-301(3) provides that the offices of mayor,
trustee and village justice shall be elective offices and that
all other officers shall be appointed by the mayor subject to the
approval of the board of trustees. Thus, when the mayor appoints
a superintendent of public works at the expiration of the prior
officer's term, the village board must approve the appointment.
See, Informal Opinion No. 88-79.
When a vacancy in an appointed office occurs for a reason
other than the expiration of the current officer's term, Village
Law § 3-312(3) provides that the mayor shall make an appointment
to fill the balance of the unexpired term. In this situation
board approval is not required. In a prior opinion, we concluded
that a village mayor could appoint a superintendent of public
works without securing approval of the board if the appointment
was made to fill the unexpired term of the prior superintendent.
1978 Op Atty Gen (Inf) 247, 248.
We conclude that the superintendent of public works was
properly appointed by the mayor without board approval because
the appointment was to fill a vacancy created by the resignation
of the former superintendent prior to the expiration of his term.
We note that the superintendent may serve only the unexpired

2
portion of the term. At the expiration of the prior officer's
term, it will be necessary to appoint a superintendent to a new
term with the approval of the village board.
The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.
Very truly yours,

SIOBHAN S. CRARY
Assistant Attorney General