When a NY district attorney resigns and someone is elected to fill the vacancy, does that person serve the full four-year term or just out the predecessor's unexpired term?

Subject

DA elected to fill vacancy serves full four-year term

Plain-English summary

The Rockland County district attorney resigned in May 1995, effective immediately. The Governor would appoint a successor to fill the office until the next general election (November 1995), at which point voters would elect someone to fill the seat. The county attorney asked the AG whether the person elected in November 1995 would serve the rest of the predecessor's term (which had begun January 1, 1994, and would have run through December 31, 1997) or would start a fresh four-year term.

The AG concluded: a fresh four-year term.

The constitutional framework starts in NY Constitution Article XIII § 13(a), which provides that district attorneys are chosen by the electors "once in every three or four years" as directed by the Legislature. County Law § 400(1-a) (amended by L 1992 ch 254) sets the term outside New York City at four years, commencing on January 1 following the general election. Vacancies are filled by gubernatorial appointment under County Law § 400(7).

NY Constitution Article XIII § 3 limits the gubernatorial appointee's tenure: the appointee may hold office only through the commencement of "the political year next succeeding the first annual election after the happening of the vacancy." Public Officers Law § 42(1) implements this for elective offices generally: a vacancy occurring before September 20 of any year is filled at the next general election. So the gubernatorial appointee holds office only through December 31, 1995.

The harder question was: does the person elected in November 1995 finish out the predecessor's term (through December 31, 1997) or start a fresh term (running through December 31, 1999)?

The AG found no statute that defines the term of a person elected to fill a vacancy in the DA office specifically. County Law § 400(1-a) is the only statute setting DA terms. But case law and AG precedent consistently say: full term. McGovern v Curran, 297 NY 479 (1947), and Dillon v Shaffer, 144 Misc 2d 1079 (Sup Ct Erie Co 1989), both held that a person elected to fill a DA vacancy serves a full term, not the balance of the predecessor's term. Dillon reasoned that the State Constitution provides for choosing DAs for three or four years, with no constitutional authorization for filling the office for the balance of a four-year term.

The AG also walked through the legislative history of the statutory predecessors to § 400(1-a) (former subdivisions 1-c and 1-d). L 1975 ch 149 set Rockland County's DA term at four years to give greater continuity. L 1976 ch 763 (which became former subdivision 1-d) included a special proviso reducing the term to three years when the election fell in an even-numbered year, to push DA elections back to odd-numbered cycles. Throughout, the drafters of these bills understood that persons elected to fill vacancies served full terms. The 1992 amendment (chapter 254 of the Laws of 1992) that created current § 400(1-a) was primarily aimed at changing Wyoming County's DA term from three to four years, with technical cleanup of the other DA subdivisions. The legislative history shows no intent to depart from the long-standing rule that vacancy elections produce full terms.

So the November 1995 election would produce a DA serving from January 1, 1996, through December 31, 1999, a full four-year term.

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

Why doesn't the new DA just finish the predecessor's term?

Because the New York Constitution requires DAs to be chosen for terms of three or four years (Article XIII § 13(a)) and provides no mechanism for partial terms in this office. The case law (McGovern, Dillon) treats this as a constitutional command, not just a statutory default. So when the people elect a DA, they elect for a full term, not a remainder term.

When did the resignation become effective?

Under Public Officers Law § 31(2), if a resignation does not specify an effective date, it takes effect on delivery to the proper officer. The Rockland DA's May 3, 1995 resignation to the Governor did not specify an effective date, so it took effect on delivery.

What happens during the gap between resignation and the November election?

The Governor appoints under County Law § 400(7). The appointee serves until the end of "the political year next succeeding the first annual election after the happening of the vacancy" (NY Const Article XIII § 3). For a May 1995 resignation, that means through December 31, 1995.

Does this work the same way for sheriffs, comptrollers, other elective county officers?

Yes. The AG cites People ex rel. Lempp v Board of Elections (1918) and explanatory cases for the principle that county officers elected to fill vacancies serve full terms. The constitutional framework treats elective county offices similarly.

What about a DA elected in an even-numbered year before the 1992 amendment?

Under former § 400(1-d), the proviso reduced the term to three years if the election fell in an even-numbered year, to push DA elections back to the regular odd-year cycle. This was a one-shot reset mechanism, not a way to make vacancy elections fill unexpired terms. The 1992 amendment removed the proviso entirely.

Constitutional and statutory framework

NY Constitution Article XIII § 13(a) requires DAs to be chosen for terms of three or four years as directed by the Legislature.

NY Constitution Article XIII § 3 limits a vacancy appointee's tenure to "the commencement of the political year next succeeding the first annual election after the happening of the vacancy."

County Law § 400(1-a) (current as of L 1992 ch 254) sets the DA term outside NYC at four years.

County Law § 400(7) gives the Governor the power to appoint to fill DA vacancies.

Public Officers Law § 42(1) implements the constitutional rule: a vacancy occurring before September 20 of any year is filled at the next general election.

Public Officers Law § 31(2) governs effective dates of resignations.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-30_pw.pdf

Original opinion text

NY CONST, ART XIII §§ 3, 13(a); COUNTY LAW § 400(1-a), (7);
PUBLIC OFFICERS LAW § 42(1); L 1992 CH 254; L 1976, CH 763;
L 1975 CH 149.
The person elected in November 1995 to fill the vacancy in
the office of district attorney of Rockland County will serve for
a full four year term.
May 23, 1995

Paul V. Nowicki, Esq.
Informal Opinion
County Attorney
No. 95-30
County of Rockland
Allison-Parris County Office Bldg.
New City, NY 10956
Dear Mr. Nowicki:
You have informed us that effective May 3, 1995, your
district attorney tendered his resignation to the Governor.1 You
have requested our opinion as to whether the person elected
district attorney in November of 1995 will fill the unexpired
term of his predecessor or will serve for a full four year term.
Your former district attorney was elected in November 1993 to
serve a four year term commencing January 1, 1994.
The State Constitution provides for a district attorney to
be chosen by the electors once in every three or four years as
directed by the Legislature. NY Const Art XIII § 13(a). The
Legislature has provided that the term of office of district
attorney of each county outside of New York City "shall be four
years commencing on the first day of January following the
general election for district attorney in each respective
county". County Law § 400(1-a). This language reflects an
amendment in 1992. L 1992, ch 254. Vacancies in an elective
county office, including district attorney, are to be filled by
the Governor by appointment. Id., § 400(7).

1

Mr. Gribitz's resignation to the Governor, dated May 3,
1995, included no effective date. Under section 31 of the Public
Officers Law, which governs resignations, if no effective date is
specified in a resignation it takes effect on delivery to or
filing with the proper officer or body. Public Officers Law
§ 31(2).

2
In the case of an elective office, no person appointed to
fill a vacancy "shall hold his office by virtue of such
appointment longer than the commencement of the political year
next succeeding the first annual election after the happening of
the vacancy". NY Const Art XIII, § 3. This provision has been
implemented by State law, providing that a vacancy occurring
before September 20th of any year in any office authorized to be
filled at the general election is to be filled at the next
general election. Public Office Law § 42(1).
Thus, it is clear under these provisions that the Governor's
appointee to fill the office of district attorney may hold office
only through December 31, 1995 and an election must be held to
fill the office in November of 1995. Your question is whether
the person elected will serve out the balance of his
predecessor's term or will serve a full four year term as
district attorney. There is no statutory provision that defines
the term of a person elected to fill a vacancy in this office.
County Law § 400(1-a) is the only statute defining the term of
district attorneys outside New York City.
Without exception, the authorities we have found have
concluded that a district attorney elected following the
occurrence of a vacancy serves for the full term rather than the
balance of his predecessor's term. McGovern v Curran, 297 NY 479
(1947); Dillon v Shaffer, 144 Misc 2d 1079 (Sup Court Erie Co
1989). In Dillon, the Court observed that the language of the
State Constitution requires that district attorneys be chosen for
either three or four years. Dillon, supra, at p 1082. This is a
reference to Article XIII § 13(a), providing for the selection of
a district attorney once in three or four years as directed by
the Legislature. The Court reasoned there was no constitutional
authorization to fill the office of district attorney for the
balance of the four-year term provided by the Legislature.
Numerous opinions of the Attorney General have found that a
person elected to fill a vacancy in the office of district
attorney serves for a full term. 1983 Op Atty Gen (Inf) 194 and
opinions cited therein. Under similar constitutional and
statutory authority, it has long been held that county officers
elected to fill vacancies in office serve for a full term rather
than for the balance of their predecessor's term. People ex rel.
Lempp v Board of Elections, 224 NY 633 (1918), explained by
People ex rel. Bast v Voorhis, 227 NY 167, 172 (1919); 1903
Atty Gen Rep 376; 1911 Op Atty Gen 578; 1924 Op Atty Gen 225.
The legislative history of provisions repealed and amended
when the current term provision was established in 1992 is
relevant to this inquiry.

3
Prior to chapter 254 of the Laws of 1992 which established
the present term language for district attorneys (County Law
§ 400[1-a]), a special provision existed in section 400 for the
district attorney of Rockland County. It provided that the term
of office of the district attorney of Rockland County "shall be
four years from and including the first day of January next
succeeding his election". McKinney's County Law (Main Volume
1991) § 400(1-c) (first set out). The legislative history of
this provision indicates an intent to increase the term of
district attorney in Rockland County from three to four years in
order to create greater continuity and to help increase the
effectiveness of the office (Bill Jacket, L 1975, ch 149,
Legislative Memorandum in Support by Senator Linda Winikow and
Assemblyman Eugene Levy). The language of this provision is
substantively the same as current subdivision 1-a.
In our 1983 opinion, we discussed the legislative history of
former subdivision 1-d of section 400, the predecessor of the
current provision establishing the term of district attorneys.
1983 Op Atty Gen (Inf) 194. Subdivision 1-d included a proviso
that if the election for district attorney occurred in an
even-numbered year, the term would be three rather than four
years. Chapter 763 of the Laws of 1976, establishing subdivision
1-d, was introduced on behalf of the District Attorney's
Association. We found that the legislative history makes it
clear that under former subdivision 1-d, vacancies were not to be
filled for an unexpired term. Ibid. Bill Jacket L 1976, ch 763,
July 9, 1976 Letter From B. Anthony Morosco Legislative Secretary
of the New York State District Attorneys' Association to Judah
Gribetz, Counsel to the Governor; Memorandum in Support of Senate
S6363-B. The proviso was intended to return elections for
district attorney to the odd numbered years, when local elections
are conducted. Ibid. The drafters felt that this approach,
regarding vacancies, was more desirable than an alternative
approach of providing for elections for the remainder of the
unexpired term. Ibid. Thus, it was understood by the drafters
that prior to the amendment persons elected to fill vacancies in
the office of district attorney served for a full term and the
proviso was enacted as a mechanism for returning to the odd year
election cycle.2 Further, a primary purpose of the legislative
proposal was to lengthen the term of district attorneys from
three to four years to reduce the frequency of political
campaigns. Ibid.

2

We note that when subdivision 1-d was amended to establish
current subdivision 1-a, the proviso was removed.

4
The current provision governing the term of district
attorneys was added by chapter 254 of the Laws of 1992. The
legislative history indicates that the primary purpose of the
amendment was to change the term of district of Wyoming County
from three to four years. New York Senate Introducer's
Memorandum in Support, Senate Bill No. S7400-A. The legislative
history also refers to technical amendments to section 400 of the
County Law, repealing subdivisions 1-a, 1-b and 1-c, apparently
reflecting the fact that all district attorneys outside New York
City now had four year terms. The technical amendments were not
intended substantively to affect any other district attorney.
Ibid. Thus, there was no intent behind the current provision,
whose language is very similar to its predecessor and to the
special provision for Rockland County, to change years of
judicial and administrative opinions concluding that a person
elected to fill a vacancy in the office of district attorney
serves for a full term or for a three year term under the
proviso. There is nothing in the legislative history that even
suggests that deletion of the proviso contemplated the filling of
an unexpired term.
We conclude that the person elected in November 1995 to fill
the vacancy in the office of district attorney of Rockland County
will serve for a full four year term.
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,

VICTORIA A. GRAFFEO
Solicitor General