Does a NY village building inspector have to live in the village, or can the village let him live anywhere in the county?

Subject

Village building inspector is a public officer; board may extend residency to county

Plain-English summary

The Village of Depew asked the AG whether its building inspector position counted as a "village office" under Village Law § 3-300(2), and whether someone living outside the village could fill it.

The AG concluded the building inspector is a public officer. Under Depew's local law, the building inspector enforces housing regulations, zoning, subdivision rules, unsafe building regulations, air pollution rules, the State Multiple Residence Law, the State Uniform Fire Prevention and Building Code, and other regulatory areas assigned by the board of trustees. He makes discretionary decisions and exercises a portion of the village's police power. That makes him a public officer under the line of cases starting with Matter of Dawson v Knox (1931) and culminating with Matter of Haller v Carlson, 42 AD2d 829 (4th Dept 1973). Haller held that the building inspector of the Town of Ellicott was a public officer because the local law gave him enforcement powers over zoning ordinances and state codes affecting town residents and the exercise of police powers.

The AG addressed and rejected two counter-arguments.

First, the village pointed out that the building inspector is not specifically listed as an officer in Village Law § 3-301. The AG explained that § 3-301 lists specific offices and authorizes the board of trustees to establish others under § 3-301(2)(c). And in any event, statutory naming is one indicator but not determinative; the substantive analysis (sovereign powers, discretion) controls.

Second, the village pointed out that under its local civil service rules, non-competitive positions are held by employees and officers go into the exempt class; the building inspector is non-competitive. The AG read Civil Service Law § 42(1) (the non-competitive class definition) and saw no rule that all public officers must be excluded from the non-competitive class. The non-competitive class includes any positions not in the exempt or labor class for which it is impracticable to assess merit by competitive exam. A position can simultaneously be in the non-competitive class for civil service purposes and a public office for Public Officers Law purposes.

The AG distinguished 1968 Op Atty Gen (Inf) 26, which had concluded that a particular village building inspector was not a village officer. That case was different because the AG had found the particular inspector did not exercise sovereign powers; he was a true employee. Each building inspector position must be analyzed on its actual powers.

So the Depew building inspector is a public officer, and Public Officers Law § 3 normally requires village residency. But Village Law § 3-300(2) gives the village board a broadening option: the board can pass a resolution authorizing any appointed village officer to reside anywhere in the county. The AG notes the option can also extend to the village's plumbing/sewer inspector and fire marshal (footnote 1 of the opinion).

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

What's the test for whether a position is a "public office"?

It is the same multi-factor test used in 1995-04 (the Mendon conservation board opinion): sovereign powers, discretion, statutory designation (one indicator), oath of office, bond, definite term, official seal. The core question is whether the position exercises sovereign powers of government. A position with broad discretionary authority over regulatory enforcement is a public office; a position that just carries out instructions of others is employment.

Why does a non-competitive civil service position count as a public office?

The two classifications serve different purposes. The competitive/non-competitive/exempt/labor classification under Civil Service Law § 42 determines how the position is filled (with or without a competitive exam). The officer/employee distinction under Public Officers Law and Village Law determines what rules apply to qualifications (like residency), conduct (like conflict of interest), and accountability. The classifications can intersect any way.

How does the board's resolution work in practice?

The village board of trustees passes a resolution stating that appointed village officers may reside anywhere in the county. The resolution is general; it does not name particular individuals. Once in place, the broadening applies to all appointed officers covered by the resolution. The board can revoke or narrow it later.

Does the resolution have to specify which officers?

The statute lets the board authorize "any appointed village officer" to reside county-wide. A resolution can cover all appointed officers categorically. The board can also limit it to specific positions if it wants to. The flexibility belongs to the board.

What if the village covers parts of two counties?

The statute references "the county within which the village is wholly or partially located." For villages that straddle county lines, the broadening can extend to both counties. The exact reach depends on the resolution's wording.

Statutory and case-law framework

Public Officers Law § 3 sets default residency requirements for local public officers: residence in the political subdivision the officer serves.

Village Law § 3-300(2) prohibits a non-resident from holding a village office "except as may otherwise be provided by law" and authorizes the board of trustees to broaden residency to the county by resolution.

Village Law § 3-301 lists specific village offices and authorizes the board to establish others (§ 3-301(2)(c)).

Civil Service Law § 42(1) defines the non-competitive class.

Matter of Haller v Carlson, 42 AD2d 829 (4th Dept 1973), is the Fourth Department's holding that a town building inspector enforcing zoning and state codes is a public officer.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-40_pw.pdf

Original opinion text

CIVIL 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.
July 31, 1995

Paul D. Weiss, Esq.
Village Attorney
Village of Depew
Municipal Building
85 Manitou Street
Depew, NY 14043

Informal Opinion
No. 95-40

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

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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, 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 or local law and its powers and duties are prescribed
by statute or local law. Matter of Lake v Binghamton Housing
Authority, 130 AD2d 913, 914 (3d Dept 1987); Matter of County of
Suffolk v State of New York, 138 AD2d 815, 816 (3d Dept 1988),
affd, 73 NY2d 838 (1989).
In a prior opinion, we compared a public office to a
position of employment.
Office' implies the obligation of a portion of the sovereign powers to, and the possession of it by, the person filling the office; and the exercise of such powers within legal limits constitutes the correct discharge of the duties of such office. The employee does not discharge independent duties but acts by the direction of others. The wordemployee', used in a public sense, does not signify an
agent or one vested with discretion as to the mode of performing his
duties. Where the relation is one of master and servant we have the
employee', but the wordspublic officer' suggest the relation of
principal and agent.

1911 Op Atty Gen 452.
It is clear that while there are several indicia of status
as a public officer, one qualifies as a public officer by
exercising a portion of the sovereign powers of government.
Matter of Haller v Carlson, supra. As compared to an employee
who does not discharge independent duties but acts by the
direction of others, a public officer is vested with discretion
as to how he performs his duties. Ibid.
Your building inspector, under a village law you have
forwarded to me and as confirmed in our telephone conversation,
is the enforcement officer with respect to regulations in the
following areas -- housing, zoning, subdivision, unsafe buildings
and air pollution, the Multiple Residence Law of the State of
New York, the Uniform Fire Prevention and Building Code of the

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State and in other areas assigned by the village board of
trustees.1
In Haller, supra, the sole issue presented to the Court was
whether the position of building inspector is a public office.
The Court decided that the building inspector of the Town of
Ellicott is an officer in that the local law creating the
position gave him the power of general and executive
administration of the zoning ordinances and State law gave him
the power of enforcement of various codes, ordinances and
regulations. Haller, supra, 42 AD2d at p 830. "His functions
and duties directly affect the citizens of the town and involve
the exercise of the police powers of a political subdivision."
Ibid. In prior opinions of this office, we have concluded that
building inspectors are public officers. Op Atty Gen (Inf)
No. 91-37; 1976 Op Atty Gen (Inf) 205. We note that section 3 of
the Public Officers Law establishes residency requirements for
local officers. Specific exceptions to the requirement of
residency in the appointing municipality have been established
for town building inspector. Public Officers Law § 3(22), (30).
This is an indication that the Legislature has viewed this
position as an office.
In our view, the powers and duties granted to your building
inspector give him public officer status. He is responsible for
enforcement of regulations and, therefore, exercises sovereign
powers of government. His decisions are discretionary and
directly affect the residents of the village. He exercises a
portion of the police powers of the local government. You have
pointed out, however, that the building inspector is not
specifically listed as an officer. Village Law § 3-301. While
specific offices are listed, the statute provides that other
offices may be established by the board of trustees. Id.,
§ 3-301(2)(c). In any event, the statement in a statute that a
position is a public office is an indicator of that status but is
not determinative. Haller, supra.
You also point out that your building inspector is in a
non-competitive position of the civil service and that under your
local civil service rules non-competitive positions are held by
employees whereas officers are placed in exempt positions. Under
the definition of the non-competitive class in State law, we see
no basis for a determination that all public officers must be
excluded. Civil Service Law § 42(1). The non-competitive class
includes all positions not in the exempt or labor class for which
it is found to be impracticable to ascertain merit and fitness of

1

As we discussed, this opinion can be used as a guide in
determining residency requirements for other positions. I.e.,
your plumbing and sewer inspector and fire marshal.

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applicants by competitive examination. Ibid. Appointments to
positions in the non-competitive class are made after
non-competitive examination.
You have referred to an opinion of the Attorney General
concluding that a village building inspector is not a village
officer. 1968 Op Atty Gen (Inf) 26. That opinion is
distinguishable in that it was found that the building inspector
did not exercise the sovereign powers of the village but instead
was a village employee.
While we have found that your building inspector is a public
officer, the village board of trustees may provide that any
appointed village officer may reside anywhere in the county
within which the village is wholly or partially located. Village
Law § 3-300(2). The board of trustees may take this action by
resolution.
We conclude that 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.
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,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions