If a town board appointed a Deputy Supervisor by resolution but never separately created the office, was the office still validly established?

Plain-English summary

Town Law § 42 sets out a two-step procedure for creating a Deputy Supervisor position. First, the Town Board passes a resolution establishing the office. Second, the Supervisor appoints the Deputy, who serves at the Supervisor's pleasure. If the Supervisor fails to appoint within five days after the office is established or after a vacancy occurs, the Town Board may make the appointment. The statute also specifies the Deputy Supervisor's duties.

In 1992, the Town of Forestburgh Town Board passed a resolution that named a particular individual to the position of Deputy Supervisor. The board collapsed both steps (creating the office and filling it) into a single resolution and bypassed the Supervisor's appointment role. From 1992 onward, the Supervisor appointed a Deputy each year, which is what § 42 contemplates. The Town Attorney asked whether the original 1992 resolution had actually established the office, given the procedural mix-up.

The AG concluded the office had been created. The reasoning was practical, not strict. The 1992 resolution showed clear intent to establish the office; calling out a specific person as Deputy Supervisor presupposed that there was an office to fill. The Board's failure to first pass a separate creation resolution did not erase that intent. Since 1992, the Supervisor had appointed a Deputy each year, which the AG treated as indicating the Board's continued approval of the position.

The AG did not address whether the initial 1992 appointment was itself valid (which might be questionable, since the Supervisor should have made it). The opinion focuses on the office, not the individual appointment, and concludes the office was effectively created.

Currency note

This opinion was issued in 1998. 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

Who establishes the Deputy Supervisor office?

Town Law § 42 lets a town establish the office. The opinion describes the Town Board as responsible for establishing it and the Supervisor as responsible for appointing the Deputy.

Who appoints the Deputy Supervisor?

The Supervisor ordinarily makes the appointment, and the Deputy serves at the Supervisor's pleasure. If the Supervisor fails to appoint within five days after establishment of the office or after a vacancy, § 42 allows the Town Board to appoint.

Why did the AG say this office was created despite the irregular appointment?

The AG found the Board's intent to establish the office clear from its 1992 resolution appointing a Deputy. The Supervisor's annual appointments since 1992 indicated continuing approval of the position.

Did the opinion decide whether the 1992 appointee was validly appointed?

No. It acknowledged that the Board did not follow § 42 in making the initial appointment and decided only that the Board effectively established the office.

Background and statutory framework

Town Law § 42 separates establishment of the Deputy Supervisor office from appointment of the person who holds it. Forestburgh's Board enacted a resolution appointing an individual in 1992. The AG concluded that this action nevertheless established the office, based on the Board's apparent intent and the Supervisor's later annual appointments. The opinion does not announce a rule for curing irregularities in the creation of other town positions.

Citations

• Town Law § 42 (establishment of Deputy Supervisor office and appointment procedure).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-42_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Page 1 of 2

Opn. 98-42
TOWN LAW § 42.
While the Town Board, in appointing a Deputy Supervisor in 1992, in part did not follow the provisions of section 42 of the Town Law which calls for the establishment of the office by the Town Board and the appointment of a Deputy by the Supervisor, it seems clear that the intent of the Board was to establish the office. November 2, 1998 Kenneth C. Klein, Esq. Town Attorney Town of Forestburgh P. O. Box 670 Liberty, NY 12754-0670

Informal Opinion
No. 98-42

Dear Mr. Klein:
You have asked whether your Town has established the position of Deputy Supervisor in accordance with provisions of law. Under section 42 of the Town Law, a town may at any time establish the office of Deputy Supervisor. The Deputy Supervisor is appointed by the Supervisor and serves at his or her pleasure. If the Supervisor fails to appoint a Deputy within five days after establishment of the office or within five days after a vacancy occurs in such office, the Town Board may appoint the Deputy Supervisor. Section 42 also specifies the duties of the Deputy Supervisor. You have inquired whether the position of Deputy Supervisor was established properly in your Town. In a telephone conversation, you have explained that in 1992 the Town Board enacted a resolution appointing a particular individual to the position of Deputy Supervisor. The question is whether this action effectively established the position. Since 1992, the Supervisor has appointed a Deputy as required under State law. In our view, the position of Deputy Supervisor has been created. While the Town Board, in appointing a Deputy Supervisor in 1992, in part did not follow the provisions of section 42 of the Town Law which calls for the establishment of the office by the Town Board and the appointment of a Deputy by the Supervisor, it seems clear that the intent of the Board was to establish the office. Even though the Board did not follow section 42 in making the initial appointment, we believe that the Board created the office. Further, since 1992 the Supervisor has appointed the Deputy every year, indicating the Town Board's continued approval of this position. We conclude that the Town Board effectively established the position of Deputy Supervisor. 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,

http://www.oag.state.ny.us/lawyers/opinions/1998/informal/98_42.html

4/20/2006

OPINIONS OF THE ATTORNEY GENERAL

Page 2 of 2

JAMES D. COLE
Assistant Attorney General
In Charge of Opinions
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http://www.oag.state.ny.us/lawyers/opinions/1998/informal/98_42.html

4/20/2006