When a New York gubernatorial appointee skips three or more meetings without good cause, can the Governor declare the seat vacant?

Plain-English summary

The Associate Director of the Long Island Rail Road Commuter's Council (LIRRCC) asked the AG about a member who had missed twelve consecutive regular meetings without asking to be excused. The question: can the Governor declare the seat vacant?

The AG said yes.

Public Officers Law § 30(3) provides that when a gubernatorial appointee fails to attend three consecutive regular meetings of the board, the Governor may deem the office vacant, unless the absence is for good cause and is excused by the chairman (or for the chairman, by the Governor). The LIRRCC member had not asked to be excused, had not been excused, and had no evidence of good cause. Twelve absences is well beyond the three-meeting threshold.

The AG also identified an implicit requirement in the statute: meetings have to be properly noticed. Matter of Kiernan v Mirante, 53 Misc 2d 173 (Sup Ct Oneida Co 1967), reads § 30(3) to require adequate notice of date, time, and place of each meeting as a precondition for the vacancy provision to apply. Without notice, the appointee could plausibly claim good cause.

The LIRRCC's notice practices satisfied that requirement. Members get an annual calendar of regular meetings at the start of each year, are personally notified of any schedule changes, and receive an agenda about a week before each meeting. With proper notice in place, the missed-meetings rule kicks in.

Filling the vacancy. Public Authorities Law § 1266-d(2) (the LIRRCC's authorizing statute) provides that the Governor fills any vacancy, on the recommendation of the relevant county executive. So once the Governor deems the seat vacant, the standard appointment procedure resumes.

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

Does the Governor have to declare the vacancy, or is the seat automatically vacant?

The statute uses permissive language: the office "may be deemed vacant." That means the Governor has discretion. The seat is not automatically vacant on the third consecutive absence; the Governor (or in some statutory schemes the board itself) has to make the declaration. The Governor presumably waits until the absences become a real impediment before exercising the power.

What counts as "good cause" for missing a meeting?

The statute does not define it. Illness, family emergency, conflict with another official obligation, or a personal matter formally requested in advance and excused by the chair would generally count. The key procedural requirement is that the member ask to be excused and that the chair excuse the absence. A member who simply does not show up has not satisfied the procedural side of the statute.

Does the rule apply to every gubernatorial appointment?

Public Officers Law § 30(3) applies broadly to any "board, commission, committee or authority" with members appointed by the Governor. Different boards may have additional statute-specific rules in their authorizing legislation, but § 30(3) is the default rule.

Can a board member challenge a vacancy declaration in court?

In principle, yes. The standard would be whether the procedural and substantive requirements of § 30(3) were met (three consecutive absences, no good cause, no excuse, with adequate notice). A member with a colorable good-cause claim or notice defect could litigate the declaration.

Are there parallel rules for legislative or judicial appointees?

The opinion focuses on gubernatorial appointees. Different statutes govern legislative and judicial appointees, and the specific vacancy rules vary by office. § 30 of the Public Officers Law has multiple subdivisions addressing different categories.

Background and statutory framework

Public Officers Law § 30. Sets out the general rules for when public offices become vacant. Subdivision (3) specifically addresses the three-consecutive-absence rule for gubernatorial appointees.

Public Authorities Law § 1266-d(2). The authorizing statute for the LIRRCC. It provides for gubernatorial appointment of members on the recommendation of the county executive and for filling vacancies by the same procedure.

Implicit notice requirement. Matter of Kiernan v Mirante, 53 Misc 2d 173 (Sup Ct Oneida Co 1967), reads § 30(3) to require adequate notice of meetings as a precondition for the vacancy mechanism. Without notice, the absences may be excusable as good cause.

Citations

• Public Officers Law § 30 (vacancy in public office); § 30(3) (three-consecutive-absence rule for gubernatorial appointees).
• Public Authorities Law § 1266-d(2) (LIRRCC appointments and vacancies).
• Matter of Kiernan v Mirante, 53 Misc 2d 173 (Sup Ct Oneida Co 1967) (notice requirement implied in § 30(3)).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/98-F5_pw.pdf

Original opinion text

PUBLIC AUTHORITIES LAW § 1266-d(2); PUBLIC OFFICERS LAW § 30. If a member of the Long Island Rail Road Commuter's Council (LIRRCC) is absent without good cause from three consecutive regular meetings, his/her position on the LIRRCC may be deemed vacant by the Governor. Any resulting vacancy shall be filled by appointment of the Governor upon the recommendation of the county executive, pursuant to the provisions of Public Authorities Law
§ 1266-d(2).
April 21, 1998
Hon. Jonathan Siegall
Associate Director
Long Island Rail Road
Commuter's Council
347 Madison Avenue
New York, NY 10017

Formal Opinion
No. 98-F5

Dear Mr. Siegall:
You have requested an opinion regarding whether the unexcused absence of a member of the Long Island Rail Road Commuter's Council ("LIRRCC") from three consecutive regular meetings vacates that member's position on the LIRRCC. Members of the LIRRCC are appointed by the Governor. Public Authorities Law § 1266-d(2). To date, the member at issue has had 12 consecutive unexcused absences from the regular meetings of the LIRRCC. You have informed us that this member has not asked to be excused from the meetings he/she has missed and has not been excused. Additionally, there is no evidence that this member has been absent from the meetings for good cause. Under Public Officers Law § 30,
[w]hen any member of a board, commission, committee or authority, holding office by appointment of the governor, fails to attend three consecutive regular meetings of such board, commission, committee or authority, unless such absence is for good cause and is excused by the chairman or other presiding officer thereof or, in the case of such chairman or other presiding officer, by the governor, the office may be deemed vacant for purposes of the nomination and appointment of a successor. Public Officers Law § 30(3). Therefore, Public Officers Law § 30 provides that when any gubernatorial appointee of a board, commission, committee or authority fails to attend three consecutive regular meetings, the Governor may deem the position vacant, unless the absence is for good cause and has been excused. Implicit in the statute is the requirement that members be given adequate notice of the date, time and place of each regular meeting of the applicable board, commission, committee or authority. Without such notice, members could argue that they had "good cause" excusing their absence. See, Matter of Kiernan v Mirante, 53 Misc 2d 173, 177 (Sup Ct Oneida Co 1967) (noting requirement of receipt of adequate notice of the meetings at issue). You have informed us that at the beginning of each year, all members of the LIRRCC receive calendars detailing the date, time and place of each regular monthly meeting. Each member is personally notified if there are any changes to the calendared information. Additionally, each member is mailed an agenda approximately one week prior to each regular meeting. Accordingly, under these facts, all members receive adequate notice of the date, time and place of each regular meeting of the LIRRCC. We conclude that if a member of the LIRRCC is absent without good cause from three consecutive regular meetings, the member's position may be deemed vacant by the Governor. Any resulting vacancy shall be filled by appointment of the Governor upon the recommendation of the county executive, pursuant to the provisions of Public Authorities Law § 1266-d(2). Very truly yours,

DENNIS C. VACCO
Attorney General