When a New York Board of Assessment Review term ran October 1, 2007 to September 30, 2012 but the seat sat vacant past October 2007, can a December 2007 appointee fill the slot for the rest of the statutory term, or does the appointment have to start a fresh five-year clock?

Plain-English summary

The City of Troy had a Board of Assessment Review (BAR) seat whose term expired September 30, 2007. The City Council did not appoint a successor until December 2007, with an effective date of January 1, 2008. The appointment named the new member to serve the statutory term running from October 1, 2007 to September 30, 2012. Someone challenged the appointment as inconsistent with Real Property Tax Law § 523(1)(c), which fixes BAR terms at five years starting October 1.

The AG said the appointment was valid. Two Public Officers Law provisions, working together with the RPTL term-fixing rule, produced the result:

Public Officers Law § 5: holdover. When a public officer's term expires, the officer can continue to serve until a successor is chosen and qualifies. The office is "deemed vacant for the purpose of choosing his successor," but the prior officeholder fills the seat as a holdover. So between October 1, 2007 (term expiration) and December 2007 (successor appointed), the prior BAR member kept serving as a holdover, and the office was not legally vacant in a way that disrupted the statutory term.

Public Officers Law § 38: balance of unexpired term. When an appointment is made to fill a vacancy in an appointive office "for the full term," the appointee "shall hold office for the balance of the unexpired term." This is the standard rule that vacancy appointments do not reset the term clock; they fill in the rest of whatever was statutorily set.

Real Property Tax Law § 523(1)(c): the term itself. BAR members serve five-year terms running October 1 to September 30. The five-year clock is set by statute. It does not move with the appointment date.

Applying the three together. The 2007-2012 BAR term was fixed by statute. The prior member held over until December 2007 under § 5. The new appointee took office in December 2007 (effective January 1, 2008) under § 38 to fill the rest of that fixed term. The appointment ran to September 30, 2012, the statutory term-end date, not five years from when the appointee took the seat. That is correct.

Currency note

This opinion was issued in 2008. 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

Could the City Council have given the new appointee a fresh five-year term running from January 1, 2008?
No. RPTL § 523(1)(c) fixes the BAR term start date as October 1. The Council cannot extend the term by waiting to appoint. Public Officers Law § 38 ensures that vacancy appointments fill the residue of the statutory term.

Does the holdover officer have full BAR authority during the holdover period?
Yes. Public Officers Law § 5 lets the prior officer continue to "exercise the duties of his office" until a successor qualifies. Holdover status is not a diminished form of office; the officer's actions are valid.

What if the appointment happens after the statutory term has already expired?
The statutory term controls regardless. An appointment made in 2008 or 2009 still ends September 30, 2012, leaving a shorter effective tenure. If a municipality wants to align the appointee's tenure with the calendar-year start date, the answer is to appoint promptly in advance of October 1.

Does this analysis extend to other appointed offices with fixed statutory terms?
Yes, generally. The Public Officers Law § 5 (holdover) and § 38 (vacancy fills unexpired term) rules apply across appointive offices unless a specific statute provides otherwise. A planning board member, ethics board member, or other fixed-term appointee would generally see the same treatment.

Could the prior member have refused to hold over?
Yes, in the sense that holdover service is permissive and the holder can resign. The statute authorizes continued service; it does not compel it. If the holdover refuses to serve, the seat is vacant and the appointing body should act.

Background and statutory framework

Board of Assessment Review. A municipal board, established under Real Property Tax Law Article 5, that hears taxpayer challenges to property assessments. § 523(1)(c) sets terms at five years running from October 1 to September 30. The fixed term ensures that municipalities cannot move term boundaries to favor incumbents or reset clocks to extend tenure.

Public Officers Law § 5: holdover doctrine. Standard New York rule that public officers continue to serve until their successors qualify. The office is deemed vacant for the limited purpose of choosing a successor, but the holdover fills the role until the successor takes over.

Public Officers Law § 38: vacancy appointments. Standard rule that an appointment to fill a vacancy in an appointive office runs only to the end of the unexpired term, not for a fresh full term.

Citations

• Real Property Tax Law § 523 (Board of Assessment Review structure); § 523(1)(c) (five-year terms, October 1 to September 30).
• Public Officers Law § 5 (holdover: officer continues until successor qualifies; office deemed vacant for purpose of choosing successor; vacancy appointment is for "residue of the term").
• Public Officers Law § 38 (appointee fills unexpired term).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2008-12_pw.pdf

Original opinion text

Real Property Tax Law §§ 523, 523(1)(c); Public Officers Law §§ 5, 38

Discussing the validity of an appointment to the Board of Assessment Review.

November 12, 2008

David B. Mitchell
Corporation Counsel
City of Troy
City Hall
One Monument Square
Troy, New York 12180

Informal Opinion
No. 2008-12

Dear Mr. Mitchell:

You have requested an opinion regarding the validity of a recent appointment to the Board of Assessment Review (Board) made by the City Council. You have explained that the previous member of the Board had a term that expired on September 30, 2007. The City Council appointed a new member in December 2007, effective January 1, 2008. This member was appointed to fill the term that runs from October 1, 2007 to September 30, 2012.

It has been suggested that the appointment was contrary to the terms of Real Property Tax Law § 523, which governs the appointment of members of the Board. Real Property Tax Law § 523 provides that "[t]he terms of office of members of the board of assessment review shall be five years and shall commence on the first day of October and terminate on the thirtieth day of September, five years thereafter." Id. § 523(1)(c). As explained more fully below, we are of the opinion that the appointment to the Board as described was consistent with the terms of Real Property Tax Law § 523(1)(c).

Sections 5 and 38 of the Public Officers Law apply to the facts you have described. Section 5 generally authorizes a public officer, with exceptions not relevant here, to continue serving in his office following the expiration of his term until his successor is chosen and qualifies to serve. After the expiration of the original officer's term, however, "the office shall be deemed vacant for the purpose of choosing his successor." Id. An appointment for a term shortened by reason of a predecessor holding over is for the "residue of the term only." Id. Additionally, section 38 of the Public Officers Law, relating to the terms of officers chosen to fill vacancies, provides that "[i]f an appointment of a person to fill a vacancy in an appointive office be made by the . . . board of officers authorized to make [the] appointment to the office for the full term, the person so appointed to such vacancy shall hold office for the balance of the unexpired term."

Applying Public Officers Law §§ 5 and 38 to the facts you have described, we conclude that the current member's appointment is consistent with the terms of Real Property Tax Law § 523(1)(c). The term of the current appointee's predecessor expired on September 30, 2007. His successor was appointed in December 2007. Until the current appointee qualified to serve, pursuant to section 5 his predecessor was a holdover. Upon the current appointee's qualification, pursuant to section 38 he holds office for the balance of the unexpired term. The appointment of the current appointee was thus correctly made for the remainder of the term that, by statute, runs from October 1, 2007 to September 30, 2012. Real Property Tax Law § 523(1)(c).

For the above reasons, we are of the opinion that the described appointment was consistent with Real Property Tax Law § 523(1)(c).

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions