Can a Port Jervis Common Council member be appointed acting city court judge when General City Law § 3 forbids the council from appointing its own members to paid city offices and the city charter says the council 'appoints'?

Plain-English summary

A Port Jervis Common Council member was being considered for appointment as an acting city court judge. Two textual obstacles seemed to be in the way:
- General City Law § 3: "No member of the common council of any city shall, during the period for which he was elected, be capable of holding under the appointment or election of the common council any office the emoluments of which are paid from the city treasury."
- Port Jervis City Charter § C2-4(A): all appointive city officers are nominated by the mayor and appointed by the council.

If you read the charter literally, the council is the appointing body, and § 3 forbids the council from appointing its own members to paid city offices. The AG cleared the obstacle on both fronts.

State law preempts the inconsistent charter. Uniform City Court Act § 2104(e) governs vacancies in the acting city court judge position. It assigns the appointment to the mayor with the council's advice and consent. This is a state statute about a state court, and three constitutional/statutory pieces make it preempt the charter:
- N.Y. Const. Art. VI, § 17(d): the Legislature prescribes the method of filling city-court judge vacancies outside NYC.
- N.Y. Const. Art. IX, § 3(a)(2): home-rule powers do not impair any legislative power over courts as required or provided by Article VI.
- Municipal Home Rule Law § 11(1)(e): local laws cannot supersede state statutes affecting Article VI courts.

So the charter's "appointed by the council" language yields to UCCA § 2104(e)'s "mayor with advice and consent of the council." The actual appointing authority is the mayor.

Appointment by the mayor with council consent is not appointment by the council. Even setting preemption aside, settled New York law distinguishes between executive appointment with legislative confirmation and pure legislative appointment:
- Matter of Gigliotti v. Berg, 40 A.D.2d 182 (4th Dep't 1972). The county executive appointed a sitting county legislator as director of traffic safety; the appointment was confirmed by the legislature (with the appointee not voting). Challenged under the common-law rule that an appointing body cannot appoint its own member (Wood v. Town of Whitehall). The Fourth Department upheld the appointment: the executive, not the legislature, was the appointing authority.
- People ex rel. Lathers v. Raymond, 129 A.D. 477 (2d Dep't 1908). The city council tried to remove three city board of public works members on the theory that since the council had appointed them, it could remove them. The court rejected the premise: the mayor appointed and the council confirmed. The "power to confirm" is not the "power to appoint."
- 1978 Op. Att'y Gen. (Inf.) 247. A village trustee could be appointed to village superintendent of public works because the village mayor appointed with the board's confirmation.

The same logic applies in Port Jervis: the mayor appoints, the council confirms. The council is not the appointing body, so General City Law § 3 does not bar the appointment.

Recusal still required. The councilor who is the subject of the appointment must recuse from the council's confirmation vote. That follows from the common-law rule against self-dealing on the part of public officers and is independent of the § 3 analysis.

Currency note

This opinion was issued in 2009. 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 a charter just rewrite this to make the council the actual appointing body?
No. The constitutional and statutory framework gives the Legislature exclusive authority over city court judge vacancies. A local charter cannot displace UCCA § 2104(e).

What if the council confirmation requires a supermajority and the appointee's recusal makes that hard?
The opinion does not address vote-count mechanics. Standard parliamentary practice is to require the supermajority of those voting (or of the whole body minus the recused member, depending on the charter), but the answer depends on the specific charter and General Construction Law § 41 rules covered in 2008-F1 above.

Does this analysis also apply to a regular city court judge vacancy, not just acting?
The opinion frames the question in terms of "acting city court judge of Port Jervis," which is a specific UCCA-defined position. For a full city court judge vacancy, the constitutional and statutory framework is similar but the specific provisions may differ. Counsel should check the applicable Uniform City Court Act subsection.

Could the mayor appoint anyone, including a non-councilor, to the position?
Yes. The mayor's discretion is the usual one, subject to whatever qualifications UCCA imposes (typically attorney admission and other judicial-qualification standards). The opinion's narrow holding is that a sitting councilor is not excluded merely by virtue of council membership.

What if the city has a strong-mayor structure where the mayor unilaterally fills the position?
The opinion's logic is even cleaner there: if the council is not involved at all in the appointment, § 3's bar on "appointment or election of the common council" plainly does not apply.

Background and statutory framework

General City Law § 3. Anti-self-appointment rule: no common council member may, during the elected period, hold an office to which the council has the appointment or election power, where the office is paid from the city treasury. Designed to prevent councilors from voting themselves into paid positions.

Uniform City Court Act § 2104(e). Governs filling vacancies in acting city court judge positions. § 2104(e)(1)(i) describes the offices; § 2104(e)(2)(ii) prescribes mayoral appointment with council advice and consent.

N.Y. Const. Art. VI, § 17(d). Method of filling vacancies for city court judges outside NYC is prescribed by the Legislature.

N.Y. Const. Art. IX, § 3(a)(2). Home-rule article does not restrict legislative power over courts under Article VI.

Municipal Home Rule Law § 11(1)(e). Local legislative body cannot adopt a local law that supersedes state statutes affecting Article VI courts.

Common law on self-appointment. Wood v. Town of Whitehall (1923) is the foundational rule that an appointing body cannot appoint its own members. Gigliotti and Lathers draw the executive-appointment/legislative-confirmation distinction.

Citations

• General City Law § 3 (anti-self-appointment by common council).
• Uniform City Court Act § 2104(e); § 2104(e)(1)(i); § 2104(e)(2)(ii) (acting city court judge vacancy filling).
• N.Y. Const. Art. VI, § 17(d) (legislative method of filling judicial vacancies).
• N.Y. Const. Art. IX, § 3(a)(2) (home rule does not limit power over courts).
• Municipal Home Rule Law § 11(1)(e) (local laws cannot supersede state statutes on courts).
• Charter of the City of Port Jervis § C2-4(A) (appointments by mayor and council).
• Matter of Gigliotti v. Berg, 40 A.D.2d 182 (4th Dep't 1972) (executive appointment with legislative confirmation not legislative appointment).
• Wood v. Town of Whitehall, 120 Misc. 124 (Sup. Ct. Washington Co.), aff'd 206 A.D. 786 (3d Dep't 1923) (common-law rule against self-appointment).
• People ex rel. Lathers v. Raymond, 129 A.D. 477, 478-79 (2d Dep't 1908) (confirmation is not appointment).
• 1978 Op. Att'y Gen. (Inf.) 247 (village trustee appointable as superintendent if appointed by mayor).
• Op. Att'y Gen. (Inf.) No. 2005-19 n.4 (local law on vacancies superseded by state law on matters of state concern).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2009-2_pw.pdf

Original opinion text

General City Law § 3; Uniform City Court Act §§ 2104(e), 2104(e)(1)(i), 2104(e)(2)(ii);
N.Y. Const. VI, § 17(d), IX, § 3(a)(2); Municipal Home Rule Law § 11(1)(e)

A vacancy in the position of city court judge that is filled by appointment by the mayor with the advice and consent of the city council does not constitute appointment by the council within the meaning of General City Law § 3.

July 16, 2009

Glen A. Plotsky
Deputy Corporation Counsel
City of Port Jervis
19 East Main Street
P.O. Box 3139
Port Jervis, New York 12771-3139

Informal Opinion
No. 2009-2

Dear Mr. Plotsky:

You have asked whether a member of the City's Common Council can be appointed to fill a vacancy in the position of acting city court judge. Your question arises because General City Law § 3 provides, in relevant part, that "[n]o member of the common council of any city shall, during the period for which he was elected, be capable of holding under the appointment or election of the common council any office the emoluments of which are paid from the city treasury," General City Law § 3, and the Port Jervis City Charter provides that all appointive city officers are nominated by the mayor and appointed by the council. Charter of the City of Port Jervis § C2-4(A). We conclude, as set forth below, that despite this charter language, a vacancy in the position of city court judge is filled by appointment by the mayor with the advice and consent of the city council, and that such an appointment does not constitute appointment by the council within the meaning of General City Law § 3.

Uniform City Court Act § 2104(e) provides that a vacancy in the position of acting city court judge is filled by appointment by the mayor with the advice and consent of the city council. Uniform City Court Act § 2104(e)(1)(i), (2)(ii). To the extent the locally-enacted charter provision is inconsistent with Uniform City Court Act § 2104(e), the local law cannot supersede the state law. See N.Y. Const. Art. VI, § 17(d) (method of filling vacancies for judges of city courts outside New York City "shall be prescribed by the legislature"); id. Art. IX, § 3(a)(2) (except as expressly provided, nothing in Article IX (home rule article) shall restrict or impair any power of the Legislature in relation to the courts as required or provided by Article VI); Municipal Home Rule Law § 11(1)(e) (local legislative body is not authorized to adopt a local law that supersedes a state statute if such local law applies to or affects the courts as required or provided by article VI of the state Constitution); see also Op. Att'y Gen. (Inf.) No. 2005-19 n.4 (discussion of how local law relating to filling vacancies is superseded by state law to extent local law deals with matter of state concern).

Moreover, an appointment made by an executive with the advice and consent of a legislative body has repeatedly been found not to constitute appointment by the legislative body. Matter of Gigliotti v. Berg, 40 A.D.2d 182 (4th Dep't 1972), concerned appointments made by the county executive subject to approval by the county board of legislators. The county executive appointed a member of the board of legislators to fill the office of director of traffic safety, and the appointment was confirmed by the board of legislators (the appointee did not participate in the vote). Id. at 183. The appointment was challenged on the grounds that it violated the common law principle, enunciated in Wood v. Town of Whitehall, 120 Misc. 124 (Sup. Ct. Washington Co.), aff'd on opn. below, 206 A.D. 786 (3d Dep't 1923), that an appointing body cannot appoint one of its own members to an independent office. The court upheld the appointment, explaining that, unlike in Whitehall, the selection of the appointee in Gigliotti was made by the county executive rather than by the legislative body, and such an appointment, even though confirmed by the legislature, was not prohibited. 40 A.D.2d at 184.

The court in People ex rel. Lathers v. Raymond, 129 A.D. 477 (2d Dep't 1908), similarly so concluded in a different context. The question before the Lathers court concerned the removal of three members of the city board of public works by the city common council. One argument in support of the common council's removal of the board of public works' members was that the common council had appointed them and therefore could remove them. Id. at 478. The court rejected that argument, on the ground that the appointment at issue was made by the mayor, and the role of the council was only to confirm the appointment. Thus the court drew a clear distinction between the power of confirmation and the power of appointment. Id. at 479.

Likewise this office has previously concluded that a village trustee may be appointed to the office of village superintendent of public works, where the appointment is made by the village mayor, subject to confirmation by the village board of trustees. 1978 Op. Att'y Gen. (Inf.) 247. Following Gigliotti, we explained that "the power to approve an appointment was not the same as the power to appoint."

Therefore, we conclude that an appointment to fill a vacancy in the office of acting city court judge made by the mayor, subject to the common council's consent, is not prohibited by the plain language of General City Law § 3, and therefore that a member of the common council may be appointed by the mayor, subject to confirmation by the remaining members of the council, to fill that vacancy. The council member who is the subject of the appointment must of course recuse himself from the council's confirmation deliberations and decision.

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