If a New York county's legislators serve staggered four-year terms (with elections every two years), how long is the county attorney appointed for?
Plain-English summary
Cayuga County's legislators serve staggered four-year terms, with about half elected every two years. State law (County Law § 500(1)) ties the county attorney's appointment to the term "for which the then members of [the county legislature] were elected." That language is ambiguous when individual legislators don't all turn over at once.
The AG's office concluded that the right reading is "term of the legislature as a board." Under common-law principles, every regularly-scheduled election that replaces a significant portion of the body produces a newly-constituted board (see Matter of Harrison Cent. Sch. Dist. v. Nyquist, 59 A.D.2d 434 (3d Dep't 1977)). So in Cayuga County's setup, the legislature's "term" runs two years, and the county attorney's appointment runs the same two years.
The legislative history reinforces the result. The 1931 amendment (L. 1931, ch. 485) tying county attorney terms to the legislature's term was meant "to prevent outgoing [county legislatures] from employing any attorney just before the close of their term for a period of two years thereafter." Letting an attorney's appointment span multiple legislatures would defeat that anti-lame-duck purpose.
After the legislature's term ends, the sitting county attorney becomes a holdover under Public Officers Law § 5 and continues in office until a successor is appointed. For purposes of appointing the successor, the office is treated as vacant.
Currency note
This opinion was issued in 2014. 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.
Historical context
What the opinion meant for counties with staggered legislatures
In counties with staggered four-year legislator terms, the county attorney's appointment cycle was set at two years, not four, regardless of the formal four-year term of any individual appointing legislator. The county attorney could be re-appointed by the newly-constituted legislature, but the prior appointment would not automatically extend.
Why the anti-lame-duck history matters
The 1931 amendment was a response to a specific abuse: outgoing county legislatures locking in their preferred attorneys with multi-year contracts that survived the legislature's term. Reading § 500(1) to permit four-year appointments out of a two-year board would re-create exactly the abuse the 1931 amendment was supposed to fix.
What the opinion meant for individual county attorneys
A county attorney serving past the end of the appointing board's term remained in office as a holdover, with full authority to continue handling county legal work. There was no gap in coverage. But the holdover status was just a bridge until the new legislature acted, not a continuation of the term.
Common questions
Q: What is a "newly-constituted board"?
A: Under common law, a legislative or governing body whose membership has been changed in part by election (even if some incumbents remain) is treated as a new entity, distinct from and successor to the prior body. Harrison Cent. Sch. Dist. v. Nyquist applied this rule to a school board with one-third of seats elected annually.
Q: What is holdover authority under Public Officers Law § 5?
A: When an officer's term expires and a successor has not yet been appointed and qualified, the sitting officer "holds over" and continues to discharge the duties of the office. The office is treated as vacant for the purpose of appointing the successor, but the holdover acts validly until the appointment is made.
Q: Could a four-year contract for the county attorney ever be valid?
A: Generally no, in counties with staggered terms. The opinion treats two years as the cap because that's the term of the appointing body. The same logic would apply to any county where the legislature is "newly constituted" by election in less than four years.
Q: What did the 1950 recodification change?
A: The text shifted from "to act during" the legislators' term to "for" the legislators' term, but the AG read no substantive change into the recodification (consistent with the recodification's general purpose of reorganizing without altering the substance of the County Law).
Background and statutory framework
County Law § 500(1) requires the county legislature to "appoint a resident attorney-at-law as county attorney for the term of office for which the then members of such board were elected." The pre-1931 statute set a flat two-year term (L. 1918, ch. 573). The 1931 amendment (L. 1931, ch. 485) replaced the flat term with the current language linking the attorney's term to the legislature's term, with the express anti-lame-duck purpose described in Assemblyman Cornaire's contemporaneous statement (Bill Jacket, 1931 ch. 485, at 3).
The common-law rule about staggered-term boards has long roots; the AG cites Harrison v. Nyquist, an earlier Op. Att'y Gen. (Inf.) No. 90-50, and the comprehensive A.L.R. annotation in V. Woerner, Power to Appoint Public Officer for Term Commencing at or after Expiration of Term of Appointing Officer or Body, 75 A.L.R.2d 1277 (1961).
For the holdover rule, Public Officers Law § 5 is the operative statute: an officer whose term has expired continues in office until the successor takes the oath and assumes the duties.
Citations and references
Statutes:
- N.Y. County Law § 210 (predecessor, McKinney 1939); § 500; § 500(1) (current appointment provision)
- N.Y. Public Officers Law § 5 (holdover authority)
- L. 1918, ch. 573 (original two-year term); L. 1931, ch. 485 (linking attorney term to legislature term); L. 1950, ch. 691 (recodification)
Cases and prior opinions:
- Matter of Harrison Cent. Sch. Dist. v. Nyquist, 59 A.D.2d 434, 436 (3d Dep't 1977), newly-constituted board doctrine
- Op. Att'y Gen. (Inf.) No. 90-50
Source
- Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
- Original PDF: https://ag.ny.gov/sites/default/files/opinions/2014-3_pw.pdf
Original opinion text
County Law §§ 210, 500, 500(1); Public Officers Law § 5
When county legislators serve staggered four-year terms, the county attorney's term of appointment runs during the two-year term of the appointing county legislature.
September 3, 2014
Frederick R. Westphal
County Attorney
Cayuga County
160 Genesee Street
6th Floor
Auburn, New York 13021
Informal Opinion
No. 2014-3
Dear Mr. Westphal:
You have requested an opinion relating to the term of office of the county attorney. You have explained that by local law the term of county legislator is set at four years and the elections of the legislators are staggered with approximately half the legislature elected every two years. Because by state law the term of the county attorney is tied to the term of the county legislature, you have asked whether the staggered four-year terms of the county legislature result in a term of appointment for the county attorney of two years (the number of years between elections by which a significant portion of the legislature potentially is replaced) or four years (the term for which each legislator is elected). As explained below, we are of the opinion that the better answer is that the county attorney serves during the term of the county legislature as a board, which under the facts you have described is two years.
County Law § 500 requires that the county legislature "appoint a resident attorney-at-law as county attorney for the term of office for which the then members of such board were elected." County Law § 500(1). The question is whether the county attorney's term of office is measured by the term of individual legislators or by the term of the collective entity that appointed him. While the text may be amenable to either reading, we believe that the legislative history provides a clear answer.
Initially, the statute governing appointment of county attorney provided that "[t]he term of office of a county attorney . . . shall be two years." Act of May 8, 1918, ch. 573, 1918 N.Y. Laws 1853, codified at County Law § 210 (McKinney 1939). This subsequently was amended to provide that the county legislature was authorized to appoint a county attorney "to act during the term of office for which the then members of such board were elected." Act of Apr. 20, 1931, ch. 485, 1931 N.Y. Laws 1165, codified at County Law § 210 (McKinney 1939). The purpose of this amendment linking the county attorney's term to that of the county legislature was to "prevent outgoing [county legislatures] from employing any attorney just before the close of their term for a period of two years thereafter." Statement by Assemblyman Cornaire, reprinted in Bill Jacket for ch. 485 (1931), at 3. The justification for the amendment was that each county legislature "should be permitted to hire its own attorney in order to have one who will co-operate with the [county legislature] in their work." Id. In the 1950 recodification of the County Law, the term-of-appointment language of what became § 500(1) was altered slightly ("to act during" the legislators' term became the current "for" the legislators' term) but with no indication that the meaning of this portion of the statute was intended to change. Act of Apr. 15, 1950, ch. 691, 1950 N.Y. Laws 1652.
But for the staggered terms of the County's legislators, the answer to your question would be that the county attorney is appointed to serve the duration of the legislators' four-year term. To reconcile the intent of the amendment to what is now County Law § 500 with the county legislators' staggered terms, however, "term of office for which the then members of such board were elected" must be interpreted to mean the term of the county legislature as a board following a regularly-scheduled election at which a significant number of incumbent legislators are subject to replacement. After such an election, the county legislature, under common law principles, is a newly-constituted board. See Matter of Harrison Cent. Sch. Dist. v. Nyquist, 59 A.D.2d 434, 436 (3d Dep't 1977) (when 1/3 membership of school board elected annually to three-year term, board's appointment of school attorney to three-year term violated common law prohibition against binding successor board); Op. Att'y Gen. (Inf.) No. 90-50; see also V. Woerner, Annotation, Power to Appoint Public Officer for Term Commencing at or after Expiration of Term of Appointing Officer or Body, 75 A.L.R.2d 1277, at [4a] (1961) (stating that "courts deem[ed] the board as constituted after the expiration of a staggered term as being a new board, distinct from and a successor to the one as previously constituted"). It is the term of the county legislature as the governing body, rather than terms of the individual legislators comprising it, that, we believe, determines the duration of the appointed county attorney's term.
We thus are of the opinion that the county legislature's term, with its staggered four-year terms, is two years. Consequently, the county attorney's term of appointment runs during the two-year term of the appointing county legislature.
With respect to a county attorney serving past the expiration of the appointing county legislature's term, he properly is deemed a holdover under Public Officers Law § 5 and validly can continue to discharge the duties of his office until his successor is appointed and qualifies to take office. For the purpose of appointing his successor, the office is deemed vacant. Public Officers Law § 5.
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