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HomeMy WebLinkAboutOaths of office - NY Town Law §25.Oaths of office and undertaking, McKinney's Town Law§25 New York Statutes Annotated - 2019 McKinney's Consolidated Laws of New York Annotated Town Law(Refs&Annos) Chapter 62. Of the Consolidated Laws(Refs&Annos) Article 3.Town Officers,Powers,Duties and Compensation(Refs&Annos) McKinney's Town Law §25 §25. Oaths of office and undertaking Effective:August 17,2004 Currentness Before he or she enters on the duties of the office,and within thirty days after the commencement of the term of office for which he or she is chosen, every town officer shall take and subscribe before an officer authorized by law to administer oaths in his or her county,the constitutional oath of office and such other oath as may be required by law,which shall be administered and certified by the officer taking the same without compensation,and such oath shall be filed in the office of the town clerk.Each town justice shall also file such oath of office as provided pursuant to section one hundred four of the uniform justice court act with the county clerk and the office of court administration. Each supervisor, town clerk, collector, receiver of taxes and assessments, town justice, constable, town superintendent of highways, and such other officers and employees as the town board may require, before entering upon the duties of his or her office,and within thirty days after commencement of the term for which he or she is chosen, shall execute and file in the office of the clerk of the town, an official undertaking, conditioned for the faithful performance of his or her duties, in such form,in such sum and with such sureties as the town board shall direct and approve and such approval shall be indicated upon such undertaking.Unless the town board of his or her town has procured a blanket undertaking pursuant to subdivision two of section eleven of the public officers law that covers him or her,each town justice shall also file such undertaking as provided by section one hundred four of the uniform justice court act with the county clerk. Such undertaking shall not be recorded unless the town board of the town shall adopt a resolution so requiring and shall indicate such requirement upon such undertaking.The undertaking of the supervisor shall be further conditioned that he or she will well and truly keep,pay over and account for all moneys and property,including any special district funds and the local school fund, if any,belonging to his town and coming into his or her hands as such supervisor. The undertaking of the receiver of taxes and assessments shall be further conditioned that he or she will well and truly keep,pay over and account for all moneys and property coming into his or her hands as such receiver of taxes and assessments, including all school district taxes, and such undertaking shall be in lieu of any other bond or undertaking,otherwise required by law in the collection of such school district taxes and the proper accounting therefor, except the undertaking required by sections twenty-five hundred six and twenty-five hundred twenty-seven of the education law,and the trustees of every school district for which such receiver of taxes and assessments shall act as collector shall have and may exercise the same powers and remedies with respect to such undertakings as is given them with respect to the official bond of the collector by the provisions of article forty-three of the education law or by the provisions of any other general or special law. The town board at any time may require any such officer or employee to file a new official undertaking for such sum and with such sureties as the board shall approve. In addition, the town board may require any town officer depositing funds or moneys of the town to file a depository bond indemnifying the town against any loss thereof.The town board may by resolution determine that any such undertaking or bond shall be executed by a surety company authorized io transact business in the state of New York and the expense thereof shall be a charge against the town.The filing of such oath and undertaking,when required, shall be deemed an acceptance of the office. The town clerk shall notify the town board in writing of the expiration 9a3f<-STIAt'=,_...` ;�()?, 'Cltoilison Relaters. - cairn is crigina? ti ', G—i-at'nmentWarks, _ � §25. Oaths of office and undertaking, McKinney's Town Law§25 ....m-.�.�.......,... gym.- -T of any undertaking or bond filed in his or her office pursuant to this section, at least thirty and not more than sixty days prior to the date of expiration thereof. A neglect or an omission to take and file such oath, or to execute and file such undertaking within the time prescribed herein, except in the case of town justices, shall be deemed a refusal to serve and the office may be filled as in case of vacancy. The undertaking of a town officer provided by this section shall be in addition to any undertaking otherwise required by law. Credits (L.1932, c. 634.Amended L.1933, c. 751;L.1934, c. 792, § 2;L.1935, c. 420; L.1940, c. 383, § 2;L.1944, c. 191;L.1953,c. 878, §27;L.1960,c. 64, § 1;L.1994,c.424, § 1;L.2004,c.406, § 1,eff.Aug. 17,2004.) HISTORICAL AND STATUTORY NOTES Derivation Town Law of 1909, c. 63, § 83, and repealed by section 340 of this chapter. Said section 83 was from Town Law, L.1890, c. 569, § 51;originally revised from R.S.pt. 1,c. 11,tit. 3, §§ 13, 15,21,24,28;L.1838,c. 172. CROSS REFERENCES Bond and oath of justice,see UJCA§ 104. Constitutional oath of office, see McKinney's Const.Art. 13, § 1. Failure to file oath or undertaking, Fee for administering certain official oaths prohibited,see Public Officers Law§ 69. Official, Persons authorized to administer oath,see CPLR§2309. Validation of official acts performed before filing official oath or undertaking,see Public Officers Law§ 15. RESEARCH REFERENCES Encyclopedias 26 N.Y.Jur.2d Counties,Towns,and Municipal Corporations §411, Generally. 26 N.Y.Jur.2d Counties,Towns,and Municipal Corporations §412,Town Officers. 26 N.Y.Jur.2d Counties,Towns,and Municipal Corporations§426,Town Officers. 26 N.Y.Jur.2d Counties,Towns,and Municipal Corporations §427,Town Officers-Deputies. 64 N.Y.Jur.2d Highways, Streets,and Bridges§ 14,Town Superintendent. 85 N.Y.Jur.2d Police, Sheriffs,and Related Officers § 145,Bond or Undertaking. Forms 24 West's McKinney's Forms Local Government Laws Town Law§25 Form 1,Undertaking of Supervisor. 24 West's McKinney's Forms Local Government Laws Town Law§25 Form 2,Undertaking of Town Clerk. 24 West's McKinney's Forms Local Government Laws Town Law § 25 Forni 3, Undertaking of Receiver of Taxes and Assessments. 24 West's McKinney's Forms Local Government Laws Town Law § 64 Form 6, Petition in Article 78 Proceeding to Annul Resolutions of County Board of Supervisors Refusing to Recognize Appointment of Town Board Filling Vacancy in Office of Town Supervisor. 27APT2 West's McKinney's Forms Selected Consolidated Laws Public Officers Law § 11 Form 6, Undertaking of Town Supervisor. 27APT2 West's McKinney's Fonns Selected Consolidated Laws Public Officers Law§ 11 Form 7,Undertaking of Town Clerk. 1JV1rSTA AW @ 202. Thornson Rehars. No claim io ori inai Government Works.� 2 §25.Oaths of office and undertaking,McKinney's Town Law§25 NOTES OF DECISIONS Amount of undertaking 6 Approval of board,undertaking 7 Construction with other laws 1 Failure to take or file oath of office 3 Indemnification insurance 13 Oath of office 2-4 Oath of office-In general 2 Oath of office-Failure to take or file oath of office 3 Oath of office-Place of filing 4 Persons required to file undertaking 8 Place of filing 4, 9 Place of filing-Oath of office 4 Place of filing-Undertaking 9 Recording of undertaking 10 Responsibility to pay for undertaking 12 Special bonds,undertaking 11 Undertaking 5-12 Undertaking-In general 5 Undertaking-Amount of undertaking 6 Undertaking-Approval of board 7 Undertaking-Persons required to file undertaking 8 Undertaking-Place of filing 9 Undertaking-Recording of undertaking 10 Undertaking-Responsibility to pay for undertaking 12 Undertaking-Special bonds 11 Validity of official acts 14 1 Construction with other laws IM-S' LAW :s•3 2023 Thorrtson Reu ars. No claire is original U.S, Government Works. 3 §25.Oaths of office and undertaking,McKinney's Town Law§25 This section,insofar as it provides that on omission to file an acceptable undertaking office may be filled as in case of vacancy, must be read with section 30 of Public Officers Law, which specifies the circumstances under which such vacancies occur. Longobardi v. Oakley, 1966,51 Misc.2d 424,273 N.Y.S.2d 367.Public Employment i3:_—, 158;Towns -,2 Subdivision 1(h) of Public Officers Law § 30,is controlling as to the time within which a town officer must take and file the oath of office and thereby supersede the provisions relating to the same subject contained in this section. 1976, Op.Atty.Gen. (Inf.) 102. 2 Oath of office--In general A town officer elect,in order to qualify for the office,was required by Constitution to take and subscribe an oath of office,and until he had thus qualified the incumbent of the office was entitled to hold over.People v.McKinney, 1873,52 N.Y.374. The filing by the town assessor of her oath of office within 30 days of her appointment,in the office of the town clerk,complied with the requirements of law for the filing of the oath. Op.Atty.Gen. (Inf.) 88-9. Where the deputy supervisor assumes the duties of an incapacitated supervisor,it would appear that since such deputy is now, in effect,a town officer,he would be required to take an oath of office,pursuant to this section.23 Op.State Compt. 831, 1967. Where a town elects to confer upon auxiliary policemen powers of peace officers such auxiliary policemen must take the constitutional oath of office,but employees of the town recreation or highway department are not required to take the oath of office. 15 Op.State Compt.281, 1959. A superintendent of a water district or sewer district being a town employee and not a town officer need not take the oath of office. 12 Op.State Compt.37, 1956. Town assessor must take and file his oath of office as required by this section.4 Op.State Compt. 64, 1948. 3----Failure to take or file oath of office Failure of one elected to office of collector of taxes in town to file required undertaking could not be excused because no one notified her that her undertaking had not been filed, and vacancy resulting from such failure was not in any was affected by fact that other town officers may have failed to qualify.Longobardi v.Oakley, 1966,51 Mise.2d 424,273 N.Y.S.2d 367.Public Employment 173;Towns,8;�28 The failure of a town planning board member to timely file an oath of office creates a vacancy which cannot be cured by late filing,but such board member would become a de facto officer and his acts are deemed valid.Op.Atty.Gen. (Inf.)86-41. The failure of a town superintendent of highways to file his oath of office timely results in a vacancy in the office by operation of law. Op.Atty.Gen. (Inf.)84-17.See,also,Op.State Compt. 83-213; 17 Op.State Compt. 109, 1961. Where an elective officer has not filed his oath of office within the time prescribed by law,the office becomes vacant,although he may thereafter be appointed to fill the vacancy upon a proper filing of his oath. Op.State Compt.78-312. A deputy supervisor who fails to take or file an oath or undertaking may not be paid for the services performed,since his failure to take or file such oath and undertaking causes a vacancy in the office.24 Op.State Compt. 186, 1968. WE'STLAI `D 2'023 Thomson ReLl!': rs. No claim io original U.S. Government Workc. 4 §25.Oaths of office and undertaking,McKinney's Town Law§25 4----Place of filing,oath of office Under Public Officers Law§ 10 requiring oath of office of every officer of municipal corporation to be filed with clerk thereof, and this section requiring oath to be filed in office of county clerk, filing of oath in either county clerk's office or town clerk's office is sufficient for town officer. Entwistle v. Murtaugh, 1966, 17 N.Y.2d 6, 266 N.Y.S.2d 969, 214 N.E.2d 153. Public Employment 132;Towns g;:7,28 Town officers must file an oath of office with the county cleric. Op.Atty.Gen., 1933, 48 St.Dept. 684. See, also, 8 Op.State Compt.40, 1952. Official oath may be administered to town officers by town clerk and must be filed in county clerk's office and in office of town clerk.2 Op.State Compt. 7, 1946. 5 Undertaking--In general Where a town officer is required to file an official bond,the selection of the bonding company is his responsibility. Op.State Compt. 64-7. A town may not procure a blanket undertaking covering the town clerk,justices of the peace and constables. 11 Op.State Compt. 711, 1955. 6----Amount of undertaking A town board may fix the undertaking of a town clerk at any amount it deems appropriate and such undertaking does not have to cover the maximum amount of money likely to be held at any one time in the custody of the clerk, although it would be prudent to obtain an undertaking in such amount.Op.State Compt. 80-618. The town board may fix the amount of the town collector's undertaking at any amount it desires.24 Op.State Compt.728, 1968. The aggregate net worth of the sureties on an official undertaking must equal at least double the amount of the undertaking. 16 Op.State Compt. 316, 1960. The amount of the bonds or undertakings filed by the town supervisor is within the discretion of the town board,except that the amount of the bond or undertaking covering highway moneys must be at least equal to the amount of state aid to be received. 13 Op.State Compt. 17, 1957,2nd case. Amount of penalty to be specified in the undertaking of a town tax collector lies in the discretion of the town board, and in exercising this discretion, town board should in no event take into consideration tax assessed on State forest preserve lands. 9 Op.State Compt. 51, 1953. 7----Approval of board,undertaking If otherwise sufficient,a town board may approve the undertaking of a supervisor executed by a surety company by which the supervisor is employed when he is compensated on a salary basis,owns no stock in the company and the undertaking was not issued through him. 6 Op.State Compt. 5, 1950. ' LAW 67 2023 ThOrnson Reuters. No claim to original U.S. Government VV01 ks. 6 §25.Oaths of office and undertaking, McKinney's Town Law§25 8----Persons required to file undertaking All town constables,without exception must execute and file official undertakings. 12 Op.State Compt. 148, 1956,2nd case. A deputy town clerk need not furnish an undertaking unless required to by town board.9 Op.State Compt. 192, 1953. A town clerk, being liable for defalcation of a deputy, may take an undertaking from the deputy for his own protection. 9 Op.State Compt. 192, 1953. See,also,6 Op.State Compt. 163, 1950. Every justice of the peace is required to file an official undertaking with the county clerk. 8 Op.State Compt. 170, 1952. Town councilmen are not required to file an official undertaking unless the town board so requires.4 Op.State Compt. 10, 1948. 9----Place of filing,undertaking Copies of undertaking of supervisor and tax collector are not required to be filed with county treasurer,but undertakings after approval are required to be filed with county clerk.4 Op.State Compt. 86, 1948. An undertaking by a town constable must be filed in the office of the county clerk in which the town is located. 4 Op.State Compt.30, 1948. 10----Recording of undertaking An undertaking furnished by a town officer is not required to be recorded by the county clerk.Op.Atty.Gen., 1933,48 St.Dept. 720. 11----Special bonds,undertaking Where an officer charged with the performance of general duties in respect of which he gave a general bond, had additional duties imposed upon him and the legislature required him to give a special bond for the performance of these additional duties, the special superseded the general bond so far as these duties were concerned, and the sureties on the general bond were not liable for defaults covered by the special bond.Town of Whitestown v.Title Guar. &Sur.Co., 1911,72 Misc.498, 131 N.Y.S. 390,affirmed 148 A.D. 900, 132 N.Y.S. 1149,affirmed 209 N.Y. 512, 102 N.E. 1115. 12----Responsibility to pay for undertaking A school district is not authorized to secure an undertaking for a receiver of taxes and assessments, such undertaking to be security for school district moneys collected by the receiver as a responsibility of his office.26 Op.State Compt.219, 1970. The cost of the official undertaking of a receiver of taxes and assessments may not be apportioned between the town and the various school and special districts having taxes which are collected by such receiver. 11 Op.State Compt. 32, 1955. 13 Indemnification insurance Towns may purchase insurance indemnifying public employees for loss of moneys as authorized by this section and section 116 and Public Officers Law§ 11,and the extent of the coverage of such insurance is dependent upon the terms and conditions of the policies involved. Op.State Compt. 83-173. WE TLAWa 2023 Thomson Reuters. No claim to original U.S. Government Works. 6 §25.Oaths of office and undertaking, McKinney's Town Law§25 14 Validity of official acts Town board was not without authority to affirm the appointment of one as a justice of the peace prior to the time a supervisor had filed his official bond,where the supervisor had duly qualified for the office within the limits prescribed by this section, and had done everything possible to comply with the qualification requirements before entering upon his duties as supervisor, and there was no suggestion of fraud or unfair dealing. Sullivan v. Ladd, 1958, 14 Misc.2d 562, 179 N.Y.S.2d 519. Public Employment 69;Towns, ,28 The failure of a justice of the peace to file with the county clerk the certificate of the town clerk that he had duly given the required undertaking required by section 106 of the Town Law of 1909, did not render invalid a deed acknowledged before him, where it appeared that he assumed the office and purported to act as a justice of the peace with all the powers incident thereto;the official acts of a de facto justice of the peace were as valid as those of a de jure justice of the peace.Allen v.Leet, 1926, 127 Misc. 662,217 N.Y.S.274. The omission of one elected to office to execute and file an official bond did not render his official acts void in such a sense as to make him liable as trespasser therefor.Foot v. Stiles, 1874,57 N.Y. 399. See,also,People v.Crissey, 1883,91 N.Y. 616; 1895,Op.Atty.Gen.434. McKinney's Town Law§25,NY TOWN §25 Current through L.2018,chapters 1 to 522. ©2018 Thomson Reuters End of Document ,D 2023 Thomson Reuters.No claini to original U.S.Government Works. l W S'rLAW �D 2023 Thornson Reuters. No claire to originai tl.S. Governi-nent Works. � 7