The opinion of the court was delivered by: Phillip R. Rumsey, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
In this proceeding pursuant to CPLR article 78, brought by order to show cause dated December 24, 2008, petitioner William J. Wood seeks an order declaring, in effect, that he was wrongfully removed as Democratic Election Commissioner from his term of office ending December 31, 2008, and that respondent Thomas Brown was not properly appointed to that office for a term commencing January 1, 2009. All respondents oppose the relief requested by petitioner, and assert that Thomas Brown was validly appointed.
TERM ENDING DECEMBER 31, 2008
The County's Code of Ethics (Local Law 2 of 2008) (herein Code) prohibits an individual from concurrently holding the offices of Election Commissioner and "Chairman of any Political Party" (Code, Article III [C], petition Exhibit B). The Code further provides that a person who holds both offices "is guilty of misfeasance in office and the office held by such person shall be declared vacant" (Code, Article III [C]). By memorandum dated December 10, 2008, the Chair of the County Legislature, John Daniels, declared the office of Election Commissioner vacant for the term ending December 31, 2008, pursuant to Article III(C)(5) of the Code, because petitioner then admittedly held the offices of Election Commissioner and Chair of the County Democratic Committee. On December 11, 2008, the Legislature adopted a resolution ratifying Daniels's declaration of vacancy in the office of Democratic Election Commissioner.
The issue presented is whether the County Legislature may declare a vacancy in the office of Election Commissioner, upon an admission by the incumbent of dual office-holding in violation of a local ethics law without prosecution or conviction under local or State law effectively removing him from office. As a general principle, the home rule provisions of the State Constitution grant county governments broad latitude to regulate local officers (NY Const, art IX, §2[c]; see also Municipal Home Rule Law §10[a]). However, home rule is subject to the power of the State Legislature to regulate matters of State concern, even if State legislation also touches upon matters of local concern (Kelley v McGee, 57 NY2d 522, 538 ).
Initially, it may appear that the office of election commissioner is essentially a county office, rather than a State office. However, election commissioners are charged with administration of State laws governing registration of voters and conduct of elections. Uniform State-wide application of the Election Law to protect the fundamental right of suffrage and to ensure the orderly conduct of elections for local, State-wide, and federal offices is a matter of sufficient State-wide concern, and the power of the State Legislature in this area extends to regulation of the office of election commissioner. State law that is applicable to this office supersedes any conflicting local legislation (see Kelley v McGee, 57 NY2d at 538 539 [compensation of district attorneys]; Carey v Oswego County Legislature, 91 AD2d 62 , aff'd 59 NY2d 847  [filling vacancy in the office of district attorney]; Blass v Cuomo, 168 AD2d 54 , lv denied 78 NY2d 1121  [filling vacancy in the office of county clerk]; Cuomo v Chemung County Legislature, 122 Misc 2d 42  [filling vacancy in the office of county sheriff]; see also Election Law §3-208 [restricting the power of a county legislature to fix the salaries of election commissioners]).
In Public Officers Law §30, the State Legislature has specified the grounds by which a vacancy is created in a public office, including the office of election commissioner, and the enumerated grounds do not include violations of a local ethics law in respect to dual office-holding.*fn1 Separately, the State Legislature has provided that an election commissioner may be removed "by the governor for cause in the same manner as a sheriff" (Election Law §3-200) by the process specifically detailed in Public Officers Law §34. In areas of State-wide interest, the State Legislature is free to act without being restricted by the municipal home rule provisions of the State Constitution, such that home rule powers will not be implicated even where the resulting State legislation also affects local concerns (Kelley v McGee, 57 NY2d at 538- 539). As applied to the office of election commissioner, Article III(C)(5) of the Code is inconsistent with, and is superseded by, these State statutes. Therefore, the County Legislature lacked the authority to declare a vacancy as a result of an apparent violation of the prohibition against dual office-holding under its local ethics law (without prosecution or conviction) in the office of Election Commissioner for the term of office ending December 31, 2008.*fn2
The conclusion that a county legislature, which has the authority to appoint an election commissioner (Election Law §3-204), lacks the corresponding authority to declare a vacancy in that office (as a result of an apparent violation of local ethics law), or to remove an election commissioner from office, may seem illogical; however, this determination necessarily results from application of State law, which is the sole source of a county legislature's authority with respect to this public office. The power of a county legislature to appoint an election commissioner is explicitly granted by State law (see NY Const, article II, §8 and Election Law §3-204). Nevertheless, the State Legislature reserved to itself the right to define the circumstances which result in a vacancy, none of which are present here (see Public Officers Law §30), and, further, granted the power to remove an election commissioner, not to county government, but to the governor (see Election Law §3-200), thereby denying such authority to the counties.
Under the circumstances of this proceeding, the declaration of a vacancy in the office of Election Commissioner for the term ending December 31, 2008, pursuant to Article III(C)(5) of the Code, is null and void. Petitioner cannot be restored to that term of office, which has now expired; however, he is entitled to compensation for the remainder of his term ending December 31, 2008. Such damages may be awarded in this article 78 proceeding, because such compensation is incidental to the primary relief sought by petitioner, i.e., a declaration that he "continue[s] to be the Democratic Elections [sic] Commissioner for Cortland County for the term ending December 31, 2008 " (petition, ¶A), and because such compensation was sought in this proceeding (id.) (CPLR 7806; Pauk v Board of Trustees of City Univ. of NY, 68 NY2d 702 ). Further proceedings shall be held, if necessary, to fix the amount of petitioner's damages.
TERM COMMENCING JANUARY 1, 2009
Pursuant to Election Law §3-204(4), the Cortland County Democratic Committee, on June 5, 2008, filed a certificate recommending William Wood for appointment to the office of Election Commissioner for the term commencing January 1, 2009. The respondent Cortland County Legislature rejected that recommendation, and the members of the Legislature who are Democrats (herein caucus), also declined to appoint him (see Wood v County of Cortland, Cortland County Index No. 08-667, December 17, 2008). On August 29, 2008, the County Committee filed a certificate recommending Mary Leonard for appointment, and the relevant statutory time periods elapsed without action on this recommendation by either the Legislature or the caucus. On December 8, 2008, the Democratic Committee filed a third certificate, again recommending William Wood for appointment as Election Commissioner. There is no showing that any other certificate was filed by the County Committee. On December 11, 2008, Thomas Brown was appointed to the office of Election Commissioner for a two-year term commencing January 1, 2009 by resolutions separately adopted by the Legislature and the caucus.
The State Constitution imposes upon the legislative body of a county the duty to appoint an election commissioner (see Ryan v Albany County Democratic Comm., 68 AD2d 1014 , mod 47 NY2d 963 ). Article IX, §1(b) of the State Constitution provides that: "All officers of every local government whose election or appointment is not provided for by this constitution shall be elected by the people of the local government, or of some division thereof, or appointed by such officers of the local government as may be provided by law." Article II, §8 of the State Constitution, which governs the conduct of local boards of election, vests in the State Legislature the authority to legislate the manner in which such boards, and their officers, are to be selected (Ryan, 68 AD2d at 1014).
The State Legislature explicitly recognizes the primacy of a local government's constitutional duty and power to appoint an election commissioner, by affirming in Election Law §3-204(4) that "[c]ommissioners of election shall be appointed by the county legislative body." The statute then provides a procedural mechanism by which the county legislative body, or its members who are members of the relevant party, are to make such appointments. The process may be commenced by the relevant county political committee filing with the county legislative body a certificate of recommendation nominating one or more qualified individuals for appointment. The legislative body may appoint a nominated person, or choose not to do so, within 30 days after a certificate is filed. If the legislative body declines to appoint, the caucus also may, but is not required to, appoint a person nominated in the certificate within the subsequent 30 day ...