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On January 3, the Common Council met to hear city Corporation Counsel Edward Dunphy’s legal advisory on the issues surrounding the Larry Delgado-Glen Hockley suspended election.
As of Wednesday morning, January 9, the Hockley appeal is still under scrutiny by the New York State Supreme Court, Appellate Division, Second Department in Brooklyn, New York. Mr. Dunphy advised WPCNR Wednesday that he expects the court is writing a major ruling, since the case will affect future elections throughout the state.
After considering Mr. Dunphy’s advisory in Executive Session January 3, the prior legal precedents, the Common Council agreed not to appoint an interim councilperson. They also voted to waive client privilege and release Mr. Dunphy’s brief to the public.
For legal buffs, WPNCR herewith presents in its entirety, one of the historic documents of city legal history: the confidential brief that lead to the short council that met for the first time this week.
WPCNR publishes “The Dunphy Doctrine” with permission of the City of White Plains Law Department:
To the Honorable Mayor and Members of the Common Council of The City of White Plains
Dear Mayor and Council Members:
INTRODUCTION
The questions that presently confronts the City, whether a vacancy in the elective office of councilman has been created by a failure to elect and whether an incumbent councilperson can be a holdover, is a thorny issue and not capable of easy resolution. However, the path to the answer, although meandering at times and dotted with rough spots, is not without guideposts. Guidance is provided through decisional authorities. Meanwhile on the other side, statutory authorities provide little comfort and assistance.
Although this is the first instance in which the City of White Plains is asked to tackle this precise issue, the underlying dilemma is not of recent origin. As a matter of fact, the Town of Cherry Valley was faced with a similar problem approximately one hundred and sixty-five years ago. People ex rel Platner v. Jones, 17 Wend. 81 (1837). By no means did that one matter signal the end, or provide the answer to, every possible permutation. As we can readily observe from the City’s own experience, the question remains noteworthy and celebrated despite the passage of more than a century and a half.
A. Underlying Facts: 2001 Election Six Candidates Vie For Three Seats Elected At Large
Election year 2001 dawned in the City of White Plains as many before had. A general election was scheduled, the position of Mayor was being contested and the electorate was being asked to select three to the position of City Council out of a field of six candidates. However, as events would unfold, the election for councilman in the end was anything but routine and two and one half months after the November election, the outcome for one of the three open council positions remains unresolved.
This uncertainty finds its genesis from a voting machine in Election District 18 that jammed on election day. The machine malfunctioned after recording 39 votes for incumbent Councilman Larry Delgado. The record also demonstrates that Council candidates Michael Amodio and Robert Tuck, who were also running with Republican Party designation received in excess of 122 votes in Election District 18. As a result of this alleged defect in the subject voting machine, legal proceedings were commenced. Two council candidates, incumbent Rita Malmud and candidate Thomas Roach received the highest and second highest votes in the citywide election and were certified by the County Board of Elections as winning seats on the Common Council. Candidate Glen Hockley received the third highest vote tally and ostensibly defeated Councilman Delgado by 47 votes.
In the proceedings commenced in Supreme Court, Westchester County, the hearing judge determined that a continued election should be conducted in the City of White Plains, limited to those voters in Election District 18 who participated in the election process on November 6, 2001. Subsequent to that initial determination, on December 14, 2001, the Appellate Division, Second Department, ordered that pending the hearing and determination of the appeal from the order of Supreme Court, Westchester Count, the continued election is stayed, the Board of Elections is stayed from certifying the results of the election as it relates to Larry Delgado and Glen Hockley, and those candidates “are stayed from taking any steps towards the filing of an oath of office”. N.Y. L. J., December 31, 2001, p.21, col. 6.
B. Statutory Provisions:
White Plains City Charter
As we are certainly aware, on January 1, 1916, the laws incorporating the City of White Plains became effective. (See Chapter 356, Laws of New York, 1915). In this statutory framework, Section 14 thereof dealt with the question of vacancy in elective and appointed office. There, as is pertinent to this discussion, it was provided that:
“Except as otherwise provided in this act, if a vacancy shall occur in any elective office of the City otherwise than by expiration of term, the common council shall appoint a person to fill such vacancy for the balance of the unexpired term… A person appointed to fill a vacancy in the office of councilman shall be a qualified resident of the same ward unless councilman are elected at large.”
Forty-five years after the City was incorporated, the Charter provision concerning vacancies was modified. In 1960 the changes included the elimination of the second sentence quoted above dealing with a ward system election and modifications to the first sentence of that particular Section. The changed first sentence read as follows:
“Except as otherwise provided in this act, if a vacancy shall occur in any elective office of the City otherwise than by expiration of term, the common council shall appoint a person to fill such vacancy until the commencement of the political year next succeeding the first annual election after the happening of the vacancy.”
Now, forty-five years after that initial change, the section dealing with a vacancy in an elective office remains unchanged.
However, one pertinent portion of the City’s charter dealing with a vacancy in an elective office that has remained static since incorporation eight-four years ago, is that particular clause which provides “if a vacancy shall occur in any elective office of the City otherwise than by expiration of term…” Now it must be determined how the vacancy was created and whether Section 14 of the Charter or any other provision is operative.
In the instant circumstances, and after a careful review of all of the underlying facts, there can only be one possible conclusion – the vacancy was not created by a means other than expiration of term. The vacancies were created by the expiration of the terms of the three incumbent councilmen. Indeed, the second portion of Section 14 of the City’s Charter giving the Common Council the ability to appoint, does not become operative. In the absence of the condition precedent being activated, the ability to appoint cannot be invoked.
Although this question is now being addressed for the first time in the City, this issue arose in Mazzotti v. Swezey, 199 Misc. 987 (Supreme Court – Suffolk County, 1951),appeal dismissed, 278 App. Div. 959 (2nd Dept. 1951).
In that matter, the Village of Patchogue was confronted with the question whether a vacancy was created in the elective office of trustee. There, the election was at large and the voters had to select three trustees from a field of six. Since the Mazzotti v. Swezey matter was concerned with election matters in a village and not a city, it could be argued that there is no similarity and the cited case is of no value. However, any argument of that nature is quickly put to rest when the Village Law is compared to the City’s Charter. Stated simply, the language in both is strikingly similar and of no significant difference. The Village Law in dealing with a vacancy in an elective office required that “vacancies occurring otherwise than by expiration of term in a village office shall be filled by the board of trustees…” Reviewing that provision, the court determined that the vacancies were created by expiration of terms of office and for no other reason.
Therefore, it cannot be seriously argued that the portion of the City’s Charter dealing with vacancies arises to the forefront. The vacancies, as has been demonstrated, arose by expiration of the terms of the incumbents. Since the triggering event was the end of elected terms, the ability of the council to appoint does not materialize.
C.Statutory Provisions: State Statute Public Officers Law
Fundamentally, there are two provisions in the Public Officers Law that could have possible implications concerning a vacancy and holding over. However, after close analytical scrutiny, it is my considered opinion that neither is controlling.
Section 30 of the Public Officers Law is entitled “Creation of Vacancies”. This particular section enumerates eight instances in which a vacancy is created. Interestingly, this particular statue does not detail that a vacancy in office is created by a failure to elect. As a matter of fact, it has been specifically determined that this section does not apply in such a situation and thus, no vacancy is created by operation of law. People ex rel Stalter v. Lynch, 219 App. Div. 1 (2nd Dept. 1926), affirmed 245 N.Y. 534 (1927).
The more troublesome section of the Public Officers Law is Section 5 which, as its title indicates, is limited to holding over after expiration of term.
In relevant part, this statute provides:
“Every officer except a judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the constitution, having duly entered on the duties of his office, shall unless the office shall terminate or be abolished, hold over and continue to discharge the duties of this office after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor.”
At first blush, this particular statute would appear to be controlling in the present instance. However, this patina fades after a searching analysis and it can only be concluded that there cannot be a holdover.
D. No Holdover Permissible Where The Vacancy Is Not Capable Of Being Identified With A
Particular Incumbent
As previously mentioned, People ex rel Platner v. Jones (supra) was an early decision which grappled with the issue of holding over.
In that matter, the then office of constable was an elected office in the town of Cherry Valley. The term of office was for one year and the question arose whether a certain constable was a holdover after an election in which the voters were to elect more than one candidate to several open positions. The hearing court determined that in an instance of that nature, where the vacancy in office could not be identified with an individual, there was no holdover. The language of the court is instructive and remains as accurate today as on the date of its writing. There, Judge Bronson wrote:
“Where there are several town officers of the same kind as constables, assessors, commissioners of highways, &c., if the electors at their annual meeting choose one or more officers of the particular class, although less than the whole number authorized by law, all the incumbents of the office for the previous year are superseded. If all are not superseded, none of them are; for it is impossible to say whose place in particular the person newly elected is to take. The consequence may be, that when the number of officers, as in this case, is limited to three, there may in fact be five persons exercising the office at the same time.
It is said that both Sterns and Butler as well as the defendant may have been constables in 1835, and then if Sterns and Butler only were chosen in 1836, it may be true, as the plea alleges, that no one was chosen in the defendant’s place. This argument supposes that Sterns was elected in his own place and Butler in his; and thus the defendant’s place was left untouched. But I think neither of them was chosen in his own place, or the place of any other person in particular, but, was simply chosen to the office. Except in the case of justices of the peace, the electors can only choose an individual to a designated office; they have no legal means of deciding whose place he shall take.”
This court clearly recognized the quagmire in such a situation where there are multiple expirations of terms in a municipal office, is there a vacancy or vacancies created and which, if any, of the incumbents is entitled to holdover in office. It was concluded that where the particular vacancy is not identifiable, there cannot be a holdover.
The identical result was likewise reached in Pansmith v. Williams, 201 Misc. 759 (Supreme Court – Nassau County, 1951).
In the annual election in the Village of Island Park two trustees received an equal amount of votes. This tie created a vacancy for one office of trustee and based on this, the mayor appointed an incumbent as a holdover. In reviewing these facts, Special Term rejected the notion that Section 5 of the Public Officers Law was controlling. In reaching this conclusion, Judge Houley wrote that “It is well settled that in the case of an office, such as trustee, in which the terms of two incumbents expire at the same time, that no one is in a position to determine which one of the trustees is entitled to holdover”.
Once again the court determined that where the vacancy was incapable of determination, there cannot be a holdover.
The 1951 village election in the Long Island community of Patchogue proved to be an interesting annual contest and provides guidance for us.
The configuration of the village government was similar to that of The City of White Plains with a mayor and a six member board of trustees. In this particular election, the terms of three trustees were expiring and there were six candidates on the ballot to fill the office of the three trustees. Incumbent Trustee Briscoe was re-elected with the highest number of votes. Candidate Payne received the second largest vote total and candidate Mazzotti received the third largest total. Incumbent Trustees Mason and Mapes were defeated, with the latter receiving the fourth largest vote total.
Prior to the expiration of the terms of office of the incumbent trustees, Village Trustee Mason, who had not been elected, resigned. It was also argued under Village Law that since candidate Mazzotti did not own real property in the village, he was not eligible to hold office. Needless to say, litigation was commenced.
In the initial round of legal maneuvers, and as is pertinent to the facts and circumstances now before the City, Special Term concluded that the trustees could not declare incumbent Mapes, the candidate with the fourth highest vote tally as trustee, because of the disqualification of Mazzotti. The hearing court rejected outright the argument that the holdover provision of Section 5 of the Public Officers Law was applicable. In making this determination, the court found that:
“Such may have been the case if there was only one vacancy filled at the March 20, 1951 election. However, there were three incumbents whose terms expired, and there were six candidates contesting for the three offices to be filled. It cannot be said that Mapes was the incumbent of the office for which petitioner Mazzotti received the majority vote. There being three vacancies, the court cannot determine who the incumbent is.” Mazzotti v. Swezey, supra”.
However, although the above quoted holding is a correct statement, the court neglected to consider one factor – the resignation of one of the incumbent trustees. When that factor is placed in the ingredients, the result changes, as recognized by the Appellate Division in a companion proceeding. Mapes v. Swezey, 199 Misc. 997 (Supreme Court – Nassau County, 1951); reversed, 279 App. Div. 660 (2nd Dept. 1951).
To summarize, the reviewing court determined that candidate Mazzotti who came in third in the 1951 election, but did not own real property in the Village as required, was ineligible to hold office. The next matter to be resolved was whether Mapes, the incumbent with the fourth largest tally, was a holdover. The appellate division unanimously concluded that the incumbent was a holdover due to the vacancy created by Mazzotti’s disqualification and because “there being no other.” The last clause is particularly important and the incumbent could be a holdover because the vacancy was clearly identifiable. Recall that there were three incumbents who sought re-election – Briscoe, who was re-elected, Mason who resigned prior to the expiration of the term of office, Mapes who was defeated but declared a holdover. The other seat was filled by Payne, who received the second highest vote in that 1951 election.
This crazy quilt election in that Long Island village is instructive and illustrative on several fronts. Initially, where the vacancy in office cannot be identified with any particularity, there cannot be a holdover. In that 1951 election, as there was in the recent City election for Common Council, there were three positions to be filled from a field of six candidates. Conversely, the vacancy was ultimately capable of being identified because two vacancies were filled through the election process., leaving an identifiable vacancy created by a resignation, leaving Mapes the defeated incumbent as a holdover. Under those circumstances, the holdover provision in the Public Officers Law became operative and was invoked to maintain the continuity of government.
As we shall next see, Long Island has been fertile ground for election battles and particularly where there are six candidates for three positions to be elected at large. This time the contest occurred in the Town of Brookhaven and the year is 1964. Foley v. McNab, 42 Misc. 2d. 460 (Supreme Court – Suffolk County, 1964).
In this latest set of facts, the three incumbent councilmen whose terms were to expire on December 31st of that year all lost their bid for re-election. Incumbent John Foley received the fourth highest number of votes and his fellow incumbents were fifth and sixth in that election year. To complete the setting, two other facts are important to note.
First, candidate Francis Giaccone received the third highest number of votes in that election. He was ineligible for office because he was not a record owner of real property, as required by statute. Second, prior to expiration of their office, the two defeated incumbents resigned in an attempt to compel the conclusion that their colleague Mr. Foley, who received the fourth highest number of votes, was the only person available to fill the vacancy and should be a holdover.
Special Term reviewed all of these facts and determined that Public Officers Law Section 5 did not apply because the vacancy was unidentifiable. Moreover, the court rejected the legislative maneuver where the two defeated incumbents resigned in an attempt to force a contrived interpretation of the statutory holdover provision. In dealing with the resignations, the court reasoned that:
“However, there is no efficacy in the maneuver. It may appear reasonable that the vacant office should be continued to be filled by the highest vote getter of the defeated candidates, but there is no authority for the employment of the device used here or any other method of selection to determine who should fill the vacancy in a situation of this kind”.
Next, the hearing court dispatched with equal ease the argument that a vacancy existed and the incumbent should be a holdover. In this regard, Justice Munder wrote:
The purpose of Section 5, Public Officers Law is to insure a continuance of government where a vacancy occurs by expiration of term and there is a failure of election or appointment. It can be employed whenever the office vacated can be identified with a particular incumbent. In such a case the result would follow automatically. That would have been the situation if the Town of Brookhaven had established the ward system for the election of councilmen. Where, as here, the office vacated cannot be identified it cannot be said that any of three incumbents is entitled to hold over [citation omitted] nor can they choose among themselves or effect the same result by all but one resigning. Because they perform no duties independently of the town board (apart from delegated duties by direction of the board) and the town board can function with less than its full complement, there will be no interruption of government where only one councilmanic office is vacant.
To the same effect see, 1964 Opinions of the Attorney General at page 96 – involving interpretation of the holdover provision of the Public Officer Law concluding that Section 5 of the Public Officers Law is not operative where the vacancy cannot be identified with an incumbent.
E.Conclusion
The above recitation demonstrates clearly that this is not the first instance where municipal entities have been confronted with the issues created by abnormalities in the election and legislative processes. When is a vacancy created, is not a novel issue; nor is the invocation and interpretation of the controlling provision of the Public Officers Law, a question of recent vintage. Importantly, as you can see, the holdover provision is not nearly as clear cut as first envisioned. As we have seen, its operation is very fact specific and it can be concluded that where the vacancy is identifiable, an incumbent can holdover. But in the facts confronting the City of White Plains, the vacancy certainly is not identifiable. Consequently, there cannot be a holdover.
An attempt to argue that a vacancy is identifiable in White Plains because incumbent Rita Malmud was re-elected and candidate Thomas Roach was elected and both certified by the Board of Elections, can be made. Mathematically it could be seen that these two were successful, in that they have filled two of the three positions on the Common Council, therefore, the third position is open and identifiable.
This argument has surface appeal, but when that strata is pierced, that argument evaporates rapidly.
The vacancy is unidentifiable because two incumbents remain, Mrs. Oliva and Mr. Delgado. The fact that Mrs. Oliva did not seek re-election is not controlling. The controlling principle is that there is more than one incumbent and as a result, a vacancy is not capable of being identified and there cannot be a holdover. This result might have been different if one of the incumbents had resigned. This last consideration is not before us and is of no consequence.
Additionally, we must also recognize that the Appellate Division instructed that Messrs. Delgado and Hockley are presently barred from taking any steps towards the filing of an oath of office. This directive must be tempered by the realization that a holdover is not required to execute and file an oath of office. Vescio v. City Manager of Yonkers, 69 Misc. 2d 68 (Supreme Court – Westchester County, 1972), affirmed, 41 A. D. 2d 833 (2nd Dept. 1973).
As a final matter, a controlling consideration is what does the City do without its full complement of legislative officials? This answer was provided by the Foley court ( Foley v. McNab, supra) wherein Special Term noted that this fact was of little consequence because the government does not fail to function with less than seven members. The work will proceed with six, until a successor is chosen and there will be no interruption in government.
Corporation Counsel
Dated: January 2, 2002
The text was written by Edward Dunphy, City Corporation Counsel, and researched by Mr. Dunphy and the City of White Plains Law Department.
The original document marked “confidential” was presented January 3 to the Common Council, and lead them to the decision to continue with a 6-person council, instead of appointing a seventh temporary councilperson.
