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2020 Legislative Conference

January 27-29
Desmond Hotel
Albany County
 

54th Annual County Finance School

April 29-May 1
Sheraton Syracuse University Hotel
Syracuse, Onondaga County


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Sept 30 - Oct 2
Crowne Plaza
Lake Placid, Essex County

News

Filling Vacancies in County Legislatures in New York

By Isabelle Hayes and Gerald Benjamin
The Benjamin Center at SUNY New Paltz 


 
Recent actual or potential vacancies in elected offices at every level of government have raised interest in the methods used to fill these. Here we focus on vacancies in the office of elected county legislator in New York counties that have adopted charters in accord with the home rule provision of the state constitution, and find great variety in the methods used to answer a number of key questions. How should efficiency and continuity in government be balanced with assuring democratic representation in choosing a vacancy-filling process? What contingencies must be provided for to deal with the vagaries of the electoral calendar? How do other charter provisions, for example requiring term limits, impact the process for filling vacancies? Should the process be district based, or county-wide? What consideration should be given to partisan continuity? How can inaction in filling a vacancy – and thus leaving the affected constituency unrepresented – be best avoided?

There are 23 counties in NYS with charters; 22 of these contain provisions on what to do when a seat in the county legislature becomes vacant. Of the 22, Erie is the only one to have a provision for the vacancy to be filled either by the county legislature or the governor (for detail, see below). Oneida uses the default process provided in § 43 of the state public officers law: appointment by the governor “…until the vacancy shall be filled by an election,” with the proviso that if the term expires in the calendar year in which the appointment is made the appointee serves it out.

The predominant method used in charter counties is for the legislative body to fill vacancies that arise within it. About half (11) of these counties choose their replacement legislator through election by the county legislature. Monroe County, fills its vacancies by an appointment by the President of the County Legislature. Herkimer's Chairman of the County Legislature appoints the interim legislator. In Erie County, the vacancy is filled by a majority vote, with a process that assures that the appointee is a member of the party of the previous incumbent. However, if the vacancy arises because the incumbent was removed from office by the governor, the governor appoints the interim legislator. In Broome, those selected by the legislature to fill vacancies serve until a successor can be elected in a local general election year. In Chemung County, they serve until the end of the calendar year occurring after the first general election that happens after the vacancy—unless the vacancy happens after September 20th, then it's the second calendar year. Notwithstanding the separation of powers principle, Onondaga uses appointment by their county executive.

Three counties require an election to fill vacancies. They are: Nassau, Suffolk, and Tompkins. Nassau County uses special election, except if the vacancy occurred within six months of the next general election. Under this circumstance, or if the vacancy arises in the last year of a member's term, the spot is left open until a successor is elected in November, leaving the seat empty for a relatively lengthy period.

Tompkins fills their vacancy through either special or general election—depending on when it arises. A special election is used if the vacancy occurs on or before August 15th of any year. It also is employed if the vacancy arises on or after September 20th during a year that isn't the legislator's last in their term. A general election is used if the vacancy arises between August 15th and September 20th of any year. It's also used if the vacancy occurs on or after September 20th during the last year of the legislator's term.

Suffolk County attempts to anticipate all contingencies, and thus has one of the most complex protocols for filling a vacancy in the office of County Legislator. Their main provision is to hold a special election within 90 days after the vacancy occurs. However, there are a multitude of exceptions, based upon both the year and the time at which the vacancy arises. Within the 90 day period before the general election in an even-numbered year, the special election is held on the day of the general election, unless the Board of Electors chooses to hold a special election within 60 days after the general. In both cases, the person elected serves the balance of the unexpired term. In an odd-numbered year in which the vacancy occurred within 90 days before the general election, the office stays vacant until the general election. The winner serves the balance of the unexpired term, before starting the term to which they were elected at the general election. In an odd-numbered year in which the vacancy arises within 90 days before the general election, and when new legislative boundaries are used for the first time, the seat remains vacant until the general election, after which time the legislature can fill the office by appointment of a resident of the original district before the reapportionment, to serve the balance of the unexpired term. Or, the legislature can leave the office vacant until the end of the expired term. And finally, when the vacancy occurs after the general election in an odd-numbered year in the office of an incumbent who hasn't been reelected, the legislature can fill the office by appointment of a resident of the district to serve the balance of the unexpired term. The legislature also has the option to leave the office vacant until the end of the expired term.

Schenectady County has a system that differs from the rest. Within 45 days of the vacancy, the chairperson of the county legislature calls a caucus to fill the empty seat. At the caucus, each member of the legislature casts a vote for a candidate to fill the vacancy. If more than two candidates receive votes without obtaining a majority, the candidate with the least number of votes is eliminated. This continues with each subsequent ballot until a candidate earns a majority. Once an interim legislator is chosen, he or she takes the oath of office, attends the next meeting, and serves until the next general election, when the people can elect a successor. If the vacancy occurs between September 20th and the next general election, the same procedure takes place; however the interim legislator serves until the general election held in the year next following the year of their designation by the caucus.

In Rockland and Ulster, legislative vacancies are filled by a vote of the body. If the legislature fails to act however within 90 days, general or special election is used.

Orange and Dutchess counties prioritize locating choice for successor legislators in the district. Replacements are elected by the board or boards of the towns they represent. In Orange, if there is no timely action at the town level, the vacancy is filled by appointment of the legislative chair; absent action by the chair within 60 days, a special election is called.

In Westchester a special election is used. However, if the vacancy occurs within seven months prior to the end of the legislator's term the legislature elects a person to fill it, with the condition that the appointee must resign if he or she becomes a candidate for that or another elected position. This is a clear effort to mitigate an appointee gaining an incumbency advantage for future election.

As noted, an important factor to consider when filling vacancies is continuity. One aspect of this is continuity of party—that the person filling the vacancy must be of the same political party as the incumbent they're replacing. However, only seven counties require that the interim legislator be of the same political party as the departed elected legislator. Some think that this is a problematic failure to act in accord with the public will. It also has the potential to alter the partisan legislative majority with potentially significant policy consequences.

A majority (14) of the counties have a stipulation in their charter specifying the number of days after a vacancy arises by which it must be filled. Most of them (11) fall between the 30 and 60 day range, ensuring the speedy process (or speedy for bureaucratic standards) of getting someone to fill the empty seat. 16 of the 23 counties explicitly state that the person filling the legislative vacancy must reside in that district—one point for the accustomed geography-based idea of representative democracy.

Term limitation provides an additional complication. Monroe County has a provision in their charter that a person elected to the county legislature in 1995, or thereafter, cannot serve more than 10 consecutive years, and must take a two-year hiatus before they can run again. This provision applies to those whose first term is a result of filling a vacancy, however the 10 year count doesn't start until the first day of January of the first even-numbered year that he or she holds the seat.

In general, this summary suggests a presumption in favor of legislative appointment. This can be seen as a surrogate process for popular election as, in aggregate, legislators represent the entire local polity (except that represented by the absent member). This rationale is reinforced if the appointee's service is limited in duration until the next general election. Continuity is representation for all in the jurisdiction is pragmatically assured , while the primacy of election to fill elective offices is acknowledged.

However, continuity of party isn't required by most of the counties, making it possible that the interim legislator will differ in ideology and policy preferences from the predecessor elected by the people. A legislative leader as the appointing authority is another step removed from the electorate, but is still locally based. Local executive appointment violates the separation of powers principle.

The process set out in state law not only takes the decision out of the hands of the locality, contrary to the spirit of constitutional home rule, but allows the governor's appointee to serve more than a year, depending on when the vacancy arises relative to the electoral calendar. This allows the appointee to become entrenched and enjoy the incumbency advantage if he or she wish to run for the office.

The variety of means used to fill vacancies in their legislatures confirms once again that New York counties are indeed – in Justice Louis Brandeis's famous words – true laboratories for democracy.
 

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