BILL NO A00085
SAME AS SAME AS S00429
SPONSOR Kavanagh (MS)
COSPNSR Stevenson, Jaffee
MLTSPNSR Galef
Amd S3, Pub Off L; add SS6-170 & 6-214, El L
Requires a person to be a resident of the local subdivision for which such
person seeks office at the time of filing designating or nominating petitions.
BILL NUMBER:A85
TITLE OF BILL: An act to amend the public officers law and the
election law, in relation to residency requirement for local
government elected officials
PURPOSE OF BILL: To provide a mechanism to ascertain whether a
candidate for a local elected office meets the residency requirement
for the office before the election takes place.
SUMMARY OF PROVISIONS: Section 1 of the bill amends subdivision 1 of
section 3 of the public officers law, as amended by chapter 44 of the
laws of 1982, for the purpose of adding language to make the document
gender neutral.
Section 2 of the bill adds a new section 6-170 which requires that a
candidate for a local elected office be a resident of the subdivision
(district, village, town, etc.) as of the date of filing of the
designating or nominating certificate or petition.
Section 3 of the bill adds a new section 6-214 that provides a
mechanism for a candidate listing an out of district address on a
petition to certify a new in-district address as of the date of
filing. This provision does not apply to statewide or state Senate or
Assembly candidates.
Section 4 of the bill specifies the effective date.
JUSTIFICATION: Since the residence qualification of the candidate is
met if the candidate lives in the district or subdivision as of the
date of the election, pre-election court challenges to the eligibility
of a candidate for non-residence have been rejected by the courts.
(See Weidman v. Starkweather, 80 NY 2d 955 (1992); Keith v. King, 220
AD. 2d 471 (2d Dept. 1995); Clark v. McCoy, 196 AD 2d 607 (2d Dept);
Leave to Appeal Denied, 2 NY 2d 653 (1993).)
After an election, there is no effective means to challenge a winning
candidate's eligibility for office based on his or her failure to have
acquired a residence in the district by the date of the election. The
Boards of Election lack jurisdiction to rule on residency issues and
the courts' jurisdiction in post-election proceedings is limited to
ruling on contested ballots. A quo warranto proceeding could challenge
a person's right to hold office, but only the Attorney General can
issue such a proceeding. Rarely is such a proceeding brought forth,
and when it is, it typically takes months, if not a year or more to
resolve these issues.
Serious questions were raised concerning the residency of a winning
candidate for City Council in a special election held in February 2007
in New York City. Absent a clear mechanism for resolving the issue,
the City Council addressed the matter by requiring the winning
candidate to submit a sworn statement as to his residence before being
seated. This requirement is of dubious legality because Article XIII
of the State Constitution provides that "no other oath, declaration or
test (other than the standard oath of office) shall be required as a
qualification for any office of public trust." In the event, the
candidate refused to make the sworn statement and a second special
election had to be called to resolve the matter, at substantial
expense to the taxpayers.
Under this legislation, candidates for local offices must meet the
residency requirement as of the date their designating or nominating
petitions or certificates are filed. A non-resident may circulate
petitions listing an out-of-district residence address. However, on
the date the petition is filed, the candidate must file a certificate
specifying an in-district residence as of that date. Challenges, if
any, to the residence of the candidate would then be resolved in the
courts, under the usual procedures, before the election.
Candidates for statewide office or member of the legislature are
subject to constitutional residence requirements that would not be
affected by this legislation.
LEGISLATIVE HISTORY: 2012: A05896 (Kavanagh)- Governmental Operations
2011: A05896 (Kavanagh)- Governmental Operations 2010: A01058
(Kavanagh)- Governmental Operations 2009: A01058 (Kavanagh)-
Governmental Operations
FISCAL IMPACT ON THE STATE: None for the State. Could save significant
amounts for localities by enabling them to resolve residency issues
without holding second elections.
EFFECTIVE DATE: This act shall take effect on the first of January
next succeeding the date on which it shall have become a law.
S T A T E O F N E W Y O R K
________________________________________________________________________
85
2013-2014 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 9, 2013
___________
Introduced by M. of A. KAVANAGH, STEVENSON, JAFFEE -- Multi-Sponsored by
-- M. of A. GALEF -- read once and referred to the Committee on
Governmental Operations
AN ACT to amend the public officers law and the election law, in
relation to residency requirement for local government elected offi-
cials
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 1 of section 3 of the public officers law, as
2 amended by chapter 44 of the laws of 1982, is amended to read as
3 follows:
4 1. No person shall be capable of holding a civil office who shall not,
5 at the time he OR SHE shall be chosen thereto, have attained the age of
6 eighteen years, except that in the case of youth boards, youth commis-
7 sions or recreation commissions only, members of such boards or commis-
8 sions may be under the age of eighteen years, but must have attained the
9 age of sixteen years on or before appointment to such youth board, youth
10 commission or recreation commission, be a citizen of the United States,
11 a resident of the state, and if it be a local office, BE a resident of
12 the political subdivision or municipal corporation of the state for
13 which he OR SHE shall be chosen, or within which the electors electing
14 him OR HER reside, or within which his OR HER official functions are
15 required to be exercised AT THE TIME HE OR SHE SHALL BE OFFICIALLY
16 DESIGNATED OR NOMINATED, or who shall have been or shall be convicted of
17 a violation of the selective draft act of the United States, enacted May
18 eighteenth, nineteen hundred seventeen, or the acts amendatory or
19 supplemental thereto, or of the federal selective training and service
20 act of nineteen hundred forty or the acts amendatory thereof or supple-
21 mental thereto.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00412-01-3
A. 85 2
1 S 2. The election law is amended by adding a new section 6-170 to read
2 as follows:
3 S 6-170. DESIGNATING OR NOMINATING PETITION; RESIDENCE. A DESIGNATING
4 OR NOMINATING PETITION, OR CERTIFICATE OF DESIGNATION, AS PROVIDED IN
5 SECTIONS 6-132 AND 6-140 OF THIS TITLE, NAMING A PERSON AS CANDIDATE FOR
6 A LOCAL OFFICE WHICH REQUIRES THE OFFICE HOLDER TO BE A RESIDENT OF THE
7 SUBDIVISION, AND WHICH CONTAINS THEREIN A RESIDENCE ADDRESS FOR THE
8 CANDIDATE THAT IS NOT WITHIN THE SUBDIVISION IN WHICH THE CANDIDATE
9 SEEKS NOMINATION OR ELECTION, SHALL BE INVALID UNLESS SUCH CANDIDATE
10 SHALL FILE, AT THE SAME TIME AS THE FILING OF THE PETITION OR CERTIF-
11 ICATE OF NOMINATION OR DESIGNATION, A CERTIFICATE DULY ACKNOWLEDGED BY
12 THE CANDIDATE WHICH SETS FORTH A RESIDENCE WITHIN THE SUBDIVISION WHERE
13 THE CANDIDATE RESIDES AS OF THE DATE OF SUCH FILINGS.
14 S 3. The election law is amended by adding a new section 6-214 to read
15 as follows:
16 S 6-214. DESIGNATING OR NOMINATING PETITION; RESIDENCE. A DESIGNATING
17 OR NOMINATING PETITION, OR CERTIFICATE OF DESIGNATION, AS PROVIDED IN
18 SECTIONS 6-204 AND 6-206 OF THIS TITLE, NAMING A PERSON AS CANDIDATE FOR
19 A VILLAGE OFFICE WHICH REQUIRES THE OFFICE HOLDER TO BE A RESIDENT OF
20 THE VILLAGE, AND WHICH CONTAINS THEREIN A RESIDENCE ADDRESS FOR THE
21 CANDIDATE THAT IS NOT WITHIN THE VILLAGE IN WHICH THE CANDIDATE SEEKS
22 NOMINATION OR ELECTION, SHALL BE INVALID UNLESS SUCH CANDIDATE SHALL
23 FILE, AT THE SAME TIME AS THE FILING OF THE PETITION OR CERTIFICATE OF
24 NOMINATION OR DESIGNATION, A CERTIFICATE DULY ACKNOWLEDGED BY THE CANDI-
25 DATE WHICH SETS FORTH A RESIDENCE WITHIN THE VILLAGE WHERE THE CANDIDATE
26 RESIDES AS OF THE DATE OF SUCH FILINGS.
27 S 4. This act shall take effect on the first of January next succeed-
28 ing the date on which it shall have become a law.
