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.
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: 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: 2009/10: S.5176/A.1058 2011/12: S.1320/A.5896
FISCAL IMPLICATIONS: 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.
STATE OF NEW YORK ________________________________________________________________________ 429 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sen. DILAN -- read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Govern- ment 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: Section 1. Subdivision 1 of section 3 of the public officers law, as amended by chapter 44 of the laws of 1982, is amended to read as follows: 1. No person shall be capable of holding a civil office who shall not, at the time he OR SHE shall be chosen thereto, have attained the age of eighteen years, except that in the case of youth boards, youth commis- sions or recreation commissions only, members of such boards or commis- sions may be under the age of eighteen years, but must have attained the age of sixteen years on or before appointment to such youth board, youth commission or recreation commission, be a citizen of the United States, a resident of the state, and if it be a local office, BE a resident of the political subdivision or municipal corporation of the state for which he OR SHE shall be chosen, or within which the electors electing him OR HER reside, or within which his OR HER official functions are required to be exercised AT THE TIME HE OR SHE SHALL BE OFFICIALLY DESIGNATED OR NOMINATED, or who shall have been or shall be convicted of a violation of the selective draft act of the United States, enacted May eighteenth, nineteen hundred seventeen, or the acts amendatory or supplemental thereto, or of the federal selective training and service act of nineteen hundred forty or the acts amendatory thereof or supple- mental thereto.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00412-01-3 S. 429 2
S 2. The election law is amended by adding a new section 6-170 to read as follows: S 6-170. DESIGNATING OR NOMINATING PETITION; RESIDENCE. A DESIGNATING OR NOMINATING PETITION, OR CERTIFICATE OF DESIGNATION, AS PROVIDED IN SECTIONS 6-132 AND 6-140 OF THIS TITLE, NAMING A PERSON AS CANDIDATE FOR A LOCAL OFFICE WHICH REQUIRES THE OFFICE HOLDER TO BE A RESIDENT OF THE SUBDIVISION, AND WHICH CONTAINS THEREIN A RESIDENCE ADDRESS FOR THE CANDIDATE THAT IS NOT WITHIN THE SUBDIVISION IN WHICH THE CANDIDATE SEEKS NOMINATION OR ELECTION, SHALL BE INVALID UNLESS SUCH CANDIDATE SHALL FILE, AT THE SAME TIME AS THE FILING OF THE PETITION OR CERTIF- ICATE OF NOMINATION OR DESIGNATION, A CERTIFICATE DULY ACKNOWLEDGED BY THE CANDIDATE WHICH SETS FORTH A RESIDENCE WITHIN THE SUBDIVISION WHERE THE CANDIDATE RESIDES AS OF THE DATE OF SUCH FILINGS. S 3. The election law is amended by adding a new section 6-214 to read as follows: S 6-214. DESIGNATING OR NOMINATING PETITION; RESIDENCE. A DESIGNATING OR NOMINATING PETITION, OR CERTIFICATE OF DESIGNATION, AS PROVIDED IN SECTIONS 6-204 AND 6-206 OF THIS TITLE, NAMING A PERSON AS CANDIDATE FOR A VILLAGE OFFICE WHICH REQUIRES THE OFFICE HOLDER TO BE A RESIDENT OF THE VILLAGE, AND WHICH CONTAINS THEREIN A RESIDENCE ADDRESS FOR THE CANDIDATE THAT IS NOT WITHIN THE VILLAGE IN WHICH THE CANDIDATE SEEKS NOMINATION OR ELECTION, SHALL BE INVALID UNLESS SUCH CANDIDATE SHALL FILE, AT THE SAME TIME AS THE FILING OF THE PETITION OR CERTIFICATE OF NOMINATION OR DESIGNATION, A CERTIFICATE DULY ACKNOWLEDGED BY THE CANDI- DATE WHICH SETS FORTH A RESIDENCE WITHIN THE VILLAGE WHERE THE CANDIDATE RESIDES AS OF THE DATE OF SUCH FILINGS. S 4. This act shall take effect on the first of January next succeed- ing the date on which it shall have become a law.