James C. Tomasi, Esq. Town Attorney, Salem

Your April 25, 1986 letter addressed to the State Comptroller has been referred to this office for response. The Comptroller's Office has answered one of your questions and we will respond to the remaining two questions.

You have indicated that a vacancy has occurred in the office of town clerk caused by the death of the incumbent. The deceased incumbent was elected in November, 1985 for a four-year term expiring on December 31, 1989. The person serving as town collector of taxes also serves as deputy town clerk. Your first question is whether upon the death of the town clerk the deputy may serve out the balance of the calendar year.

The town clerk is authorized to appoint not more than three deputies (Town Law, § 30[10]). The deputy serves as town clerk during the absence or incapacity of the town clerk at the pleasure of the town board (ibid.). The death of the town clerk created a vacancy in that office (Public Officers Law, § 30[1][a]). Section 30(10) of the Town Law does not authorize the deputy town clerk to assume the office of town clerk in the event of a vacancy. The deputy's authority to act for the clerk is limited to instances when the clerk is absent or incapacitated.

The town board is authorized to make appointments to fill vacancies in town offices (Town Law, § 64[5]). A person appointed to fill a vacancy in an elective office holds office until the commencement of the calendar year next succeeding the first annual election at which the vacancy may be filled (ibid.; NY Const, Art XIII, § 3; Public Officers Law, § 42[1]). At the next general election, the office would be filled for the balance of the term.

Thus, the town board is authorized to make an appointment to temporarily fill a vacancy in the office of town clerk. The appointee may serve only through December 31, 1986. An election must be held in November of 1986 to fill the vacancy for the balance of the term. The deputy town clerk may perform the duties of town clerk only until the vacancy can be filled by appointment of the town board. See our informal opinion No. 82-76 concerning the length of time the deputy may serve as town clerk.

You also have asked whether one individual may simultaneously hold the office of town clerk and town collector of taxes. In your town, these two offices are elective. The Town Law prohibits one person from holding more than one elective town office (id., § 20[4]).

We conclude that upon the death of the incumbent town clerk, the deputy may serve only until the vacancy can be filled through appointment by the town board. The appointee holds office until the end of the current year and an election must be held at the next general election to fill the office for the balance of the term. The Town Law prohibits one person from holding more than one elective office.