Sandra L. Berman, Esq. Town Attorney, Smithtown

You have asked whether an elective officer of your town has vacated his office by failing to file the required undertaking for the office within the time required by law.

You have related facts and produced documentation to enable a determination as to whether the officer failed to file his undertaking within the time required by law. As a general policy and as a practical matter, this office is unable to make determinations of fact in our opinion rendering process. Thus, determining whether a timely undertaking was filed must be left to local officials. We will, however, examine the impact under State law of failing to file timely the undertaking required by law.

Section 30(1)(h) of the Public Officers Law provides that an office becomes vacant upon the officer's refusal or neglect to file a required undertaking before or within 30 days after the commencement of the term of the elective office for which he is chosen. Failure to file the undertaking within the time specified in section 30 of the Public Officers Law creates a vacancy in the office by operation of law (Mtr. of Oakley v Longobardi, 51 Misc.2d 424 [Sup Ct, Putnam Co, 1966]). No judicial proceeding or declaration by the local governing body is necessary to bring about this result and the office may be filled in accordance with subdivision 5 of section 64 of the Town Law (ibid.).

We conclude that refusal or neglect to file a required undertaking within the time required by law automatically creates a vacancy in the office.