Walter E. Moxham, Jr., Esq. Assistant County Attorney, Niagara

You have asked whether a county highway commissioner can designate the deputy commissioner of highways to attend meetings of a regional planning board.

Section 239-b of the General Municipal Law defines the membership of a regional planning board. The county engineer, superintendent of highways, or district superintendent in each participating county "shall be a member ex-officio of any such regional or county planning board". This section makes no provision for the designation, by proxy, of a substitute to attend the meetings of the regional planning board in the absence of the commissioner of highways. (Compare sections 1282[4] and 1677 of the Public Authorities Law.)

Under section 9 of the Public Officers Law, unless otherwise prescribed by law, a deputy "possess[es] the powers and perform[s] the duties of his principal during the absence or inability to act of his principal, or during a vacancy in his principal's office". In our view, this language is insufficient to permit an officer generally to delegate to a deputy the responsibility to attend meetings of a regional planning board. A deputy would have this authority only during the absence or inability to act of his principal or when a vacancy occurs in the principal's office. While we have not found any cases or opinions on point, it appears that under section 9 it is necessary to judge each case to determine whether the principal is absent or unable to act to determine whether a deputy may attend a meeting of the regional planning board. (See 1901 Report of the Atty Gen 259 and 1914 Op Atty Gen 143.)

We conclude that a commissioner of highways may not generally delegate to his deputy the responsibility to attend meetings of a regional planning board.