Who Fills the Clerk Vacancy?
by Geoff Kelly - posted 11:45 am, June 23, 2011
Since Kathy Hochul won her Congressional seat last month, there’s been a lot of loose talk about the governor choosing an interim Erie County Clerk until the November election, when the voters will fill the vacancy. But it turns out that the Erie County Code bestows that power on the Erie County Legislature, not the governor:
Section 2706. Filling vacancy in elective office of county clerk, district attorney or sheriff. A vacancy, otherwise than by expiration of term or removal by the governor, in the elective office of county clerk, district attorney or sheriff shall be filled by appointment, by the county legislature, of a qualified elector of the county having the same political affiliation as the person last elected to such office. A vacancy occurring in such office as the result of removal of the incumbent by the governor shall be filled by appointment, by the governor, of a qualified elector of the county having the same political affiliation as the person last elected to such office. The person appointed by either the county legislature or the governor shall hold office by virtue of such appointment until the commencement of the political year next succeeding the first annual election after the happening of the vacancy, at which election a county clerk, district attorney or sheriff, as the case may be, shall be elected for the balance of the term, if any.
I, too, was under the impression that the governor made the choice, but the language is pretty clear. This is significant because the recent peace agreement negotiated between three factions of the local Democratic Party hangs on Erie County Legislator Maria Whyte moving into the clerkship. She’s looking at a primary against her fellow legislator, Tom Mazur of Cheektowaga, who feels that Democratic leaders outside the city were ignored in the peace deal. If Mazur really wants the screw up the works, perhaps he’ll try to follow the lead of rogue Democrat Barbara Miller-Williams and make a deal with Miller-Williams and the six Republicans on the legislature: I’ll vote for any redistricting plan you prefer, and you’ll name me interim clerk.
Of course, Miller-Williams’ faction, Grassroots, is party to the Democratic peace deal, so she may not be willing to abandon Whyte for Mazur, even though she’s isolated from the rest of the Democrats her caucus. Too, the Republicans might be pleased to name Whyte interim clerk. That would remove her critical voice from the legislature, and, if Mazur continues his challenge, it would precipitate a Democratic primary in September, sowing chaos and resentment in the Democratic Party. Perfect for Erie County Executive Chris Collins, and perfect for the Republican candidate for clerk, who most say will be Chris Jacobs.
UPDATE: Okay, here’s the contradicting state law:
7. Filling of vacancies. Except as hereinafter provided, a vacancy in an elective county office, shall be filled by the governor by appointment and for the office of sheriff with the advice and consent of the senate if in session. When a vacancy shall occur, otherwise than by expiration of term in the office of county judge, surrogate, or judge of the family court, it shall be filled for a full term at the next general election held not less than three months after such vacancy occurs and, until the vacancy shall be so filled, the governor by and with the advice and consent of the senate, if the senate shall be in session, or, if the senate not be in session, the governor may fill such vacancy by an appointment which shall continue until and including the last day of December next after the election at which the vacancy shall be filled. A vacancy in the office of coroner shall be filled by the board of supervisors. Such officer shall hold office until and including the thirty-first day of December succeeding the first annual election at which the vacancy can be filled by election. A person appointed to fill a vacancy in an office named in the constitution shall receive the same compensation that was fixed for the office for the most recent elective term. The board of supervisors shall fill any vacancy in an appointive county office for the unexpired term as prescribed by law.
Any lawyers want to tell me which law obtains?