2005-03-11 Letter to Constance Kiriu from Lincoln Ashida re Appointing Authority of the County Clerk

Home

(MW) Honorable Constance Kiriu March 11, 2005 Page 4 In the case of the Corporation Counsel, the Charter makes clear that removal may only occur with the consent of both the Mayor and the Council. The Corporation Counsel is the only executive branch appointee who requires Council approval for his removal, and this requirement is specifically provided for in the Charter. Council Approval is Not Necessary for the Removal of the Deputy County Clerk and Legislative Auditor It is our considered opinion that as the appointing authority, the County Clerk may remove both the Deputy County Clerk and Legislative Auditor without Council approval or consent. The Charter contains provisions for various County officers, wherein the method of removal specifically provides for Council or other board approval. Examples of this are the removal provision for the Corporation Counsel by the Council, and the removal provision of the deputy chief of police by the Police Commission.3 Had Council approval been required for the removal of the Deputy County Clerk and the Legislative Auditor, the Charter would have said so. The aforementioned position is supported by the authority found in Rine v. City of Sherrill, 152 Misc.2d 19, 574 N.Y.S.2d 641 (1991). In that case, a police officer in New York sought declaratory relief, alleging that he was improperly removed by the city manager. The police officer claimed that since the city's charter gave the police commission the authority to appoint him, he could only be removed by that commission. The charter was silent on any removal provision. In finding for the city and against the police officer, the Supreme Court of Oneida County, New York, found it was proper for the city manager to remove the police officer. The Court stated as follows: The Court concurs in the City's position. While the Charter could have expressly provided in Section 191 that the Commission also have the authority to remove policemen, that Section was silent as to removal authority. The removal authority is granted in Section 41(2) to the City Manager "except as herein provided"; there are no contrary exceptions provided in the Charter. A Court may not read into a statute (here a Charter) words not used by the legislature which would defeat the purpose of the statute. In determining the legislative intent in the construction of a statute, such intent is to be ascertained from the words and language used, and the statutory language should be construed according to the 3 Section 7-2.3 of the Charter provides in pertinent part that"The deputy(police chief)shall be appointed by the chief of police with the confirmation of the police commission and may be removed by the chief of police with the approval of the commission,without cause being stated."