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

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Honorable Constance Kiriu March 11, 2005 Page 5 natural and most obvious sense, without resorting to an artificial or forced construction, and each word must be given its appropriate meaning and sense must be brought out of the words used. 574 N.Y.S.2d at 642-643 (Citations omitted throughout; emphasis supplied). Critics of our position will no doubt argue that since Charter Section 3-6 provides that Council approval for the appointment of the Deputy County Clerk and Legislative Auditor is required, the same Council approval is necessary for their removal. This argument is not supported by our laws. In fact, this argument is exactly the type of"artificial or forced construction" discussed by the Rine court, supra. Nowhere in our Charter Section 3-6 does it require Council approval for the removal of these two officers. Although the Council is the appointing authority of the County Clerk, they are not the appointing authority of the Deputy County Clerk and Legislative Auditor. This authority is clearly and unambiguously vested with the County Clerk. When the term or tenure of a public officer is not fixed by law, and the removal is not governed by a constitutional or statutory provision, as a rule, the power of removal is incident to the power to appoint. 63 Am.Jr.2d Section 171; accord Richman v. Staley, 48 F.3d 1139 (1995) (Generally, power of removal is implicit in the power of appointment unless the appointment carries with it a definite term of office or constitutional or statutory provision limits the removal power). There exists a "check and balance" in our present law which provides a remedy for the Council, in the event they are not satisfied with the decision made by the County Clerk in the removal of either the Deputy County Clerk or Legislative Auditor (or for any other reason justifying the termination of an at-will employee). Since the appointing authority of the County Clerk is the Council, the County Clerk may be removed by action of the Council.