The opinion
Jerome A. Mirabito, Esq. Corporation Counsel, Fulton
You have asked whether residency is required to qualify for appointment as a trustee of the City of Fulton Public Library.
You have transmitted a copy of the charter, dated November 29, 1895, incorporating the Fulton Public Library. Under section 260 (2) of the Education Law, the trustees of the city public library are appointed by the mayor subject to confirmation by the common council. The board of trustees of a public library are responsible for the management and control of the library (Education Law, § 255 ).
In a previous opinion of this office (Op Atty Gen No. 83-F4), we defined the characteristics of a public office as compared to a position of employment:
"The distinction between a public office and public employment is not always clear (Matter of Dawson v Knox, 231 App. Div. 490 , 492 [3rd Dept, 1931]). The duties of a public official involve some exercise of sovereign power, while those of a public employee do not (ibid.; Matter of Haller v Carlson, 42 A.D.2d 829
[4th Dept, 1973]). The statutory designation of a position as an `office' is some indication that the legislative body intended to treat its occupant as a public officer (cf. Matter of MacDonald v Ordway, 219 N.Y. 328 , 332 [1916]; Matter of Haller v Carlson, supra, p 830). Other indicia of a public office are the requirement to take an oath of office or file bonds; appointment for a definite term, and receipt of a commission of office or official seal ( Macrum v Hawkins, 261 N.Y. 193 , 200-201 [1933])."
It seem clear that the trustees of a public library exercise sovereign powers in the management and control of the library system. It follows that the trustees are public officials. Under the provisions of the Public Officers Law, to qualify for appointment to a city office, a person must be a resident of the city (Public Officers Law, § 3 [1]). The officer must remain a resident during his tenure in office ( id.,
§ 30).
We conclude that residency in the city is required to qualify for appointment to a city public library.